Bourke v. Davis

Ontario Reports

Court of Appeal for Ontario

Feldman, Tulloch and Nordheimer JJ.A.

February 17, 2021

154 O.R. (3d) 431 | 2021 ONCA 97

Case Summary

Family law — Custody — Relocation by custodial parent — Parties with two young children divorcing and respondent remarrying a U.S. resident — Investigator of the Office of the Children's Lawyer recommending sole custody to respondent but that children should not be relocated — Respondent declaring intent to move to Washington State with or without children — Trial judge ordering joint custody and allowing children to relocate, with liberal access to appellant and final decision-making authority to respondent-- Status quo was not an option — Trial judge gave careful consideration to investigator's recommendations, gave effect to maximum contact principle, and made an order in the children's best interests — Parties found to be cooperative and communicative and there was no error in giving decision-making authority to parent with primary care and control — Appeal dismissed.

The parties were married in 2012 and had two sons. Shortly after the birth of the second child, the appellant made the decision to transition from male to female. The parties separated in 2017, with the children remaining with the respondent in the matrimonial home, and subsequently divorced. The respondent married a United States resident in 2018 and they had a child together. With the onset of the COVID-19 pandemic, the respondent's husband arranged to work in Ontario and obtained a Canadian work visa that expired in December 2020 and could not be extended. The appellant sought joint and shared custody of the children. The respondent sought sole custody and an order allowing her to move with the children to Washington State. Both parties agreed to an investigation by the Office of the Children's Lawyer (OCL). The OCL investigator recommended sole custody to the respondent but that the children not be relocated. The matter went to trial. The trial judge found that there was a reasonable measure of communication and cooperation between the parties regarding decisions about the children and rejected the investigator's conclusion to the [page432] contrary. He found that an order for joint custody would be in the children's best interests because it would manifest the appellant's important role in their lives. The trial judge accepted the respondent's position that she intended to move to Washington with or without the children, and so rejected the investigator's recommendation on the mobility question, premised as it was on the respondent remaining in Ontario. Allowing the children to move with the respondent, with generous and liberal access to the appellant, was found to be in the children's best interests. The judge awarded joint custody with final decision-making authority, if necessary after meaningful consultation, to the respondent. The appellant appealed.

Held, the appeal should be dismissed.

The trial judge did not err by relying on the respondent's position that she would move to Washington with or without the children. The respondent was clear with the court that she had made a very difficult decision to go to Washington with her husband and baby from an employment and financial point of view. She put forward three parenting plans, none of which contemplated her remaining in Ontario. The trial judge was not only entitled but obliged to accept the fact that the status quo was not an option. Because the appellant did not put forward a parenting plan, the judge was limited in the analysis that he could conduct for the children's best interests.

The trial judge did not err by failing to give effect to the maximum contact principle. The judge's analysis made it clear that maximizing contact with the appellant was a significant aspect of the respondent's parenting plan that allowed him to approve the children's move to Washington. The order prescribed the children's visits with the appellant in Ontario in nine months of the year, as well as further dates agreed by the parties and plus liberal electronic communication.

The trial judge did not err by failing to give weight to the OCL investigator's recommendation against relocation. The judge carefully considered all the recommendations and accepted some while rejecting others.

The trial judge did not err by giving final decision-making authority to the appellant. The appellant put forward no case law to support the position that the trial judge's approach amounted to an error of law. To the contrary, the trial judge referred to case law in support of his observation that the parent with primary care and control and the greater responsibility for the children's upbringing should, in some circumstances such as in the present case, have final decision-making power. The judge's decision showed confidence in the parents that they would collaborate in the children's best interests.

The order was amended only to the extent of allowing the children to remain with the appellant in Ontario until March 21. The longer period of access was intended to help compensate for the likely inability to conduct other access visits over the next number of months due to COVID-19 international travel restrictions.

Young v. Young (2003), 2003 CanLII 3320 (ON CA), 63 O.R. (3d) 112, [2003] O.J. No. 67, 223 D.L.R. (4th) 113, 168 O.A.C. 186, 34 R.F.L. (5th) 214 (C.A.); Segal v. Segal, 2002 CanLII 41960 (ON CA), [2002] O.J. No. 2564, 26 R.F.L. (5th) 433, 162 O.A.C. 119 (C.A.), distd

Other cases referred to

Bourke v. Davis, [2020] O.J. No. 5524, 2020 ONSC 7667 (S.C.J.); Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, [1996] S.C.J. No. 52, 134 D.L.R. (4th) 321, 196 N.R. 321, [1996] 5 W.W.R. 457, J.E. 96-959, 141 Sask. R. 241, 19 R.F.L. (4th) 177, [page433] EYB 1996-30431, [1996] R.D.F. 209; Hejzlar v. Mitchell-Hejzlar, [2011] B.C.J. No. 885, 2011 BCCA 230, 18 B.C.L.R. (5th) 128, 304 B.C.A.C. 305, 334 D.L.R. (4th) 49, 100 R.F.L. (6th) 32; Hopkins v. Hopkins, [2011] A.J. No. 1413, 2011 ABCA 372; Lamont-Daneault v. Daneault, [2003] M.J. No. 318, 2003 MBCA 111, 177 Man. R. (2d) 235, [2004] 6 W.W.R. 505, 44 R.F.L. (5th) 412; Maharaj v. Wilfred-Jacob, [2016] O.J. No. 6520, 2016 ONSC 7925 (S.C.J.); Newstead v. Hachey, [2018] O.J. No. 1062, 2018 ONSC 1317 (S.C.J.); Porter v. Bryan, [2017] O.J. No. 4516, 2017 ONCA 677, 6 R.F.L. (8th) 41; Prokopchuk v. Borowski, [2010] O.J. No. 2947, 2010 ONSC 3833, 88 R.F.L. (6th) 140 (S.C.J.); Sawatzky v. Sherris, [2002] M.J. No. 429, 2002 MBCA 143, 170 Man. R. (2d) 51, [2003] 2 W.W.R. 22, 32 R.F.L. (5th) 450; Spencer v. Spencer, [2005] A.J. No. 934, 2005 ABCA 262, 371 A.R. 78, 257 D.L.R. (4th) 115, 15 R.F.L. (6th) 237; T. (D.R.) v. D. (K.A.), [2018] O.J. No. 1635, 2018 ONSC 1975 (S.C.J.)

Statutes referred to

Children's Law Reform Act, R.S.O. 1990, c. C.12 [as am.]

Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) [as am.], ss. 16(10) [rep.], 16.92(2)

APPEAL from a custody order of Broad J., reported at [2020] O.J. No. 5524, 2020 ONSC 7667 (S.C.J.).

Michael J. Stangarone, for appellant.

Richard A. Noll, for respondent.

The judgment of the court was delivered by

FELDMAN J.A.: —

A. Introduction

[1] The parties are the divorced parents of two boys aged six and four. The respondent mother is remarried to an American man who lives in Washington State, U.S.A. and is employed with Microsoft Corporation. While the new husband was able to work in Ontario for a period of time, in December 2020, he was obliged to return to Washington for his work. The respondent and her new husband recently had a baby girl together.

[2] This is an appeal from a decision following a trial that allowed the respondent mother to move with the two boys to Washington. The trial judge ordered significant periods of in-person access to the appellant. He also ordered joint custody but with ultimate decision-making authority to the respondent.

[3] Following the decision of the trial judge, the respondent made plans to travel with the boys to Washington. The appellant sought and received a stay of the order pending the appeal of the trial judge's decision. The hearing of the appeal was expedited. As a result, the boys have remained in Ontario with the appellant pending the outcome of the appeal. [page434]

B. Factual Background

(1) Marriage and divorce

[4] The parties were married on June 22, 2012 and had two sons who are now six and four years old. The parties separated in 2017 and eventually divorced on August 27, 2018.

[5] The appellant is a transgender woman. She made the decision to transition from male to female following the birth of the parties' second son.

(2) Post-separation arrangements

[6] The children have always resided in Kitchener, Ontario. After the parties' separation in 2017, the children remained with the respondent in the matrimonial home, and the appellant moved to her mother's house in Moffat, Ontario where she resided for two months before going to live with friends in Breslau, Ontario. Since July 2020, the appellant returned to residing with her mother in her house in Moffat.

[7] From the beginning, the children had access visits with the appellant. The schedule, which began with only Sunday afternoon visits, increased over time to include overnight visits from Friday to Sunday on alternate weekends and one mid-week non-overnight visit. During the period of August to October 2018, when the appellant underwent and recovered from her transition surgery, access visits were largely interrupted. However, by November 2018, the previous schedule had resumed. The appellant had the children for a full week in each of July and August 2019. The respondent also offered the appellant additional time from December 31, 2019 to January 5, 2020.

[8] Due to the COVID-19 pandemic and the subsequent school shut-down in the spring of 2020, the appellant's mid-week afternoon access visits expanded to become overnight access visits. When the children returned to school in September 2020, these overnight visits were discontinued, and the previous schedule was re-instated.

[9] The trial judge referred in his reasons to "parenting time" records placed in evidence by the respondent, and noted that the respondent had offered the appellant numerous extra visits, and that the appellant had missed a number of these scheduled visits. The records were largely not disputed by the appellant.

(3) Respondent's relationship with her new spouse

[10] The respondent met her current husband, Bradley Davis, online in March 2017. He lived in Redmond, Washington and [page435] worked for Microsoft. He was divorced and had a young son who lived with his ex-wife in San Antonio, Texas. He has a shared custody/access arrangement with her regarding his son.

[11] The respondent and Mr. Davis began to spend one extended long weekend together per month, including with Mr. Davis's son on a number of occasions. When Mr. Davis was transferred to San Antonio, he was able to travel frequently to Ontario to visit the respondent and her children. The respondent and Mr. Davis were married on December 14, 2018.

[12] Mr. Davis was transferred back to Redmond in April 2019, and was allowed to live for two weeks in Washington and two weeks in Ontario. On December 20, 2019, the respondent and her children spent ten days with Mr. Davis in Redmond.

[13] With the onset of the COVID-19 pandemic in February 2020, Mr. Davis arranged to work remotely from Kitchener, and obtained a Canadian work visa. However, that visa expired on December 31, 2020 and could not be extended.

[14] The respondent and Mr. Davis also now have a daughter, born in April 2020.

C. Application for Custody

[15] In her original application, the appellant sought joint and shared custody of the children on a 2/2/3 schedule, but no interim order changing the then current arrangement. In response, the respondent asked for sole custody of the children, an order allowing her to move with them to the United States, and an interim order confirming the current arrangement. Both parties agreed to an investigation by the Office of the Children's Lawyer ("OCL"), which was conducted beginning in July 2019 with the report delivered in January 2020.

[16] The OCL investigator, Mr. Glory To, interviewed both parties and observed them with the children at their respective homes. He spoke to the children but because of their young age, he received no input from them regarding custody and access, other than that they were happy with both parents. He also spoke to Mr. Davis, as well as to the appellant's mother who lives with the appellant and helps with the children.

[17] Mr. To recommended that:

-- The respondent should be given sole custody of the children, but with the requirement that she provide advance notice to the appellant of any major decisions regarding the children.

-- The children should not be relocated to Washington. He agreed that the respondent's plan for the children in Washington was well thought out and researched, including [page436] significant access visits with the appellant both in Ontario and in Washington, but he believed that frequency of visits was more important than length of visits with the access parent, and that it would be difficult for the appellant to be involved with the children's education, health and religion if they resided in Washington State.

-- The children have one overnight access visit with the appellant once a week and every other weekend.

-- The appellant continues to receive psychiatric counselling because of her past mental health issues.

-- Both parties receive professional guidance to help the children accept the appellant's gender change.

D. The Trial Judge's Decision

[18] In lengthy and very thorough reasons, the trial judge reviewed the evidence, including that of Mr. To, and the positions of the parties. He also reviewed the legal principles in detail, including the guiding principles under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as well as under the Children's Law Reform Act, R.S.O. 1990, c. C.12, regarding custody and access, and the Supreme Court of Canada decision in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, [1996] S.C.J. No. 52, regarding mobility orders.

(1) Review of the legal principles

[19] The trial judge noted [at para. 79] that Gordon was the pre-eminent authority on the issue of mobility and residency, and summarized the relevant governing principles set out by the Supreme Court, at paras. 49-50, as follows:

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 rights 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; [page437]

(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?

[20] The trial judge also referred [at para 86] to the British Columbia Court of Appeal decision in Hejzlar v. Mitchell-Hejzlar, [2011] B.C.J. No. 885, 2011 BCCA 230, 18 B.C.L.R. (5th) 126, at paras. 24-27, for the four important principles that are to be applied in cases where the custodial parent proposes to relocate with the children against the wishes of the access parent:

(a) while subsection 16(10) of the Divorce Act provides that the court must consider maximizing contact between the child and parent, the same subsection makes it clear that maximizing contact is not an absolute principle, and is only to be pursued within the limits of that which is consistent with the best interests of the child;

(b) barring an improper motive for the proposed move, there must be an attitude of respect for the custodial parent/or primary caregiver. This means, in part, the party seeking to move need not prove the move is necessary, although any degree of necessity, such as for income-earning reasons, may bear upon the best interests of the child;

(c) the authorities generally do not favour the status quo as a "default position" as such an approach reinserts into custody discussions a presumption which is contrary to the instructions in Gordon v. Goertz to assess each case individually, and is contrary to the principle that presumptions are inappropriate in custody cases and detract from the individual justice to which every child is entitled; and

(d) courts in Canada have discouraged reliance by a judge on any expression by the parent who is seeking to move that he or she will not move if the child cannot accompany him or her, as it places the parent in a "classic double bind". . . .

[21] On the same issue, the trial judge also quoted from the decision in T. (D.R.) v. D. (K.A.), [2018] O.J. No. 1635, 2018 ONSC 1975 (S.C.J.), at para. 47(11), as follows: [page438]

. . . [I]f the primary caregiver plans to move and has indicated that maintaining the status quo is off the table, the best interests analysis cannot focus on comparing the effect on children if they are permitted to relocate with the primary parent versus maintaining the status quo with that parent in the current location. The courts have indicated that approaching the issue in this manner ignores a key component of the Gordon test, namely the effect of removing the child from the care of their primary caregiver after that parent moves (McAlpine v. Leason, 2016 ABCA 153 (Alta. C.A.); leave to appeal refused Leason v. McAlpine, 2016 CarswellAlta 2158 (S.C.C.); Spencer v. Spencer, 2005 ABCA 262 (Alta. C.A.), at paras. 15 and 19; Christmas v. Christmas, 2005 ABCA 213 (Alta. C.A.), at para. 5; MMG v. JAS, 2017 ABCA 209 (Alta. C.A.), at para. 23).

(2) Factual findings and analysis

[22] In approaching the issues before him, the trial judge determined to first decide the issue of custody, and then to proceed to the question of mobility.

(a) Custody

[23] To make the custody determination, the trial judge made a number of findings. First, he found that there was a reasonable measure of communication and cooperation between the parties regarding decisions about the children, including their medical and dental care, additional access time for the appellant, education issues, and the arrangement of events such as birthday parties. The trial judge noted [at para. 93] that he was not required to "apply a standard of perfection in assessing the parties' ability to communicate and work together. It [was] sufficient if the necessary cooperation [was] workable and adequate." He ultimately concluded that the parties had the ability to make decisions respecting the best interests of the children. In so doing, he rejected Mr. To's conclusion to the contrary as not supported by the evidence.

[24] Based on the evidence the trial judge observed and accepted, he found that an order for joint custody would be in the children's best interests because it would manifest the appellant's important role in their lives.

[25] The trial judge next addressed the related issue of whether final decision-making authority should rest with one parent or the other, and determined that the issue should be deferred pending a determination of the mobility question. Relying on references from two Manitoba Court of Appeal decisions in Lamont-Daneault v. Daneault, [2003] M.J. No. 318, 2003 MBCA 111, 177 Man. R. (2d) 235, which quoted from Sawatzky v. Sherris, [2002] M.J. No. 429, 2002 MBCA 143, 170 Man. R. (2d) 51, the trial judge looked at the factors to be applied when considering the conferral of final decision-making authority in a joint custody situation. He [page439] agreed that although many factors will be relevant, because the parent with primary care and control will ordinarily have the greater responsibility for the children's upbringing and will have to implement the decisions, that parent should have the final decision-making authority.

(b) Mobility

[26] The third issue was the mobility question, i.e. whether the respondent could move with the children to Washington State. The trial judge agreed with the conclusion of Mr. To that the respondent has been and continues to be the primary caregiver of the children. As such, her reasons for wanting to move with the children were to be given "great respect and the most serious consideration" by the court: see Gordon, at para. 48; Porter v. Bryan, [2017] O.J. No. 4516, 2017 ONCA 677, 6 R.F.L. (8th) 41, at para. 11.

[27] The trial judge found that the respondent had carefully researched the practicalities of the proposed move in a child-focused manner, as well as its implications for the children and for their immediate and extended family. This included options for school, as well as the economic, cultural, recreational and social characteristics and amenities in the greater Seattle area. Her proposed plan to maintain the children's relationship with the appellant was practical and realistic, with blocks of time throughout the year designated for visits to Ontario. In addition, the respondent indicated that the appellant and her family would be welcome to visit the children in Washington and to stay at the Davis's home. The respondent had identified a list of extended family members of Mr. Davis who would provide a network of support for the children and her family. She had also considered the significant economic benefits of Mr. Davis's employment for the family, as well as the available employment opportunities for herself.

[28] The appellant's position before the trial judge was that the respondent did not need to move because Mr. Davis could find a way to move to Ontario, or in the alternative, that the respondent would not move without the children and therefore the status quo should be maintained in order to foster maximum contact with both parents.

[29] The trial judge rejected these submissions. He found that in cases such as this one, where there was no suggestion that the respondent's purpose for the move was to improperly deprive the appellant of access to the children, it was not the court's role to second guess the decision of the primary parent on what is best for the family. The trial judge accepted that the respondent intended to move to Washington, with or without the children. As a result, the status quo was not an option. [page440]

[30] The trial judge acknowledged and agreed with Hejzlar, at para. 27, that courts should not put the moving parent in a "double bind" by relying on an expression by the moving parent that they would stay if the children were not allowed to move, in order to justify an order that maintains the status quo. Similarly, it would be improper for a court to speculate that the moving parent would not move without the children and then impose the status quo, relying on that speculation.

[31] The trial judge then addressed the maximum contact principle, observing that a move by the respondent, with or without the children, will mean that their contact with one of the parents was inevitably going to be reduced. He referred to s. 16(10) of the Divorce Act, which directs the court to take into consideration the willingness of the potential custodial parent to facilitate maximum contact with the access parent in order to achieve that goal for the best interests of the children. The trial judge accepted that the respondent was willing and determined to facilitate the appellant's contact with the children and to foster a healthy relationship between them, and that the respondent's plan was intended to maximize that contact commensurate with the children's education schedule.

[32] The trial judge also addressed the potential disruption to the children's lives by moving, and put weight on their young ages as minimizing the effects of such a move. He noted that they would have to move to a different school if they were ordered to live with the appellant in Moffat, Ontario. With respect to the children's connection to the appellant's extended family, the trial judge found that it is common for people today to live at great distances from each other, and to adapt to the situation by using more electronic communication. As a countervailing consideration, he noted that the children have a new extended family with Mr. Davis's son and their baby sister.

[33] Furthermore, the trial judge found that the parenting plan proposed by the appellant, being premised on maintaining the status quo, was not realistic. The appellant did not present a plan to be the primary caregiver for the children once the respondent relocated to Washington. Specifically, she did not outline her plans for the children's schooling, as well as their before- or after-school care. She also did not explain how she would foster the children's relationships with their sister and the respondent.

[34] The trial judge rejected Mr. To's recommendation on the mobility question. The trial judge recognized that Mr. To's recommendation against the children's relocation was similarly premised on the respondent remaining in Ontario. Mr. To appreciated that the respondent had been the primary caregiver since [page441] the parties' separation, but did not address the best interests of the children if the respondent were to move without them. Mr. To recommended that the best interests of the children would be better served with maintaining the status quo, where the respondent would have sole custody, and the appellant would have frequent visits, rather than long ones. The trial judge noted that Mr. To offered no evidence to back his opinion that the frequency of visits was more important than the length of the visits, and that on cross-examination, Mr. To conceded that longer visits could compensate for lack of frequency.

[35] Because the issue had been raised, though not pressed in argument, the trial judge addressed the appellant's fears that as a transgender person, the "cultural differences" between the United States and Canada may negatively impact the children. The trial judge acknowledged that the appellant's fears were sincere and strongly held. However, since the appellant did not lead any evidence on how transgender people experience discrimination in the two jurisdictions, he could not find that her concerns would affect the best interests of the children.

[36] Finally, the trial judge addressed the potential effect of the COVID-19 pandemic on the parties' ability to give the contemplated generous access to the appellant. The trial judge took judicial notice of the fact that given the two countries' travel restrictions, the parties would not be able to visit the children as freely. However, he concluded that his primary focus had to be on the long-term best interests of the children.

[37] For all of the above reasons, the trial judge concluded that allowing the children to move with the respondent, with generous and liberal access to the appellant, would be in the children's best interests.

(c) Final decision-making authority

[38] The final issue, for the purposes of this appeal, was whether as part of the joint custody award, the respondent should have final decision-making authority, given that she would have primary care of the children in Washington. The trial judge rejected the concern that the effect of giving one parent final decision-making authority would be to undermine the reality of the joint custody order. He agreed with the Manitoba Court of Appeal in Lamont-Daneault, that such an order made sense in the circumstances of this case because the respondent "will have the greater responsibility for the children's upbringing and for implementing [the] decisions made for their well-being" [para. 148]. The trial judge noted that there was still a benefit to the joint custody order as it aligned with the children's perception that [page442] decisions about them would be made collaboratively between their parents. The trial judge also signalled that the use of the final decision-making authority should be a last resort by stating that the respondent would have final decision-making authority, "if necessary after meaningful consultation" [para. 150].

[39] I attach the 22-paragraph terms of the trial judge's final order as an appendix to these reasons.

E. Stay Pending Appeal

[40] The appellant appealed the decision of the trial judge and sought a stay pending this appeal. A stay was granted on January 15, 2021 and the hearing of the appeal was expedited and heard on February 4, 2021. In the interim, the children have remained in Ontario with the appellant.

F. Issues on the Appeal

[41] The appellant submits that the trial judge erred in law by:

(1) relying on the respondent's position that she would be moving to Washington with or without the children to determine the best interests of the children;

(2) failing to give effect to the maximum contact principle, and instead focusing on the respondent's position that she would move with or without the children and the reasons for the move;

(3) rejecting the recommendation of the OCL investigator against the relocation because he failed to consider the scenario where the respondent would move without the children; and

(4) giving final decision-making authority to the respondent.

G. Analysis

[42] Appellate courts are to give considerable deference to the decisions of trial judges on custody and access matters. An appellate court is not to overturn a custody order in the absence of a material error, a serious misapprehension of the evidence, or an error in law: Segal v. Segal, 2002 CanLII 41960 (ON CA), [2002] O.J. No. 2564, 26 R.F.L. (5th) 433 (C.A.), at para. 1.

(1) Did the trial judge err in law by relying on the respondent's position that she would be moving to Washington with or without the children to determine the best interests of the children?

[43] The appellant asserts that the trial judge erred in his analysis when he failed to consider the amendments to the Divorce Act [page443] which will come into force on March 1, 2021 and will include s. 16.92(2). The provision, once amended, will read as follows:

16.92(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child's relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.

[44] While this provision was not in force at the time of the trial, and is not yet in force, it is a fair submission by the appellant that s. 16.92(2) reflects Parliament's view about the court's approach to the moving parent's intentions when considering the best interests of the child.

[45] The Government of Canada website provides the following explanation for the s. 16.92(2) amendment:

Parents seeking to relocate with their children are sometimes required to answer in court the difficult question of whether or not they would proceed with a relocation if they were not permitted to bring their children. A response of "I won't relocate without my child" may be interpreted as evidence that the proposed relocation is not sufficiently important and should not be permitted. A response of "I would relocate without my child" may be interpreted as evidence that the parent is not sufficiently devoted to the child.

This provision would prohibit courts from considering this question -- or the parent's response -- if raised in the context of the court proceedings. This will assist in focusing on the specific legal issue before the court.

[46] Parliament's explanation of s. 16.92(2) reflects the "classic double bind" that has been recognized in the jurisprudence for many years. When the parent who wants to move with the children is asked whether they will stay in their current location should the mobility order not be made, the parent is immediately placed in a "lose-lose" situation. If they answer that they would stay with the children, it allows the court to fall back on the status quo and force the parent to remain when that result may not be in the best interests of the child. By contrast, if the parent says that they would go regardless, it allows the court to draw an adverse inference about that parent's dedication to the children. The problematic double bind has led the courts to repeatedly discourage judges from relying on a parent's representations about whether they will or will not move without the children: see, for example, Spencer v. Spencer, [2005] A.J. No. 934, 2005 ABCA 262, 371 A.R. 78, at para. 18; Hopkins v. Hopkins, [2011] A.J. No. 1413, 2011 ABCA 372, at para. 6; and Hejzlar, at paras. 24-27.

[47] The appellant argues that despite citing the appropriate cases on the double bind, the trial judge nonetheless placed "undue weight" on the respondent's intention to move in his analysis of whether to grant the children's relocation. However, I do not believe that is what occurred in this case. [page444]

[48] The respondent was clear with the court that she had made the very difficult decision to go to Washington with her husband and baby, whether the children could go with her or not. She put forward three alternative parenting plans: (1) the children move with her to Washington and the appellant moves to British Columbia for closer and easier access; (2) the children move with her to Washington and the appellant stays in Ontario; and (3) she moves to Washington and the children remain with the appellant in Ontario. There was no plan presented where the respondent would remain in Ontario. In other words, the respondent made the trial judge aware that the status quo was not an option. For her part, the appellant's plan only contemplated that the respondent would remain in Ontario with the children and that they would share custody on a 2/2/3 arrangement.

[49] The respondent explained to the trial judge why she made the very difficult decision about the move. From an employment and financial point of view, it was not feasible for the family to remain in Ontario, and live on her salary alone, and if her husband gave up his job with Microsoft, he would lose not only his salary but the generous benefits in which she and the children as well as the baby were enrolled.

[50] In these circumstances, the trial judge was not only entitled but was obliged to accept the fact that the respondent would be moving to Washington with or without the children and that the status quo was not an option for the court to consider. Because the appellant did not put forward her own parenting plan for the children if they remained in Ontario without the respondent, the trial judge was limited in the analysis he could conduct for the children's best interests if the order was not made.

[51] In his consideration of the mobility issue, the trial judge was always focused on the best interests of the children. In particular, he considered the research the respondent had conducted and the plans she had made for the children in Washington, including the family situation there, the economic benefits, and the maintenance of maximum contact with the appellant through visits as well as electronic means. He acknowledged the "double bind" issue that courts have wrestled with, where the moving parent's motives for, and sincerity about moving has put that parent in a difficult position, but pointed out that in this case, the respondent was clear she would move either way. He rejected the appellant's position that the respondent was "holding the court up to ransom" by saying she would move regardless of the outcome on the mobility application. The trial judge noted that this submission was simply another way of saying that the respondent [page445] was acting in bad faith, when there was no evidence to support that position.

[52] I see no error in the trial judge's treatment of the respondent's intention to move to Washington. To the contrary, he assessed the reality of the available options for the children and used their best interests as the yardstick by which to measure the most suitable option for them.

(2) Did the trial judge err by failing to give effect to the maximum contact principle?

[53] Again, the trial judge addressed the issue of the maximum contact principle specifically and in detail. His analysis makes it clear that maximizing contact with the appellant was a significant aspect of the respondent's parenting plan that allowed him to approve the children's move to Washington. He recognized the reality that since the respondent would be moving, whether the children moved with her or stayed in Ontario, their contact with one of the parents would be limited.

[54] The trial judge noted that since the appellant's parenting plan was premised on the status quo, it did not explain how the children's relationships with their new sister and the respondent would be maintained after the respondent's move. By contrast, the respondent's plan sought to "maximize the children's contact" with the appellant. The trial judge accepted that the respondent "had demonstrated a determination to foster the maintenance of a healthy and beneficial relationship" between the appellant and the children.

[55] Paragraph 6 of the order prescribes the children's visits with the appellant in Ontario in February, March, April, May, July, August, October, November and December, as well as further dates as agreed by the parties. The respondent also testified that the appellant and her family would be welcome at the respondent's home in Washington. The trial judge accepted this evidence.

[56] As well, para. 9 of the order stipulates that there will be "liberal" electronic communication, which, while not a substitute for in-person access visits and live-ins, will certainly assist in maintaining the relationship between the appellant and the children.

[57] The reality is that even in normal times, one parent's move to another country creates many logistical difficulties for either that parent or the other parent visiting the children. The pandemic creates many more challenges. Having said that, the order demonstrates that the maximum contact principle, commensurate with the best interests of the children, was implemented by the trial judge. [page446]

(3) Did the trial judge err by rejecting the recommendation of the OCL investigator against the relocation?

[58] The appellant submits that the trial judge erred by failing to give weight to Mr. To's recommendation against the relocation of the children, and in particular, to his evidence that it was in the children's best interests to have regular and frequent contact with the appellant, given their young ages.

[59] The appellant analogizes the case at hand to this court's decision in Young v. Young (2003), 2003 CanLII 3320 (ON CA), 63 O.R. (3d) 112, [2003] O.J. No. 67 (C.A.), where the court found that the trial judge had failed to take into account the OCL investigator's recommendations. That was not what occurred in this case. As Laskin J.A. states in Young, at para. 40, the recommendations are not binding on the trial judge: see also Prokopchuk v. Borowski, [2010] O.J. No. 2947, 2010 ONSC 3833, 88 R.F.L. (6th) 140 (S.C.J.), at para. 116. Rather, the trial judge must give the report serious consideration and weigh the evidence accordingly: Maharaj v. Wilfred-Jacob, [2016] O.J. No. 6520, 2016 ONSC 7925 (S.C.J.), at para. 67. Here, the trial judge carefully considered Mr. To's recommendations and accepted some while rejecting others.

[60] For example, the trial judge accepted Mr. To's observations that the respondent was the primary caregiver to the children following the parties' separation. However, he rejected Mr. To's conclusion that the parties were not able to get along and make decisions regarding the children. The trial judge found the evidence at trial to be to the contrary, and based on that finding, he awarded the parties' joint custody of the children. In so doing, he did not follow Mr. To's recommendation that the respondent be given sole custody, but awarded joint custody instead.

[61] The appellant also submits that the respondent's parenting plan #3, i.e., that she move to Washington and the children remain in Ontario, was not presented to Mr. To, and therefore, the trial judge should not have faulted him for failing to address that situation in his recommendations.

[62] I do not agree. To the extent this issue was explored at trial, the respondent acknowledged that the parenting plan she provided to Mr. To was not the same as the one she provided at trial. She testified that she had told the appellant about her desire to move to the United States as early as 2017; that she had started working on the parenting plan in 2018; and that she had evolved the plan in response to Mr. To's concerns about the frequency of visits with the appellant. To the extent that anyone at trial was concerned about a deficiency in the OCL report, that issue should [page447] have been addressed either with Mr. To when he testified, or with the trial judge.

[63] As it was, the trial judge gave careful consideration to the OCL report and used it in his determination of the issues.

(4) Did the trial judge err by giving final decision-making authority to the respondent?

[64] The appellant submits that the trial judge erred in law by awarding joint custody but granting final decision-making authority to the respondent. She argues that because the trial judge accepted that the parties communicate well on issues surrounding the children, there should have been no final decision-making order imposed.

[65] I would also reject this submission. The appellant has put forward no case law to support the position that the trial judge's approach amounted to an error of law. To the contrary, the trial judge referred to case law in support of his observation that the parent with primary care and control and the greater responsibility for the children's upbringing should, in some circumstances such as in this case, have final decision-making power. He also referred to Newstead v. Hachey, [2018] O.J. No. 1062, 2018 ONSC 1317 (S.C.J.), at para. 68, where the trial judge noted that giving final decision-making authority to one parent may appear to weaken the effect of the joint custody order, but it is important for children to see that decisions about them are being made collaboratively by both their parents.

[66] The appellant referred to the case of Segal, as an authority for her submission, but in that case, the trial judge gave no reasons for awarding final decision-making power to one spouse. That is what constituted an error.

[67] In this case, the trial judge provided an explanation for his decision to award the respondent final decision-making authority. He granted the final decision-making power [at para. 150] only "if necessary after meaningful consultation", showing his confidence in the parents that they will collaborate together in the best interests of their children.

H. COVID Issues

[68] For the above reasons, I would dismiss the appeal on the grounds raised.

[69] However, I am cognizant of two circumstances that have had a significant impact since the trial and the decision of the trial judge. The first is that as a result of the stay imposed in order to expedite this appeal, the children have remained in Ontario in the care of the appellant. The second is that as a result of the [page448] pandemic, further travel restrictions have been announced or implemented by the government that will affect the ability of the parties and the children to travel back and forth between Washington and Ontario in the immediate future.

[70] As a result, it is appropriate to amend para. 6 of the trial judge's order that sets out the access travel schedule. In her testimony at trial, the respondent agreed that longer access visits may be needed to compensate for quarantine obligations.

[71] In order to compensate the appellant and the children for anticipated difficulties in travelling back and forth for the next couple of months, the children may remain in Ontario with the appellant until March 21, which is identified at para. 6(b) of the order as the end of a long weekend that fits with the school schedule in Washington. This longer period of access with the appellant will help to compensate for the likely inability to conduct other access visits over the next number of months until travel restrictions are eased.

[72] On that last point, it may be that the April 10-18 visit provided in para. 6(c) of the order will not be feasible this year because of travel restrictions. I will not remove it from the order, but leave it to the parties to make the decision in accordance with the then current restrictions and the best interests of the children.

I. Conclusion

[73] I would dismiss the appeal, except for the amendment of para. 6 of the order for 2021 only, which will now provide that the children may remain in Ontario with the appellant until March 21.

[74] With respect to costs, the appellant was successful on the stay application, and the respondent was successful on the appeal, subject to the access variation for 2021. As a result of the divided success, I would make no order as to costs.

Appeal dismissed.

APPENDIX

1. The title of proceedings is amended to change the name of the respondent to Jennifer Davis.

2. The applicant Darcy Bourke and the Respondent Jennifer Davis shall have joint custody of the children of the marriage, namely [R.W.B.], born June 19, 2014 (male) and [H.J.B.], born March 27, 2016 (male).

3. The parties shall consult and confer with each other regarding all major educational, medical or religious decisions affecting the children. In the event the parties are unable to reach an agreement after having a meaningful discussion, the respondent shall make the final decision, keeping the applicant informed. [page449]

4. The respondent shall be permitted to relocate with the children of the marriage, namely [R.W.B.], born June 19, 2014 and [H.J.B.], born March 27, 2016 to Washington State, United States.

5. Until the children relocate to Washington State, United States, the applicant shall have access to the children as follows:

a. Alternating Wednesday and Thursday evenings from 5:30 p.m. until 7:30 p.m. Wednesday evening access visits shall be in weeks ending with the weekend access visits referred to below, while Thursday access visits shall be during the alternate weeks; and

b. Alternate weekends from Friday from the end of the school day (3:30 p.m.) until Sunday at 6:00 p.m.;

c. The Christmas school break 2020 shall be shared equally by the parties, as agreed upon in a manner consistent with manner in which the parties shared time with the children in 2018 and 2019;

Or such other times as may be agreed upon by the parties in writing.

6. Once the children relocate to Washington State, United States, the applicant shall be entitled to exercise the following parenting time with the children in Ontario, Canada:

The children shall be in the care of the applicant, in accordance with the following schedule, which aligns with the children's school vacation calendar:

a. Winter Break each year: In 2021, dates are February 13th -- 21st;

b. Extended long weekends each year: In 2021, dates are March 18th -- 21st and May 28th -- 31st

c. Spring Break each year: In 2021 dates are April 10th -- 18th

d. Summer: Two weeks in early summer break and two weeks at the end of summer break;

e. Extended long weekend each year in October;

f. Extended long weekend each year in November;

g. One week at Christmas each year alternating the week; and

h. Such other and further dates as agreed upon by the parties.

7. Commencing in 2021, the respondent shall provide the applicant with a copy of the children's school calendar and the proposed parenting time for the full year including summer, extended long weekends, Christmas, winter break and spring break as set out in paragraph 6 above.

8. The applicant shall be permitted to exercise additional parenting time with the children in Washington State, or in British Columbia.

9. The applicant shall exercise liberal telephone, video-call, Skype, and email contact with the children. The parties shall both be flexible with regard to the children's schedule and availability for said telephone and/or video access. The applicant's family shall be permitted to exercise telephone, video-call, Skype or email contact with the children, in the event the applicant is unable to do so. [page450]

10. The respondent shall be permitted to reasonably contact the children during the applicant's time with them via video-call, Skype or telephone.

11. The respondent shall set up a OneDrive account for the children in order to share frequent photos, videos, school calendars, school events, and information directly with the applicant and her family.

12. The children shall fly to Ontario from Washington, non-stop via Air Canada or another agreed upon airline, departing from Seattle- Tacoma Airport and landing at Toronto Pearson Airport. Until such time as the children are of the age to utilize the Unaccompanied Minor Service offered by the airlines, the applicant shall be responsible for travelling with the children, if applicable. The parties shall share equally in any costs associated with utilizing the Unaccompanied Minor Service.

13. The respondent shall obtain and pay for Nexus passes for the children to expedite the process at the airport and to ensure easy cross-border entry to assist in facilitating the applicant's parenting-time with the children.

14. The costs associated with the applicant's access with the children shall be offset as the applicant's child support obligations for the children.

15. a. The respondent may apply for, renew and/or replace the children's passports without the consent of the applicant.

b. The parties shall cooperate to facilitate one another's international travel with the children which shall include but not be limited to the following:

i. executing travel consent letters and/or other documentation as may be required;

ii. exchanging the children's identification; and

iii. adjusting the children's regular residential schedule as may be reasonably necessary.

c. If either party travels with the children to a destination other than between the homes of the parties, they shall advise the other party of the location and dates of travel. In the event that this travel is for a period in excess of 72 hours, they shall provide the following additional details:

i. If the children are travelling by air, the name of the airline, the dates and times of the flights and the flight numbers;

ii. Full details of where the children will be staying, including names and addresses of any hotels or other accommodations; and

iii. Emergency contact telephone numbers for the children.

16. The respondent shall pay for all of the Section 7 Special or Extraordinary expenses for the children.

17. There are no arrears of child support and/or Section 7 Special or Extraordinary expenses owed by the applicant to the respondent. [page451]

18. The respondent shall advise the applicant in writing of the names, addresses and telephone numbers of all third parties involved with the children including but not limited to all educational professionals and health care professionals (teachers, principals, tutors, physicians, psychologists, social workers, counsellors, dentists, etc.).

19. If required by the children's educational or health care professionals, the respondent shall provide written permission to these professionals to release information directly to the applicant.

20. The applicant may directly contact all third parties involved with the children, namely, Ronan William Bourke, born June 19, 2014 and Hudson Jeremy Bourke, born March 27, 2016 and shall be entitled to complete access to any information regarding the children, including and not limited to, all educational professionals and health care professionals.

21. The applicant and the respondent shall maintain the children of the marriage, Ronan William Bourke, born June 19, 2014 and Hudson Jeremy Bourke, born March 27, 2016 on any extended health and medical benefits available to them through their employers.

22. The applicant and the respondent shall at all times keep each other apprised of their current contact information including but not limited to address, telephone number and email address.

End of Document