COURT OF APPEAL FOR ONTARIO

CITATION: Sferruzzi v. Allan, 2013 ONCA 496

DATE: 20130723

DOCKET: C57228

Laskin, Gillese and Strathy JJ.A.

BETWEEN

Anthony Sferruzzi

Appellant

and

Jennifer Lorraine Allan

Respondent

Anthony Sferruzzi, in person

Jennifer Lorraine Allan, in person

Heard: July 16, 2013

On appeal from the judgment of Justice R.B. Reid of the Superior Court of Justice, dated June 14, 2013.

Gillese J.A.:

OVERVIEW

[1] Anthony Sferruzzi and Jennifer Allan were married in May 2002. Their son Mason was born on November 23, 2006. Ms. Allan’s child from a previous relationship, Jasmine (born in 1995), lived with them as a child of the marriage.

[2] In 2008, when Mason was approximately 16 months old, he was diagnosed with autism. He has significant special needs.

[3] Mr. Sferruzzi is an Assistant Crown Attorney. He has regular work hours from Monday to Friday, but works overtime as needed for case preparation. Ms. Allan is currently a senior support provider with an organization that provides residential care to adults with special needs.

[4] Mr. Sferruzzi and Ms. Allan separated in 2009. They agreed that Mr. Sferruzzi would have sole custody of Mason and Ms. Allan would have sole custody of Jasmine. Those custody arrangements have continued throughout, without contest. Both parties live in Waterloo. Ms. Allan has regular access with Mason.

[5] Mr. Sferruzzi has been in a committed relationship with Robin Packer for just over four years. Together, they have a three-year old son, Nicholas. Ms. Packer also has two teenage children from a previous relationship.

[6] Mr. Sferruzzi wishes to move to Pickering so that Mason and Nicholas can grow up with one another and so that he, Ms. Packer and their children can live together as a family. He is confident that this will be in Mason’s best interests.

[7] A court order precludes Mr. Sferruzzi from moving Mason from the Waterloo region without Ms. Allan’s consent.

[8] Mr. Sferruzzi brought a motion to vary the court order so that he could relocate to Pickering with Mason.

[9] Ms. Allan opposed the motion. She was concerned about the reduced frequency of contact that she would have with Mason, and about the disruption in Mason’s relationships with members of her family and his treatment providers. She was also concerned about the expenses associated with access travel and the difficulties involved in Mason being in a car for lengthy periods while travelling for access visits.

[10] The motion judge found that the proposed relocation to Pickering was a material change in circumstances for Mason, with the result that he was empowered to make a variation order under s. 17(5) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). However, he concluded that the proposed relocation was not in Mason’s best interests. By order dated June 14, 2013 (the “Order”), he dismissed the motion.

[11] Mr. Sferruzzi appeals.

[12] At the motion and on appeal, both parties were self-represented.

[13] For the reasons that follow, I would allow Mr. Sferruzzi’s appeal and grant the motion.

BACKGROUND

(1) Mason’s Needs

[14] Mason requires specialized and extensive treatment. He does not learn at the pace of other children his age, nor does he have the same level of social and environmental engagement. He sleeps poorly, and engages in self-stimulatory behaviours such as hitting himself. He is aggressive with others, sometimes pinching or biting his caregivers and those around him. Historically, he had no interest in other people or children. His condition makes it nearly impossible for him to be left alone. He requires constant care.

[15] Mason receives daily treatment known as intensive behavioural intervention (IBI) therapy. IBI therapy is based on Mason’s specific needs and helps him to stay engaged, thus connected to his real environment.

[16] In the mornings, Mason attends school from 8:00 a.m. to 1:00 p.m. However, he spends only about fifteen minutes each day in a regular classroom. The rest of the time, he is in a separate room receiving one-on-one support. In the afternoons from 1:00 p.m. to 5:00 p.m., Mason works with his therapist in Mr. Sferruzzi’s home.

[17] Over time, Mason has made some progress. He now formulates basic sentences, makes eye contact more frequently, plays functionally with toys, and wishes to play with other children.

(2) The Current Access Arrangement

[18] In Ms. Allan’s current job, she works on Sunday from 2:00 p.m. to 9:00 p.m., Monday through Wednesday from 12:00 p.m. to 9:00 p.m., and Thursday from 9:00 a.m. to 3:00 p.m. Since she began her current job in March 2011, Ms. Allan has had access on a weekly, alternating basis.

[19] One week, Mason is with Ms. Allan from 5:00 p.m. on Thursday to Friday morning before school, and then again after therapy on Friday from 5:00 p.m. to 7:30 p.m. The next week, Mason is with Ms. Allan from 5:00 p.m. on Thursday to Friday morning before school, and then again after therapy on Friday through to Sunday at 12:30 p.m.

(3) Mason’s Care and Treatment

[20] Both parents enjoy a loving and meaningful relationship with Mason. Before the motion judge, Ms. Allan described Mason’s close bond with herself, Jasmine, and Ms. Allan’s friends and family. Ms. Allan often takes Mason to visit her extended family in London and St. Thomas. Mason’s former therapist attested to Ms. Allan’s support of his treatment. Although Mr. Sferruzzi calls into question Ms. Allan’s commitment to Mason’s therapy, the motion judge found that “[t]here was no evidence of significant resistance or lack of cooperation on the part of [Ms. Allan] to Mason’s current therapy regime”.

[21] Mr. Sferruzzi plays a much larger role than Ms. Allan in Mason’s treatment and care. He is Mason’s sole caretaker the vast majority of the time. He participates in and monitors Mason’s therapy and progress, and tracks Mason’s medication. As the motion judge found:

[T]he evidence is clear [Mr. Sferruzzi] has been highly focussed on Mason and his special needs both before and after the separation. He obviously has a strong commitment to Mason’s case and to ensuring that Mason achieves his maximum potential. The IBI therapy regime has been supported by [Mr. Sferruzzi] in his own interaction with Mason and in the financial commitment that it requires. There is no suggestion by [Ms. Allan] that custody should change and no evidence supports that conclusion.

[22] Mr. Sferruzzi also now bears the full financial burden of Mason’s IBI therapy regime, albeit with some minor relief by means of set off against the child support he pays for Jasmine. In March 2013, the limited public funding for Mason’s IBI therapy expired. The financial support received for Mason’s treatment at school will end in the fall of 2013. Although Mr. Sferruzzi has held fundraising events to assist with funding Mason’s therapy, he doubts his ability to continue to pay $2,500 to $3,000 per month for that therapy while maintaining his own separate household.

(4) Background on the Proposed Relocation

[23] Ms. Packer is a registered nurse who works for Central East Community Care Access Centre and resides in Pickering. Mr. Sferruzzi knew Ms. Packer when they were both children. They reconnected as adults, initially as friends, and then in an intimate relationship after he and Ms. Allan separated.

[24] Ms. Packer spends time with Mason at least once per month but also on some weekends, long weekends and special occasions. She facilitates play between Mason and Nicholas. She is well aware of Mason’s needs. Her employment is sufficiently flexible that she will be available to respond to assist with the needs of Mason and Nicholas during her working hours.

[25] Having sole custody of Mason has taken a toll on Mr. Sferruzzi. Because Mason must be engaged and supervised at all times, household chores must be done after Mason goes to bed. So, too, must any of his work obligations that carry over from the regular work day. Mr. Sferruzzi describes himself as exhausted, at times falling asleep at the dinner table. He has installed special locks on the doors in his home to ensure that Mason cannot leave the house if he falls asleep accidentally.

[26] Notably, because of the stress from caring alone for Mason and the exhaustion due to long-term loss of sleep, Mr. Sferruzzi has had to take three stress leaves from his job. He also suffered a significant depression in the summer of 2012.

[27] Mr. Sferruzzi’s depression contributed to a break in his relationship with Ms. Packer in late September 2012. It was an amicable break up and the two continued to see one another as friends. After being prescribed medication and attending counselling, his depression lifted, and he and Ms. Packer were fully reconciled by late January or early February 2013.

[28] Significantly, Mason has developed a relationship with his brother, Nicholas. Mason sees Nicholas a day or two per month, on average. Both Mr. Sferruzzi and Ms. Packer describe the two boys playing and being affectionate with each other. Ms. Packer reports that she recently saw Mason comfort Nicholas when he was upset, by hugging him and kissing him on the head. Mason will seek Nicholas out and has taken some responsibility for him.

[29] Mr. Sferruzzi obtained a contract position with the Durham Crown Attorney’s office in May 2013. The Durham Office held the position for him, pending the outcome of the motion below. When the motion failed, he was forced to give up the job offer. However, he has been assured that he remains competitive and it seems likely that he will be able to get a contract position there.

(5) The Proposed Relocation

[30] Mr. Sferruzzi submits that the move to Pickering would benefit Mason in a number of ways. By virtue of sharing a family and a home, Mr. Sferruzzi and Ms. Packer will be able to provide one another with greater emotional, financial, and logistical support. Mr. Sferruzzi anticipates that such an arrangement will improve his physical and mental health, and make him a better parent to Mason.

[31] Mr. Sferruzzi also argues that Mason will benefit from daily contact with his brother Nicholas, with whom he shares a special bond. Despite the age difference between the brothers, they are at approximately the same stage of development. Mr. Sferruzzi submits that spending time with Nicholas will help Mason to acquire new skills and practice existing ones. It will also enable Mason to develop a meaningful relationship with a sibling and a peer.

[32] Mr. Sferruzzi has proposed a number of measures to make the relocation, if permitted, as easy as possible for Mason. For example, Mr. Sferruzzi plans to initially maintain his own residence with Mason in Pickering. Only after Mason has settled into his new school and therapy program will Ms. Packer, Nicholas, and her other children join the household. Mr. Sferruzzi has also arranged for a new clinical supervisor to oversee Mason’s IBI therapy in Durham, and has coordinated with Mason’s current supervisor to ensure continuity in Mason’s treatment. Mason’s daily schedule in Durham will be the same as his current schedule: he will attend school in the mornings, and work with his therapist at home in the afternoons.

[33] Mr. Sferruzzi also remains committed to facilitating Ms. Allan’s access. He proposes that Ms. Allan have access every other weekend from Thursday at 5:00 p.m. to 12:30 p.m. on Sunday.

[34] Ms. Allan reiterated her concerns about the impact that the move would have on Mason: the reduced frequency with which she would see him, a disruption in Mason’s time with members of her family and his treatment providers, the challenges for Mason having to travel from Pickering to Waterloo for access visits, and the expense associated with access travel. Ms. Allan was also concerned about Mason missing school and therapy every second Friday on the proposed access plan.

[35] When asked by the court, Ms. Allan indicated that she did not have an alternate access proposal, should the move be allowed.

[36] Before the motion judge, Mr. Sferruzzi offered to contribute to additional expenses Ms. Allan may incur as a result of the relocation. For example, he offered to subsidize Ms. Allan’s fuel costs. This offer was renewed on appeal.

[37] Finally, Mr. Sferruzzi has received assurances from a number of Ms. Allen’s friends and family members that Mason’s relationships with them will continue as before, if Mason moves to Pickering. Mr. Sferruzzi has undertaken to facilitate such access.

THE FRESH EVIDENCE APPLICATION

[38] Mr. Sferruzzi sought to introduce fresh evidence on appeal, the most significant aspects of which are as follows.

[39] First, after mid-June of this year, Mason’s primary one-on-one worker in Waterloo will no longer work at his school. The worker’s back-up staff do not know if they will be returning. Further, he will have a new classroom teacher if he remains at the same school. Therefore, come the fall, Mason will have a new support worker, along with a new classroom teacher, whether or not he remains in Waterloo.

[40] Second, if permitted to relocate, Mr. Sferruzzi has found a school for Mason in Pickering that has similar resources (workers, educational assistants, speech pathologists, occupational therapist) and occupational equipment as his current school. This includes a “quiet work room”, which is the same as the classroom in which Mason spent most of his time at his current school with his worker. He and Ms. Packer have already met with the principal to begin to formulate a transition plan for Mason in the event that his appeal is allowed. The principal has agreed that Mason would be put into the class with the teacher having the most experience with students with needs similar to those of Mason.

[41] Third, as noted earlier, after the dismissal of his motion, Mr. Sferruzzi was forced to give up his job offer from the Durham Crown Attorney’s office. However, he is confident that he can obtain employment in Pickering if permitted to relocate with Mason.

ANALYSIS

The Governing Legal Principles

[42] Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 is the seminal case on mobility in family law cases. In it, the Supreme Court set out the principles that govern such matters. Paragraphs 49-50 of Gordon contain the following summary of those principles:

1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.

3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.

5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.

6. The focus is on the best interests of the child, not the interests and right of the parents.

7. More particularly the judge should consider, inter alia:

a) The existing custody arrangement and relationship between the child and the custodial parent;

b) The existing access arrangement and the relationship between the child and the access parent;

c) The desirability of maximizing contact between the child and both parents;

d) The views of the child;

e) The custodial 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;

f) Disruption to the child of a change in custody;

g) Disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?

Appellate Intervention is Warranted

[43] The Supreme Court of Canada has confirmed the narrow scope of appellate review in all family law matters relating to custody and access: see Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 11. An appellate court is entitled to intervene only where the trial court committed a material error, seriously misapprehended the evidence, or made an error in law: Van de Perre, at paras. 11-12.

[44] In my view, appellate intervention in the present case is warranted for two reasons: the motion judge erred in law in placing the burden of proof on Mr. Sferruzzi, and he seriously misapprehended some aspects of Mr. Sferruzzi’s evidence and failed to afford it proper respect.

The Burden of Proof

[45] The motion judge erred in law by placing the burden of proof on the appellant. This error is evident from the following passage at p. 23 of the motion judge’s reasons:

I am called upon [to] decide whether, based on all of the factors, there is sufficient evidence to convince me that the proposed move and the related changes to Mason’s access to the respondent are in his best interest. [Mr. Sferruzzi] has made the motion and bears the onus of satisfying me in that regard. [Emphasis added.]

[46] The second point in the extract from Gordon, set out above, makes it clear that once the threshold requirement of demonstrating a material change in the child’s circumstances is met, the judge “must embark on a fresh inquiry” into the best interests of the child. Accordingly, it was an error for the motion judge to approach the motion on the basis that the appellant had to persuade him that the relocation was in Mason’s best interests. As the threshold had been met, the ultimate question on the motion was: what is in Mason’s best interests in all the circumstances, old as well as new? (See Gordon, at para. 50.)

Misapprehension of the Evidence

[47] The motion judge further erred by misapprehending Mr. Sferruzzi’s evidence and by failing to afford his views, as the custodial parent, “great respect”: see Gordon, at para. 49.

[48] At p. 19 of his reasons for judgment, the motion judge says:

Even if this is an exceptional case where the custodial parent’s reason for wanting to move relates to the best interests of the child, I am not satisfied that the evidence is sufficiently clear by way of a benefit for Mason to convince me that it should be given significant weight.

[49] With respect, it appears that the motion judge fundamentally misapprehended Mr. Sferruzzi’s evidence as to the benefits to Mason from moving to Pickering. The move has everything to do with Mason’s best interests. Mr. Sferruzzi has had three stress leaves while caring for Mason. He is the sole financial provider for Mason’s therapy. He does not know if he can continue to pay between $2,500 and $3,000 per month for Mason’s therapy. He cannot continue to provide the lion’s share of Mason’s care, on his own. If permitted to relocate to Pickering, he will have Ms. Packer’s support in looking after Mason, and in sharing the associated financial and emotional burdens. Mason will have the benefit of a healthy, happy parent who is better equipped physically, emotionally, and financially to care for him.

[50] Further, Ms. Shaw, a therapist who has been working with Mason for four years, gave evidence that she incorporates siblings into therapy where possible, because the sibling can engage the autistic sibling and, in some cases, provide an age appropriate example for the autistic child. The motion judge gave no weight to the additional benefits likely to accrue to Mason from living with Nicholas, saying that “there was no certainty” about how the brothers’ relationship would develop.

Application of the Gordon Factors

[51] In light of these errors, it falls to this court to apply the factors set out in the seventh point of para. 49 of Gordon.

[52] Factor #1 – the existing custody arrangement – This factor does not apply as there is no change to custody.

[53] Factor #2 – the existing access arrangement - The proposed arrangement will reduce the frequency with which Ms. Allan sees Mason. However, provided that Mason spends the full access time with Ms. Allan – and not part of it in school or therapy – the amount of time will remain the same or slightly increase the overall number of hours they are able to spend together in any given month.

[54] Factor #3 – maximizing contact between the child and both parents – As indicated, while the frequency with which Ms. Allan sees Mason will be reduced, the overall time they will spend together will be roughly the same. Further, and very importantly, Mr. Sferruzzi has committed to continuing to facilitate Ms. Allan’s access, including by providing financial support for the costs of access transportation. There is nothing in the record to suggest that he will be anything but supportive of continued access.

[55] Factor #4 - the views of the child - Mason is not capable of giving his views, thus this factor does not apply.

[56] Factor #5 – the custodial parent’s reason for moving as relevant to his ability to meet Mason’s needs – I will not repeat the comments made earlier except to reiterate that Mason will benefit from a happier, healthier, and more stable custodial parent. Mr. Sferruzzi has had to take three stress leaves while caring for Mason. Furthermore, he has borne the full financial cost of Mason’s treatment since the government funding ended. If permitted to relocate, he will live with Ms. Packer. The savings coming from joining the two households will lighten Mr. Sferruzzi’s financial burdens and stress, and ensure that he is able to continue to financially provide for Mason’s therapy. Ms. Packer’s emotional and logistical support will also be invaluable in terms of Mr. Sferruzzi’s ability to meet Mason’s needs. Further, as I have explained, there is the very real possibility that Mason will benefit from living with his brother, Nicholas.

[57] Factor #6 – disruption to the child of a change in custody – There is no change in custody and therefore this factor is not relevant.

[58] Factor #7 – disruption to the child consequent on removal from family, schools, and the community he or she has come to know – Several points need to be made in relation to this factor.

[59] The first is that the nature of Mason’s condition has led to him to have little involvement with his community, apart from his family and therapists. In a very real sense, there will be no disruption in that regard.

[60] As for disruption in family relations, Mr. Sferruzzi led evidence to show that Ms. Allan’s family will continue to see him, as they did before, when Ms. Allan has access. On the other side of the equation, Mason will benefit from being part of his brother’s life, and part of Mr. Sferruzzi and Ms. Packer’s blended family.

[61] There will be no additional disruption in terms of school as the fresh evidence shows that Mason would have had to have a new teacher and support worker even if he had remained at the same school. The fresh evidence further shows that the new school in Pickering will provide a very consistent environment to that which Mason had in grade 1 in Waterloo. And, Mason’s daily schedule will remain unchanged.

[62] Further, Mr. Sferruzzi gave a great deal of evidence on how Mason’s treatment would be transitioned, if the move is permitted. One salient piece of evidence, not referred to by the motion judge, relates to the IBI therapy that Mason receives. Over the five years that Mason has been receiving IBI, he has had at least 16 instructor therapists. If permitted to move, Mason’s current instructor therapist has committed to spending time with Mason and his new therapist in his new environment to effect a smooth transition. This is the same process that was used by Mason’s prior instructor therapists. There is no evidence that the previous changes of therapists caused any significant disruption to Mason.

CONCLUSION

[63] The ultimate question is: considering all of the circumstances, old and new, what is in Mason’s best interests? There will be some disruption caused by the move, of course. But, for the reasons given, it is in Mason’s best interests to permit Mr. Sferruzzi to move, with Mason, to Pickering.

DISPOSITION

[64] Accordingly, I would allow the appeal, set aside the Order and grant the appellant permission to move, with Mason, to the region of Durham, Ontario. The respondent shall have access to Mason on alternating weekends from Thursday evening at 5:00 pm to Sunday at 12:30 pm, commencing the second Thursday after Mason moves to the region of Durham. If the parties are unable to reach an agreement on arrangements for pickup and dropoff, they shall take the matter to the Superior Court.

[65] The appellant has offered to pay the respondent $75 per month to help cover the costs of access transportation. To the extent that an order is required to make this undertaking binding, I would so order.

Released: July 23, 2013 (“E.E.G.”)

“E.E. Gillese J.A.”

“I agree. John Laskin J.A.”

“I agree. G.R. Strathy J.A.”