Court of Appeal for Ontario

Date: July 8, 2019 Docket: C66654

Judges: Feldman, Hourigan and Brown JJ.A.

Between

Garry Browne Appellant

and

Shawnna Browne Respondent

Garry Browne, self-represented Shawnna Browne, self-represented

Heard and released orally: July 5, 2019

On appeal from: the order of Justice Sutherland of the Superior Court of Justice, sitting without a jury, dated February 7, 2019.

Reasons for Decision

[1] The parties are divorced. Pursuant to a final order dated March 9, 2017, the parties share custody of their two children with equal parenting time. The order also provided that the parties shall not remove the children from Ontario without written approval from the other party or a court order. The parties were not to unreasonably withhold their approval.

[2] The respondent planned to take the children on a March break trip to Mexico to spend time with her parents, but the appellant did not approve. On January 22, 2019, the respondent brought a motion to permit her to take the children on the planned trip. The appellant opposed the motion.

[3] The motion judge granted the respondent's motion, finding it in the children's best interests to have a vacation with their mother and grandparents. He also found the appellant's position unreasonable and contrary to the terms of the order of March 9, 2017. The motion judge made an order dispensing with the appellant's consent for the trip to Mexico, subject to terms imposing certain disclosure and timing obligations and requiring that any missed time with the appellant be made up.

[4] The motion judge also made an order that the respondent, "shall not remove the above named children from the country for a period greater than 14 days without written consent of the Respondent [the appellant] or court order." This order represented a change in the status quo, as the respondent is now permitted to remove the children from Canada for up to 14 days without the appellant's consent or a court order.

[5] On appeal, the appellant submits that the motion judge was biased or unfair in his order, because he did not impose the same guidelines or restrictions on both parents, even though the parents share equal custody. He also complains that the motion judge gave the mother permission to travel with the children on his scheduled parenting time without his consent. The appellant requests that the motion judge's order be modified to treat the parties equally, increase notice periods, and require that the parties not take a vacation on the other party's parenting time without obtaining consent. In the alternative, he seeks a return to the original order.

[6] We decline to interfere with the order of the motion judge. The issue before him was the appellant's refusal to consent to the respondent's travel plans. The motion judge found that the appellant was acting unreasonably, a finding open to him on the record. In order to avoid this problem arising again, he made an order that would facilitate short trips that the respondent wished to take with the children in the future.

[7] There was nothing unfair or biased in this order. The motion judge was trying to avoid costly and time-consuming motions every time the respondent wished to take the children out of the country. There was no evidence that the respondent had ever unreasonably withheld her consent to a trip that the appellant proposed to take with the children. Therefore, there was no reason for the motion judge to make a similar order regarding future trips the appellant takes with the children. The motion judge referred to "access time" in para. 5 of the order. The proper term is "parenting time".

[8] The appeal is dismissed. The appellant shall pay the respondent her costs of the appeal in the amount of $85.

"K. Feldman J.A."

"C.W. Hourigan J.A."

"David Brown J.A."