A.C.W. v. T.M.P., 2014 ONSC 6275

CITATION: A.C.W. v. T.M.P, 2014 ONSC 6275

DIVISIONAL COURT FILE NO.: DC-14-0543

DATE: 20141222

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MATLOW, MEW and MYERS JJ.

BETWEEN:

A.C.W

Appellant

– and –

T.M.P.

Respondent

Veena Pohani, for the Appellant

T.M.P. in person

HEARD: at Hamilton, 3 October 2014

AMENDED REASONS FOR JUDGMENT

MEW J.

[1] This appeal, pursuant to section 21.9.1 of the Courts of Justice Act R.S.O. 1990, c. C.43, arises out of a mother’s request to change the primary residence of her daughter, so that mother and daughter may move from Grimsby, Ontario, to Ajax, Ontario. The trial judge denied that request and ordered that the child’s primary residence should remain in Grimsby, but with her father. Prior to this order, the child had her primary residence in Grimsby with her mother.

Overview

[2] The child was born on 26 May 2006. At the time she was born, the mother (A.C.W.) and the father (T.M.P.) lived with the mother’s parents at their house in Grimsby. The following year the mother and father moved to a house that they had purchased together in Smithville. However, after a year the parents separated and mother and child moved to a rented apartment.

[3] Both parents have had a close and loving relationship with the child throughout her life. On 9 November 2009, Quinn J., with the consent of the mother and the father, ordered that the mother and the father would have joint custody of the child, with the primary residence at the home of the mother. The father was to have extensive access, including Tuesday and Thursday evenings each week, and alternating weekends. There were also provisions with respect to access on special occasions.

[4] By a notice of motion dated 7 January 2013, the mother applied to the court to change the order of Quinn J. to:

Permit her to move, with the child, to Ajax;
Stop the father’s mid-week access; and
Put in place a new residential schedule with the child residing with the mother from Monday to Friday during the school year, rotating weekends with each parent. Summer holidays would be split evenly between the parents, with the child residing with each parent one week at a time.

The mother made a request for an interim order permitting the child to move with her to Ajax pending the hearing of the motion to change. On 3 October 2013, that motion was dismissed, the motions judge noting that the matter was set for trial on 25 November 2013, at which time all issues would be canvassed and determined by the trial judge.

[5] The father opposed the mother’s motion.

[6] The trial was heard on 25 and 26 November 2013. In reasons for judgment dated 10 April 2014, the trial judge found that the proposed move to Ajax was not in the child’s best interests, but that the proposed “even split” arrangement for the summer holidays would be appropriate. He ordered that the child’s residence during the week should be in Grimsby with the father.

[7] Counsel for the mother submits that the trial judge made one or more palpable and overriding errors:

a. He made a number of factual errors which were sufficiently material to render his decision unsound; and

b. Although he correctly identified the criteria for assessing a mobility application by a custodial parent as set out in Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, he did not properly weigh the evidence that was before the court or correctly apply the law.

[8] The mother also advances as a ground of appeal that the trial judge should have adjourned the trial when it became apparent that the mother’s trial counsel (not her counsel on this appeal) was unprepared and had multiple conflicts in other courtrooms during the course of the trial.

Background

[9] From the time of her parents’ separation until the decision of the trial judge, the child had always, except for access weekends, lived with her mother (or, in the months immediately before the trial, her maternal grandparents) in Grimsby.

[10] The purchase of the house in which the mother and father lived from May 2007 until their separation in June 2008 had been facilitated by the mother’s parents who co-signed a loan to fund the down payment. Unfortunately, that loan remained outstanding after the relationship dissolved, and after the house was sold. It became the subject of ill feelings between the child’s maternal grandfather and the father.

[11] Since the time of their separation, the mother and father have both been involved in all major parenting decisions.

[12] The father is Catholic and the mother is Anglican. However, they agreed that the child would be baptised as a Catholic and, when she started school, she was enrolled at a local Catholic school.

[13] In 2010, the mother started a relationship with her current partner, I.H. He lives in Ajax and has joint custody of his two children from his first marriage. I.H.’s custody arrangements for his own children preclude him from moving away from the Ajax area.

[14] As the relationship between the mother and I.H. developed, the mother would take the child to Ajax on some weekends when she had the child.

[15] In December 2011, the mother and I.H. bought a property in Grimsby. The mother and the child lived in the property full time. I.H. and his children spent some weekends in Grimsby and others in Ajax. Although the new house was outside the school district for the child’s school, she did not change schools.

[16] In August 2013, the couple sold the Grimsby house. I.H. had recently set up a new business and cash flow pressures made it difficult for him to fund his share of the mortgage payments on the Grimsby house.

[17] At around the same time, the mother obtained a job in Scarborough. This new position was with an employer for whom the mother has worked, at locations closer to Grimsby, since before her separation from the father. The new position offered more hours of work, higher pay and better prospects.

[18] Until the determination of the motion for an order permitting a move by the child to Ajax, the child moved to her maternal grandparents’ home in Grimsby. If the mother was starting work at 9:00 a.m. in Scarborough, she would often come back to Grimsby the evening before, put the child to bed and then return to sleep overnight in Ajax. On days when she was not starting work until 10:00 in the morning, she would stay in Grimsby and get the child up and ready for school. The child would then be taken to school by her grandmother. On Thursdays, one of the father’s access evenings, the mother worked in Scarborough from 11:00 a.m. until 8:00 p.m. This was the routine which was in place at the time of the trial.

[19] During the course of giving evidence at trial, the mother said that if the court did not allow the child to move to Ajax, she would have to find other employment and remain in Grimsby.

[20] The relationship between the father and the child’s maternal grandparents (the grandfather in particular) has deteriorated over time. On 3 October 2013, the day that the mother’s motion for an interim order permitting the move was denied, this deterioration reached the point that the maternal grandfather yelled at the father during an access exchange. The grandfather acknowledges telling the father that he was no longer welcome on the grandparents’ property. There were different perspectives regarding the degree to which the child may have heard the yelling. However, the trial judge found that the child must have been aware of the discontent the grandfather expressed.

[21] Although the father continued to pick the child up and drop her off at the grandparents’ house after this incident, the relationship between the father and the maternal grandparents has been a strained one.

[22] The father also has a new partner, R.D. They have a son together, the child’s half-brother, born on 12 March 2013.

[23] The father has three siblings living in Grimsby, Stoney Creek and London respectively. His parents live in the Grimsby area as does his grandmother. All of them feature in the child’s life to varying degrees.

[24] The father had not ruled out the possibility that, at the time of the consent order, either he or the mother would move residence, but said:

“… I don’t think either one of us had planned on moving anywhere at all outside of Grimsby or at least within about a 30 kilometre range.”

[25] In written submissions made after the evidentiary stage of the trial, the father asked that, if the court decided that the child’s primary residence should remain in Grimsby, the court should change the access arrangement to rotating weekly access for each parent. More particularly, the father suggested that he have access for the week leading up to his usual weekend from Monday after school, until dropping her off the following Monday morning, and vice versa for the mother.

Applicable Legal Principles in “Mobility” Cases

[26] A court shall not make an order under that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child: Children’s Law Reform Act, R.S.O. 1990,c. C.12 (“CLRA”), s. 29.

[27] Section 24 of the CLRA requires issues of child custody or access to be determined in accordance with the best interests of the child, described by subsection (2) in the following terms:

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[28] The principles applicable to mobility cases are summarized by the Supreme Court of Canada in Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, [1996] S.C.J. No. 52 at para. 49:

The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.
This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.
Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
The focus is on the best interests of the child, not the interests and rights of the parents.
More particularly, the judge should consider, inter alia:

(a) The existing custody arrangement and relationship between the child and the custodial parent;

(b) The existing access arrangement and the relationship between the child and the access parent;

(d) The views of the child;

(e) The custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

(f) Disruption to the child of a change in custody;

(g) Disruption to the child consequent and on removal from family, schools, and the community he or she has come to know.

[29] The legislation applied in Gordon v. Goertz was the Divorce Act, R.S.C. 1985, c.3 (2nd Supp), ss. 17(5) and (9). Although the present case falls to be decided under s. 24 of the CLRA, Gordon v. Goertz is equally applicable in cases under corresponding provincial legislation: Bjornson v. Creighton (2002), 2002 45125 (ON CA), 62 O.R. (3d) 236, [2002] O.J. No. 4364; (ONCA) (“Bjornson v. Creighton”) at para. 32. Both provisions enshrine the guiding principle in cases of custody and access, which is the best interests of the child.

[30] The CLRA does not contain an equivalent of section 17(9) of the Divorce Act, which articulates the “maximum contact” principle (i.e. that the child should have as much contact with each parent as is consistent with the best interests of the child and should take into account the willingness of a parent assuming custody of a child to facilitate such contact with the other parent). However, the maximum contact principle has nevertheless been held to be applicable to the assessment of a child’s best interests under the CLRA: Bjornson v. Creighton, supra,at para 34.

[31] Although the views of a custodial parent must be considered (Rushinko v. Rushinko, 2002 42032 (ON CA), [2002] O.J. No. 2477, [2002] W.D.F.L. 323 (ONCA) at para. 5), where joint custody exists, the parent with whom the child resides should not be treated as the de facto sole custodial parent (Young v. Young, 2003 3320 (ON CA), [2003] O.J. No. 67, 168 O.A.C. 186, (ONCA) at para. 23). To treat one parent as a sole custodial parent would be contrary to the essence of joint custody, which is shared decision making.

Standard of Appellate Review

[32] Custody and access cases inevitably involve the exercise of judicial discretion. The decisions of trial judges, who have seen and heard all of the evidence, are entitled to great deference. Only in exceptional cases should appellate courts intervene.

[33] L’Heureux-Dubé J. in Gordon, concurring with the majority in the result, but for different reasons, stated (at para. 90 of her reasons, citation removed):

… [T]his Court has always made clear that caution should be exercised by appellate courts before interfering with the exercise of discretion by a trial judge in custody matters, the applicable standard being that decisions should not be interfered with unless there is a gross distortion of the evidence or misapprehension of the relevant legal principles. Furthermore, in light of the considerable expertise trial judges develop in the area of family law and the restricted time allotted to write long and detailed reasons in all cases, brief reasons will often be sufficient, particularly in cases which do not present any exceptional feature.

[34] More recently, in Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, Bastarache J. for the Supreme Court stated, at para. 13:

First, finality is not merely a social interest; rather, it is particularly important for the parties and children involved in custodial disputes. A child should not be unsure of his or her home for four years, as in this case. Finality is a significant consideration in child custody cases, maybe more so than in support cases, and reinforces deference to the trial judge’s decision. Second, an appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in the appreciation of the facts. Custody and access decisions are inherently exercises in discretion. Case-by-case consideration of the unique circumstances of each child is the hallmark of the process. This discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child.

[35] As to what constitutes a “material error”, Bastarache J. offers this guidance (at para 15):

If there is an indication that the trial judge did not consider relevant factors or evidence, this might indicate that he did not properly weigh all of the factors. In such a case, an appellate court may review the evidence proffered at trial to determine if the trial judge ignored or misdirected himself with respect to relevant evidence. This being said, I repeat that omissions in the reasons will not necessarily mean that the appellate court has jurisdiction to review the evidence heard at trial. As stated in Van Mol (Guardian ad Litem of) v. Ashmore 1999 BCCA 6, (1999), 168 D.L.R. (4th) 637 (B.C.C.A.), leave to appeal refused [2000] 1 S.C.R. vi, an omission is only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion. Without this reasoned belief, the appellate court cannot reconsider the evidence.

Trial Judge’s Findings and Decision

[36] At paragraph 43 of his reasons, the trial judge said:

The paternal aunt also testified, and I was impressed by her sincerity and her willingness to assist with [the child] now that she is living back in the Grimsby area.

[37] In fact, the paternal aunt did not testify at trial. The judge erred in stating that she had.

[38] The trial judge wrongly identified the gender of child’s new half sibling (referring on three occasions to the child’s new sister – in fact a brother).

[39] The trial judge incorrectly identified one of the child's best friends.

[40] The trial judge formed an unfavourable view of I.H. It was his opinion that I.H.’s desire to stay in Ajax was selfish:

I was not impressed with the testimony of [I.H.]. In my view his dedication was to his own circumstances and he put his own interests first.

[41] The reasons of the trial judge do not disclose whether, in forming his views about I.H., he took into account that I.H. was constrained from moving away from Ajax because of the terms of the custody arrangements for his own children. Nor was there any mention of I.H.’s evidence that he had sold the Grimsby house to facilitate cash flow for his newly established business.

[42] The trial judge incorrectly recited the terms of Quinn J’s order concerning mid-week access by saying that the original access arrangements approved by Quinn J. had been varied by agreement when in fact they had not.

[43] Noting that the child had spent "much of her seven years under the care of her maternal grandmother", the trial judge expressed concern that the relationship between the father and the maternal grandparents had become increasingly strained. The maternal grandmother had stated that she never thought to ask the child to call her father when she was with her. She also acknowledged that her relationship with the father was "not the greatest. I'm civil, I don't argue with him but…"

[44] The judge found that:

... this obvious tension is not in the best interests of [the child], and complicates the potential continued involvement of the maternal grandparents as consistent care givers. I do not feel that the maternal grandparents will actively support maximum contact between [the child] and her father.

[45] The judge was critical too of the mother’s proposal that the child would go to a public school if she moved to Ajax. The mother reasoned that because I.H.’s children already attended that school, it would make the transition easier. The judge felt that not considering possible enrollment for the child in the Ajax Catholic system demonstrated a lack of insight into the needs of the child.

[46] In the judge’s view, another example of the mother's failure to consider the child's best interests was the mother’s assertion that if the court decided to allow the child to live primarily with her in Ajax, but the existing mid-week access was to continue, she would ensure that the child was driven to and from Ajax twice per week for such access. This raised the possibility of placing the child in the position of being driven for four to six hours two nights per week, a prospect which the trial judge felt would completely disregard the child.

[47] It was the mother’s evidence that the child is “very close” to the father’s partner, R.D., and that they both love each other. R.D. did not, however, testify at trial.

[48] Ultimately, while there was no finding that the mother’s move to Ajax was motivated by a desire to limit access to the father, the trial judge formed the view that she had made choices that placed her own interests above those of her daughter. He concluded (at paragraph 28 of his reasons) that “[ACW] has chosen to primarily live and work in Ajax”.

Appellant’s Submissions

[49] Counsel for the mother submits that the trial judge’s factual errors, both individually and cumulatively, undermine confidence in his decision.

[50] Numerous examples are cited by counsel for the mother of the trial judge ignoring or misapprehending the evidence or giving certain evidence unwarranted weight.

a. He placed “an inordinate emphasis on an isolated incident” (the driveway altercation on 3 October 2013).

b. He placed undue emphasis on the tension between the father and the maternal grandfather as a result of the unpaid loan but made no reference to the maternal grandmother’s evidence that she would not allow the strained relationship between her husband and the child’s father to interfere with the father’s access. There was in any event no evidence that the father’s access had been impeded by the maternal grandparents.

c. In concluding that the maternal grandparents would not promote the principle of maximum contact between the father (and his extended family) and the child, the trial judge failed to consider whether the father would promote maximum access to the maternal grandparents (an important consideration given the decision that the child should remain in Grimsby and reside with the father).

d. He treated the tension between the maternal grandparents and the father as if it was something new when, in fact, it was an historical issue. Furthermore, placing the child with the father in Grimsby rather than the mother in Ajax would not resolve the issue of tension between the maternal grandparents and the father – a matter that could have been more appropriately resolved by a non-denigration or civility order.

e. While the trial judge determined that the maternal grandparents would not promote the principle of maximum contact between the father and the child, his reasons do not disclose any consideration of whether the father would promote contact between the child and her maternal grandparents.

f. Although the judge accepted the mother’s evidence that the child had a loving relationship with R.D., he seemingly ignored the mother’s evidence that the child also has a loving relationship with I.H. Nor did he make reference to the evidence that the child has a close relationship with I.H.’s children. There was no reason on the evidence to prefer the relationship between the child and R.D. or I.H. or between the child and her half-brother or I.H.’s children.

g. The evidence at trial was that the father had only recently resumed his Catholic faith. The child had attended a few Sunday school sessions. There was no evidence that the Catholic religion was an important part of her life. Any concerns about the mother’s choice of school for the child could easily have been resolved by ordering that the child attend a Catholic school in Ajax.

h. The trial judge’s reasons gave little or no weight to the fact that the child had been principally resident with the mother since the parents separated and that trips to Ajax have been an integral part of her life since 2009.

i. The trial judge had no evidence about the child’s views in circumstances where there was no custody or access assessment.

j. It should have been apparent to the trial judge that the mother’s lawyer had multiple scheduling conflicts and was not fully focused on his representation of the mother.

Respondent’s Submissions

[51] The father acknowledged that the trial judge “made a few mistakes”. He submits, however, that they were not material. He points out that even though his sister (the paternal aunt referred to by the trial judge) had not given evidence, there was testimony about her involvement with the child.

Analysis

Material Change in Circumstances

[52] The threshold question of whether there has been a material change in circumstances affecting the child involves more than just a consideration of the distance involved in the proposed move. A material change of circumstances will be one that was either not foreseen or could not reasonably have been contemplated by the judge who made the original order (in this case, Quinn J.): Young v Young, supra, at para 16.

[53] Relocation to pursue an employment opportunity or to cohabit with a new partner is a typical material change in circumstances that is well recognised by the courts. In the present case, the mother’s evidence suggested moving to Ajax would fulfill the dual objectives of enabling her to better provide for the child (because of a better job and the ability to share living expenses with I.H.) and live with I.H.

[54] I do not accept the submission advanced on appeal that the mother did not need permission to move out of the Grimsby region with the child. Her move to Ajax was a material change which profoundly affected the child.

[55] Furthermore, although the order of Quinn J. placed no conditions on the mother’s place of residence, as joint custodial parents, a change of place of residence would have required a joint decision by the parents: Templeman v. Templeman, [1990] O.J. No. 1776, (1990), 1990 12246 (ON SC), 29 R.F.L. (3d) 71 (Ont. Dist. Ct.). A move from Grimsby to Ajax, a distance of approximately 130km, is sufficient to engage shared decision making of joint custodial parents. In the absence of such consent, such a move amounts to a material change.

Material Error

[56] Errors which do not give rise to a reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his or her conclusion will not be “material”: Van Mol, supra.

[57] In the present case, of the errors made by the trial judge, the most serious was his reliance on a witness who never testified. The other errors were more of form than substance and would not, individually, be regarded as material.

[58] The judge clearly took a negative view of the mother, I.H. and the maternal grandparents. Evidence that might be expected to improve this view was not referenced.

[59] It is appropriate to bear in mind L’Heureux-Dubé J.’s admonition in Gordon that a lack of comprehensive reasons in all cases should not be a basis for appellate interference. The trial judge recited the Gordon criteria. While his analysis in applying the criteria to the evidence was not comprehensive, lack of comprehensiveness alone should not form the basis for appellate intervention.

[60] I also reject many of the grounds of appeal that are based on the trial judge’s alleged legal errors. For the reasons already averted to, the judge was not in error to consider the maximum contact principle. Nor should he have treated the mother as the de facto sole custodial parent, as counsel for the mother argued.

[61] As for the assertion that the judge should have ascertained the child’s wishes, it appears that at trial the mother particularly wanted to spare the child what might well have been a bewildering or upsetting experience.

[62] The conclusion reached by the judge was that the child’s primary residence should be changed to the father. This was not an outcome sought by the father, and in deciding that course, the judge made no reference to the mother’s evidence that she would move back to Grimsby if the child was not allowed to move to Ajax. On its face, that was a serious omission.

[63] In Berry v. Berry, 2011 ONCA 705, [2011] O.J. No. 5006, a case in which both parents were custodial parents (but with no formal order granting joint custody) the mother moved from Toronto to Kingston and sought a mobility order from the court to move the child’s primary residence. The trial judge found that it was in the child’s best interests to reside primarily with the mother in Kingston. In allowing the father’s appeal, Juriansz J.A. for the Court of Appeal, noted that the trial judge’s finding that the mother had moved permanently to Kingston was an error in fact because the mother had testified that if the court refused her application she would live in Toronto.

[64] The trial judge’s reasons appear to have been predicated on his impression that the mother had moved permanently to Ajax. There is good reason to believe that this would have coloured his assessment of what living arrangement would be in the child’s best interests. Accordingly, the trial judge did not canvass the option of declining the mother’s request to move the child to Ajax but directing that the child could continue to live with the mother in Grimsby.

[65] The trial judge’s decision and his reasons should be considered in the whole. In my view, the judge’s reliance on a witness who did not testify would be sufficient to be a material error. The apparent failure to take account of the mother’s evidence that she would move back to Grimsby if the child was not allowed to move to Ajax was also a material error.

[66] Even if I am wrong that these errors individually justify appellate interference, the cumulative effect of the errors made by the trial judge, together with a lopsided weighing of the evidence (at least as it appears on the surface), leading to a conclusion that the father did not request, surely undermines confidence that the judge considered all of the evidence.

[67] If, as I find to be the case here, there are reasonable grounds to believe the judge ignored, misapprehended or misdirected himself with respect to relevant evidence, it follows that there cannot be confidence that the trial judge properly weighed all of the factors necessary to render a just decision. It would therefore be contrary to the interests of justice to allow the trial judge’s decision to stand.

[68] Since this appeal was argued, the Court of Appeal released its decision in Jones v. Jones, 2014 ONCA 822, which deals with analogous issues. This matter commenced before the Ontario Court of Justice. On appeal the Superior Court judge ordered that the children of the marriage were to move from Lindsay, where they had been living with the mother, to Waterloo, where the father resided. The order also provided that their primary residence was to change from that of the mother to that of the father unless the mother relocated her residence from Lindsay to Waterloo. The Court of Appeal, allowing the mother’s appeal, stated (at paragraph 9):

The difficulty with the decision of the court below, however, is the determination that the best interests of the children would be served by changing their primary residence from that of the appellant to that of the respondent in the event that the appellant did not voluntarily relocate to Waterloo. The reasons in both the Superior Court and the Ontario Court of Justice contain little discussion of why this would be in the best interests of the children. For example, they contain no analysis of the impact on the children of changing their primary residence.

[69] In the present case, the trial judge has provided no analysis of why a change of primary residence from the mother to the father would be warranted if the mother moved back to Grimsby, as she testified she would. The Court of Appeal’s approach in Jones therefore reinforces my view that the decision of the trial judge should not stand.

[70] This is, accordingly, one of the very rare cases of a custody or access matter where appellate intervention.

The Appellant’s Legal Representation at Trial

[71] I am not persuaded that there is merit to the grounds of appeal relating to inadequate representation by the mother’s lawyer at trial. While the mother may well have cause for feeling that she did not have optimal service or representation, there was no basis for the court, of its own motion, to intervene or to adjourn the trial.

Disposition

[72] The appeal is allowed.

[73] In Bjornson v. Creighton, supra, Austin J.A. stated (at para. 46):

In the best of all worlds, the appropriate disposition of this appeal would be to send it back to be retried and to retry, in particular, the question of the child's best interest. But that is impractical. Neither parent has unlimited resources and the child's biological clock moves inexorably on. His childhood should not be spent in court or in a state of doubt. In any event, neither counsel invited us to send the matter back for rehearing. In Gordon, the Supreme Court of Canada chose to proceed notwithstanding an incomplete record below. Our obligation is to do the best that we can.

[74] By contrast, in Young v. Young, supra, the Court of Appeal concluded that the trial judge had failed to take into account many important considerations bearing on the ultimate question of whether it was in the children’s best interests to move from Ottawa to Cornwall with their mother. The Court declined to dismiss the mother’s application outright but, instead, ordered a new hearing. The Court did so because assessing whether the move was in the children’s best interests required factual findings that had not been made. Similarly, in Jones v. Jones, supra, the Court of Appeal directed that a determination of whether it was in the best interests of the children to order a change in their primary residence from living with the mother to the father must be based on a proper and up to date evidentiary record.

[75] During the argument of the appeal we were advised that the child now has primary residence with the father, pending the outcome of this appeal. A new school year is well underway. The record upon which we might substitute our view for that of the trial judge is less than ideal.

[76] It would be better if the parents, who have acted collaboratively in the past, could reach agreement on what would be in the child’s best interests, subject to the approval of the court. Failing that, the mother’s motion should be remitted to a judge of the Superior Court for a new hearing.

[77] In the meantime it would be wrong to disrupt the child’s residence. This comment should not be taken as indicative of how we think the issue of residence should ultimately be resolved. It simply recognises that the status quo, as it presently exists, should be maintained in the absence of compelling reasons to do otherwise. The principle that “the usual rule maintaining the status quo pending trial should be adhered to, in the best interests of the child” (see Deblois v. Lavigne, 2012 ONSC 3949, [2012] W.D.F.L. 4009 at para 13) is no less applicable in a primary residence case than it is in a custody matter. As Murray J. stated in Copeland v. Perreault, 2007 ONCJ 217, [2007] O.J. No. 1889 (ONCJ) at para. 49:

Generally, it is not in a child's best interests to be subjected to a change in her residential arrangements if the possibility of yet another change is right around the corner because of an impending trial.

[78] Accordingly it is ordered that, on an interim basis pending further order of the Superior Court as directed in paragraph 76 of these reasons, the child’s residence during the week should be in Grimsby with the father. As part of the interim arrangement, the mother should have weekday access according with the weekday access originally granted to the father by Quinn J.’s order, provided that this access takes place in Grimsby. In all other respects the order of Quinn J. should remain in force until the Superior Court orders otherwise.

[79] If the parties cannot agree on the costs of the appeal, the parties may file a costs summary and written submissions of not more than three pages in length by 31 December 2014 (appellant) and 12 January 2015 (respondent) respectively.

Mew J.

Matlow J.

Myers J.

Released: December 22, 2014

CORRECTION NOTICE

Corrected decision: the text of the original judgment was corrected on December 23, 2014, and the description of the correction is appended:

On paragraph 40 a sentence was added at the end of the paragraph as follows: