Court File and Parties
CITATION: Elliott v. Turcotte, 2009 ONCA 240
DATE: 20090318
DOCKET: C48882
COURT OF APPEAL FOR ONTARIO
Moldaver, MacFarland and Epstein JJ.A.
BETWEEN
Donald Mark Elliott
Applicant (Respondent on Appeal)
and
Mary Jane Turcotte
Respondent (Appellant on Appeal)
Counsel: Heather Hansen and Martha McCarthy, for the appellant Daniel S. Melamed and Jennifer Marston, for the respondent
Heard: March 3, 2009
On appeal from the judgment of Justice Drew Gunsolus of the Superior Court of Justice dated May 5, 2008.
ENDORSEMENT
[1] This appeal again raises the difficult question of whether it is in the best interests of young children for one parent to move with them to another location, over the objection of the other.
[2] The appellant, Ms. Turcotte, and the respondent, Mr. Elliott, are the parents of two children: a son 9, and a daughter 7. In 2003, after a 7-year marriage, the couple separated but continued to reside in Peterborough where the family has always lived. Since separation, the children have resided in the former matrimonial home with their mother who works full time as a manager at the Peterborough Home Depot. Mr. Elliott, a sergeant in the Peterborough police force, lives close by with his new partner, Joanne Wilson.
[3] Although their primary home has been with their mother, the children spend a considerable amount of time with their father. In addition to holiday access, every eight days the children are with Mr. Elliott and Ms. Wilson three full days and two nights. Given Mr. Elliott’s work schedule, this access often falls during week days, allowing the children and their father to share the school day routine together. Mr. Elliott also spends time, when he can, with the children at their various school functions and extracurricular activities.
[4] Since separation, Ms. Turcotte has wanted to move to Cobden, a city slightly north of Ottawa, some 250 kms from Peterborough. This is where Ms. Turcotte was born and raised and where a number of family members, including her parents, reside. It is also a place where she has a job opportunity with Home Depot. She very much wants to move there with the children and live there with her new partner, Mark Moss.
[5] Concerned about Ms. Turcotte’s increasingly pressing desire to move, on June 16, 2004, Mr. Elliott obtained a “without notice” order preventing Ms. Turcotte from moving the children out of the Peterborough area. The parties then participated in mediation, which resulted in their entering into a parenting agreement. The terms of this agreement were incorporated into minutes of settlement, which settled all issues between them except for mobility. They agreed to arbitrate mobility. The arbitration gave rise to an order dated August 26, 2005 that the children would stay in Peterborough. One of its terms provided that the issue of mobility could not be revisited for a period of 18 months. The arbitration order was eventually incorporated into the terms of a final order dated December 12, 2005.
[6] After the expiry of the 18-month period, Ms. Turcotte brought this application to vary the final order to enable her to move to Cobden with her children. She argued that there had been a material change in circumstances and that it was in the children’s best interests that they move there with her. Mr. Elliott opposed the application, maintaining that the best interests of the children would be served by maintaining the status quo.
[7] Gunsolus J. dismissed the application on the basis that there had not been a material change in circumstances since the time of the final order and that, in any event, the move would not be in the children’s best interests.
[8] Ms. Turcotte appeals. She submits that the application judge erred both in his apprehension of the facts and in his application of the law to the facts. Specifically, Ms. Turcotte argues that the application judge:
(i) erred in treating a material change in circumstances as a threshold requirement when the agreement contemplated a review; or alternatively erred in failing to find a material change;
(ii) erred with respect to the application of Gordon v. Goertz (1996), 1996 CanLII 191 (SCC), 134 D.L.R. (4th) 321 (S.C.C.); and,
(iii) failed to provide reasons for distinguishing the case from cases directly on point that supported Ms. Turcotte’s position.
[9] For the reasons that follow, the appeal is dismissed.
[10] In Gordon v. Goertz, the Supreme Court of Canada set out a two-stage test for any application to vary a custody order. At the first stage, the parent applying to vary must demonstrate a material change in the circumstances affecting the child that was not foreseen or reasonably foreseeable at the time of the original order. If this threshold requirement is met, the second stage of the inquiry deals with the best interests of the child. The court must conduct a full inquiry into all of the benefits and detriments of the proposed variation and determine whether it would be in the child’s best interests.
[11] Ms. Turcotte submits that since the arbitration agreement stipulates that mobility cannot be revisited for a minimum of 18 months from the date of the arbitrator’s decision, the parties specifically contemplated a review. Accordingly, a material change in circumstances need not be established.
[12] We disagree. Neither the circumstances surrounding the issue of mobility nor the wording of the agreement lead to the conclusion that this is one of those limited circumstances where a review was contemplated by the parties.
[13] This takes us to the application of the two-stage test in Gordon v. Goertz.
[14] The application judge correctly began his analysis by asking whether the circumstances since the final order in December 2005 had changed in a manner that materially affected the children’s best interests and that could not have been foreseen. The circumstance that Ms. Turcotte emphasized was that her relationship with Mr. Moss had progressed to the point where they were planning to marry. Ms. Turcotte further relied on a new job opportunity with Home Depot in Cobden. Ms. Turcotte also pointed to her proposed plan to transport the children between Peterborough and Cobden to facilitate their relationship with their father.
[15] The application judge found that the proposed move was foreseeable, indeed even contemplated, at the time the final order was made. Referring to Ms. Turcotte’s relationship with Mr. Moss, the application judge found that at that time of the order, the two were involved in a serious relationship and had formed an intention to reside together. He further found that at the time in question, a transfer by Home Depot to a managerial position in the Cobden area was available to Ms. Turcotte. Simply put, nothing had changed. Ms. Turcotte was therefore unable to establish that the threshold requirement of material change had been met.
[16] We see no error in the application judge’s analysis or conclusion on the issue of material change. Accordingly, on that basis alone, we would dismiss the appeal.
[17] Moreover, for the following reasons, we agree with the application judge’s conclusion that the move from Peterborough to Cobden would not be in children’s best interests.
[18] The application judge found that the children are very attached to both parents. As he put it, “their whole world is their mom and dad”. The evidence disclosed that when their parents first separated, the children went through a difficult period. Fortunately, they are now thriving. The application judge was further satisfied that a move that takes the children away from the familiarity and security of their friends, neighbourhood, school and activities would be disruptive. Added to this would be the adverse effects of a significant change not only in the amount of time the children spend with their father but also in the nature of that time. As counsel for Mr. Elliott suggested in argument, one cannot replace time at soccer games, sharing the joy of a win, with time spent on the highway.
[19] The application judge’s order is a discretionary one. It is therefore entitled to considerable deference from this court. The application judge, who had the benefit of seeing and hearing all of the witnesses, made a number of findings of fact that assisted him in determining the children’s best interests. The findings of fact relevant to this conclusion are well-supported by the record and we see no reason to interfere with the conclusion he reached.
[20] Concerning the adequacy of reasons, the application judge’s reasons are thorough and comprehensive. Indeed we consider them to be exemplary.
Conclusion
[21] The threshold test of a material change in circumstances has not been met.
[22] As the application judge found, the fact that Ms. Turcotte honestly believes that she would be happier living in Cobden with Mr. Moss and her children and that the children would benefit from this positive step in her life does not mean that the move would be in their best interests. This is particularly so when the move would deprive the children of the close contact they enjoy with their father and the stability that is clearly beneficial to them.
[23] Accordingly, the appeal is dismissed. Mr. Elliott is entitled to his costs fixed at the agreed-upon amount of $10,000.
“M.J. Moldaver J.A.”
“J. MacFarland J.A.”
“G. Epstein J.A.”