COURT OF APPEAL FOR ONTARIO

CITATION: Jones v. Jones, 2014 ONCA 822

DATE: 20141120

DOCKET: C58784

Cronk, Gillese and Rouleau JJ.A.

BETWEEN

Mark Lewis Jones

Applicant

(Respondent in Appeal)

and

Mandy Lee Jones

Respondent (Appellant)

Raymond J. Wrubel, for the appellant

Anna Towlson, for the respondent

Heard: November 13, 2014

On appeal from the order of Justice James W. Sloan, dated April 3, 2014, with reasons reported at 2014 ONSC 2122 sitting on appeal from the order of Justice Paddy A. Hardman of the Ontario Court of Justice, dated June 12, 2013, with reasons reported at 2013 ONCJ 383.

By the Court:

[1] The appellant mother appeals the order of Sloan J. of the Superior Court, dated April 3, 2014, made on appeal from the order of Hardman J. of the Ontario Court of Justice, dated June 12, 2013.

[2] The Superior Court ordered that the children of the marriage are to move from Lindsay, Ontario, to Waterloo, Ontario. The order also provides that their primary residence shall be changed from that of the appellant to that of the respondent unless the appellant relocates her residence from Lindsay to Waterloo.

[3] Briefly stated, the facts are as follows. The appellant and respondent married in October 2004 and separated on October 4, 2010. They have two children of the marriage, Megan Isabella Jones, born May 20, 2006, and Evan Luis Joseph Jones, born March 13, 2009. Prior to the separation, the parties resided in the Waterloo region. Upon separation, the appellant moved with the two children of the marriage to Lindsay, to be closer to her extended family and so that she could take further education. Megan was four years old and Evan was one and a half years old at the time.

[4] The parties entered into minutes of settlement that were incorporated into an October 7, 2011 order. They agreed to joint custody of the children and that the children’s primary residence would be with the appellant who then resided in Lindsay where she was attending college. The settlement agreement also provided that the appellant would attempt to secure employment in the Waterloo region upon completion of her schooling. It further provided that the order would be reviewable within three months of the appellant completing that schooling.

[5] When the appellant completed her studies, she did not seek employment in Waterloo as was contemplated by the minutes of settlement and subsequent order. Instead, she found employment in Lindsay and continued to reside there.

[6] The appellant’s failure to pursue employment in the Waterloo region led to contempt proceedings and motions to change the terms of the October 7, 2011 order. Those and other proceedings culminated in the decision that is now on appeal before us.

[7] The appellant’s appeal is focused on two issues. She maintains that there has been no material change in circumstances such as to warrant a fresh consideration of the primary residence of the children. She further argues that, even if there has been a change in circumstances, the Superior Court judge erred in ordering a change in primary residence of the children from her to the respondent.

[8] The Superior Court’s decision that there has been a material change in circumstances warranting a review of the order is, in our view, well supported in the record. The terms of the settlement provided for review of the order after the appellant had completed her schooling. It was also anticipated that after completing those studies, the appellant would seek employment in the Waterloo area and, consequently, relocate with the children to Waterloo. It is apparent that the appellant has not done so. In these circumstances it was open to the court to find that there had been a material change.

[9] The difficulty with the decision of the court below, however, is the determination that the best interests of the children would be served by changing their primary residence from that of the appellant to that of the respondent in the event that the appellant did not voluntarily relocate to Waterloo. The reasons in both the Superior Court and the Ontario Court of Justice contain little discussion of why this would be in the best interests of the children. For example, they contain no analysis of the impact on the children of changing their primary residence.

[10] Both courts appear to have given considerable weight to what may or may not have been in the best interests of the children at the date of the separation and to what appears to have been agreed to by the parties when the minutes of settlement were entered into. Their analysis also focuses on the benefit to the children if the appellant and children relocate to the Waterloo area. As explained by both judges, this would be in the best interests of the children as they would be close to both parents and would no longer have to undertake the significant travel between Lindsay and Waterloo to maintain contact with both parents.

[11] Although there would be benefit to the children if they lived in the same area as the respondent, this does not address the central issue the court had to decide, which is whether a change in the children’s primary residence from that of the appellant to that of the respondent is in their best interests.

[12] We acknowledge that the appellant has indicated that she would move to Waterloo rather than see a change in the children’s primary residence. This, however, does not provide a basis for the order under appeal which orders a change in the children’s primary residence if the appellant chooses now or later not to reside in Waterloo.

[13] Regrettably, in the absence of the fact finding and analysis required to determine whether a change in the children’s primary residence is in the best interests of the children, we are left with no option but to set aside the orders of the Superior Court and the Ontario Court of Justice and remit the matter to the Ontario Court of Justice for a new hearing. The determination of whether it is in the best interests of the children to order a change in their primary residence from living with the appellant to the respondent, must be based on a proper and up to date evidentiary record. In addition, it may well be that a trial of that issue will be required. The court may also wish to obtain an updated report from the Office of the Children’s Lawyer, as the original report is now some three years out of date. These, however, are matters to be decided by the parties and the Ontario Court of Justice.

[14] For these reasons, the appeal is allowed, the orders of the Superior Court and the Ontario Court of Justice are set aside, and the matter is remitted to the Ontario Court of Justice for a new hearing. The appellant is entitled to costs of the appeal fixed at $5,000, all inclusive. The cost awards in the Superior Court and the Ontario Court of Justice are set aside and there shall be no order as to costs for those two proceedings. Accordingly, the respondent shall return any monies paid by the appellant further to the costs orders in those two matters.

Released: NOV 20, 2014

“EEG”

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”

“Paul Rouleau J.A.”