COURT OF APPEAL FOR ONTARIO

CITATION: Trisolino v. De Marzi, 2013 ONCA 135

DATE: 20130306

DOCKET: C55851

Winkler C.J.O., Armstrong and Hoy JJ.A.

BETWEEN

Antonella Trisolino

Applicant (Respondent)

and

Alexander Christian David De Marzi

Respondent (Appellant)

Darrell S. Waisberg and Jennifer A. Greenwood, for the appellant

Phyllis Brodkin, for the respondent

Heard: February 27, 2013

On appeal from the order of Justice Michael A. Penny of the Superior Court of Justice, dated July 5, 2012.

ENDORSEMENT

[1] The father appeals the July 5, 2012 order of the trial judge, permitting the respondent mother to move to Italy with the two children of the marriage, aged 10 and 7.

[2] The father submits that the trial judge correctly identified Gordon v. Goetz (1996), 1996 CanLII 191 (SCC), 2 S.C.R. 27, 134 D.L.R. 321 (S.C.C.), the leading authority on parental mobility, as the governing authority. He argues, however, that the trial judge erred in his application of the principles of Gordon v. Goetz to the facts of this case. In particular, he asserts that the trial judge (i) focussed almost entirely on the mother’s reasons for moving and confused her best interests with those of the children, (ii) failed to take into account and give sufficient weight to the disruption to the children should they be taken to Italy, particularly given the fact that the children are benefitting from Independent Educational Programs in their school in Toronto, and (iii) failed to give sufficient weight to the desirability of maximizing the children’s contact with both parents.

[3] As to the first alleged error, the father notes that Gordon v. Goetz directs that the judge should consider 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. At para. 61, the trial judge wrote:

The reasons for the move are only relevant insofar as they have a direct bearing on the best interests of the children. In the circumstances of this case, I believe the reasons for the move do have a direct bearing on the children’s best interests, both emotionally and financially.

[4] We agree that in this case the reasons for the move are relevant. The mother’s reasons for the move reflect her perception of the needs of the children, and her judgment about how those needs may best be fulfilled. We accordingly do not give effect to the first ground of appeal.

[5] As to the second alleged error, the trial judge noted that the father placed great weight on the disruption to the children that would arise from the move, including to their educational progress. The trial judge reviewed the father’s submissions on the issue of disruption, and the mother’s plan for the children. The trial judge noted that the children hold Italian citizenship and are fluent in Italian. (Indeed, the evidence with respect to the children’s problems in school is that they are “especially with the English”.) Moreover, the trial judge found that the mother, the children’s primary caregiver, had identified a good school in Rome which is sensitive to foreign students. The trial judge concluded, at para. 73:

Thus, while there will, no doubt, be significant disruptions, there are offsetting benefits in Mother’s plan for relocation which will mitigate the negative impact of these disruptions, at least to some extent.

[6] There is no basis for interfering with this conclusion.

[7] As to the third issue, namely whether the trial judge gave sufficient weight to the principle of maximizing contact with both parents, it must be noted that this is an unusual case. The parties have not yet separated; the parties will separate if the mother and children are not permitted to relocate. The trial judge noted, at para. 56 of his reasons, that the father did not know whether he would re-locate to Italy if the mother were permitted to move there with the children. The trial judge fully appreciated that if the father chose not to accompany the mother and children to Italy, his contact with the children would necessarily be significantly curtailed.

[8] Notably, the mother and father met in Italy. The mother is Italian, the children were born in Italy and the family lived in Italy during the children’s early years. The mother – a lawyer – can only practice her profession in Italy. The father – a waiter – is Canadian but speaks fluent Italian, can work in either country, and, in fact, worked in Italy as a waiter when the children were younger. The father wanted to return to Canada and ultimately threatened that he would do so – with or without the mother and children. While the father says he did not mean it, to keep the family together, the mother capitulated and they moved to Canada. In Canada, the father has been the family’s sole financial provider. The children have a large, supportive family in Rome who are well-known to them.

[9] Balancing the risks and benefits associated with permitting the mother to move to Italy, the trial judge concluded that it was in the best interests of the children to permit the mother to relocate to Italy with them.

[10] The trial judge in our view conducted the full and sensitive inquiry into the best interests of the children mandated by Gordon v. Goetz and made no reversible error in doing so. We accordingly dismiss this appeal.

[11] In the circumstances, there will be no award as to costs.

“Warren K. Winkler C.J.O.”

“Robert P. Armstrong J.A.”

“Alexandra Hoy J.A.”