Court of Appeal for Ontario
Date: March 19, 2018 Docket: C63763
Judges: Laskin, Huscroft and Paciocco JJ.A.
Between
Terri Jo Reeves Applicant (Respondent)
and
Irene Michelle Brand Respondent (Appellant)
Counsel
Ryan Kniznik, for the appellant
Stephen Codas and Sarah Strathopolous, for the respondent
Heard
December 18, 2017
Appeal
On appeal from the order of Justice James Diamond of the Superior Court of Justice, dated April 24, 2017, with reasons reported at 2017 ONSC 2306, and from the costs order, dated June 12, 2017.
Laskin J.A.
A. Introduction
[1] The appellant, Irene Brand, and the respondent, Terri Jo Reeves separated in 2015 after being married for nearly nine years. Both are in their early 40s. Ms. Brand is a police officer; Ms. Reeves has worked in the financial industry. During their marriage they lived mainly in Toronto.
[2] Ms. Brand and Ms. Reeves are the parents of a young boy, Ray[1], who just turned six years of age. After Ms. Brand and Ms. Reeves separated, they litigated over custody of Ray and where he should live. Ms. Brand sought joint custody and asked that Ray remain in Toronto. Ms. Reeves sought sole custody and permission to relocate with Ray to New Ross, Nova Scotia, where her parents live and where Ray has spent considerable time.
[3] After a seven-day trial during which 17 witnesses testified, the trial judge granted the relief Ms. Reeves asked for. He then set out a detailed access schedule, intended to give Ms. Brand "reasonable, frequent contact" with Ray. He also awarded Ms. Reeves costs of the action, which he fixed in the amount of $92,500.
[4] In June 2017, Ms. Brand brought a motion to stay the trial judge's order pending appeal. Justice Miller dismissed the motion.
[5] Ms. Brand appeals all aspects of the trial judge's judgment. She makes the following four submissions:
The trial judge erred by failing to award joint custody because he made legal and factual errors concerning the level and quality of communication between the parties;
The trial judge erred by permitting Ray and Ms. Reeves to relocate to New Ross, Nova Scotia because he:
- failed to give sufficient weight to the principle of maximum contact;
- failed to consider the disruption to Ray's relationship with Ms. Brand and her family, and to his life in Toronto; and
- improperly focused exclusively on Ms. Reeves' reasons for wishing to relocate.
The trial judge's access schedule is unreasonable because it turns Ms. Brand into a "holiday parent", and his order that Ray cannot stay anywhere without Ms. Brand for more than four hours undermines rather than promotes frequent contact; and
The trial judge erred in principle in his costs award; he ought to have awarded no costs, or at most $70,000 in costs.
[6] I would not give effect to Ms. Brand's first two submissions. Trial judges' decisions on custody and relocation are entitled to significant deference on appeal: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at paras. 11-13. Invariably, trial judges are in a better position than court of appeal judges to determine a child's best interests. Ms. Brand's challenge to the trial judge's decisions on custody and relocation are largely an attack on his findings of fact. Those findings are reasonably supported by the record, and thus appellate intervention is not justified.
[7] I would give effect to one aspect of Ms. Brand's submission on the trial judge's access schedule. In my view, the four-hour restriction imposed by the trial judge is unnecessary, contrary to his own finding on the bond between Ray and Ms. Brand and her family, and not in Ray's best interests. I would delete this restriction from the trial judge's access schedule.
[8] Finally, I would not grant Ms. Brand leave to appeal the trial judge's cost award. Although the award is sizable, it falls within the trial judge's broad discretion over costs, and reflects no error in principle.
B. The Issues
(1) Did the trial judge err by failing to award joint custody because he made legal and factual errors concerning the level and quality of communication between the parties?
[9] The trial judge concluded that awarding Ms. Reeves sole custody of Ray was in Ray's best interests. At para. 48, he found that Ms. Reeves "ha[d] been Ray's primary care giver for the majority of his life and in particular for the last three years." In his view, Ms. Reeves "is the parent to whom Ray is most closely bonded", and is not only his primary care giver, but his "psychological parent".
[10] The trial judge's findings and his views are firmly grounded in the evidence. Once Ray turned two and a half years old, by agreement, Ms. Brand became the sole income earner for the family as a member of the police force, while Ms. Reeves became a stay at home mother. Ms. Reeves made all the major decisions for Ray – medical, social, choice of school – and Ms. Brand trusted her to do so.
[11] Nonetheless, one aspect of the trial judge's decision to award sole custody of Ray to Ms. Reeves and to reject an order for joint custody was his concern about the quality of communication between Ray's parents. He found at para. 46 that Ms. Reeves and Ms. Brand "have been unable to communicate in a constructive way on any sustained basis, and in particular with respect to substantive issues concerning Ray's life."
[12] Ms. Brand challenges this finding. She submits that the trial judge erred in law because communication between parents does not have to meet a standard of perfection for joint custody to be awarded. And she submits that the trial judge's finding is tainted by factual errors because her ability to communicate with Ms. Reeves about Ray is and was much better than the trial judge made it out to be.
[13] I do not accept these submissions. At para. 11 of Kaplanis v. Kaplanis (2005), 249 D.L.R. (4th) 620 (Ont. C.A.), in a passage quoted by the trial judge, Weiler J.A. commented on the level and quality of communication required for a joint custody order:
The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis.
[14] The trial judge applied Weiler J.A.'s comments from Kaplanis. He made the following specific findings at paras. 43, 44, and 46 of his reasons:
• [I]n my view the parties have encountered and experienced poor parenting communication, especially since they separated. They have effectively ceased communicating, as [Ms. Brand] feels very upset with what she considers to be [Ms. Reeves'] efforts to marginalize her as a parent, and [Ms. Reeves] feels trapped in an unworkable predicament.
• [Ms. Brand] points to various text messages exchanged between herself and [Ms. Reeves] as evidence that the parties have made reasonable and consistent efforts to ensure reciprocal communication. In my view, these text messages are, for the most part, concerned with financial matters[.]
• Hope that communication between parents may improve once litigation is over is not a sufficient basis to support an order for joint custody. I find that [Ms. Reeves] and [Ms. Brand] have been unable to communicate in a constructive way on any sustained basis, and in particular with respect to substantive issues concerning Ray's life.
[15] The record supports these findings, which are consistent with Kaplanis, and which ground the trial judge's ultimate finding that the parties' inability to communicate constructively about Ray was an important reason not to award joint custody. I therefore decline to interfere with the trial judge's decision to grant Ms. Reeves sole custody of Ray.
(2) Did the trial judge err by permitting Ray and Ms. Reeves to relocate to New Ross, Nova Scotia?
[16] Having decided that Ms. Reeves was entitled to sole custody of Ray, the trial judge then decided that she and Ray be allowed to relocate from Toronto to New Ross, Nova Scotia, where Ms. Reeves's parents live. Ms. Brand submits that the trial judge erred by permitting Ray to relocate. In support of her submission she contends that the trial judge made three errors:
He failed to give sufficient weight to the principle of maximum contact enshrined in s. 16(10) of the Divorce Act, R.S.C. 1995, c. 3;
He failed to consider the disruption to Ray's relationship with Ms. Brand and her family, and to his life in Toronto; and,
He improperly focused exclusively on Ms. Reeves reasons for wishing to relocate.
[17] Relocation or mobility cases, where one parent wants to take a child and move some distance away from the other parent, are among the most difficult cases in family law. If the custodial parent is permitted to move with the child, inevitably the relationship between the non-custodial parent and the child will be affected and may suffer. Typically the court must balance the custodial parent's legitimate interest in relocating with the non-custodial parent's legitimate interest in maintaining a relationship with the child. But in every case, the ultimate question is what is in the best interests of the child.
[18] I am satisfied that the trial judge sensitively balanced the competing interests of Ms. Brand and Ms. Reeves, and in permitting relocation, made an order in Ray's best interests. And I am not persuaded that he erred in any of the three ways Ms. Brand alleges.
[19] This case differs from many of the relocation cases that come before the court in two important ways. These two differences provide context for the three errors Ms. Brand alleges. First, this is not a case where relocation will sever a long standing bond between Ray, and Ms. Brand and her family. For most of Ray's life, he has had no bond, indeed no relationship at all with Ms. Brand's family. Indeed, the trial judge found at para. 59 that Ray's bond with Ms. Brand and her family "was created post-separation, and is not something that has been maintained from the time of [Ms. Reeves' and Ms. Brand's] marriage."
[20] Second, this is not a case where the move to Nova Scotia will take Ray from a known home to a new and speculative environment. As the trial judge fairly observed, since he was born, Ray has been connected to Ms. Reeves' family in New Ross and benefitted from their support. He has spent at least one-quarter of his life there. The support of the community and the Reeves family in New Ross has been part of Ray's "status quo". As the trial judge found, from Ray's perspective, a relocation to New Ross is a return to what is "known" to him.
(a) The trial judge gave sufficient weight to the maximum contact principle
[21] Subsection 16(10) of the Divorce Act enshrines the principle of maximum contact with both parents:
[T]he court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interest of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
The principle is important in custody disputes because maximum contact with both parents is usually in the child's best interests.
[22] Ms. Brand submits that the trial judge did not give sufficient weight to this important principle. I do not agree with her submission. I make three points. First, the maximum contact principle is not an absolute principle; if it were very few relocation requests would ever be allowed. Instead, as this court said in Bjornson v. Creighton (2002), 62 O.R. (3d) 236 (C.A.), at para. 34, though the maximum contact principle is obviously important, "it remains one factor in the whole of the analysis. It ought not to be treated as the governing factor." And in Gordon v. Goertz, [1996] 2 S.C.R. 27, still the leading case on mobility, McLachlin J. said at para. 24:
The "maximum contact" principle, as it has been called, is mandatory, but not absolute. The [Divorce Act] only obliges the judge to respect it to the extent that such contact is consistent with the child's best interests; if other factors show that it would not be in the child's best interests, the court can and should restrict contact: Young v. Young, [1993] 4 S.C.R. 3, at pp. 117-18.
[23] Second, the submission that the trial judge did not give sufficient weight to the maximum contact principle is not a basis for appellate intervention. Mobility or relocation decisions are discretionary decisions: Porter v. Bryan, 2017 ONCA 677, at para. 11; and Elliott v. Elliott, 2009 ONCA 240, 247 O.A.C. 174, at para. 19. The exercise of discretion involves the weighing of relevant considerations – here the maximum contact principle. To accede to the submission that an appeal court should intervene because it would have given more weight to a relevant consideration is to abandon discretion altogether. To be justified in interfering, an appellate court would have to be satisfied that the trial judge's exercise of discretion was unreasonable. See: R. v. McKnight (1999), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35; and Ursic v. Ursic (2006), 32 R.F.L. (6th) 23 (Ont. C.A.), at paras. 18-19.
[24] Third, in my view the trial judge took account of the maximum contact principle and reasonably applied it; even to use Ms. Brand's phrase, he gave it sufficient weight. Appellate intervention is therefore not justified. Specifically at para. 61 of his reasons, the trial judge found that:
[Ms. Reeves] is well aware and promotes the maximum contact principle, and despite the obvious adverse consequences which her relocation with Ray to New Ross would have upon [Ms. Brand], [Ms. Reeves] has and continues to recognize the importance of [Ms. Brand's] relationship with Ray. Post-separation, she has continued to attempt to involve [Ms. Brand] in Ray's life, including having [Ms. Brand] join the Reeves family in New Ross twice in late 2015, and inviting [Ms. Brand] to [Ms. Reeves'] sister's home in Huntington, New York.
[25] Consistent with this finding, Ms. Reeves proposed an access schedule intended to facilitate Ms. Brand's access to Ray. Thus the trial judge justifiably found at para. 62 of his reasons:
[Ms. Reeves'] draft Order proposed an extensive access schedule for [Ms. Brand] with substantial parenting time mindful of [Ms. Brand's] vacation allotment and work schedule. On the record before me, I do not find that [Ms. Reeves'] request to relocate with Ray to New Ross is being made with any intention to impede [Ms. Brand's] access or minimize her involvement in Ray's life.
[26] The trial judge's application of the maximum contact principle differs from the trial judge's application of it in Berry v. Berry, 2011 ONCA 705, 343 D.L.R. (4th) 501, on which Ms. Brand relies. There, this court intervened because the trial judge's reasons reflected an "inadequate weighing" of the principle (see para. 14). In other words, the trial judge in Berry applied the principle unreasonably. By contrast, the trial judge in this case applied the principle reasonably. He made no error.
(b) The trial judge took into account the potential disruption to Ray's relationship with Ms. Brand and her family and to his life in Toronto
[27] At para. 49 of Gordon v. Goertz, McLachlin J. said that, in a relocation case, the court must always consider "the disruption to the child consequent on removal from family, schools and the community he has come to know". Ms. Brand argues that the trial judge did not take into account how a move to New Ross would disrupt Ray's relationship with her and her family, as well as Ray's life in the Toronto community. I disagree with this argument.
[28] The trial judge was aware that Ms. Reeves' move to New Ross would disrupt Ms. Brand's relationship with Ray. At para. 61, he specifically commented on "the obvious adverse consequences which her relocation with Ray to New Ross would have upon [Ms. Brand]". But, as I read his reasons, the trial judge concluded that the potential disruption was offset by Ms. Reeves' genuine attempt "to involve [Ms. Brand] in Ray's life" and by the absence of a long standing bond between Ms. Brand's family and Ray.
[29] The trial judge also considered whether Ray's move to New Ross would disrupt the life he had in Toronto. He found at para. 58 that it would not because, "regardless of the outcome of this proceeding, [there] is no real 'status quo' for Ray." If Ray moved to Nova Scotia, he would obviously have to go to a new school. But he would have to do so as well if he stayed in Ontario, because Ms. Reeves had no job prospects in Toronto, could not afford to live there, and would have to relocate to another part of the province. In short, the trial judge reasonably concluded that any disruption caused by the relocation to New Ross did not justify refusing to permit the move, particularly as Ray would have to relocate even if he stayed in Ontario.
[30] Children's adaptability to change, especially at Ray's age, bolsters the trial judge's conclusion. As Furey J. sensibly noted in his recent decision in Sexton v. Tipping, at paras. 81-82:
It is a reality of the times in which we live that many couples with children come together through partnership or marriage, separate or divorce after a period of time and then move on with their lives. … The crux of these scenarios is change – for the parents and for the children.
Change is a constant in all our lives. As a general principle, children are adaptable in their lives. They change communities. They change schools. They change friends. Many change families, not because of their actions but because of the actions of their parents. That has happened in this matter.
[31] Ray is young. The disruption to the life of a six year old is likely to be less significant than the disruption to the life of, say, a fifteen year old.
(c) The trial judge did not focus exclusively on Ms. Reeves' reasons for wishing to relocate
[32] Again in Gordon v. Goertz, McLachlin J. wrote at para. 49 that the court should consider "the custodial parent's reasons for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child". Ms. Brand submits that this case was not exceptional and that the trial judge improperly focused solely on Ms. Reeves' reasons for moving. I take a different view of the trial judge's reasons.
[33] The trial judge did take into account Ms. Reeves' reasons for moving. But they were not his sole focus. Instead he found that Ms. Reeves' reasons for wanting to relocate were relevant to her ability to parent Ray and thus were tied to Ray's best interests. He held at para. 64 of his reasons:
After the breakdown of her marriage to [Ms. Brand], [Ms. Reeves] wants to surround herself with the social (and possible financial) support of her family and friends with a view to regaining control and independence of her life. She has already taken steps to obtain employment. [Ms. Reeves'] motives are based upon and further Ray's best interests. [Ms. Reeves'] relocation plan is not speculative. It includes concrete terms in a place familiar to not just [Ms. Reeves], but more importantly to Ray. Ray is no stranger to New Ross, and has enjoyed an established connection to New Ross since his birth.
[34] This holding is unassailable. In the language of Gordon v. Goertz, this case is an exceptional case in which the trial judge was justified in taking into account Ms. Reeves' reasons for moving.
[35] I would uphold the trial judge's decision to permit Ms. Reeves and Ray to relocate to New Ross.
(3) Did the trial judge impose an unreasonable access schedule?
[36] The trial judge set out a detailed access schedule, intended to provide Ms. Brand with "reasonable, frequent contact/access" with Ray. One particular term of the schedule states:
During [Ms. Brand's] access with Ray, Ray shall not stay overnight without [Ms. Brand] and for no longer than four hours during the daytime.
[37] Ms. Brand submits that the access schedule is unreasonable: it turns her into a "holiday parent". She also submits that the four-hour restriction is especially onerous. She asks this court to revise the access schedule, including the terms for summer holidays and March break, and to remove the four-hour restriction.
[38] I do not think it appropriate for this court to micromanage the trial judge's detailed and seemingly well thought-out terms of access. If Ms. Brand objects to any of these terms or wants any of them revised then she can always bring a variation application to the trial court.
[39] But I am of the view that we ought to interfere with the specific term Ms. Brand complains about: that Ray cannot stay overnight without her – thus precluding Ray from having a sleepover alone with his grandparents – or for longer than four hours during the daytime. The trial judge gave no reasons for this restriction. I suspect, however, that he imposed it because of his concerns about the attitude of Ms. Brand's parents to their daughter's lesbian relationship, the pregnancy, and ultimately to Ray. Ms. Brand's parents did not attend the wedding. They did not speak to their daughter during the pregnancy. And before September 16, Ms. Brand never brought Ray to her parents' home. Had this attitude continued, the four-hour restriction may have been reasonable.
[40] But Ms. Brand's mother, to her credit, admitted that she had made mistakes earlier in her daughter's and Ray's lives. Recently, she began to forge a good relationship with Ray. Indeed the trial judge found at para. 56 that though "late blooming", "Ray has developed a strong relationship with [Ms. Brand's] parents", and since separation has been sleeping over at their place. In the light of these findings, it is in Ray's best interests to remove the four hour restriction.
[41] The concerns with keeping the restriction in place are twofold. First, Ray is deprived of the opportunity most youngsters typically look forward to, sleeping over at their grandparents' house when their parents are not there. And second, Ms. Brand will inevitably have blocks of time longer than four hours when she cannot be with Ray because her job entails evening and night shifts. Thus, the four hour restriction undermines rather than promotes the strong relationship between Ray and Ms. Brand and her family. It is not consistent with the trial judge's finding and it is not in Ray's best interests; I would delete this term from the trial judge's access schedule.
(4) Did the trial judge err in his costs award?
[42] At trial, Ms. Brand acknowledged that Ms. Reeves was entitled to costs but contended that an appropriate award was $70,000. Now on appeal, Ms. Brand contends that the trial judge should have awarded no costs. Alternatively, as she argued at trial, Ms. Reeves's costs should be limited to $70,000.
[43] I would not interfere with the trial judge's costs award. Courts have on occasion awarded no costs in relocation cases, but in many other cases trial judges have concluded that a costs award was appropriate. The trial judge's decision in this case falls within his broad discretion to award costs and reflects no error in principle. The amount he awarded, $92,500, though sizable, is less than full indemnity costs and is not unreasonable. Again, the award is within the trial judge's broad discretion. As he recognized in his costs endorsement, because the parties' positions on relocation were not amenable to settlement, a full indemnity costs award would have been inappropriate. I would deny leave to appeal costs.
C. Conclusion
[44] Except for the deletion of the four hour restriction in the trial judge's access schedule, I would dismiss Ms. Brand's appeal. As Ms. Reeves has been successful on the two major issues on the appeal, custody and relocation, she is entitled to her costs of the appeal. In my opinion the cost award should be modest. I would award Ms. Reeves costs in the amount of $10,000, inclusive of disbursements and applicable taxes.
Released: March 19, 2018
"John Laskin J.A."
"I agree. Grant Huscroft J.A."
"I agree. David M. Paciocco J.A."
Footnote
[1] Ray was conceived by intrauterine insemination. The sperm donor was anonymous. Ms. Reeves was the birth mother.