Court of Appeal for Ontario

Date: 20220908 Docket: C69968

Miller, Nordheimer and Sossin JJ.A.

Between

Hanna Reiche Applicant (Respondent)

and

Peter Reiche Respondent (Appellant)

Counsel: Michael J. Stangarone and Stephen P. Kirby, for the appellant Svetlana Cocieru, for the respondent

Heard: August 31, 2022

On appeal from the order of Justice Nancy L. Dennison of the Superior Court of Justice, dated September 20, 2021 with reasons reported at 2021 ONSC 6222.

Reasons for Decision

Reasons for Decision

1This is an appeal of an order that the child of the parties’ marriage reside primarily with the respondent mother. For the reasons given below, the appeal is dismissed.

Background

2The parties were married in 2014 and separated approximately two years later. There is one child of the marriage, J.R., born in 2014. The respondent mother initiated divorce proceedings in Pembroke, Ontario, where both parties were residing. On September 28, 2018, the parties were divorced by way of a consent order that also resolved custody and access (among other issues), providing joint custody with parenting time on a week-about basis. The order also authorized the respondent to relocate from Pembroke to Toronto.

3The consent order provided that the parties would review the parenting schedule in 2020, and expressly stated that J.R. starting grade 1 in September 2020 would constitute a material change in circumstances.

4Accordingly, in March 2019, the respondent brought a motion to change, seeking an order that J.R. reside primarily with her. In August 2020, the matter had still not been set down for trial, and the respondent brought a motion that J.R. be placed in her primary care and attend school close to her residence. The motion judge dismissed the motion and made a temporary order placing J.R. in the primary care of the appellant in Pembroke with him continuing at the local school in Pembroke.

5Nevertheless, in January 2021, because J.R. was attending school virtually, the parties agreed that he would reside with each parent on a week-about basis until schools reopened. In June 2021, the parties executed final minutes of settlement resolving all issues except the primary residence of J.R. Those minutes were incorporated into a final order of Lemay J. dated June 4, 2021.

6The trial was finally held in August 2021. The only issue was the primary residence of J.R. – whether he should remain with his father in Pembroke or be with his mother who had recently moved again, this time to Barrie. The trial judge ordered that J.R. primarily reside with the respondent mother. She reasoned that there had been a material change in circumstances and J.R. now needed the stability of attending a single school in person. This necessitated that J.R. reside primarily with one parent or the other, and not continue the week-about schedule. The trial judge determined that J.R.’s best interests would be served by primarily residing with his mother.

Analysis

7The appellant argues that the trial judge erred in three respects: (1) approving J.R.’s relocation without considering the impact on J.R.’s parenting time with his father; (2) failing to apply the mandatory provisions of the Divorce Act that govern relocation; and (3) finding that the respondent mother had been J.R.’s primary caregiver, and presumptively basing the primary residence decision on that factor.

8We do not agree that the trial judge made any reviewable error.

9With respect to the first issue, the trial judge was aware that the decision of whether to order relocation had to be driven by the best interests of the child, which included a consideration of the impact the relocation would have on J.R.’s relationship with his father. The trial judge did not err by not setting out a specific timetable for parenting time with the non-custodial parent. Rather she left the details of that timetable to be worked out by the parties, an issue that they had resolved by way of consent order two months earlier.

10Second, the trial judge did not fail to observe the provisions of the Divorce Act governing relocation. The appellant’s primary complaint is that the respondent did not provide formal notice that she had relocated from Toronto to Barrie prior to trial. The trial judge rejected the respondent’s evidence about when she had told the appellant, but nevertheless found that he had been informed in a manner sufficient to comply with the Divorce Act. In any event, the appellant was not able to identify any way in which he was prejudiced, either by any defect in notice or by the move itself. He knew of the move to Barrie well in advance of trial. The relocation to Mississauga had been authorized by consent order and the subsequent move to Barrie brought the respondent’s household considerably closer to the appellant’s than it had been in Mississauga. The trial judge considered the impact of the relocation on J.R., and considered it to be in his best interest.

11With respect to the third argument, the trial judge identified the governing authorities and applied the correct legal test to the evidence before her. She came to her conclusion having weighed several factors, particularly J.R.’s closeness with his step-sibling A.P., his relationship with his mother, and concerns about the conduct of the appellant that demonstrated an unwillingness to include the respondent in significant life events and parenting decisions. The trial judge did not base her decision on any presumption.

12With respect to the fresh evidence, the report cards and the phone logs, had they been available, would not have had an impact on the trial judge’s decision, and we would not admit them on that basis.

Disposition

Disposition

13The motion to admit fresh evidence is dismissed. The appeal is dismissed. Costs are awarded to the respondent in the amount of $12,500 inclusive of HST and disbursements.