DATE: 20030819
DOCKET: C39411
COURT OF APPEAL FOR ONTARIO
ROSENBERG, GOUDGE and SHARPE JJ.A.
B E T W E E N
ROBERT SINGER
Robert Singer in person
Appellant
- and -
BETTY DAVILA-SINGER
Jan D. Weir for the respondent
Respondent
Heard: August 13, 2003
On appeal from the judgment of Justice Linda M. Walters dated December 12, 2002.
BY THE COURT:
[1] This appeal involves the inevitably difficult issue of whether it is in the best interests of children to relocate with one parent to a place far from the other parent. The respondent, the children’s primary care giver, is moving to Germany to live with her new spouse. She wants to take the children, aged 12 and 7, with her. The appellant insists that it is not in the children’s best interests to move from their familiar surroundings in Oakville to Germany where it will be more difficult for him to maintain close contact with them. He submits that an order allowing the children to remain in Canada and giving him primary care responsibilities would be in their best interests.
[2] There is no doubt that both the appellant and the respondent are capable parents who love their children. Sadly, there can be no judicial resolution of this issue before us that will avoid profound disappointment to one of these caring parents or completely avoid the risk of harm to the interests of the children.
[3] The case was heard and carefully considered by an experienced judge who applied the test articulated by the Supreme Court of Canada in Gordon v. Goertz, [1996] 2 S.C.R. 27. She concluded that it was in the best interests of the children that they remain in the day-to-day care of their primary care giver, the respondent. The trial judge recognized that “a move to Germany will impact on the children’s relationship with their father” but found that “the loss of their primary caregiver would have a greater impact on the children.”
[4] The appellant was most impressive when arguing his own case before this court. However, it is well established that especially in custody cases, an appellate court can only intervene if the trial judge erred in law or made a material error in the appreciation of the facts. Despite the appellant’s very careful and articulate submissions, we are not persuaded that there is any basis upon which we could interfere with the decision of the trial judge. Accordingly, we have no alternative but to dismiss the appeal.
[5] We do not accept the appellant’s submission that the trial judge failed to undertake a full and sensitive inquiry into the best interests of the children as required by Gordon v. Goertz. This was undoubtedly a close case upon which reasonable people might differ. However, we are satisfied from her reasons that the trial judge fully and fairly considered the evident disruption the children that would be caused by a move to Germany. We cannot say that she erred in law or misapprehended the evidence by concluding that the loss of their primary care giver would be more significant that the loss of their familiar surroundings in Oakville.
[6] The trial judge was not bound to follow the opinion of the child and family psychiatrist who prepared the s. 30 assessment, particularly as that opinion was strongly influenced by his assessment that the legal arrangements in Germany were not adequate to protect the appellant’s rights. We do not accept the submission that she misread or misapprehended the psychiatrist’s opinion that in many respects, the children would benefit from a move to Germany. While she did not agree with the expert’s opinion, she neither ignored nor misconstrued it, and she was entitled, indeed required, to come to her own conclusion as to the children’s bests interests.
[7] We are concerned by the uncertainty in the record before us as to the willingness of the German courts to enforce foreign custody orders. However, there was ample evidence to support the trial judge’s finding that the respondent has been flexible and cooperative in affording access and that she genuinely wishes her children to have a strong and lasting relationship with their father. In the absence of evidence of any significant risk of non-compliance by the appellant, we do not consider the uncertainty as to legal enforcement to be sufficient to disturb the trial judge’s order.
[8] In our view, this case is readily distinguishable from Young v. Young (2003), 63 O.R. (3d) 112 (C.A.) where this court concluded that the application judge erred in law by failing to conduct the “full and sensitive inquiry” into the best interests of the children as required by Gordon v. Goertz, misapprehended evidence, and simply failed to consider the s. 30 assessment. Here, as we have already noted, the trial judge gave careful and detailed reasons revealing no error of law or misapprehension of evidence. We can understand the appellant’s profound disappointment with those reasons, but in this court, they must be accorded the deference to which they are entitled in law, and accordingly we dismiss the appeal.
[9] The appellant has led fresh evidence that he is currently employed in Toronto and residing in his former home in Oakville. At the time of trial, he was seeking employment that would allow him to return to Oakville, but there was some uncertainty about his prospects. In our view, this new evidence does not meet the test that it would have affected the result at trial. The trial judge was aware that the appellant was in the process of relocating to Oakville, and the fresh evidence does not bear upon her central finding, namely, that it was in the best interests of these children to remain with the respondent, their primary care giver.
[10] The respondent is entitled to costs on a partial indemnity basis which we fix at $12,000 inclusive of disbursements and GST.
“M. Rosenberg J.A.”
“S.T. Goudge J.A.”
“Robert J. Sharpe J.A.”