COURT OF APPEAL FOR ONTARIO

DATE: 20240821 DOCKET: COA-23-CV-0463

Roberts, Coroza and Gomery JJ.A.

BETWEEN

Kathleen Marie Shipton Appellant (Applicant)

and

Aamir Saleem Shipton Respondent (Respondent)

Counsel: Aaron Franks and Michael H. Tweyman, for the appellant David Tobin and Christina Hinds, for the respondent

Heard: January 17, 2024

On appeal from the order of Justice R. Lee Akazaki of the Superior Court of Justice, dated March 29, 2023, with reasons reported at 2023 ONSC 1342, 6 R.F.L. (8th) 41.

Coroza J.A.:

i. INTRODUCTION

[1] This is an appeal from an order denying a mother permission to relocate her three-year-old daughter [1] from Toronto to Ennis, Ireland. The application was brought under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (the “Act”).

[2] The appellant (the “mother”) was born in Ireland. She met the respondent (the “father”) in Cambridge, England. They married in Malta on August 1, 2014. The couple moved to Toronto for the father’s employment opportunities in February 2016. At trial, the pair had different perspectives on the move. The father claimed it was always meant to be permanent. The mother called it a “trial period”, stating the decision to stay in Canada would only be made down the line if they both agreed. In Canada, the mother’s Irish optometry credentials were insufficient for professional registration without further academic qualifications.

[3] Soon after the move to Canada, the father was injured in a car crash. He entered a severe depression and could not work. The mother began taking locum work in England. In 2019, they had a baby girl. The couple separated about ten months later and the mother applied for divorce, child and spousal support, and sole decision-making responsibility for the child (still referred to as “sole custody” at the time).

[4] The question before the trial judge was whether relocation to Ireland was in the child’s best interests. The trial judge correctly observed that in any relocation case, the Act requires the court to consider the best interests of the child in accordance with factors set out in ss. 16 and 16.92 of the Act. Applying these factors, the trial judge ruled that relocation was not in the child’s best interests.

[5] The mother raises four grounds of appeal. The crux of the mother’s appeal is that the trial judge’s reasons disclose uneven scrutiny to the parties’ evidence, factual errors, legal errors and a reasonable apprehension of bias.

[6] The trial judge’s relocation decision is fact-based, discretionary, and is owed significant deference on appeal. This court will only intervene if there is a material error, a serious misapprehension of the evidence, or an error in law: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 11. For the reasons that follow, I am satisfied that the trial judge’s decision reveals errors in all three categories. Accordingly, I would allow the appeal.

ii. BACKGROUND FACTS

[7] The parties’ relationship appears to have been tumultuous to varying degrees, including allegations of controlling and physically abusive behaviour. During one incident in September 2016, the mother alleged the father pinned her on their couch and covered her mouth in the midst of an argument. She described that when she managed to get up, she called the building concierge who called the police. The father was charged with assault, but the charge was withdrawn when he signed a peace bond. The mother left for Ireland after that incident, but the pair reconciled in England a few months later. They began living together again in Toronto in June 2017. The mother alleged further incidents of intimidation during fights with the father in the ensuing years, including that he put furniture in front of a door in the apartment so that he would know whether she was trying to leave.

[8] The mother became pregnant in 2019. Two midwives gave evidence at trial that the father acted in a controlling manner during pre-natal appointments. The mother alleges that the father exerted pressure on her to refuse multiple recommended medical treatments during pregnancy and when the child was a newborn. The father claimed that he acted as a spokesperson on the mother’s behalf because she had expressed discomfort with confrontation, and that he was simply vocalizing their joint decisions in the medical appointments.

[9] The parties separated on August 28, 2020, when the mother left the family home. Initially, the father was granted supervised parenting time for two hours a day. The mother also consented to the father’s unsupervised parenting time in February 2021. A subsequent order in May 2021 expanded the father’s parenting time in phases. By the time of trial, the father had 38 hours of parenting time with the child per week: Tuesdays and Wednesdays from 5 p.m. to 8 p.m.; Fridays from 10 a.m. to 6 p.m.; and alternate weekend dates over 24 hours (10 a.m. to 10 a.m.).

iii. DECISION BELOW

[10] At trial, the mother alleged that the father was controlling and had engaged in potentially abusive behaviour. The evidence called by the mother included testimony by a friend in whom she confided about the father’s abusive behaviour in 2017, two midwives who were concerned there was an unhealthy dynamic of control in their relationship, and affidavits from the mother’s sister and mother.

[11] As earlier noted, the mother also alleged that the father acted in a controlling and abusive manner toward her, to varying degrees, throughout their eight-year-long relationship. She accused the father of controlling her finances and her relationships with friends and family. She accused him of physically restraining her from leaving the home during arguments.

[12] Ultimately, it was the mother’s position that the best interests of the child favoured a relocation to Ireland where the mother had an optometry job waiting, her parents and sister would help care for the child, and she could become financially secure.

[13] The father denied the mother’s narrative. He acknowledged that the marriage was not all positive, highlighting the mother’s role in the discord. He stated in his sworn evidence that the mother “[made] jokes about [his] Indian heritage”, treated his parents badly, “called [him] by the name of a notorious terrorist” and threatened on several occasions to remove their daughter from his life. He also denied being physically, emotionally, or psychologically abusive towards the mother and claimed that she had mental health issues. He relied on many emails and texts that were sent to him by the mother after his arrest in 2016 where she retracted the complaints.

[14] In lengthy reasons, the trial judge rejected the mother’s narrative about the father and about their relationship. He described the mother’s demeanour in court as “reveling in her criticism of [the father]”, while the father was “stoic and reluctant, and yet full of sadness (except for when he talked about his daughter, when his eyes lit up).” The trial judge also rejected the evidence of other witnesses who testified about their perceptions of the father’s coercive behaviour. The trial judge found, in fact, that this evidence worked against the mother. He rejected her claims of family violence.

[15] Instead, in the trial judge’s view, what controlled the mother was her lack of professional qualifications to practice optometry in Toronto. Had she been qualified, the trial judge commented, “perhaps she would have responded more sympathetically to her husband’s illness.” The trial judge also found that the mother intentionally did not take optometry courses in Canada so that she would remain unqualified, therefore bolstering her rationale for relocating to Ireland. The trial judge concluded that there was insufficient evidence to show that the mother had better financial prospects in Ireland versus Toronto.

[16] The trial judge began his analysis of the best interests of the child by discussing the onus in relocation cases. The mother argued that the father had the burden of proof under s. 16.93(2), since their child spends the “vast majority” of time with her (77.4%). The trial judge disagreed. He held that 77.4% was not so high as to mean that the father had an insignificant presence in the child’s life and should bear the burden of proof to demonstrate to the court why the relocation was not in the child’s best interests. The trial judge instead applied s. 16.93(3), which places an equal burden of proof on both parties.

[17] The trial judge then considered the many factors in s. 16 of the Act to determine the best interests of the child. After identifying and weighing the factors, he concluded that a relocation to Ireland was not in the child’s best interests. In this analysis, the trial judge placed significant weight on the child’s biracial identity, being of both Indian and Irish heritage, and on what he perceived as the superiority of Toronto as a place for a biracial person to live, as compared with Ennis, Ireland. For example, the trial judge stated:

The daughter is a mixed-race person of diverse cultural and religious backgrounds, residing in the most multicultural and tolerant city in the world. The mother intends to relocate her to an ethnically homogenous community …

[18] The trial judge issued further reasons on a parenting schedule and support obligations. While this appeal relates only to the relocation issue, the mother impugns the trial judge’s decision to grant her financial support from the father as an acceptable alternative to permitting her relocation request.

iv. ISSUES ON APPEAL

[19] The mother raises the following four grounds of appeal:

1. The trial judge applied uneven scrutiny to the mother’s evidence and the evidence of her witnesses, resulting in a reasonable apprehension of bias and numerous factual findings unsupported by any reasonable review of the evidence.
2. The trial judge erred by importing “race” into the relocation analysis when it was not raised by the parties.
3. The trial judge erred in treating this case as a support case rather than a relocation case, and in determining that a lump-sum “conditional” support award was an appropriate remedy.
4. The trial judge erred in law in his application of the presumptions for relocation under s. 16.93 of the Act.

[20] The father submits that the trial judge’s decision does not meet the extremely high bar for a reasonable apprehension of bias. He calls the allegation “a thinly disguised attack on the trial judge’s findings, inferences and credibility assessment[s].” The father urges this court not to intervene in the trial judge’s credibility assessments and argues that the trial judge rightly rejected the mother’s evidence as conclusionary and accusatory, in contrast to the father’s factual and balanced evidence. The father also submits that the trial judge was entitled to consider race as part of his analysis of the child’s best interests.

v. THE LEGAL FRAMEWORK

[21] The appropriate test to apply in relocation cases is not controversial. It is set out in the Act and was revised in 2021. It requires the court to determine what is in the child’s best interests and sets out an extensive open list of factors that the court is required to consider at ss. 16(1)-(6) and s. 16.92:

Best interests of child

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

Primary consideration

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Factors relating to family violence

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

Parenting time consistent with best interests of child

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

Best interests of child — additional factors to be considered

16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,

(a) the reasons for the relocation;

(b) the impact of the relocation on the child;

(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;

(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;

(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;

(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and

(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

Factor not to be considered

(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.

[22] The standard of review in this matter is also well-settled. This court “must approach the appeal with considerable respect for the task facing a trial judge in difficult family law cases, especially those involving custody and access issues”: C.S. v. M.S., 2010 ONCA 196, 262 O.A.C. 225, at para. 4; N.S. v. R.M., 2019 ONCA 685, at para. 4. As decisions in such cases “are inherently exercises in discretion”, they must attract a high degree of deference: Van de Perre, at para. 13. As this court has recently confirmed, this court’s task is not to impose the decision we would have made after engaging in a fresh analysis or balancing the various factors differently. We can intervene only if the motion judge erred in law or made a material error in the appreciation of the facts: J.N. v. C.G., 2023 ONCA 77, 477 D.L.R. (4th) 699, at paras. 9-10, leave to appeal refused, [2023] S.C.C.A. No. 112.

vi. ANALYSIS

[23] As noted above, the mother raises four issues on appeal. Many of these issues overlap. I would reframe the issues as follows:

1. Did the trial judge err in his consideration of the best interests of the child under s. 16 of the Act?
2. Did the trial judge err in his characterization of the case as “a support case” and in his application of the presumptions under s. 16.93 of the Act?
3. Do the trial judge’s reasons give rise to a reasonable apprehension of bias?
4. If the appeal is granted what is the appropriate remedy?

[24] In my view, the reasons of the trial judge disclose material errors, serious misapprehension of the evidence and errors of law. He misconstrued and ignored relevant evidence. He also relied on extraneous considerations that were not before him. I also accept the mother’s submissions that the trial judge made legal errors in re-characterizing her relocation request at para. 138 as “a support case.” Given these errors, the decision must be set aside. Given my conclusions on the first two issues it is not necessary to decide whether the trial judge’s reasons give rise to a reasonable apprehension of bias.

(1) ISSUE 1: Errors in Best Interests of the Child Analysis

[25] The fundamental issue before the trial judge was whether relocation was in the best interests of the child. He concluded that it was not. However, his reasons reveal material errors and serious misapprehensions of the evidence. On its own, any single error may not have warranted this court’s intervention. In deciding whether to change an existing parenting order, however, the court must engage in a “full and sensitive inquiry into the best interests of the child”: Gordon v. Goertz, [1996] 2 S.C.R. 27, at para. 52. Taken together, the trial judge’s errors in this case infect the “best interests” analysis to such an extent that this court must intervene.

[26] I focus on three examples. First, in his analysis of the mother’s claim of coercive control, directly relevant to s.16(3)(j) of the Act, which requires the court to consider any family violence in the relationship, the trial judge erred by misapprehending or ignoring relevant evidence. Second, the trial judge made assumptions about the mother and her family’s attitude to the child’s Indian heritage that were entirely unfounded. This error tainted his findings under s. 16(3)(f) of the Act to consider the child’s cultural, linguistic, religious and spiritual upbringing and heritage. Third, the trial judge allowed his analysis to be informed by an unreasonable conclusion that the mother had “manipulated” the system against the father. In this, the trial judge erred in his analysis of s.16(3)(i) of the Act, specifically in his assessment, as was required, of “the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child”.

(a) Material Error Regarding Coercive Control: Relevant to s.16(3)(j) of the Act

[27] The term “coercive control” does not appear in the Act. However, when determining the impact of any family violence within the “best interests” analysis, a judge is bound to consider “whether there is a pattern of coercive and controlling behaviour in relation to a family member”: s. 16(4)(b). Where allegations of family violence are raised it is, of course, incumbent on the trial judge to carefully evaluate them and to take a dispassionate approach to the evidence tendered to support and rebut the allegations. Moreover, a trial judge must approach these allegations with an awareness that “[d]omestic violence allegations are notoriously difficult to prove”: Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, at para. 144. The judge must also be attentive to the harm a child may experience through indirect exposure to domestic conflict: Barendregt, at para. 143.

[28] In this case, the trial judge concluded that the mother “ha[d] not proven that there was any family violence.” According to him, “[t]he only violence, in terms of verbal assaults, appear[ed] to have come from her and directed at [the father] and his family.”

[29] To provide context for my conclusion that there is a material error in how the trial judge dealt with the allegation of coercive control, a review of the key pieces of evidence presented by the mother is required. As noted above, the father denied all allegations of coercive control.

(i) The Mother’s Evidence of Coercive Control

[30] In the mother’s affidavit, she asserted that, during their relationship, the father had controlled her, “trapped” her, isolated her from friends and family, manipulated her psychologically, and physically restricted her ability to leave the home. She asserted that his controlling behaviour became worse following the birth of their child.

[31] She recounted an instance, prior to her pregnancy, where the father allegedly physically restrained her on their couch. She called the building concierge who called the police. This incident resulted in a criminal charge that was withdrawn when the father entered into a peace bond for 12 months on November 25, 2016. That bond required him to keep the peace and be of good behaviour, prohibited him from directly or indirectly having contact with the mother unless written consent was filed by her with the police and prohibited him from possessing any weapons.

[32] The mother also provided an email exchange where the couple openly discussed what they would like one another to change about their relationship. The father stated in his email, under the heading “Loyalty”: “Don’t ever talk about: […] Anything at all that could make me seem not perfect to an outsider” and “Do what I ask you to do without fuss/argument (unless request is objectively unreasonable)”. At trial, both the father and mother testified about the context in which this email exchange took place. While the mother suggested this exchange exhibited the father’s controlling behaviour, the father testified that this occurred in the context of marriage counselling and that he would not use this demanding tone in any context other than an exercise recommended by a marriage counsellor.

[33] The mother also tendered two independent witnesses who testified at trial: two midwives involved in her care throughout her pregnancy. Vanessa Dixon and Sarah Davies testified to what they perceived as concerning behaviour displayed by the father during medical appointments. Ms. Dixon described a sense of “unease” that she and Ms. Davies shared about the dynamic in the couple’s relationship. Ms. Davies expressed that the father’s behaviour during appointments caused her to be concerned that he was making unilateral decisions on behalf of the mother. Ms. Davies also relayed that it had struck her as a potential sign of intimate partner violence that communications between the midwives and the mother had to go through the father’s Canadian phone number. Ms. Davies relayed how, in a moment when the father was not in the room, she had expressed to the mother her concerns about “control in this relationship” and told her that “if you need access to resources, please let me know.” Eventually, the mother did reach out by email asking Ms. Davies for resources. In her email, the mother wrote: “I sensed you felt I might be in a difficult situation with [him]?” and stated that she hadn’t been free to talk at the time because she was “afraid he would overhear.” Ms. Davies replied with a list of resources, including a link to an example of a safety plan and the website for the Barbra Schlifer Commemorative Clinic.

[34] In response to the midwives’ evidence, the father asserted that he was more vocal during medical appointments because he was acting as an advocate on behalf of the mother, whom he described as averse to confrontation.

(ii) Errors in the Trial Judge’s Treatment of this Evidence

[35] I acknowledge the father’s argument that the trial judge was entitled to find that any aspect of the mother’s evidence at trial was not credible or reliable. In concluding that the mother had not proven family violence or coercive control, however, the trial judge was not entitled to ignore material evidence or summarily discount independent evidence. I will deal with each error in turn.

[36] First, the trial judge ignored material evidence relevant to the issue of control. The mother’s evidence of coercive control is conspicuously absent from the trial judge’s analysis. The trial judge briefly mentions the allegation that the father physically restrained the mother in their apartment. He does not mention that charges were subsequently laid or that the father entered into a peace bond as a result of those charges. Instead, the trial judge cast doubt on the veracity of the allegations, noting for example that the mother does not explain how she got from being pinned to the couch to being able to call the building concierge during this alleged incident. The trial judge went on to state that there was “no expert evidence on the subject [of controlling or abusive behaviour], neither on [the father’s] conduct as perpetrator nor on the effect of it on [the mother] as victim.” [2] However, expert evidence was not required. Instead, as the Supreme Court of Canada describes in Barendregt, at para. 144:

Domestic violence allegations are notoriously difficult to prove… Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support.

[37] Similarly, despite substantiating the mother’s claim of the father’s controlling behaviour, the email she tendered as evidence of this behaviour received no mention in the trial judge’s analysis. This omission is of particular concern in the context of an otherwise lengthy and detailed analysis that mobilizes many other exhibits to criticize only the mother. For example, as I will discuss below, to support his conclusion that the mother was motivated by a desire to erase her child’s Indian heritage from her identity, the trial judge drew upon text messages that were the subject of neither testimony nor submissions.

[38] Furthermore, the trial judge discarded the only independent evidence offered by either party, namely the midwives’ evidence, referring to the midwives disparagingly as part of a “circle of self-appointed jurors pointing their fingers at [the father].” While the trial judge was entitled to find the midwives’ evidence neither credible nor reliable, his reasons do not disclose a logical path to such conclusion. Instead, the trial judge troublingly concluded at para. 23 that it “readily emerged that the corroborating witnesses saw what they wanted to see”. This statement, particularly when viewed in context, suggests an immediate dismissal of the evidence of impartial witnesses:

Neither party’s counsel successfully impeached the other’s witnesses during cross-examination, but it readily emerged that the corroborating witnesses saw what they wanted to see and discounted what did not fit their interpretation of what was going on in the marriage. Even the ostensibly “independent” evidence of the midwives, who had been taken aback by [the father’s] questioning of their recommendations, seemed buttressed in their opinion of the marital dynamic by the fact that the father had been doing most of the talking and they disapproved of the decisions he was imparting.

[39] Also concerning is the trial judge’s characterization of the father’s agreement to use a midwife as “wholly incongruous with the behaviour of a misogynist and a gaslighting abuser”:

Ontario introduced midwifery with the passage of the Midwifery Act, 1991, S.O. 1991, c. 31. This followed a decade of lobbying by women’s groups to establish an autonomous female-empowering professional setting for birthing as an alternative to the then male-dominated hospital-based obstetrics profession. I find that [the father’s] agreement and enthusiasm for such a service, including a dedicated and involved female midwife, wholly incongruous with the behaviour of a misogynist and a gaslighting abuser. [Emphasis added.]

[40] Unsurprisingly, trial counsel for the father did not make this submission. This is not “incongruous” as the trial judge states, but rather a complete non sequitur.

[41] In sum, the trial judge’s analysis of the evidence of coercive control reveals material errors and significant misapprehension of the evidence. These errors tainted this aspect of his assessment of the best interests of the child. His ultimate conclusions that the mother “has not proven that there was any family violence” and that “[t]he only violence, in terms of verbal assaults, appear to have come from her and directed at [the father] and his family” must be set aside.

(b) Improper Attribution of a Motive to Erase the Child’s Indian Heritage: Relevant to s. 16(3)(f) of the Act

[42] Under s. 16(3) of the Act, a child’s cultural, linguistic, religious and spiritual upbringing and heritage must be considered to determine what is in the child’s best interests. Accordingly, the child’s biracial identity and her Indian and Irish heritage were highlighted at trial. I do not accept counsel for the mother’s submission that race was not introduced into this trial by either party. It was. However, the trial judge’s reasons reveal multiple misapprehensions of evidence and unfounded assumptions about the mother and her family’s attitude to the child’s racial identity and about the town to which the mother proposed to move. These errors were perhaps most centrally connected to the child’s best interests and the decision cannot stand because of these errors. The trial judge found that the mother harboured a “delusion” about the child’s racial identity, that she and her family had a motive to “assimilate” the child, and that the town to which the mother proposed to return was, in his words, “small and strict” and would be unwelcoming to a biracial child. These findings were disconnected from any evidence in the record. I will focus on three errors representative of the trial judge’s approach.

(i) Mischaracterization of the Maternal Grandparents’ Evidence

[43] The child’s maternal grandmother provided an affidavit at trial. In relation to her Catholic faith, the grandmother stated the following in her affidavit:

• “Michael [her husband and the child’s grandfather] and I are Catholics and faith and tradition are values that we would pass on to [the child] if she was living in Ireland.”
• “[T]he religious and cultural Irish traditions that [the child] will be exposed to in Ireland can not be replaced by living elsewhere in the world.”
• “Sunday is a day when families would get together after church”; “There are many churches in Ireland and many of these parishes will have quizzes, music, tennis, and card games.”
• “If [the mother] is able to move to Ireland, [the child] will have access to great schools, Irish culture, the Catholic faith, and most importantly a support system that will assist her in the daily struggles of raising a child.” [Emphasis added.]

[44] The grandmother was subject to an extremely brief cross-examination on her affidavit. Her religion was never touched upon during cross-examination or re-examination.

[45] The mother stated in her testimony that the child’s maternal grandmother was “quite religious” and indicated that this was why the father decided to convert to Catholicism before they were married. The mother testified that she herself did not pressure him to convert and that his religion was not “a big deal” to her but that conversion was something her parents “would have liked.” She also stated that she was “raised a Roman Catholic” and did not consider divorce earlier on due to the stigma attaching, in her view, to divorce “in the Roman Catholic community”. However, the mother also cited her desire to avoid admitting “defeat or failure” as another reason she did not pursue divorce earlier on. This represents the entirety of evidence at trial on the grandparents’ Catholic faith and the mother’s connection to that faith at trial.

[46] From this evidence, the trial judge drew the following conclusions at paras. 51, 112 and 125:

Considering [the grandmother’s] plan to “help” raise the child as an Irish Catholic, as well as [the sister’s] antipathy toward [the father], there was more than a hint that the family would assimilate [the mother’s] daughter by reducing [the father’s] presence in her identity.

The daughter is a mixed-race person of diverse cultural and religious backgrounds, residing in the most multicultural and tolerant city in the world. The mother intends to relocate her to an ethnically homogenous community where her maternal grandmother has stated her intention to impart her Catholic faith.

The evidence of [the grandmother] of the expectation to conform to Irish Catholic values adds a layer of complexity still, not because faith or religion is inherently detrimental but because, growing up, the child will have no effective means of resisting the assimilation of part of her identity that does not belong to that small and strict world. [Emphasis added.]

[47] These passages raise serious concerns. The first is the explicit assertion that Irish Catholics in a rural town inhabit a “small and strict world.” No evidence in this record supported such a finding. With due respect to the trial judge, these passages reflect stereotypical reasoning with no basis in the record. This view was not articulated by anyone at trial. It is a perspective brought to the decision entirely by the trial judge himself.

[48] Similarly, the suggestion that the mother’s family sought to assimilate the parties’ child is not supported by the record. What the grandmother stated was that she and her husband were Catholic and that “faith and tradition [were] values that [they] would pass on” to their granddaughter. They did not evince an “expectation to conform to” those values. The leap from a statement about passing on values to an intent to assimilate is both harsh and unjustified.

[49] The harshness of this conclusion is amplified by the trial judge’s entirely gratuitous commentary at para. 123 about the Canadian history of residential schools:

While I appreciate that many relocation plans approved by the courts entail visits for short periods during school holidays, that type of arrangement is better suited to older children who have already had the experience of having both parents around all the time. Modern Canadian family law protects childhood, even if it means parental sacrifice. Historically, children were put to work to support parents in lower economic strata or were raised by domestic servants or boarding schools in wealthier classes. Law and society did not recognize childhood as a distinct stage of life and considered children as future adults or as mouths to feed. The Canadian history of Residential Schools came out of an idea that removing children from their parents was the best way to assimilate the indigenous population. It was only after the mass family dislocations of the Second World War that governments started to reflect on the effect of parental alienation on children as the disruption of human development itself.

[50] Third, and perhaps most importantly, the suggestion that the child would be left with no “effective means of resisting” that supposed assimilation disregards completely the mother’s evidence recognizing the importance of maintaining the child’s connection both to her father and her Indian heritage. By implication, the trial judge cast the mother as a co-conspirator in the attempt to erase her child’s Indian heritage, or alternatively, as completely powerless to protect her daughter from what the trial judge unjustifiably portrayed as an expectation of strict religious conformism. Neither portrayal was in any way justified on the record.

[51] The trial judge’s findings on the mother and her family’s attitude to the child’s biracial heritage are entirely speculative. Without any basis in the record, these findings cannot stand.

(ii) The ‘Vitamin D’ Exchange

[52] The record before the trial judge included hundreds of text messages between the mother and father. Amongst them is a brief exchange focused on the parents’ views about what the child’s diet should consist of and what supplements she should take. The father took the position that the child required a vitamin D supplement. The mother responded with a view that the child’s sun exposure was sufficient, and a supplement was not necessary, at least on days when the child is in the sun. Apparently in response to an article on vitamin D that the mother sent to the father, he raised the issue of the child’s race, stating: “[The child] is not Caucasian”. The father goes on to reiterate that the child should be given a vitamin D supplement on days where she has no sun exposure. To this, the mother replies, “She’s 75 percent Caucasian. Her skin is fair.” The text message exchange continues with a difference of opinion about what foods the child should be fed and what supplements she should take.

[53] No questions were asked of the parties during their testimony about this exchange nor were any submissions made with respect to these particular text messages at trial. However, the trial judge used his own perspective to interpret the significance of this exchange. From the mother’s statement – “She’s 75 percent Caucasian. Her skin is fair” – he drew the following conclusions:

[T]his comment - inaccurate in terms of the percentage - evokes all manner of disturbing historical and current social problems, not the least of which is the emotional vulnerability of girls and women from South Asian and mixed communities to equate beauty with the fairness of their skin. … Even if I am wrong in my conclusion, it was clear that [the mother’s] mind harbored a delusion that the daughter was more white than Asian and that this was part of rationalizing her decision to relocate her child to Ennis.

[54] This passage offers another example of a significant misapprehension of the evidence and consideration of extraneous factors unsupported by the record.

[55] First, the trial judge impugns the mother for overemphasizing the daughter’s Caucasian heritage when in fact she has three Caucasian grandparents and one grandparent of Indian descent. While I in no way suggest that racial identity can be reduced to a mathematical formula, the trial judge’s comment that the mother’s comment was “inaccurate in terms of the percentage” strongly suggests that he was finding fault where there was none.

[56] Second, if the word “fair” in this conversation evoked “disturbing” beauty standards for the trial judge, this had everything to do with his own views of the “emotional vulnerability of girls and women from South Asian and mixed communities” and nothing to do with what is in evidence here. The mother’s brief comment is entirely in the context of the need for vitamin supplementation and nothing more can or should be inferred from the message on its own. Again, as the message was never raised in testimony or submissions and as the mother had no opportunity to respond to the suggestion that she intended anything other than a factual exchange about how much vitamin D her daughter should take, the trial judge’s decision to read into this message is a clear error.

(iii) Attribution of a Desire to Change the Child’s Last Name

[57] Similarly, the trial judge erred in his interpretation of the evidence by mischaracterizing a text message the mother sent to the father suggesting she would like to change the child’s last name. Here, the trial judge again drew an unfounded conclusion attributing malicious intent to the mother:

Contrary to her professed magnanimity toward [the father’s] paternal role, [the mother] betrayed a desire to prepare her daughter for the move to Ireland by cleansing traces of [the father] from her identity. On May 3, 2021, [the mother] added to a text to [the father] about a doctor’s appointment that she intended to have her daughter’s surname changed to Moloney. [The father] did not take the bait and simply responded with his desire to attend the doctor’s appointment. [Emphasis added.]

[58] The text message from the mother referred to in this passage reads as follows:

Bringing [the child] to doctor next week. Please let me know in writing if you have any concerns.

I also want to change [the child] to having my surname as well. presume I won’t have your consent? [Emphasis added.]

[59] The text was accompanied with a link to a blog about changing a child’s name after separation or divorce. As with the “vitamin D exchange”, there was no testimony on this text message at trial, nor were submissions made in relation to it. The trial judge therefore had no context for interpreting the brief exchange. In my view, the text message plainly states that the mother wanted to add her maiden name to the child’s last name. However, the trial judge drew the unsupported definitive conclusion that this was an example of an attempt by the mother to “cleanse” her child of the father’s identity. It was not open to him to make such a strong adverse finding based on a misapprehension of evidence.

(c) Ungrounded Comments that the Mother Manipulated the System: Relevant to s. 16(3)(i) of the Act

[60] Throughout his judgment, the trial judge repeatedly referred to the mother’s use of the family court system as “tactical”. These comments are relevant to the trial judge’s analysis under s. 16(3)(i) of the Act, which required him to consider “the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child”. He found that the mother “manipulated the court’s process, especially regarding judges’ willingness to err on the side of caution in accepting at face value allegations of family violence, to alienate the father from the daughter’s life and to gain a procedural advantage in her plan to relocate the child to Ireland” (emphasis added). He went on to comment that:

[T]he tactical use of the court’s process demonstrated a basic deficit of understanding of the role of parents in infant development. … [T]he decisions that [the mother] has made in the course of the litigation, as well as the plans for the move, give reasons for concern that the child needs a parent in her life in addition to [the mother]. [Emphasis added.]

[61] As I understand the trial judge’s reasoning, he found that the mother took a “tactical” approach to this family law matter because the mother consented to the father having unsupervised visits after initially seeking and securing an order for supervised visits only. In September 2020, the mother obtained an early interim order allowing the father only supervised visits. As a result of “glowing” reviews of the father’s parenting skills from the supervisors, she later consented to unsupervised visits on three separate occasions, on each occasion for an increased length of time. [3]

[62] The trial judge therefore viewed the mother’s change in position with respect to visit supervision as concessions and as proof that the original supervision order was unnecessary and that the mother had manipulated the system to gain a procedural advantage. Indeed, he referred to the mother’s claim in her affidavit that she consented to unsupervised parenting time despite the fact that many others in her position would not have done so as “indicative of [her] living in an echo chamber and more than half hoping that [the father] would not prove to be a capable father.”

[63] Respectfully, I do not understand the trial judge’s reasoning. In her affidavit, the mother explained that she was extending an “olive branch” to the father and attempting to avoid the need for additional motions. The evidence that the mother consented to three increases in parenting time was objective evidence of conciliatory behaviour, yet the trial judge found that the mother “manipulated the court’s process”. This finding was unreasonable because there simply was no evidence to support it.

(d) Impact of These Errors

[64] In sum, I am satisfied that on a fair reading of the trial judge’s reasons, considered as a whole and in the context of the record, the relocation decision cannot stand. In considering a relocation request, the legislation requires the court to make a decision that is in the child’s best interests and to consider additional outlined relevant considerations. All the errors discussed above pertain directly to factors that the legislation dictates must govern a relocation decision. As such, this court cannot be satisfied that the decision that was made here was in fact in the child’s best interests. I would allow the appeal on this ground.

(2) ISSUE 2: Legal Errors in Characterizing the Case as a “Support Case” and in Applying the Appropriate Burden of Proof

[65] This appeal must be allowed based on the evidential errors described above. For completeness, however, I will also address the other legal errors alleged by the mother in the trial judge’s approach: that he wrongly concluded that the case before him was a support case rather than relocation case, and that he failed to apply the burden of proof under s. 16.93 of the Act in the mother’s favour. I will briefly address these errors.

(a) Wrongly Characterizing the Case as a Support Case

[66] I agree with the mother that although this case was framed and argued as a relocation case, the trial judge appeared determined to treat it as a case about spousal support, stating:

When viewed through the core logic of [the mother’s] case, the real issue in this case is not very different from many cases before this court in which women have made personal sacrifices in order to support the marriage and the family. [Emphasis added.]

[67] The trial judge then bluntly states: “It is a support case.”

[68] This was a clear legal error. By treating this as a support case and the mother’s motivations for moving as financial only, the trial judge circumvented the list of legally mandated considerations relevant to relocation as set out in s. 16.92(1) of the Act. No doubt, the mother’s determination to remain financially viable and able to provide for her child is a compelling reason connected to relocation: Porter v. Bryan, 2017 ONCA 677, 6 R.F.L. (8th) 41, at para. 17. However, under s. 16.92(1)(a), the trial judge was required to consider all the reasons for relocation. Yet he ignored the mother’s motivations aside from her financial interest or characterized her other stated motivations as financial in nature. For example, the trial judge mischaracterized and discounted the mother’s evidence of increased family support if she and the child moved to Ireland. The evidence was that the maternal grandparents would be close by and regularly available to assist in the care of the child, as both were not working. The maternal grandmother stated in her affidavit that she and her husband would be available to assist with pick-ups and drop-offs to school, meal preparation, taking the child to extracurricular activities, and learning about Irish culture.

[69] The trial judge appears to have singularly focused on the financial motivation for the move. The trial judge explained at length what he viewed as the relatively minimal barriers to the mother’s entry into the optometry profession here in Canada and that she could requalify with some effort. However, both the mother’s career motivation and her description of family support should have been considered in relation to the child’s best interests. Neither could be addressed through spousal and/or child support alone. It was a legal error for the trial judge to overlook the emotional, psychological, and social motivations referred to by the mother and reduce her relocation request to a “support case”.

(b) Failing to Apply Presumption in Mother’s Favour

[70] The mother argues on appeal that she should have had the benefit of a presumption in favour of the move given that she was the primary caregiver. I agree. However, the error is not particularly relevant in this case because the trial judge reached such strong adverse conclusions about the likely effect of the move on the child that even if the trial judge had applied the proper presumption, it would not have impacted the findings that he made and the conclusions that he reached.

[71] Section 16.93(2) of the Act provides that where “a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.”

[72] Here, at the time of trial, the child was clearly spending the majority of her time with the mother and had done so since birth. The trial judge appears to have accepted that the child was spending about 77.4% of the time with her mother. However, he found that since the father’s time was increasing, his presence in her life was not so insignificant and he should not bear the burden of proof to demonstrate to the court why the relocation was not in the child’s best interests. The trial judge instead applied s. 16.93(3), which places an equal burden of proof on both parties.

[73] There is no suggestion in the legislation that anything other than actual time spent by the parent with the child is to be considered. And while I recognize that the phrase “vast majority of the time” is impressionistic and that it is open to the court to exercise its discretion in determining where the presumption should apply, that discretion must be exercised reasonably.

[74] In determining that the mother should not have the benefit of the presumption, the trial judge inappropriately imported into his analysis at para. 106 his unfounded criticism of the original parenting order. The trial judge stated: “[the mother] should not benefit from the draconian order she obtained at the outset in order to skew the percentages toward her idea of ‘vast majority.’” As I have outlined above, there is no support for the finding that the mother manipulated the system and the finding that the mother somehow “manipulated” time with the child to gain the benefit of a presumption reflects a clear error.

[75] As I have set out, there were significant reversible errors in this case pertaining to the misapprehension of evidence and reliance on inappropriate considerations. It is based on these errors that the decision below cannot stand.

(3) ISSUE 3: Reasonable Apprehension of Bias

[76] Given my conclusion that the decision cannot stand, it is not necessary to deal with the mother’s allegation of bias. However, I wish to comment on some of the language used in the trial judge’s decision.

[77] To begin, I recognize that the matter before the trial judge was a difficult case involving a young child. The consequences for the parties were significant. There is no suggestion that the trial judge exhibited any bias in his conduct, comportment, or demeanour during the proceedings. However, several passages in the written reasons appear to show that the trial judge approached the case with a level of disdain for the mother. In my view, the tone of the trial judge’s reasons vis-à-vis the mother, in addition to the errors all made in the father’s favour, requires comment. I will set out three examples.

[78] First, in rejecting the mother’s position that the move to Toronto was meant to be temporary the trial judge said at para. 13:

“If I am wrong in my assessment of her credibility, the propensity for self-doubt that caused her to wander in and out of [the father’s] life does not permit her to accuse [the father] of having reneged on an agreement to return to England.” [Emphasis added].

[79] Respectfully, the evidence did not show that the mother “wander[ed] in and out of [the father’s] life”. Rather, the undisputed evidence was that the mother left the father once when she returned to the UK following a physical altercation that resulted in his arrest, and another time when she resided with a friend. The idea that the mother “wander[ed] in and out of [his] life” is not supported in the record, nor is it at all clear how the trial judge assessed her to have a “propensity for self-doubt.”

[80] Second, without basis in the evidence, the trial judge commented at para. 41 on the mother’s “use of police services as a kind of marital counselling agency…”. He also commented at para. 40 that:

In her mind, the police could have arrested [the father], but she prevented that from happening. Nothing she described was illegal as such. Her opinion that police services can be summoned to stop a spouse from arguing offends the hard-fought gains of women’s groups in Canada to reverse the historical reluctance of law enforcement to get involved in “domestics” despite clear evidence of actual abuse.

[81] This mocking and inflammatory tone is inappropriate in a judicial decision. The trial judge’s comments also fail to engage with the mother’s assertion that she called the police because she felt she was being harassed and that on at least one occasion the police did have reasonable grounds to arrest the father for assault.

[82] Finally, as already noted above, the trial judge’s references at para. 123 to residential schools and mass family dislocations of the Second World War are, in my view, entirely inappropriate. The trial judge revisited these government policies later on in his reasons at para. 128 when he stated:

[The mother’s] submission that a three-year-old child in her daughter’s situation is not strongly rooted in Toronto and that this is time to settle her elsewhere is a forceful one. It is also draws on the logic of the denial of childhood that inspired the government policies of child relocation of the past identified by Cunningham. The belief that a young child is so much raw material, like putty that can be squeezed into a new container until she has a more developed identity, is offensive to the modern idea that early childhood represents a stage in a person’s life as meaningful as adolescence, adulthood, middle age and old age. The fact that children often prove resilient does not mean they should be subject to potential harm.

[83] These comments were entirely unnecessary. Most charitably, the trial judge’s comments may be construed as rhetorical flourish and they have no place in the context of an already contentious family law dispute.

(4) ISSUE 4: The Appropriate Remedy

[84] Having determined that the trial judge’s decision cannot stand, I now turn to the question of remedy. The mother argues that this court should reverse the trial judge’s decision and permit the mother to relocate to Ireland with the child. I disagree. In my view, the appropriate remedy is to order a new trial.

[85] This is a very important case for the child and for both parties. A trial judge, who must use a balanced approach to “respond to the spectrum of factors which can both positively and negatively affect a child”, is in the far better position to determine what is in this child’s best interests: (Van de Perre, at para. 13). Where, as here, I have concluded that there were material errors throughout the trial judge’s analysis, it is not possible to rely on sufficient factual findings to make a final determination.

[86] Furthermore, nearly 18 months have elapsed since trial. This is an enormous amount of time in the life of a four-year-old child. There are undoubtedly important new developments that should be considered as part of the “best interests” analysis.

[87] However, for the sake of the child as well as the parties, I strongly encourage the parties to come to an agreement and settle this matter. A new trial is unlikely to result in an order that suits either party better than an arrangement that they fashion themselves.

vii. DISPOSITION

[88] For these reasons, I would allow the appeal. If the parties are unable to resolve the matter out of court, I would order a new trial on an expedited basis. If the parties decide to pursue a new trial, I would direct them to be proactive in seeking the assistance of a case management judge to focus on the live issues in this case without repeating some of the uncontroversial and undisputed evidence called during the first trial.

[89] I would award the mother her costs of the appeal in the amount of $23,000 on a partial indemnity basis all-inclusive and remit the costs below to the new trial judge.

Released: August 21, 2024 “L.B.R.”

“S. Coroza J.A”

“I agree. L.B. Roberts J.A.”

“I agree. S. Gomery J.A.”

[1] The child is now four years old.

[2] In context the entire passage in the trial judge’s reasons is reproduced: “There was no expert evidence on the subject, neither on [the father’s] conduct as perpetrator nor on the effect of it on [the mother] as victim. The only mental illness put in evidence, albeit in a superficial manner, was the depression that resulted in [the father’s] dependence on disability insurance for income. There was no evidence of a brain injury or any reason to suspect violent behaviour as sequelae of the accident. There was no clinical evidence that [the mother] was emotionally or psychologically damaged by [the father’s] alleged conduct, so as to feel trapped in the marriage. The only evidence of anything that trapped her was her lack of qualifications to practice optometry in Canada. Had she been qualified here, she would have been working and fulfilled. Perhaps she would have responded more sympathetically to her husband’s illness.”

[3] It is not disputed that the mother consented to these increases in February 2021, May 2021 and December 2022.