Court of Appeal for Ontario

CITATION: Forrester v. Dennis, 2016 ONCA 214

DATE: 20160316

DOCKET: C61051

Epstein, Pepall and Hourigan JJ.A.

BETWEEN

Timothy James Forrester

Applicant (Appellant)

and

Lindsey Nicole Dennis

Respondent (Respondent)

Elli M. Cohen and Michelle A. Raithby, for the appellant

Gavin M. Grant, for respondent

Heard: March 4, 2016

On appeal from the order of Justice Ivan S. Bloom of the Superior Court of Justice, dated August 21, 2015.

ENDORSEMENT

[1] This appeal concerns whether the appellant, the father of a seven year old child, can move with the child from Kincardine to Whitby – a distance that takes approximately three and a half hours to travel by car.

[2] After being together for about three years, the parties separated when the child was just a year old. For approximately four years following separation, the mother had primary care of the child. The parties then ran into difficulties. The mother made allegations that the father had abused the child. Pursuant to a court order, a physician conducted an assessment. The physician concluded that the mother’s allegations of abuse were false.

[3] After lengthy negotiations, the parties entered into a detailed agreement relating to the child. It was agreed that the father would have custody and the mother would have supervised access, to be reviewed after a period of three months. This agreement was incorporated into the consent order of Conlan J. dated November 25, 2014 (the “Order”).

[4] The following clauses of the agreement are central to this appeal:

5.... k. If there are any incidents, allegations or investigations opened (police or CAS), access shall be suspended immediately at the option of the [father], and the matter returned before the Honourable Justice Thompson within seven (7) days by way of motion to vary access or for other relief to address the issue and the issue of the [father’s] costs in this action may be revisited.

12. The [father] shall not relocate from Bruce or Grey Counties without first giving the [mother] sixty (60) days advance notice in writing.

13. The [father] shall make best efforts to keep the child in her current school.

14. …In this Order the term “incidents” means:

c. Confrontations initiated by the [mother], [the mother’s husband] or their families pertaining to the allegation of sexual and/or physical abuse or the court proceedings;

d. Comments / discussion including public speech and published comments relating to or referring to the allegations of sexual abuse or physical abuse or the court proceedings.

[5] In early February 2015, the father told the mother about his intention to move. In June 2015, the father, relying on para. 12 of the Order, gave notice to the mother that he intended to move with the child from Kincardine to Whitby.

[6] A large part of the father’s reasoning for moving related to the allegations of abuse. The father alleged that it was better for the child to grow up in a community not privy to the allegations, and that the mother had exacerbated the situation by resiling from her position that the abuse allegations were false.

[7] At a case conference, Price J. held that a motion to change was required to determine whether the father could move.

[8] Bloom J. heard the motion to change. Citing Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, the motion judge set out the test for the variation of custody or access. The applicant must satisfy the court that there has been a material change in the circumstances of the child since the order in question – meaning there has to have been a change in the child’s circumstances or the parents’ ability to meet the child’s needs that materially affects the child and that was either not foreseen or could not have been reasonably contemplated by the judge who made the order. If a material change is established in accordance with these criteria, the court then considers the best interests of the child in their totality. The motion judge also noted that s. 29 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, renders these principles applicable to custody and access cases such as this one.

[9] The motion judge found that the move could only be approved on a motion to change, as the notice provision at para. 12 of the Order did not contemplate the move in question, absent a variation. The motion judge concluded that there was no material change – that Conlan J. was alive to and could have foreseen the father’s concerns about the poisoned environment. Further, he reasoned that, given the lengthy negotiations leading to the Order, a variation so soon after the Order would be an indirect route to an appeal, an outcome that the Supreme Court sought to prevent in Gordon, at para. 11.

[10] On appeal, the father renews the arguments he made before the motion judge. He says that, according to the Order, to move all he had to do was provide the mother with the requisite notice. A motion to change was therefore not necessary. In the alternative, if the motion was necessary, there was a material change in circumstances and it is in the child’s best interests to move.

[11] We disagree.

[12] We agree with the motion judge’s view of the Order. Reading the Order as a whole, a motion to change was required. In particular, paragraph 15 requires the father to use his best efforts to keep the child in her school. This is not a hollow obligation. This term must be interpreted in a way that gives it meaning. And it must be interpreted in the context of the entire Order, the spirit and intent of which is to create a stable environment for the child, one designed to provide her with the opportunity to foster a good relationship with both parents (see, for example, paras. 3, 4 and 8). The father’s proposed move would run contrary to the schooling and access clauses in the Order and to its broader intent. A motion to change was therefore necessary.

[13] This takes us to whether the father demonstrated a material change in the circumstances of the child since the Order.

[14] In support of his argument that there has been a material change in circumstances, the father relies on the stigma associated with living in a community in which the allegations of abuse are publicly known. He also relies on evidence that the mother has, since the date of the Order, resiled from her pre-order admission that the allegations were false.

[15] We agree with the motion judge that it is clear that, at the time the Order was made, Conlan J. was alive to the father’s concerns about living in the Kincardine community with the stigma of the abuse allegations. The father could have foreseen the problems upon which he now relies. We also note that para. 20 of the Order, apparently insisted on by the father, allowed for considerable public dissemination of the allegations. Furthermore, the motion judge was not satisfied of a material change based on the evidence before him.

[16] The motion judge’s conclusion that the father had not established a material change in circumstances since the date of the Order is entitled to deference. We see no reason to interfere.

[17] The father also appeals the motion judge’s costs disposition in which the motion judge ordered him to pay the mother’s costs on a substantial indemnity scale in the total amount of $23,131.

[18] Leave to appeal costs is required. In determining whether to grant leave, the merits of the costs appeal must be considered.

[19] The father contends that the motion judge erred in awarding costs in respect of earlier steps in the proceeding and in awarding substantial indemnity costs in circumstances where elevated costs were not justified. In oral argument, the father also took the position that the motion judge erred in failing to consider successes of the father in those earlier steps and on the motion itself.

[20] A costs award attracts considerable deference and should not be disturbed absent an error in principle, or unless the award is clearly wrong: Berta v. Berta, 2015 ONCA 918, at para. 88. The motion judge’s costs award demonstrates neither of these factors.

[21] First, with respect to the award’s encompassing costs associated with other steps in the proceeding, as the respondent points out, the costs for these earlier appearances were properly before the motion judge, having been adjourned from those appearances.

[22] Second, there is no reason to disturb the motion judge’s award of costs on a substantial indemnity basis. As this court affirmed in Berta, at para. 92, citing Biant v. Sagoo (2001), 2001 CanLII 28137 (ON SC), 20 R.F.L. (5th) 284 (Ont. S.C.), at para 20, “[T]he preferable approach in family law cases is to have costs recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result.” This award “is subject to the factors listed in r. 24(11) [of the Family Law Rules, O. Reg. 114/99], the directions set out under r. 24(4) (unreasonable conduct), r. 24(8) (bad faith) and r. 18(14) (offers to settle), and the reasonableness of the costs sought by the successful party”: Berta, at para. 94 (citation omitted). And as articulated in Sordi v. Sordi, 2011 ONCA 665, 283 O.A.C. 287, at para. 21, “In the context of family law disputes, a court need not find special circumstances to make a costs award approaching substantial indemnity” (citation omitted). Therefore the award of substantial indemnity costs is not an improper exercise of discretion.

[23] Finally, the motion judge found that the mother’s success on the final motion entitled her to costs of the three appearances. That the father may have had some previous successes is not a reason to disturb the motion judge’s exercise of discretion.

[24] The appeal concerning the father’s proposed move is dismissed. Leave to appeal the costs award is dismissed. The mother is awarded her costs of this appeal in the amount of $20,000 including disbursements and HST.

“Gloria Epstein J.A.”

“S.E. Pepall J.A.”

“C.W. Hourigan J.A.”