Porter v. Bryan, 2017 ONCA 677

Court of Appeal for Ontario

Date: 2017-09-01 Docket: C63670

Judges: Laskin, Feldman and Miller JJ.A.

Between

Chad Porter Applicant (Respondent)

and

Brooke Bryan Respondent (Appellant)

Counsel

Paul Mongenais, for the Appellant

Thomas Mann, for the Respondent

Heard: August 23, 2017

On appeal from the order of Regional Senior Justice R.D. Gordon of the Superior Court of Justice, dated February 1, 2017, with reasons reported at 2017 ONSC 756.

Reasons for Decision

Introduction

1This appeal concerns the proposed relocation of a five year old child from Cochrane, Ontario to Thunder Bay. The parties, the child's father and mother, separated in November 2015. By a consent order dated September 16, 2016, they agreed to joint custody and a shared parenting schedule. That order was made without prejudice to the appellant mother bringing a mobility motion to move their son to Thunder Bay. That motion, heard on January 9, 2017, was dismissed. The mother appeals.

2For the reasons that follow, we agree that the appeal should be allowed.

Background

3The nature of the mother's employment as a prisoner transport officer in Cochrane meant her schedule was unpredictable; sometimes working out of town, sometimes working overtime, sometimes both, and never knowing until the last minute. This would have impaired her ability to care for her son – not knowing in advance whether she would be called in to work in the morning before he went to school, or whether she would be home in time to pick him up again – but her employer temporarily accommodated her with a schedule that avoided unpredictable deployment. Eventually, however, her employer withdrew this accommodation. After exhausting her vacation time and sick leave, the mother resigned her position. Prior to her resignation, her employer invited her to apply for another position in Cochrane with a more parenting-friendly schedule. She was successful, but the employer subsequently had to revoke the offer.

4The father is employed as a forest-fire crew leader with the Ministry of Natural Resources during the fire season from April to September. During his deployment, he is only resident in Cochrane eight to ten days per month. In the off-season, he is employed in Cochrane as a snow plow operator, municipal firefighter, and moose hunting guide. His extended family resides in Cochrane.

5Post-resignation, the mother has not been able to find employment in Cochrane. She has, however, had multiple job offers in Thunder Bay, where her extended family and new partner live.

6The mother argued that the move was necessary for her to remain financially viable, and to provide for her son, as she could find no employment in Cochrane that allowed her to fulfill her duties as a parent. She argued that she was her son's primary caregiver and, accordingly, her decisions about where to live and work ought to be given considerable weight.

7The father opposed relocation on several bases. The principal objection is that relocation would, in the words of the motion judge"leave [the son] without meaningful parental influence from his father." He also argued that whatever financial hardship the mother is experiencing is entirely self-imposed, and that the necessity of taking employment in Thunder Bay is mere pretext to be with her new partner.

8The motion judge disagreed that the mother's reasons were mere pretext. But he agreed with the father that neither party was the primary caregiver for the child, and that the mother's decisions about how best to meet the needs of the child were to be given no special consideration.

9The motion judge characterized the issue before him as a matter of comparing the benefits to the child of remaining in Cochrane and maintaining a close relationship with his father, on the one hand, with the loss of that close relationship and gain of additional economic benefits from moving to Thunder Bay on the other. But he was unconvinced that there were any economic benefits to moving to Thunder Bay. He believed that the mother's financial difficulties were self‑imposed by her voluntary resignation from her job, and that she would be able to find suitable work in Cochrane. The motion judge therefore concluded that, from the child's perspective, life in Thunder Bay would provide no relevant benefit that he would not enjoy in Cochrane, but would carry the additional cost of a disruption with his relationship with his father. He dismissed the motion.

Analysis

10In dismissing the motion, the motion judge correctly applied the proposition from this court in Berry v. Berry, 2011 ONCA 705, 285 O.A.C. 366 that the "superordinate consideration" in a mobility case is the best interests of the child, determined from a child-centred perspective (para. 10). Accordingly, in assessing the mother's reasons for moving, the motion judge correctly held that the only reasons relevant to the analysis were those that related to her ability to meet the needs of her son.

11A motion judge's decision not to allow a relocation is discretionary and it is not the place of this Court to engage in a rebalancing of the factors identified in Berry. However, as explained below, the motion judge made an error in principle by not characterizing the mother as the primary caregiver of the child, which led to the further error that her reasons for moving were not entitled to the serious consideration required by Gordon v. Goertz, [1996] 2 S.C.R. 27.

12Furthermore, the motion judge made a palpable and overriding error in concluding that the mother's financial difficulties were self-imposed. They were not. Her resignation resulted from her employer's withdrawal of an accommodation that had made her former employment compatible with her parenting responsibilities.

13The motion judge further erred in finding that the mother could be expected to find suitable employment in Cochrane. There was no evidence on which to base that finding. Although the motion judge did not have the benefit of the mother's fresh evidence, that evidence attests both to her continued inability to find work in Cochrane, and her employment opportunities in Thunder Bay.

14The Supreme Court of Canada held in Goertz, at para. 48, that where assessing a motion to relocate:

…the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent's parenting ability.

15The motion judge held that in circumstances of joint and shared custody, there is no primary caregiver, and therefore neither parent's interests can have greater weight than the other's.

16We do not agree that the legal status of joint and shared custody forecloses the possibility that one parent can be, for the purposes of a mobility motion, the primary caregiver. On the record before us, it is evident that although the parties have joint and shared custody, the mother is nevertheless the primary caregiver. This conclusion is not only supported by the mother's evidence, but from the father's admission on his Form 35.1 affidavit, his answers in cross-examination, and affidavits from two of the father's aunts. Accordingly, the consideration articulated in Goertz comes into play, and the mother's reason for moving bears special consideration.

17There is, in our view, a valid and compelling parenting-based reason for the move: it is necessary to enable the primary caregiver to remain financially viable while providing care for the child. The mother has done all she can be expected to do to secure employment in Cochrane. It has not worked out, and there is no good reason for her and her son to live in poverty when she has secured employment in Thunder Bay that will allow her both to parent her son and to provide economically for him.

18We are encouraged in this result by the mother's offer to facilitate access by providing air travel to Cochrane for the child, taking advantage of an employment benefit of her new job in Thunder Bay. She is also willing, we are advised, to accept an unequal sharing of summer and non-school days during the school year to accommodate the father's work schedule as a forest firefighter deployed across Canada.

19There was some uncertainty as to whether the order appealed from was a final or an interim order. The procedure leading up to the order was somewhat irregular, but the motion judge found the order to be final. As a result, the appeal is properly before this Court.

20As a consequence of our order, a new access regime will be required. The parties are encouraged to work out an acceptable access schedule as between them. However, if that is not possible, they may return on motion to the Superior Court of Justice in Thunder Bay.

Disposition

21The appeal is allowed, and the appellant mother is permitted to move the child to Thunder Bay. The mother is entitled to costs in the amount of $7,000, inclusive of disbursements and HST.