CITATION: Watt v. Howe, 2017 ONSC 5556
COURT FILE NO.: 16-2258
DATE: 20170920
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
M.G.J. Quigley, Matheson and Raikes JJ.
B E T W E E N:
CLORIES SHANTELLE WATT
Appellant
- and -
GRAHAM COURTNEY HOWE
Respondent
Balsam Bashi, for the Appellant
Carolyn Shelley, for the Respondent
HEARD at Ottawa: Tuesday, September 12, 2017
REASONS FOR DECISION
Michael G. Quigley J.:
Introduction
[1] The Appellant, Clories Shantelle Watt, appeals final orders of Robertson J. dated September 22, 2016, (the “September Order”) and November 9, 2016 (the “November Order”). The September Order dismissed the Appellant mother’s application requesting an order that her daughter, Emelia Hope Howe, continue to be in her principal care after she moved from Kingston to Ottawa, and second, ordered that Emelia would thereafter be in the principal care of the Respondent father, Graham Courtney Howe.
[2] The November Order was made following a hearing to clarify the September Order. This became necessary because the parties disagreed whether that order applied only if the mother relocated to Ottawa, or whether it was meant to change the residence and continued care responsibility for Emelia from the mother to the father, even if the mother did not relocate.
[3] In November, Robertson J. explicitly clarified the September Order in favour of the latter interpretation. The mother asks us to overturn that decision on this appeal. At the conclusion of the argument, we dismissed the appeal with these formal reasons to follow.
Background
[4] Emelia was born on March 28, 2008, and is now nine years of age. The family lived in Renfrew at the time of her birth. The parents separated on September 23, 2009, when Emelia was an infant of one and a half years. Litigation ensued.
[5] During that period, the mother began dating Paul, a member of the Canadian Armed Forces. He was living in Ottawa at the time. When Paul was posted to Kingston, she decided to relocate with him from Renfrew to Kingston, but it was without consultation with the father.
[6] Emelia’s mother and father resolved their dispute by Minutes of Settlement that were incorporated into Justice Selkirk’s February 7, 2012 order. It established that Emelia would be in the joint custody of both parents, but would reside with and be principally in the mother’s care.
[7] In that settlement the father agreed to Emelia’s relocation to Kingston. Like Paul, the father is also in the Canadian Armed Forces. He anticipated being able to obtain a posting in Trenton allowing him to be closer to Emelia. Eventually, he was posted to Trenton and moved to Wooler, a nearby community. He has since established a common law relationship with Heather.
[8] Emelia has lived primarily with her mother in Kingston since 2012, in accordance with the Selkirk Order, but she has also stayed regularly with her father in Wooler.
[9] Two paragraphs of the Selkirk Order are of particular importance to this motion. Paragraphs 10 and 11 provide that:
Emelia shall live in the Kingston area when with the Respondent Mother, and shall live in the Petawawa area while with the Applicant Father. The Applicant Father is seeking a transfer of his employment to the Trenton area to live closer to Emelia.
Neither party shall be permitted to move Emelia’s residence farther away from the other party’s residence, without a court Order or the written agreement of the other party. (My emphasis)
[10] That was the lay of the land before this motion commenced, but in late 2015 the landscape changed and the prospect of the mother’s and Emelia’s relocation arose again. Paul had applied for a posting with the Special Forces that would require him to live in Ottawa, and the mother wanted to relocate with him and take Emelia with her. The father was not informed of Paul’s application or that plan. He only learned of Emelia’s proposed relocation several months later. That was after Paul’s application was accepted, and his relocation and posting to Ottawa was confirmed by his superiors on March 29, 2016. At that time, they fixed his start date for July 11, 2016.
[11] When the mother notified the father of the relocation on March 30, 2016, the father refused to consent to Emelia being moved to Ottawa. This resulted in the mother and her other child, Padma, remaining in Kingston. Meanwhile, Paul moved to Ottawa to take up his new posting. That is what precipitated this motion by the mother to change the Selkirk Order to permit Emelia to be relocated with her to Ottawa.
[12] In her September Order, Robertson J. denied the mother’s request to relocate Emilia. She found that the proposed relocation was a material change in circumstances. Consistent with the governing case law[^1], she embarked on a fresh inquiry to determine Emelia’s best interests. Robertson J. concluded that it was in Emelia’s best interests to live with the father, preferably in Kingston, but alternatively in Wooler.
[13] The parties immediately disagreed on the interpretation of that order. The mother interpreted the September Order as denying her request to relocate with Emelia to Ottawa, but as allowing her to continue to have primary care of Emelia if she remained in Kingston. To the contrary, the father interpreted the September Order as granting him sole primary care of Emelia, in either Kingston or Wooler and regardless of whether the mother relocated.
[14] This interpretation was unacceptable to the mother. She declined to transition Emelia into the father’s care. This led the father to return to court to seek clarification of the September Order.
[15] The parties appeared again before Robertson J. in November of 2016. She clarified that her September Order required Emelia to live primarily with the father in either Kingston or Wooler. It was plain from her clarification that Emelia would thereafter stay in the primary care of the father, regardless of whether the mother chose to remain in Kingston or pursued her adamant intention to relocate to Ottawa.
[16] Specifically, Robertson J. clarified the parenting arrangement as follows:
The child, Emelia Hope Howe, born 28 March 2008, is in the primary care of the Applicant father, Graham Courtney Howe, effective 22 September 2016.
The Applicant father is encouraged to move to Kingston, but the father’s plan to have Emelia in Wooler, Ontario is also suitable.
The Applicant father’s obligation to pay child support for Emelia Hope Howe is suspended effective 08 November 2016.
[17] While the mother appeals against these orders, I note that Emelia has continued to live primarily with the mother in Kingston for the past year since the enforcement of the September and November Orders has been stayed by this court pending the outcome of this appeal.
The Fresh Evidence
[18] A year has now passed since the September Order. Some circumstances have changed, so it is not surprising that both parties sought to introduce fresh evidence on this appeal.
[19] Generally, the admission of fresh evidence on appeal is controlled by the tests in R. v. Palmer.[^2] There are four prerequisites to admissibility of fresh evidence on appeal: (i) the evidence should generally not be admitted if due diligence would have permitted it to be adduced at trial, although this principle will not be applied as strictly in a criminal case as in civil cases; (ii) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; (iii) the evidence must be reasonably capable of belief and thus credible; and (iv) it must be such that it could be expected to have affected the result if reasonably believed, when taken with the other evidence adduced at trial.
[20] In certain types of family law cases, however, particularly those considering the best interests of a child, recent appellate authority shows that the criteria need not be rigorously applied. They may be relaxed in cases like this where a child’s best interests are in issue.[^3]
[21] The fresh evidence here includes material and information provided by both the mother and the father in affidavits prepared for this appeal. The mother confirms that Paul no longer resides in Ottawa and has been reassigned to a Canadian Forces unit in Kingston. Nonetheless, she also claims that Paul can resume his posting in Ottawa as soon as she, Emelia, and Padma are able to move with him. The father is skeptical of this claim as he professes to be unaware, as a military person, of any Canadian military personnel who are entitled to re-post “at will.”
[22] What is important, however, is not the specific information as it relates to Paul, but that it also confirms the mother’s continuing determination to relocate to Ottawa and to take Emelia with her. Indeed, it was noteworthy, given the prior orders, that her counsel specifically volunteered during the appeal hearing that relocation to Ottawa with both of her children remains the mother’s direct and focused intent.
[23] Also important in the new evidence was the father’s confirmation that he and his partner, Heather, did move to Kingston last November, consistent with his stated plan and the intent of Robertson J.’s orders. They have purchased a house close to the school Emelia was attending. They also attested to their working hours: Heather from Monday to Friday, 8:30 a.m. to 4:30 p.m. and the father from Monday to Friday, 8:00 a.m. to 4:00 p.m., notwithstanding the mother’s skepticism that the father’s working hours are as he claims, and notwithstanding a corroborative letter from his employer confirming the father’s work schedule as he described it.
[24] The mother’s counsel argued that most of the father’s fresh evidence should not be admitted on this appeal. The father’s counsel allowed that most of the mother’s fresh evidence and all of the father’s, should be admitted.
[25] Taking account of the lower threshold for admissibility that should apply on an appeal like this, the entirety of the fresh evidence, both the mother’s and the father’s, will be admitted in the interests of all potentially relevant evidence being before the court relative to Emelia’s best interests.
Issues and Positions of the Parties
[26] The mother argues that Robertson J. made errors of fact, law, and mixed fact and law that require that the appeal be allowed. Consequently, the mother requests that Emelia be permitted to continue to be primarily in her care, that Emelia be permitted to relocate with her to Ottawa, and finally, that the father’s child support obligations be restored.
[27] Alternatively, the mother requests that the matter revert to the Superior Court of Justice for a new hearing. The father simply requests that we dismiss this appeal but he accepts that alternative remedy if necessary.
[28] The issue on this appeal is whether Robertson J. made a material error, seriously misapprehended the evidence, or made an error of law when she dismissed the mother’s request for an order permitting Emelia’s relocation to Ottawa and instead ordered that Emelia would live primarily with the father.
Analysis
[29] First, there is no issue that we have the jurisdiction to both hear this appeal[^4] and to consider the parties’ motion to adduce fresh evidence.[^5] Further, it is agreed that Housen v. Nikolaisen[^6] establishes that questions of law are to be reviewed for correctness, while questions of fact, as well as questions of mixed fact and law, may not be reversed absent palpable and overriding error.
(i) Alleged errors of fact
[30] The mother contends that Robertson J. erred in concluding that: (i) relocation required the consent and agreement of both parties, (ii) the mother did not challenge the father’s ability to parent, and (iii) the father had entrenched himself into an administrative job.
[31] The mother regards paragraphs 2 and 11 of the Selkirk Order as distinct and unrelated, like ‘watertight compartments.’ As such, she argues that Robertson J. erred when she stated that a decision regarding where Emelia was going to live required consultation and the agreement of both parties. She claims the decision to relocate was not embraced within the listed matters in paragraph 2 where consultation and consent of both parties was required. In her submission, paragraph 11 contains no requirement of consultation and agreement. It simply permits questions of relocation to be remitted to the court for determination absent written agreement.
[32] I reject this interpretation based on paragraphs 2 and 11 of the Selkirk Order. They provide that:
The Applicant and Respondent shall make major decisions jointly in all matters pertaining to health, education, religion, and recreational activities. The parties shall discuss and communicate with each other with respect to these decisions and no decision shall be implemented without consent and agreement of the other party.
Neither party shall be permitted to move Emelia’s residence farther away from the other party’s residence, without a court Order or the written agreement of the other party.
[33] Robertson J. did not err in finding that the parties, as joint custodial parents, were expected to make decisions regarding Emelia’s residence together on a consultative basis. Emelia was not to be relocated without a written agreement of the other party, or absent that, with approval of the court. The notion that there could be a written agreement on relocation without consultation, consent and agreement of both parties is plainly contrary to the overriding language used in the parties’ 2012 consent settlement that is incorporated into the Selkirk Order.
[34] The very nature of the matters listed in paragraph 2 are necessarily subsumed within the context of Emelia’s residence. It is counterintuitive to suggest that consultation and agreement could be required on matters relating to Emelia’s schooling, health care, and recreational activities, divorced from where Emelia is actually living. Put differently, I reject the notion that consultation is required on the paragraph 2 matters, but not necessary on the much more significant issue of a relocation of the child, given that her residence establishes the locus within which the paragraph 2 aspects of Emelia’s life have meaning.
[35] Paragraph 11 requires the same consultation and agreement that is present in paragraph 2, albeit in writing. The only difference is that in the event of disagreement and the absence of written consent, the Selkirk Order permits the parties to seek a determination from the court, as they could under the Family Law Rules relative to any of the matters enumerated in paragraph 2, if they were unable to agree following consultation about those matters.
[36] Robertson J. identified the mother’s reticence to communicate with the father as problematic, specifically in this case, to consult and advise him at the earliest opportunity of her plan to relocate should Paul be successful in obtaining the transfer to the Special Forces in Ottawa. However, paragraph 30 of the Selkirk Order stipulates that “[c]ommunication with respect to important decisions shall be raised as soon as practicable.” As such, it is understandable that Robertson J. looked disapprovingly on the mother’s failure to inform the father of the relocation to Ottawa until it was a virtual “fait accompli.”
[37] Robertson J. noted a lack of communication between the parties on prior occasions, specifically three. The mother claimed that the motions judge made a palpable and overriding error of fact in referring to “three incidents” where the mother proposed to relocate and take Emelia with her but without having consulted the father: the first a proposed move from Renfrew to Bracebridge, the second the mother’s move from Renfrew to Kingston to live with Paul, and the third, this proposed relocation with Emelia to Ottawa. It was said that these were taken, collectively by the motions judge, to be evidence of bad conduct on the part of the mother. At pages 17 and 21 of her reasons, Robertson J. stated as follows:
Pleadings, affidavits, and the parenting plans give a court valuable tools to measure a parent's ability to identify, assess, execute and adopt strategies to meet the needs of the child. That’s why it's relevant that this is the third time we’ve had this. We had the Bracebridge plan, which didn't go ahead - the mother agreed with that - the plan to move to Kingston, to follow her current partner, and the plan, now, to move to Ottawa, with no certainty as to wherever it will be in the future, although that would be a material change in circumstance. So there is a bit of a pattern, and the father has indicated he would have been willing to try and accommodate, and follow, but unfortunately was thwarted in that.
The experience of each parent, including the ability to communicate and cooperate - well, as I said, they haven't come back to court, and they have done well, but I find that the mother's ability to communicate and cooperate with the father over this crucial issue of “We might be moving. We need to jointly plan”, almost renounces joint custody, given that it's the third time we've had this issue.
Prognosis [sic] that the parents will obey rules in an order - what we know is that the parents will obey tasks, which is what they must do, and what they must pay. But the rule in the order was to communicate in advance, and that has been disobeyed by the mother.
[38] The mother claimed that two aspects to these statements undermined Robertson J.’s decision. First she fairly states that there was no negative aspect to the proposed move to Bracebridge revealed on the evidence. Consequently, to construe that particular proposed relocation as bad conduct by the mother was an error. The mother contended that the characterization of the three events as evidencing misconduct on her part is a palpable and overriding error of fact, since there is no evidence in the record that at least the first proposed move to Bracebridge evidenced a failure on the part of the mother to consult with the father, even if the other two did.
[39] The mother argued it was a palpable and overriding error of fact to then group the innocent Bracebridge relocation proposal with the other two events, the non-consensual decision at the time to move Emelia to Kingston and the current proposed move to Ottawa, and conclude they collectively amounted to misconduct by the mother that potentially undermined the joint custodial arrangement relative to Emelia. Counsel for the mother contended this collectivity of allegedly non-compliant behaviour by the mother was a foundational element of Robertson J.’s decision to dismiss the mother’s relocation motion and stipulate that Emelia would thereafter be in the care of and reside primarily with the father.
[40] I reject both lines of argument. A palpable and overriding error of fact is certainly a ground to overturn a decision of the motions judge, but such errors must be of a quality that the decision would not have been reached as it was, absent the error. The motions judge grouped those three attempted moves together in her analysis, but she did so on the basis that they collectively evidenced a repeating inclination of the mother towards non-consensual conduct that was inconsistent with a joint custody arrangement. The failure of the mother to communicate to the father on a timely basis relative to the proposed Ottawa relocation was just the latest incident of such conduct.
[41] I am not persuaded either that those statements were core “but for” events in the motions judge reaching the decision she did, without which the motion would have been decided differently, or that they were referenced by the motions judge as a central aspect of her determination. Rather they provided nuance to the background of the parties, the mother’s tendency to consult and communicate less than the joint custody arrangement required, and thus ultimately were relevant to the best interests of Emelia going forward under their consent joint custody arrangement. An error of fact is palpable and overriding only where it has determinative impact on the result. That is not the case here. Neither, in my view, is the concern of the mother that this was a core reason for her decision supported on a fair reading of Robertson J.’s reasons.
[42] Second, the mother argued that Robertson J. erred in stating that the father’s ability to parent was not challenged, and she points to various concerns about the father raised in her affidavit. Robertson J. did not accept those concerns. In fact she found that both parents were good parents at core and had put forward acceptable parenting plans, apart from the impact of the evidence relating to the mother’s proposal to relocate to Ottawa on the viability of the mother’s plan. Robertson J. was entitled to weigh the credibility of the evidence and to conclude that both parents demonstrated good parenting abilities, as she did.
[43] Neither am I persuaded that Robertson J. erred in assessing the father’s plans by stating that he had “entrenched [himself] into a Monday-to-Friday, 9-to-4 job” in order to permit himself to serve as Emelia’s principal care parent. Importantly, at the time of her decision, this was not only consistent with the evidence, but when read in context, it is evident that Robertson J. appreciated at that time that the father had not yet completed his training and had not yet assumed an administrative position. Rather, he was in the process of doing so. The fresh evidence confirms not only (i) that his training process is now complete and that the father is now performing the administrative role that would permit him to have more and more regular time to devote to Emelia, but also (ii) that as Robertson J. hoped and recommended, he and his partner have been good to their word and intentions, and have now moved to Kingston.
[44] Robertson J. made no palpable and overriding errors of fact that could undermine the decision she reached.
(ii) Alleged errors of law
[45] The mother alleges that Robertson J. erred in: (i) failing to give intelligible reasons that allow for proper appellate review, (ii) reversing primary care without adequate analysis of Emelia’s best interests, and (iii) considering the mother’s conduct in her assessment of Emelia’s best interests.
[46] First, the mother submits that Robertson J. erred in failing to provide sufficiently detailed and cogent reasons in her lengthy oral decision. I disagree. Trial and motions judges are not required to discuss every piece of evidence, and they are not held to a standard of perfection in delivering their reasons.
[47] In support of this argument, the mother lists several factors that Robertson J. did not specifically avert to in her reasons, including Emelia’s medical needs, bilingual education, and extracurricular activities, as well as the mother’s concerns regarding the father’s lack of participation in Emelia’s life.
[48] Paragraphs 49 and 50 of Gordon v. Goertz, above, enumerate the factors upon which a motions judge must focus on a mobility motion:
49 The law can be summarized as follows:
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;
(c) the desirability of maximizing contact between the child and both parents;
(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 on removal from family, schools, and the community he or she has come to know.
50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?
[49] Even if not canvassed like a checklist, it is evident from her reasons that Robertson J. did correctly identify the factors that she was required to consider, and reviewed them thoroughly. She did not need to specifically avert to each of the factors. It was enough that her reasons show she was aware of the variety of concerns enumerated in Gordon v. Goertz. Even if she lumped them together, and concluded that most if not all of those factors were neutral as between the mother’s and father’s parenting plans, apart from travel time in relation to the proposed move to Ottawa, which she specifically and directly focused on in her reasons, this was adequate for the purposes of sufficiency of her reasons.
[50] Second, the mother contends that Robertson J. erred when she reversed primary care, allegedly without adequate analysis of why this was in Emelia’s best interests under Gordon v. Goertz. This contention is largely answered by the conclusion above on the sufficiency of her reasons, but the travel time issue is important and reveals the overall concerns the motions judge had for the inevitable disruptions that were going to result to Emelia’s life, whichever plan was chosen, largely from relocation and time spent travelling between the primary care parent and the access parent. The manner in which Robertson J. addressed it shows she was alive to all the criteria, neutral as to most of them, but significantly affected by the travel time differentials in the mother’s and father’s parenting plans, and its impact on Emelia’s best interests.
[51] The motions judge properly took into account that for four years preceding the mother’s relocation request, Emelia had been residing in Kingston. That was the locus of her vital interests. It was where she lived, went to her bilingual training school, had her friends and participated in her extracurricular activities. It needs to also be remembered that when the mother moved with Emelia to Kingston in 2012 to be with Paul, the father was still living in Renfrew. He was willing to move to Wooler and commute to a new posting at the Trenton base in order to be closer to Emelia. So during those four years, the travel time for return trips to visit the father on his access weekends was a little over two hours.
[52] At the relocation motion there were two competing parenting plans before the motions judge. The mother’s plan to relocate to Ottawa with Emelia was going to increase the travel time for access weekends with the father to almost three hours each way if he continued to reside in Wooler. This would plainly have materially increased the time Emelia would have had to spend on the highways in going to and returning from her access weekends with her father, but the mother’s plan with its insistence on relocation only to Ottawa offered no solution to this problem.
[53] As a result, to meet Emelia’s best interests, the father put two plans forward for consideration by the motions judge. First, he was content and would have preferred for the status quo to remain operative but the mother adamantly rejected that possibility. However, the father had an alternative plan. He told Robertson J. that he was willing to change his life. He and his partner, Heather, were willing to relocate to Kingston in Emelia’s best interests.
[54] While the father was still living in Wooler at the time of the motions, he demonstrated his willingness to move to Kingston in order to ensure that at least travel time would be minimized if the mother’s motion succeeded. That was his alternative plan. The mother put forward no alternative plan.
[55] It is evident on the record of proceedings that there was going to be disruption to Emelia’s life whichever option was ordered. Indeed, Robertson J. specifically mentioned this inevitability and observed that Emelia was a strong enough child to be able to deal with those disruptions. Against that background, it is plain that Robertson J. viewed the alternatives of the child remaining in Kingston and either travelling to visit her father on access weekends in Wooler, or visiting him in Kingston if the mother was permitted to relocate, were the least disruptive of the available options.
[56] However, Robertson J.’s decision must also be viewed in the context of her conclusion that at nine years of age, and being involved with friends, school and outside activities all within the Kingston community, it was in Emelia’s best interests to remain in Kingston. She did not consider it to be in Emelia’s best interests to relocate to Ottawa. As such, the motions judge considered what plan would provide the greatest continuity and the least disruption, and concluded that accepting the father’s alternative plan and changing the primary care responsibility to the father gave greater recognition to Emelia’s best interests than the inflexible relocation plan advanced by the mother.
[57] In retrospect, her confidence in the father’s plan was well placed, and has been rewarded with conduct that ensures that the primary goal of keeping Emelia in Kingston is met. As the fresh evidence shows, it has been rewarded by confirmation that the father and his partner have now moved to Kingston and now reside only a short distance from Emelia’s school.
[58] Counsel for the mother took great exception to the wording of the second paragraph of the November Order. It said that “The Applicant father is encouraged to move to Kingston, but the father’s plan to have Emelia in Wooler, Ontario is also suitable.” In her submission, the alternative possibilities inherent in that paragraph would now permit the father, having been designated as the primary care and residential parent for Emelia, to pick up stakes with Heather and return to Wooler. Counsel warned us that this would create the very worst disruption scenario that was envisaged.
[59] I reject this argument as speculative, accusatory and entirely divorced from the realities of the history of this matter. Robertson J. worded that paragraph as she did bearing in mind that the least disruptive of the parenting plan options that were before her was for Emelia to remain in Kingston and for the father, as he said at the hearing he was trying to do, to relocate himself to Kingston in Emelia’s best interests.
[60] Finally, the mother argued that Robertson J. erred in considering her past conduct, and relied upon the prohibition against considering past conduct under s. 24(3) of the Children’s Law Reform Act (CLRA). She contended that the law only permits the alleged misconduct of a parent to be taken into account on a Gordon v. Goertz analysis of the best interests of the child in extraordinary circumstances.
[61] However, s. 24(3)(b) of the CLRA specifically permits a person’s past conduct to be considered “if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.” Looking at Robertson J.’s reasons as a whole, it is clear that she regarded the mother’s past conduct as evidence of an ongoing pattern of failing to adequately communicate with the father about custodial matters.
[62] Robertson J. found that the mother had demonstrated “a pattern” of creating relocation plans, without consulting with the father. Plainly she regarded that failure of the mother to consult ahead of time with the father about matters that affected Emelia’s best interests as conduct that is relevant to the mother’s ability to act as a parent. Indeed she regarded it as a virtual renunciation of their joint custody and joint parenting arrangement. As such, Robertson J. regarded that deficiency as a factor that went to the mother’s parenting ability and that it should be taken into account on that basis, since it is the consultative aspect of the Selkirk Order relative to Emelia’s best interests that lies at the heart of the co-parenting arrangement. She was entitled to do that and there is no foundation for us to disturb that conclusion.
(iii) Alleged error of mixed fact and law
[63] The mother argued before us that Robertson J. erred in using a so-called “menu” approach: that she viewed her role as selecting an “option” from a menu of plans presented by the parties, rather than making a decision that was in Emelia’s best interests.
[64] I reject this interpretation of what transpired and find no error. After the November appearance to clarify the September Order, Robertson J. used the analogy of having a menu of options to explain to the mother why she was not entitled, after a decision had been rendered, to present a new plan that had not been advanced at the hearing. The motions judge did not use a “menu approach,” and the characterization advanced by the mother takes Robertson J.’s comment out of context and seeks to give it a meaning that was never intended. There is no merit to this argument.
(iv) Alleged breaches of natural justice and procedural fairness
[65] At last I turn to the mother’s final contention on this appeal, that Robertson J. breached the rules of natural justice and procedural fairness when she “reheard the motion” to change the Selkirk Order without giving the mother an opportunity to respond or to participate and considering new evidence from the father but not from the mother.
[66] After they were unable to agree on the meaning of the September Order, the father brought a motion under r. 25(19)(c) of the Family Law Rules[^7] “to deal with a matter that was before the court but that it did not decide”. That motion resulted in the clarification appearance and the clarifying November Order.
[67] First, the mother claimed that was a “rehearing of the case,” but that she did not have an adequate opportunity to present evidence or to participate meaningfully in a full and comprehensive hearing.
[68] In my view, the mother mischaracterizes that hearing and what came out of it. It was not a rehearing of the case. It was an appearance necessary to clarify the September Order. Clarification was required because the mother would not accept that Robertson J. had granted the primary care of Emelia to the father.
[69] Both parties filed affidavit evidence for the clarification motion, so plainly the mother had an opportunity to respond and to participate, and did so.
[70] More importantly, it is claimed that Robertson J. accepted new evidence from the father regarding his progress in moving to Kingston, but refused to consider new evidence from the mother regarding her alleged decision to remain in Kingston with Emelia. In doing so, the mother claims that Robertson J. erroneously maintained that the option of Emelia remaining in Kingston with the Appellant was not advanced, but again, this ignores what actually happened. Robertson J. did not err in concluding that the option of Emelia remaining in Kingston with the Appellant was not realistically being put before the court.
[71] The purpose of the November hearing was clarification of the September Order, not a re-hearing of the entire matter, and throughout the original motion to change the Selkirk Order, the mother made it abundantly clear that she had no intention whatsoever of remaining in Kingston, and that was the evidence upon which the September Order was made. Moreover, that correct characterization of what happened was again confirmed and emphasized before us when the mother’s counsel stated, clearly and firmly before us, that “the mother still intends to move to Ottawa.” We find no merit to the mother’s contention that she was denied either natural justice or procedural fairness.
Conclusion
[72] For all the foregoing reasons, I would dismiss the appeal with costs to the respondent father of $27,000 on a partial indemnity basis, as agreed by both counsel at the end of the hearing. I advised the parties at the conclusion of the appeal that to facilitate an orderly and less precipitous transition, the stay of Robertson J.’s order would be extended for 10 days until this Friday, September 22, 2017, at the end of the school day or such other time that day as the parties may agree.
Michael G. Quigley J.
I agree ___________________________
W. Matheson J.
I agree ___________________________
R. Raikes J.
Released: September 20, 2017
CITATION: Watt v. Howe, 2017 ONSC 5556
COURT FILE NO.: 16-2258
DATE: 20170920
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
M.G.J. Quigley, Matheson and Raikes JJ.
B E T W E E N:
CLORIES SHANTELLE WATT
Appellant
- and –
GRAHAM COURTNEY HOWE
Respondent
REASONS FOR DECISION
Released: September 20, 2017
[^1]: Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27.
[^2]: 1979 8 (SCC), [1979] S.C.J. No. 126, at p. 775.
[^3]: See Children’s Aid Society of Peel (Region) v. W. (M.J.) (1995), 1995 593 (ON CA), 23 O.R. (3d) 174, 14 R.F.L. (4th) 196; Di Nunzio v. Di Nunzio (2006), 152 A.C.W.S. (3d) 763, 2006 CarswellOnt 6859 at para. 2; and Goldman v. Kudelya, 2017 ONCA 300, at para. 25.
[^4]: Section 73 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, (“CLRA”)and s. 21.9.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[^5]: Section 134(4)(b) of the Courts of Justice Act and r. 61.16(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[^6]: 2002 SCC 33, [2002] 2 S.C.R. 235.
[^7]: O. Reg. 114/99.