Court of Appeal for Ontario

Citation: Berry v. Berry, 2011 ONCA 705

Date: 2011-11-14

Docket: C52936

Before: O’Connor A.C.J.O., Juriansz and Watt JJ.A.

Between:

Lisa Michelle Berry Applicant (Respondent in Appeal)

and

Adrian Deryck Berry Respondent (Appellant in Appeal)

Counsel: Aaron Franks and Michael Zalev, for the appellant Cory Deyarmond, for the respondent

Heard: October 17, 2011

On appeal from the endorsement of Justice Victor Paisley of the Superior Court of Justice, dated October 20, 2010.

Juriansz J.A.:

[1] Despite the substantial deference owed to a trial judge’s discretion in custody and access matters, I have reluctantly concluded that this appeal must be allowed. The trial judge’s reasons demonstrate several errors in his application of the factors that govern mobility applications as set out in the Supreme Court of Canada’s decision in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27.

Background

[2] The parties married in Toronto in 2000. They had a son in 2007. The child was born with severe health issues and was subsequently diagnosed with Noonan’s Syndrome. He has had surgeries and faces the prospect of further surgeries when older. The parties separated early in 2010. They lived and worked in Toronto during their entire marriage. The mother grew up in Belleville, and after attending the University of Ottawa, moved to Toronto in 2000. The father lived in Toronto essentially his whole life. Both mother and father recognize each other as loving parents who provide good care for the child. For the most part, since their separation, they have acted reasonably and cooperated with each other. The parents’ agreement about the child’s need for special medical care is an example of this cooperation, and so that need was not in issue in the mother’s mobility application.

[3] Upon filing an application for divorce, the mother brought an “urgent motion” returnable May 4, 2010 for custody of the child and for “an Order granting permission to relocate on a permanent basis with the child to Kingston, Ontario.” Czutrin J. adjourned the motion to June 10, 2010 and held a case conference. On June 10, 2010, the matter came before Kelly J. Kelly J. stated, “Based upon the evidence before me, I am unable to decide the issue of mobility on an interim basis. I am reluctant to allow [the child] to move from Toronto to Kingston until there has been an opportunity to determine his best interests following a complete and full hearing on all of the relevant evidence.” She indicated that she was guided by the principle in Datars v. Graham (2007), 2007 CanLII 34430 (ON SC), 41 R.F.L. (6th) 51 (Ont. S.C.J.) at para. 16:

The problem that this court faces on this motion [mobility]… is that it is difficult if not impossible in most cases to complete the extensive child-focused inquiry required under Gordon v. Goertz on the typically conflicting and incomplete affidavit evidence that is often available to the court on interim motions.

[4] Kelly J. added that “[t]here is conflicting evidence in this case which must be resolved by way of a trial” and stated her view that “there is no compelling reason for the wife to move with [the child] to Kingston at this time. There is no situation of emergency or crisis.” She concluded that “the matter of mobility should proceed to trial”, which was set for September 20, 2010. In the interim, she ordered that the child’s primary residence be Toronto and that the parties have equal access to the child on a rotating 3 day/4 day basis.

[5] After Kelly J.’s order, the mother moved to Kingston to be near her sister and brother-in-law.

[6] The issues, then, that came before the trial judge were custody, child support and the mother’s motion to move with the child from Toronto to Kingston. During the course of the six day trial, the parties agreed to share joint legal custody of the child. The parties also agreed to make written submissions on the child support issue if they could not resolve it on consent. This left the mother’s motion to move to Kingston with the child as the only issue to be decided by the trial judge.

[7] The trial judge proceeded on the basis that the sole issue to be decided “is whether [the child] will reside primarily with his mother in Kingston Ontario, or primarily with his father in Toronto, Ontario.” He found that it was in the child’s best interest to reside primarily with the mother in Kingston. His order provided access to the father on alternate weekends from Thursday at 5:00 p.m. to Sunday at 5:00 p.m., to be extended to Monday at 5:00 p.m. in the event that a “holiday Monday” fell on an access weekend. An alternate schedule was ordered for when the child commences school on a full-time basis, and for holidays.

[8] On December 16, 2010, Rosenberg J.A. stayed the trial judge’s order. Pending appeal, he ordered that the child live with the father in Toronto from Thursday at 5:00 pm to Sunday at 7:00 pm, and with the mother in Kingston otherwise.

The Test

[9] The sole issue that remained at trial was the mother’s motion to relocate to Kingston with the child. The parties agreed that the legal test set out in the Supreme Court’s decision in Goertz, the leading authority on mobility applications, applied. In Goertz, the mother had sole permanent custody of the child and the father had generous access. The father applied for an order restraining the mother from taking the child out of the jurisdiction, and the mother cross-applied for an order allowing the move. This case differs from Goertz in that here both parties are custodial parents and there is no previous custody order to vary. Here, there is no threshold issue of whether there has been a change of circumstances since a previous custody order, and there is no relationship between the child and an access parent to consider. With the necessary adjustments, then, the principles from Goertz apply to this case.

[10] In Goertz, the Supreme Court emphasized that the superordinate consideration in a mobility case is the best interests of the child determined from a child-centered perspective. The court set out, at para. 14, a number of factors to be considered. Taking into account that this case involves two custodial parents, those factors can be stated as follows:

• the existing custody arrangement and relationship between the child and each of the custodial parents;
• the desirability of maximizing contact between the child and both parents;
• the views of the child (when applicable);
• the parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
• disruption to the child of a change in custody; and
• disruption to the child consequent on removal from family, schools, and the community the child has come to know. [Emphasis in original.]

Analysis

[11] While the trial judge correctly identified the Goertz decision as the governing authority for this case, he erred in applying its principles.

[12] In particular, the trial judge failed to give sufficient weight to the principle that a child should have as much contact with each parent as is consistent with the child’s best interests. Instead, the trial judge’s reasons focus almost exclusively on the mother’s reason for moving. A parent’s reason for moving is a proper consideration only in exceptional cases where it is relevant to the parent’s ability to care for the child. Where applicable, the parent’s reason for moving, like all the factors, should be considered from a child-centred perspective.

(i) Maximum Contact

[13] The trial judge erred by failing to give sufficient weight to the maximum contact principle. He stated that maximizing the contact between a young child and both parents “is not the primary goal. It is but one of a number of factors that has to be weighed and considered intelligently in a case where the parties cannot agree.” In Goertz, McLachlin J. pointed out that the maximum contact principle is one of the two statutory factors set out in ss. 16(10) and 17(9) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), and added that “the reviewing judge must bear in mind that Parliament has indicated that maximum contact with both parents is generally in the best interests of the child” (Goertz, at para. 25).

[14] The trial judge’s statement that if the child lived primarily with his mother in Kingston, the child would continue to have “regular contact” with his father, and his statement that the child would not “suffer by virtue of living in Kingston”, are further indications of his inadequate weighing of the maximum contact principle.

[15] The failure to attach appropriate weight to the maximum contact principle led the trial judge to make an order under which the child, who had been living approximately half the time with the father since the separation, would see his father only every other weekend. In addition, under the order, the child would spend less time with his paternal grandparents, who had cared for him after the mother returned to work at the end of her maternity leave. The trial judge did not adequately consider the disruption to the child inherent in this change.

(ii) Reason for the Move

[16] The factor to which the trial judge attached the greatest weight was the mother’s reason for moving to Kingston. In Goertz, the Supreme Court clearly stated that the parent’s reason for moving is to be considered only in exceptional cases and only as it is relevant to the parent’s ability to meet the needs of the child.

[17] Here, the trial judge did conclude that the mother’s reason for moving was relevant to her ability to care for the child. That conclusion was based on the trial judge’s view that the paternal extended family had failed “to respect the privacy and boundaries that a husband and wife have the right to expect” and that the mother found their presence “controlling, suffocating, and overwhelming”. He also based his conclusion on the mother’s lack of support in Toronto.

[18] The trial judge’s conclusions about the paternal family were based on their conduct during the marriage and around the time of separation. In fact, the trial judge relied on the grandfather’s conduct as far back as the time of the child’s birth in granting the mother’s application to move with the child. He also reviewed at length an incident on February 2, 2010, the date the parties separated, when the paternal grandfather physically impeded the mother as she reached for her child. That conduct was clearly inexcusable, and it is relevant to understanding the mother’s desire to move. However, in order for it to be relevant to the mobility application, it would have to be connected to the child’s best interests in the circumstances after the parties’ separation.

[19] The trial judge was also persuaded that the mother had no family support in Toronto and couldn’t function well there, but that she would have the support of her sister in Kingston. This was another reason cited by the trial judge as relevant to the mother’s ability to meet the needs of the child. However, the mother’s stated wish to have the support of her sister and a friend in Kingston had to be considered in the context that the parties resided in Toronto throughout their marriage and the child lived in Toronto his whole life. Her application was to relocate the child to Kingston. While the mother’s wish to move to Kingston and live with her sister is understandable, the evidence did not establish that the move was necessary in order for her to meet the needs of the child. There was no evidence in this case that she would be anything but a good mother to the child no matter where she lived.

[20] The trial judge did mention two recent incidents, but properly did not rely on them in determining the mother’s ability to meet the needs of the child while remaining in Toronto. First, in considering reports that the child said he did not want “to go to mommy’s apartment”, the trial judge found that this sentiment was communicated to the child by the paternal family, albeit unintentionally. The trial judge reasoned that attributing this sentiment to the child was inconsistent with the Kingston witnesses’ testimony of how happy the child is with his mother. Second, the trial judge criticized the father for unilaterally deciding to take the child off pain medication prescribed by his doctor.

[21] The fresh evidence also indicates that the mother recently failed to involve the father in the child’s enrolment in school.

[22] These recent incidents are mentioned here as a reminder to the parties that parents and their families should actively foster a child’s relationship with both parents. As well, all significant decisions about the child must be discussed with the other custodial parent. Both parents need to minimize conflict between them for the benefit of their child. I encourage them to continue to exhibit the cooperation they have largely shown in ensuring that their child’s best interests are met.

(iii) Choosing between parenting plans

[23] The trial judge’s reasons, read as a whole, disclose that he lost sight of the fact that the matter before him was the mother’s application to relocate with the child. He made clear that his approach to the situation and his analysis were based upon the mother living permanently in Kingston and the father in Toronto. He saw his task as choosing between the parenting plans each had submitted. In doing so, he committed both an error of fact and an error of law.

[24] It was an error of fact because the trial judge’s finding that the mother permanently moved to Kingston was contrary to the evidence. The mother stated clearly in her evidence in chief that if the court refused her application she would live in Toronto.

[25] It was an error of law because the sole issue to be decided at trial was whether the mother’s application to relocate to Kingston with the child should be granted as in the child’s best interests. The trial judge erred by regarding the sole issue as “whether [the child] will reside primarily with his mother in Kingston Ontario or primarily with his father in Toronto, Ontario”.

Conclusion

[26] The findings of the trial judge indicate that the child has always benefited from having two loving, caring and engaged parents. Both parents also accept each other as such. Since the separation, the child has lived, more or less equally, with each parent in turn. The child has close bonds with the paternal extended family. The child is especially close to the paternal grandfather. Since the mother’s move to Kingston, the child has also developed relationships with her family there.

[27] Given the young age of the child, and the finding of the trial judge that the views of the child, to the extent they are capable of being known, do not reflect his actual views, there are no views of the child to consider. This is not an exceptional case in which it is appropriate to consider the mother’s reasons for moving. As far as minimizing disruption to the child is concerned, reducing the time the child lives with the father from approximately half the time to every second weekend, is highly disruptive. It is also disruptive to be regularly shuttled back and forth between two cities. While the maximum contact principle is not absolute, it is mandatory. The trial judge did not attach proper weight to the maximum contact principle and instead relied inappropriately on the paternal family’s past conduct as justifying the mother’s desire to move. As the court decided in Woodhouse v. Woodhouse (1996), 1996 CanLII 902 (ON CA), 29 O.R. (3d) 417 (C.A.), while being with a happy parent has a positive effect on a child, the legal test focuses on maximizing contact with both parents and minimizing disruption to the child.

[28] I would grant the appeal, set aside the order below and replace it with an order refusing the mother’s application.

[29] If the parents are unable to agree on a schedule for the child’s living arrangements in Toronto, they may re-attend before the Superior Court.

[30] The father did not seek costs in this court nor in the court below.

[31] I would suspend the effect of this court’s order for 60 days to allow for a smooth transition.

“R.G. Juriansz J.A.”

“I agree D.R. O’Connor A.C.J.O.”

“I agree David Watt J.A.”

RELEASED: November 14, 2011