- DATE: 20020621
DOCKET: C38059
COURT OF APPEAL FOR ONTARIO
RE:
ROBIN MICHAEL RUSHINKO Plaintiff (Respondent) – and DEBORAH GEORGETTE MADELINE RUSHINKO Defendant (Appellant)
BEFORE:
LABROSSE, SHARPE and CRONK JJ.A.
COUNSEL:
Paul D. Amey, for the appellant
Robert F. MacLeod, for the respondent
Susan McDougall, for the Office of the Children's Lawyer
HEARD:
June 21, 2002
E N D O R S E M E N T
[1] The mother, who is the custodial parent of two children, appeals from the judgment of Harris J. dated March 13, 2002 in which he refused to permit her to move with the children from Delhi to Tecumseh.
[2] The parties separated on January 21, 2000. They entered into a separation agreement dated March 30, 2000, which provided for joint custody, with the mother having primary residence of the children and the father having alternate weekend access.
[3] In November 2001, the mother accepted new employment in Tecumseh, which provided her with flexible hours of employment, an increase in income, more time with her children and the opportunity to be involved in the children's schooling. The new employment eliminated the necessity of a babysitter for the children on school days.
[4] The motions judge ordered that the children’s residence remain in Delhi and that if the mother did not return to reside in Delhi within 3 months, the primary residence of the children was to be with the father. The motions judge attempted, in effect, to force the mother to come back to live in Delhi as primary caregiver of the children.
[5] In our view, the motions judge made errors in principle that justify the intervention of this court. More specifically, in light of the decision in Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, the motions judge failed to give sufficient consideration to the views of the custodial parent, the wishes of the children, and the fact that the move would enhance the mother’s ability to care for the children.
[6] The motions judge placed undue emphasis on the effect on the children of leaving the community and on the effect of the move on the children’s relationship with their father. Furthermore, he gave little or no consideration to the obvious disruption the children would suffer if taken from the primary care of their mother. That disruption must be considered in light of the children's stated preference to follow their mother to Tecumseh, as expressed through counsel for the Office of the Children’s Lawyer.
[7] The mother has offered to share in the travel required for facilitating the father’s access by meeting him in London. On the basis of this record, the move to Tecumseh would not affect the father's access in a significant way.
[8] Accordingly, the appeal is allowed. The order of the motions judge is set aside and there will be an order in its place permitting the mother to move to Tecumseh with the children. The order will further provide that the mother is to share in the travel required for facilitating the father’s weekend access by meeting him in London.
[9] We note that the motions judge made no order as to costs. We are satisfied that both parties have acted in this matter out of a genuine concern for the best interests of the children. In these circumstances, we would award the appellant costs of the appeal, fixed at $4,000 inclusive of GST and disbursements.
“J.M. Labrosse J.A.
“Robert J. Sharpe J.A.”
“E.A. Cronk J.A.”