Court of Appeal for Ontario

Date: 20210712 Docket: C68806

Brown, Roberts and Zarnett JJ.A.

BETWEEN

Christian Moreton Applicant (Respondent)

and

Douangta Inthavixay Respondent (Appellant)

Counsel: Michael H. Tweyman and Ashley Waye, for the appellant Christian Moreton, acting in person Caterina E. Tempesta and Jean Hyndman, for the Office of the Children’s Lawyer

Heard: June 30, 2021 by video conference

On appeal from the order of Justice James F. Diamond of the Superior Court of Justice, dated October 22, 2020, with reasons reported at 2020 ONSC 6267.

Reasons for Decision

[1] The appellant mother appeals from the final order that the parties’ children primarily reside with their father, the respondent, in Lindsay, Ontario (“the relocation order”), with substantial parenting time to the appellant.

[2] The respondent moved to Lindsay in late September 2020, primarily for financial reasons. He resides in a spacious home on a large parcel of land that is owned by his father, from which he works on various consulting contracts. The home is a five-minute walk from the local elementary school where he has enrolled the children. The children have been living with their father in Lindsay since the release of the relocation order.

[3] The relocation order varied the previous July 17, 2018 order of Kristjanson J. that the children’s primary residence was to be with the respondent in Toronto, with access granted to the appellant. While there have been some temporary changes, this was the longest standing arrangement before the relocation trial. The children are now 12 and 8 years of age. The parties have been embroiled in high conflict litigation almost since their separation on October 1, 2017. The details of the adjournments and frequent litigation with which this file has been plagued are set out in numerous endorsements. The children have expressed to the clinician assisting the Office of the Children’s Lawyer (“OCL”) who represents their interests in these proceedings that they love their parents and simply want the conflict to end and their parents to get along.

[4] By the September 1, 2020 order of Shore J., the trial was bifurcated: the relocation and residential schedule of the children would be determined first in September 2020 because it was in the best interests of the children to have these issues heard as soon as possible, and the issues of custody and financial matters were ordered to be tried in December 2020 (“the bifurcation order”). The trial was peremptory on the appellant and respondent. On September 11, 2020, Shore J. dismissed the appellant’s request that she be permitted to proceed with a long motion on the issues of relocation and the children’s residential schedule and that a trial of those and the other outstanding issues be heard in December 2020. She noted that there had been 15 court attendances and 11 court orders at that point and that the evidence shows that the children were suffering because there had been no final resolution. She enumerated the history of the litigation, the various adjournments granted to the appellant, and set out accommodations for the appellant’s participation in the trial.

[5] The appellant’s motion for an adjournment of the trial was dismissed by the order of Nishikawa J. dated September 16, 2020. The appellant’s motion for leave to appeal the bifurcation order was dismissed by the Divisional Court on September 22, 2020. The relocation order was granted on October 22, 2020. The appellant’s motion to stay the relocation order was dismissed by Pepall J.A. of this court on December 9, 2020.

[6] The trial judge granted an adjournment of the second trial because the appellant retained counsel on the eve of the second trial. The second trial took place in February and March 2021 and judgment on the issue of custody/decision-making authority was released on April 23, 2021. Subject to an outlined consultation process with the appellant, the respondent was granted final decision-making authority with respect to major decisions concerning the children. The appellant has appealed that decision, which is not the subject of this appeal.

[7] The appellant submits that the relocation order should be set aside because: 1) the trial judge erred by determining the question of the children’s relocation to Lindsay before deciding the issue of custody contrary to this court’s decision in Bjornson v. Creighton (2002), 62 O.R. (3d) 236 (C.A.), leave to appeal refused, [2003] S.C.C.A. No. 14; 2) the trial judge erred in his application of the law on relocation to the facts of this case; and 3) the trial proceeded in an unfair manner to the appellant whose adjournment and accommodation requests because of her disability went unheeded such that a new hearing is required.

[8] We do not accept these submissions.

[9] First, we do not read this court’s decision in Bjornson as establishing an absolute rule or requirement that the issue of custody must be determined before the issue of relocation. Rather, the sequence depends on the circumstances of the case and, specifically, on the best interests of the children. Bjornson arose out of the particular circumstances of that case: the sequence in which the trial judge dealt with relocation and custody was criticized because it caused him to err – he did not make the depth of enquiry required in the circumstances and failed to give the evidence of the custodial parent the great respect or most serious consideration to which it was entitled.

[10] Further, the bifurcation order here correctly determined the sequence of the proceedings. Echoing the sentiments of previous judges, as the trial judge observed, it was in the best interests of the children to have the relocation issue determined as quickly as possible to provide stability in their living arrangements, finality and closure. Dismissing the appellant’s motion for leave to appeal, the Divisional Court found that Shore J.’s bifurcation and trial management decisions are “clear, thoughtful and well-reasoned”, “fall well within the discretion available to the court in trial scheduling and other procedural matters”, and were “the only reasonable outcome in the particular circumstances of this case”. We also note that the appellant had twice requested before Shore J. that she be permitted to proceed with a long motion on the issues of relocation and the children’s residential schedule and that the trial of those issues and the other outstanding issues be heard later.

[11] With respect to the appellant’s second argument, we see no error in the trial judge’s determination that it is in the children’s best interests that their primary residence be with the respondent in Lindsay. His determination is amply supported by the evidence that the trial judge was entitled to accept and is entitled to considerable deference on appeal: Bourke v. Davis, 2021 ONCA 97, 154 O.R. (3d) 431, at para. 42. The trial judge carefully considered the relevant factors concerning the question of the relocation of the children’s primary residence as outlined in Gordon v. Goertz, [1996] 2 S.C.R. 27. His primary focus was, properly, the best interests of the children. Among other factors, he considered that the children advised the OCL that they wish to relocate to Lindsay with their father but still spend time with the appellant; the respondent will be home almost every day to attend to the children’s needs as they arise; and at only 90 minutes’ distance from Toronto and with the parenting time schedule proposed by the OCL, the children can maintain their relationships with the appellant, her family and the children’s friends. He concluded that any potential disruption caused by a relocation to Lindsay to live with their primary caregiver did not justify refusing to permit that move, given the benefits to the children. We see no basis to intervene.

[12] We do not agree that the trial judge misapprehended the children’s evidence concerning their preferences. Nor did he err in considering the respondent’s enhanced ability to better meet the needs of the children by having more disposable income and time, a larger house in which each child has her own room and shares a bathroom, and an elementary school within five minutes’ walking distance of the house. The improved ability to satisfy the children’s needs, including financial viability, is a valid and compelling parenting-based reason for the move of a primary caregiver: Porter v. Bryan, 2017 ONCA 677, 6 R.F.L. (8th) 41, at para. 17; Bourke, at paras. 27, 51-52. This is consistent with the recent amendments to the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) and the Children’s Law Reform Act, R.S.O. 1990, c. C.12.

[13] Most important, the children are thriving with their father in Lindsay. The OCL supported the move to Lindsay, opposed the appellant’s unsuccessful motion to stay the order under appeal, and opposes this appeal. As fresh evidence, the OCL has tendered updated affidavit evidence concerning the children from Michelle Nagy, the clinician who has been involved in this case since April 2019. We admit the fresh evidence because it is important that we have the most current information bearing directly on the best interests of the children, it is provided by the OCL, and is reasonably capable of belief: Decaen v. Decaen, 2013 ONCA 218, 303 O.A.C. 261, at para. 13. By all accounts, the children are settled, happy, and doing well in their new home, school, and community, and are generally content with and do not want a change to their living arrangements.

[14] We do not allow the appellant’s fresh evidence motion. The appellant concedes that the substance of the tendered fresh evidence from the second trial was available at the time of the relocation trial. More important, we do not see how it would have made any difference to the relocation order. Specifically, the proposed fresh evidence does not invalidate or undermine the trial judge’s credibility assessments and other findings from the relocation trial nor give rise to inconsistent findings. Any issues with the trial judge’s April 23, 2021 reasons are properly the subject of the appellant’s pending appeal.

[15] Finally, we see no error in the trial judge’s refusal to adjourn the trial or any failure to accommodate the appellant’s meaningful participation in the trial. There is ample evidence supporting the trial judge’s dismissal of the appellant’s request for an adjournment of the bifurcated trial that had already been adjourned and made peremptory on the appellant. He outlined in detail the appellant’s history of seeking adjournments and found that “there was very little, if any, reliable or credible medical information to support the [appellant’s] repeated, vague contentions” of medical illness and lack of accommodation. The record reveals that the appellant was given accommodations and participated meaningfully in the trial of the issues of the children’s primary residence and parenting time. There is no indication of any prejudice or unfairness to the appellant warranting appellate intervention.

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

[17] Neither the respondent nor the OCL sought any costs of the appeal. Accordingly, we order that there be no costs of the appeal.

“David Brown J.A.” “L.B. Roberts J.A.” “B. Zarnett J.A.”