Bilopavlovic v. Bilopavlovic, 2008 ONCA 380

CITATION: Bilopavlovic v. Bilopavlovic, 2008 ONCA 380

DATE: 20080513

DOCKET: C46986

COURT OF APPEAL FOR ONTARIO

DOHERTY, ROULEAU and WATT JJ.A.

BETWEEN:

EDWARD BILOPAVLOVIC

Applicant (Respondent in Appeal)

and

AMANDA BILOPAVLOVIC

Respondent (Appellant)

Jerry J. Chaimovitz for the appellant

Mitchell B. Rosenblatt for the respondent

Heard & released orally: May 7, 2008

On appeal from the order of Justice G. E. Taylor of the Superior Court of Justice dated March 21, 2007.

ENDORSEMENT

[1] The appellant mother appeals the application judge’s order granting the parties joint custody of their six year old daughter and denying the appellant’s request to relocate to Australia with the child.

[2] The appellant was born and raised in Australia but moved here in 1997. She married the respondent in 1998. Their daughter, Amelia, was born in August 2001. The parties separated in March 2003.

[3] The appellant argues that a joint custody order is inappropriate where the parents are unable to communicate effectively. Further, the appellant submits that the application judge misapprehended the evidence. Contrary to the application judge’s finding, there had not been de facto joint custody. The mother was not only the primary care giver but, according to the appellant, also had sole custody of the child with reasonable access being provided to the father. Awarding custody to the appellant, it is submitted, is in the best interests of the child. We reject this submission.

[4] The application judge considered all of the evidence and found that, following mediation, the parents had agreed to and were working within a shared parenting arrangement for the child. Further, the application judge concluded that “the evidence that I accept satisfies me that these parents discuss issues relating to Amelia and are able to come to a reasonable agreement with respect to those issues”, and “the custody arrangement as it exists at the present time is one of joint custody and shared parenting”. In fact, the appellant’s own evidence was that she was able to communicate with the respondent on the needs and upbringing of the child.

[5] It is apparent that the respondent has been and continues to be involved in the life of their child. In our view, the application judge’s findings are fully supported by the evidence and are dispositive of this issue.

[6] With respect to the appellant’s request to move the child to Australia, the appellant argues that the application judge erred in failing to appreciate that the child’s best interests are served by allowing the child to move to Australia with the parent who has primary care in spite of its effect on the access by the other parent.

[7] In our view, the application judge committed no error. As noted earlier, the application judge found that the parties had agreed to a shared parenting arrangement. Part of that arrangement was that the child would have primary residence with the appellant, but also that neither parent would change residence without agreement of the other parent.

[8] The application judge also found that the child was thriving in her present environment and that a move to Australia could only serve to disrupt her life. Although the application judge agreed with the appellant’s submission that the appellant would be happier in Australia as she would be closer to her family, he found that the appellant had not established that the move to Australia would provide the appellant with substantially different employment opportunities or otherwise improve the appellant’s situation.

[9] More importantly, the application judge found that there would be no real benefit to the child as a result of such a move. On the contrary, a move to Australia would disrupt the beneficial relationship that currently exists between the child and the respondent, as well as between the child and the respondent’s family. These are findings of fact well supported by the record and are entitled to deference in this court. We see no basis to interfere.

[10] One additional point requires comment. The appellant has suggested that a comment made by the application judge in an exchange with counsel at the outset of the proceedings indicated that the application judge had prejudged the case. We have reviewed that exchange and, in our view, it simply makes the obvious point that custody and residence of the child are closely related.

[11] For these reasons, the appeal is dismissed.

[12] With respect to costs, the appellant’s financial situation is uncertain as the issue of support is still outstanding. The appellant has limited financial resources. Although the respondent is entitled to costs, these should be modest, and should not be payable until the issue of support is finally resolved. For these reasons, we award the respondent costs fixed at $5,000 inclusive of GST and disbursements. The costs are not to be payable until the support issue is finally resolved.

“D. Doherty J.A.”

“Paul Rouleau J.A.”

“David Watt J.A.”