COURT FILE NO.: FS-11-17576
DATE: 20120705
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANTONELLA TRISOLINO
Applicant
– and –
ALEXANDER CHRISTIAN DAVID DE MARZI
Respondent
Phyllis Brodkin for the Applicant
Mark Greenstein for the Respondent
HEARD: June 5, 6 and 7, 2012
PENNY J.
[1] This is an application for an order that:
(1) the applicant mother be granted sole custody of the children of the marriage, namely N, born December 6, 2002 and E, born October 9, 2005;
(2) the respondent father pay child support and interim child support in accordance with the Federal Child Support Guidelines;
(3) Mother be allowed to relocate to Rome, Italy with the children; and
(4) the consent of Father be dispensed with in order to obtain passports for the children.
[2] The parties have not separated and there is no application for divorce before the court. At the trial, both parties took the position that the only issue requiring adjudication is the mobility question – that is, whether Mother should be allowed to relocate to Rome, Italy, with the children. The parties advised that, once this issue is determined, they will be able to work out the remaining issues.
[3] The trial proceeded on that basis.
[4] My jurisdiction to make the order sought arises under sections 20 and 21 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, which provide:
20(1) Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child.
(2) A person entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of the child and must exercise those rights and responsibilities in the best interests of the child.
(3) Where more than one person is entitled to custody of a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child.
21(1) A parent of a child or any other person may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child.
Background
[5] This is an unusual case in that neither party is, at this time, seeking a divorce and the parties have not separated but still cohabit in the matrimonial home in Toronto.
[6] Mother is Italian. She was born in Italy in May 1971 (she is now 41). She is a qualified lawyer in Italy and lived in Rome until 2007.
[7] Father is a Canadian of Italian descent. He was born in Canada in October 1971 (he is 40 years of age). He too lived in Rome, with Mother, from 2002 to 2007.
[8] The parties met in Italy in 2001 while Father was on holiday there. After the holiday, they stayed in touch. Father returned to Italy a few months later for a visit. Mother came to Canada around Christmas 2001 for a visit as well. Father returned to Italy in January 2002 and stayed. He lived with his aunt and uncle briefly in Rome and then moved into Mother’s parent’s home which was also in Rome.
[9] Father got a job in Rome. Mother was practising law with a firm in Rome. She became pregnant with their daughter, N, who was born on December 6, 2002. The parties married, in Italy, on January 25, 2003. Their son, E, was born in Italy on October 9, 2005. The children have both Italian and Canadian citizenship and passports.
[10] Mother took maternity leaves following the birth of her children. She worked part time from their home but her legal career was, to a significant extent, put on hold while the children were little. Nevertheless, she maintained a relationship with her firm from 2000 to 2006. In 2006, Mother obtained a contract to supply legal services to a joint venture. The couple hired a nanny to look after the children during the day. Mother’s grandparents helped look after the children in the off hours.
[11] Mother’s parents are quite well-off. Her father is retired. Her parents own an apartment in Rome; they own a mountain cottage in the north of Italy; they own a beach house in the south of Italy. They own a timeshare condominium in Manhattan. Mother, Father and the children have holidayed at her parents’ vacation properties on numerous occasions.
[12] Mother’s grandmother owned an apartment near the parent’s home in Rome. Mother and Father lived in the grandmothers apartment after she passed away. While in Italy, they saw Mother’s parents almost every day because they frequently helped look after the children.
[13] Father's work history while in Italy was interrupted by a back injury. He got another job, however, through a cousin in Rome as a waiter/server. He signed a permanent contract with his cousin’s business in 2006. Father has aunts, uncles and cousins in Italy. Father's uncle in Rome is N’s godfather.
[14] In 2005, Father started talking to Mother about the possibility of returning to Canada. Mother was initially not interested but Father persisted. In 2007, at one point, Father threatened to go back to Canada without Mother and the children. Although he says he never meant it, this alarmed Mother and, to keep the family together, she says, she agreed to move.
[15] The parties investigated how Mother might be able to practise law in Canada. They have different recollections about the quality and details of the information they received at the time. According to Father, it was always clear that Mother's legal training in Italy was insufficient for accreditation in Canada and that she would have to write the LSAT, complete three years of law school and article before qualifying to practice. He says she committed to do that.
[16] Mother says she understood some requalification would likely be required but says that she understood some credit might also be given for her years of experience as a lawyer in Italy. Mother’s limited understanding of English at the time may well have contributed to her uncertainty.
[17] In any event, the parties came to Canada on October in October 2007. They lived with Father’s mother and his adult sister, Sabrina, for three months. The living arrangements became tense over time and Father’s mother asked them to find their own place.
[18] The parties found an apartment at Eglinton and Bathurst for $1,560 per month. Father got a job at a successful downtown restaurant. He says he currently earns $32,000 per year. Father has now worked there for five years, ever since his return to Canada.
[19] Mother took an English proficiency program at the University of Toronto. She later enrolled in the LL.M. program at the University of Toronto Law School. She completed her degree in 2007. Mother takes ongoing English classes to improve her English. She has not worked since coming to Canada. The evidence was not controversial that, in fact, to gain admission to the bar in Ontario, Mother would have to write the LSAT, gain admission to law school, attend three years of law school (at a cost of approximately $25,000 per year), successfully complete articles and pass the bar admission course.
[20] The entire family went to Italy for a 6 to 7 week vacation in the summer of 2009. They stayed with Mother’s parents in their various residences and cottages. The children played with their grandparents, aunts, uncles and cousins.
[21] After 4 1/2 years in Canada, Mother feels isolated here and at a dead-end. She has only one friend. She and Father argue and fight constantly. They are in marriage counseling. Mother has not moved out of the matrimonial home solely for financial reasons, she says. She feels that Father is controlling and that she is, against her will, kept dependent upon him, financially and otherwise. She does not get along with Father’s family. She is frustrated with being unable to pursue her chosen profession. She does not, at age 41, feel she has the resources or will power to invest the time and effort required to re-qualify to practice law in Ontario and, in any event, does not have the financial means to do so (over $75,000 for tuition alone).
[22] In addition, Mother has a serious health problem. She has two bad knees. One is from an old sports injury. Another resulted from a fall during the winter in 2010. More recently, during an argument, Father shoved her and she fell, tearing ligaments in her knee. The police were not involved. Emergency surgery was, however, required in April 2012. She is still on crutches. An operation on her other knee is also required. Because Father is working and Mother does not get along with her mother-in-law, Mother’s parents have come to Canada to help her with daily life. They have been living with Mother, Father and the children in the parties’ three-bedroom apartment, helping with meals, laundry, Mother’s personal care and child care. The situation is understandably tense.
[23] Mother says her parents cannot remain here indefinitely. She wishes to return to Italy in July to have the second surgery on her other knee because in Italy she will have the support of her parents and extended family during her recovery. Mother has health coverage in Italy and has a tentative booking for a July surgery in Rome.
Overview of Partie’s Positions
Mother
[24] In essence, Mother says she is miserable here. Things did not work out as they had hoped. They have no money, she cannot work. She is cooped up in a small apartment, receiving no income and requiring government subsidies for daycare. She is isolated and terribly unhappy. This is why she wants to return to Italy with the children.
[25] Mother’s parents bought her an apartment near to them and to schools in a nice neighborhood of Rome. If she returns to Italy, she can practise her chosen profession and earn a good income. She has two job opportunities available to her already. In Rome, she would enjoy the support of her extended family (which is considerable). Language would no longer be an issue for her.
[26] The children, she says, will be better off in Rome. They are Italian citizens. They are both fluent in Italian. They love their maternal grandparents and the aunts, uncles and cousins they have in Italy. They will be able to use the beloved mountain cottage and beach house. They will be financially better off in Italy, as Mother will be able to earn a good deal more practising law in Rome than Father currently does (or she could) here while, at the same time, having fewer living expenses.
[27] Father, she says, has the capacity and the freedom to come with them to Italy if he chooses to do so.
[28] If she is allowed to relocate to Italy with the children and Father chooses not to come, she is nevertheless willing to facilitate access in both Canada and Italy for periodic visits and to contribute financially to that access by paying for the children to fly to Canada and for Father to fly to Italy.
[29] If she is not allowed to take the children to Italy, she says she will remain here for the sake of the children. She says, however, that she will not continue to live with Father and that all the usual issues of custody, access and child and spousal support will have to be resolved. There will be a significant financial issue because of Father’s modest earnings and the need to pay for, among other things, two residences.
Father
[30] Father does not want to return to Italy. He does not want his wife to move or, even if she moves, opposes her taking the children with her. Father feels he has more job security here. He fears for the Italian economy. He says Mother’s isolation is her own doing and that she has failed to make sufficient efforts to integrate into Canadian society and even into his own family.
[31] In particular, Father says Mother has not fulfilled her bargain of going back to law school and qualifying to practise law in Ontario. If she did so, he says, they would have more money and maybe he could go back to school for upgrading as well.
[32] The children are doing well in school. They have friends and enjoy extracurricular activities in Toronto. The children have spent more of their formative years here, in English schools, than they did in Italy. A return to Italy would, for them, be a huge dislocation and fraught with risk, he argues.
[33] Importantly, Father says that if Mother returns to Italy, he will inevitably lose contact with the children. The cost and distance of travel will make it difficult for him to see the children at all on their limited means. He could not say whether he would consider returning to Italy to be nearer to them if the order sought by Mother were granted.
The Issues
[34] The issues can be stated in deceptively simple terms:
(1) Should mother be permitted to relocate to Rome, Italy, with N and E? and
(2) If so, on what terms and conditions?
Analysis
The Legal Test
[35] The Supreme Court of Canada summarized the law with respect to mobility in the context of a change to child custody and access arrangements in the leading case of Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52, [1996] 2 S.C.R. 27, at para. 49:
(1) The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
(2) If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.
(3) This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
(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;
(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.
[36] The assessment of any relocation application must be based on the best interests of the specific children involved without any presumption or onus in favor of either parent.
[37] The court must engage in a “full and sensitive inquiry” into the best interests of the children. Among other things, that full and sensitive inquiry involves weighing the risks of relocation to the children against the benefits to those children of allowing the relocation to take place. Both parties’ plans for the children, therefore, if relocation is permitted and if relocation is not permitted, must be analyzed and subject to “reality testing.”
[38] Relocation cases are extremely challenging and this case is certainly no exception. This is partly because, in relocation cases, the traditional judicial function of applying clear legal rules to facts proved on a balance of probabilities has a somewhat limited function. In C.S. v. C. (K.G.) 2010 BCSC 349, Rogers J. said:
The party advocating relocation will, in most cases, be rolling the dice… She cannot know with precision how things will turn out for the children in the new location… The BCCA in S.S.L. recognize this when it observed:
in cases like this where courts are called upon to make what one judge has called an educated prediction as to the best interests of the children, based not only on evidence of their old life, but also evidence of what parents believe will transpire in their new life…
[39] Mobility cases inevitably involve some degree of uncertainty about what may happen in the future following a relocation. Economic prospects may dissolve, relationships may fail and educational opportunities make disappoint (see Orring v. Orring, 2006 BCCA 523, [2006] B.C.J. No. 2996 (B.C.C.A.)). This, however, is a necessary part of weighing the risks of relocation against the benefits.
[40] It is in this context, therefore, that I turn to a consideration of the factors outlined by the Supreme Court of Canada in Gordon v. Goertz.
1. Existing Custodial Arrangements
[41] As noted earlier, these parties are not separated. There is no divorce application before the court. As the CLRA makes clear, Father and Mother are, prima facie, equally entitled to custody of the children in this situation. A person entitled to custody of a child has the rights and responsibilities of a parent in respect of that child and must exercise those rights and responsibilities in the best interests of the child. Where more than one person is entitled to custody of a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child. This is not a case, therefore, like Gordon v. Goertz, where the issue of mobility arose between a “custodial” parent and an “access” parent. This is not a motion to change but an application of first instance for a declaration of rights.
[42] That said, it is clear from the cases that the question of who is the primary caregiver is of considerable importance in the analysis of whether a parent should be permitted to move to another jurisdiction.
[43] As Prof. Macleod wrote in his annotation to Bjornson v. Creighton 2002 CanLII 45125 (ON CA), 2002 CarswellOnt 3866:
The inference from the recent case law seems to be that although there is no legal presumption in favor of allowing a primary caregiver to move, a parent who objects to a bona fide move will have to prove that the proposed move is not in the child’s best interests to convince the court to deny such a move… Although mobility cases, like all custody\access cases, are decided by reference to the best interests of the child, most moves are relatively neutral from a child’s point of view, aside from reducing contact with the stay-behind parent. Families move all the time and children adjust. Most children do not have special needs that are adversely affected by a move. Simply put, most moves are parent-motivated and most mobility cases are about whether a primary caregiver should be allowed to move on with his or her life without having to forfeit custody. At the present time, the answer appears to be that he or she should be able to move on with the children so long as he or she will not use the opportunity to destroy the children’s relationship with the stay-behind parent.
a) Relationship Between Children and Mother
[44] In 2002, when N was born, Mother practiced law with a firm in Rome. After their first child was born, she stayed home most of the time to look after the children. Mother nursed both children for about a year after they were born. She nevertheless continued to do some legal work from home which enabled her to contribute financially to the family. Father worked full time for his cousin in a restaurant.
[45] In both Rome and Toronto, Mother has been the primary caregiver. She has not worked outside of the home since coming to Toronto and was the one who mostly met with doctors, dentists, teachers, the daycare and school officials. Mother primarily organizes play dates for the children.
[46] Father has recently become more involved because of Mother’s problems with her knees. He has, however, worked full time, at least four days a week, since returning to Toronto. Until Mother’s health problems became acute in 2010, he came home very late from the restaurant and mostly slept in the morning. Since 2010, he has gotten up in time to get the children ready and takes them to school. Although Father has shouldered more of the childcare burden recently, Mother still needed her parents to come from Italy to help out following her surgery.
[47] The children are obviously very close to their maternal grandparents. In 2009, the children spent an extended summer vacation of six to seven weeks with Mother’s parents to Italy. In addition, Mother’s parents have been in Canada for three extended visits, once from December 2007 to April 2008, again from September 2009 to May 2010 and, more recently, since Mother’s knee surgery in April 2012. Mother’s sister-in-law, Daniele Russo, described the maternal grandparents as “magnificent people, respectful, well mannered and very human with others.” She described the children’s relationship with their maternal grandparents as “beautiful.” Ms. Russo teaches Italian at a Catholic school in Toronto. She testified that both children speak good Italian.
[48] In cross examination, Mother was asked whether she would return to Italy without the children. She said no; if she is not successful in her application she will stay here, with all the financial constraints and insecurity, not being very happy about her life. She said she would not stay married to Father and would move out of their apartment to make her way on her own.
b) Relationship Between Children and Father
[49] For the most part, there is little disagreement between the parents with respect to their roles and relationships with the children. Father concedes that Mother mostly arranges play dates, deals with the school, helps with homework and the like. Father says he took the children to skating and Mother took the children to some of their other activities. Since the spring of 2010, Father has gotten up in the morning to help with getting the children to school. He is very aware of the children’s programs at school and follows their progress closely.
[50] Father does take the children on weekend outings, sometimes with his brother or other friends. Mother has not participated in these outings, she says, because of her mobility problems. In addition, she does not get along particularly well with Father’s family.
[51] Regarding extended family, while Father does spend time with the children and his brother, his brother’s wife, Daniele, does not get along with Father’s sister or his mother. The applicant Mother does not get along with Father’s sister and mother either.
c) Conclusion
[52] There is no suggestion but that both parents are devoted to and love their children. I have no doubt that both parents genuinely wish the best for their children. Unfortunately, however, they disagree about what is, in fact, the best course of action for the children in the current circumstances.
[53] On the evidence before me which, as noted, was largely not in dispute, I can come to no other conclusion but that Mother has been and remains the primary caregiver. She does not work outside the home (although she does attend English classes and has completed an LL.M.), she stayed at home with the children before they started school and since they started school, she has been the principal contact, organizing school enrolment, homework, day care, play dates etc.
2. Desirability of Maximizing Contact with Both Parents
[54] Both parents, I believe, genuinely recognize the importance of maximizing both of their contacts with the children.
[55] If Mother is not permitted to take the children back to Italy, the parties will separate and there will have to be custody and access arrangements made and implemented. Child and spousal support may be in issue. Whatever uncertainties the future may hold in this regard, however, the children will at least remain in the same country and city as both parents.
[56] If Mother is permitted to take the children back to Italy, there will obviously be serious and adverse implications for the children’s contact with Father, unless Father decides to relocate to Italy as well. Father’s evidence on this point was non-committal. He said that he does not know what he will do if Mother’s application is successful.
[57] If Mother is permitted to take the children to Italy, she proposes that:
(i) the children shall spend one half of the summer holidays with Father up to a maximum of six weeks each summer with access to be exercised either in Italy or Canada at Father’s request;
(ii) the children shall be allowed to travel to Canada to visit with Father for a further 10 days at least once during the school year each calendar year;
(iii) in the event that father wishes to visit with the children in Italy at any other times, he may do so on 10 days notice of his itinerary;
(iv) there shall be no spousal or child support paid, including section 7 expenses, in order to accommodate the access costs of father;
(v) the applicant shall pay for all of the children’s airfares for the above access; and
(vi) the children shall be permitted to speak on Skype to Father every other day and may speak to Father on the telephone whenever they wish.
[58] Father proposes that, if Mother remains in Toronto, custody remain joint and that Mother have access on alternate weekends, two evenings a week overnight, half of all holiday time and Mother’s Day. If Mother relocates to Italy without the children, Father proposes that she would have access every Christmas holiday season for 10 days, alternating March breaks either in Ontario or Italy and every summer for a period of up to six weeks, with Father to pay the cost of airline tickets for the children to and from Italy.
[59] Obviously, if both parents remain in Toronto, contact with the children can be arranged on a more or less equal-time basis. If the parents are in different countries, contact with the children will necessarily be significantly curtailed for one of them.
3. Views of the Children
[60] Given the age of the children, nine and six, no evidence was put before the court as to the children’s views. This was, in my view, entirely appropriate. The views of the children, accordingly, is not a factor in the determination of this particular case.
4. Reason for Moving
[61] The reasons for the move are only relevant insofar as they have a direct bearing on the best interests of the children. In the circumstances of this case, I believe the reasons for the move do have a direct bearing on the children’s best interests, both emotionally and financially.
[62] Mother places significant reliance on Bjornson v. Creighton, 2002 CanLII 45125 (ON CA), 2002 CarswellOnt 3866 (C.A.), as bearing a strong similarity to the present case on the facts.
[63] At para. 28 and following, the Court of Appeal wrote:
Moving to Alberta, where she plans to resume a well adjusted and independent life – the life that she worked hard for and have achieved their previously – will, in all the circumstances of this case, enhance the best interests of the child. This is particularly true when contrasted with the potential negative effects of prohibiting Bjornson from relocating. The evidence indicates that Bjornson has neither the 12 years seniority status that she accumulated in Alberta nor the full-time hours, self scheduling and full benefits, including pension, which came with her lengthy period of employment there. She also does not have the support of her friends and family which is beneficial, if not crucial, to raising a child as a single parent. In this case, the child’s best interests are better served and better achieved by a well functioning and happy custodial parent, operating at her full potential.
In Gordon, the Supreme Court of Canada reiterated that the best interests of the child test governs relocation disputes. Ultimately, the only issue is what is in the best interests of the child. In determining this, careful attention should be paid to the potential negative effects on the child should the custodial parent be restricted from relocating. Likewise, careful attention should be paid to the potential positive effects on the child should the parent be permitted to relocate…
With the greatest of respect to the learned trial judge, he did not contemplate what improvement, if any, would result to the interests of the child if the custodial parent were permitted to move to Alberta. I agree with the statement of counsel for the mother, as expressed in her factum, that the trial judge failed to “give due regard to the relationship between the quality of the custodial parent’s emotional, psychological, social and economic well-being and quality of the child’s primary care-giving environment.” The learned trial judge failed to appreciate the multi-faceted nature of the mother’s desire to return to Alberta with the child and the concomitant positive effects on the child’s best interests in being cared for by a well functioning and happy custodial parent.
[64] Earlier, at para. 22 and following, the court found
Serious regard must be paid to the views of Bjornson. Most important among them are those concerning her family, her friends and her job. Her family includes her parents who lived in Red Deer, about 85 miles away from Calgary. She usually visited them twice a month, and sometimes more. Bjornson’s sister, Brenda, Brenda’s husband and their two young children live just outside of Calgary. Brenda is an older sister on whom Bjornson leans for advice. Brenda’s two children enjoy playing with Bjornson’s child. Bjornson’s brother, a pediatric neurologist, lives in Richmond, British Columbia. The Bjornson’s are a close-knit family who visit and communicate with one another on a regular and supportive basis. Bjornson’s roots and connections remain in the west. She still has her own doctor and dentist there.
Bjornson is both fond and proud of her profession as a nurse specializing in cardiac and intensive care work. Despite a move to Ontario, she has done everything she can to maintain her credentials, her position and her seniority at Foothills Hospital in Calgary. In Ontario, her lack of seniority prevented her from earning as much if she did, and could, earn in Calgary. It also prevented her from controlling her hours of work, which was something she was able to do in Calgary. The differentials between her work in Alberta and in Ontario are not marginal. They are quite substantial.
[65] At para. 38, the Court went on to criticize the trial judge for appearing to have placed more importance on the father’s career than he did on the mother’s career. The trial judge had concluded that: “it is foolish and unreasonable in the extreme for the plaintiff to have expected the defendant to give up this continuing opportunity in Ontario to return to Alberta without any assurance of gainful employment.” In response, the Court of Appeal said:
One might reverse this scenario to state that it is “foolish and unreasonable in the extreme” to expect Bjornson – a qualified nurse with an established position in the ability to earn approximately $53,000 per year – to sacrifice the opportunities and advantages she earned as a nurse in Alberta, in order to remain in Ontario. This is particularly so when there is actual evidence, not speculation, that she is at a disadvantage professionally in Ontario as compared to Alberta. While it is true that the defendant has no assurance of gainful employment in Alberta it is also true, and supported by actual evidence, that Bjornson’s professional life, earning potential and self-fulfillment will continue to be significantly compromised if she remains in Ontario.
[66] At paragraph 51, the Court of Appeal concluded:
I accept that a move to Calgary will reduce the amount of time father and son would spend together. As I have indicated, it does not necessarily follow, however, that the move would not be in the best interests of the child. To the contrary, when the factors enunciated by McLachlan J. in Gordon v Goertz are properly considered, I am of the opinion that it would be in the child’s best interest for Bjornson to return to Calgary.
[67] While each case turns on its own facts, I agree with counsel for Mother that the Bjornson case bears significant similarities this case. There is clear evidence that Mother’s professional prospects are significantly enhanced in Italy where she remains qualified to practise law. There is also clear evidence of a close-knit, supportive extended family in Italy, not only for Mother but for the children as well.
[68] In cross examination, Father admitted that his wife is terribly unhappy and unfulfilled in Ontario. If Mother moves to Italy, he also admitted, there is no house to sell, he has no business interests in Ontario to worry about and, outside of normal relationships, he has no responsibilities to his family which required him to remain in Ontario. He has, as he admitted in his evidence, “the freedom to make that choice” to follow his wife and move back to Italy to be near the children. Certainly, on the evidence, there would be no greater hardship on Father to move to Italy than on Mother to stay in Ontario.
[69] There is no evidence to support any argument that Mother’s desire to move to Italy is motivated by a desire to interrupt or detract from the children’s relationship with Father. There is, to the contrary, I find, ample evidence to support the conclusion that Mother’s desire to return to Italy is multi-faceted in nature, not merely self-interested, and brings with it significant associated positive effects for the children’s best interests in being cared for by a well functioning and happy, not to mention financially and professionally better off, primary caregiver.
5. Disruption Consequence on the Move
[70] Father places great weight on this factor. He argues that the children have spent more formative years in Toronto than they ever spent in Italy. They have friends, know their school and the teachers, are doing well in school and have relationships with his extended family. They have already gone through one disruption moving from Italy to Canada. Father fears that a second disruption, moving back to Italy, will interfere with their educational and developmental progress and social and peer relationships, not to mention their relationship with him and his extended family.
[71] As Professor McLeod said in the annotation noted earlier, “Families move all the time and children adjust.” There is no evidence in this case that the children have special needs or sensitivities that would be uniquely and adversely affected by a change in location, school etc. They are both fluent in Italian and hold Italian citizenship and passports. They have a large, supportive, extended family in Rome who are all well known to them. The children will be near to their aunts, uncles and cousins in Italy. The support network will, therefore, be at least comparable, if not enhanced, in Italy.
[72] Mother has a concrete, positive plan for their life in Rome. Her parents have bought her an apartment near parks, a good school (which is sensitive to foreign students) and the grandparent’s own home. Mother and the children will have access to her parent’s mountain and beach cottages for vacations. Their cost of living in Rome will be reduced as a result of these benefits and Mother’s employment opportunities in her chosen profession will be significantly enhanced.
[73] Thus, while there will, no doubt, be significant disruptions, there are offsetting benefits in Mother’s plan for relocation which will mitigate the negative impact of these disruptions, at least to some extent.
6. Other Considerations
(a) Scenario if Children Remain in Toronto
[74] If the children must remain in Toronto, the parties will separate. Custody and access may or may not be disputed. Similarly, child and spousal support may or may not be disputed.
[75] Mother has no job and has not worked since arriving in Toronto. She will have to find a job in due course. It will almost certainly, however, not be in law. I cannot fault Mother’s decision not to seek to re-qualify to practice law in Ontario. She is 41. At her age and stage, the prospect of four a half years of re-training at very significant cost is not an attractive, or even an especially realistic, option.
[76] Mother will, accordingly, if she remains here, continue to be denied the ability to practise her chosen profession and to earn income associated with a legal practice. She will also, in all likelihood, continue to be lonely and feel isolated, being denied the support of her parents and extended family. There seems little prospect, in the foreseeable future, that she will be a “well functioning and happy” parent in Toronto.
[77] Father will presumably continue in his employment as a waiter. There will be very significant financial constraints as his income is barely sufficient to support them living under one roof, much less support two residences.
[78] On the positive side, the parties will remain in the same city and both parents will have frequent access to the children. There is likely to be little money, however, for trips to Italy to see the children’s extended family there.
(b) Scenario if Children Go to Italy
[79] If the children moved to Italy, Mother will be able to practise law and earn the income associated with a law practice. She and the children will enjoy the benefits of frequent contact with her parents and extended family in Rome, as well as the use of the vacation properties in the north and south of Italy.
[80] Father may or may not be willing to move to Italy. If he does not, the children will be denied frequent contact with Father, although Mother proposes significant access during holiday periods, largely at her expense.
[81] Child and spousal support will not be in issue as Mother is willing to waive all rights to support if she moves with the children to Italy.
[82] There is every reason to believe that the children will adapt to the disruptions associated with relocation. There is also every reason to believe that Mother’s economic prospects in Italy will exceed the family’s economic prospects if they remain in Toronto.
Conclusion
[83] In my opinion, weighing the risks and benefits associated with the two scenarios, and accepting that all future plans and predictions involve uncertainty, the benefits to the children of permitting Mother to move to Italy with them outweigh the costs and the risks. Accordingly, I find that it is in the children’s best interests to permit Mother to move to Italy with them on the terms and conditions outlined in the applicant Mother’s draft order submitted at the conclusion of the hearing.
Costs
[84] I encourage the parties to seek to resolve the issue of the costs of this application on their own. If, however, they are unable to do so, written submissions, not to exceed three typed, double spaced pages, maybe filed, supported by Bill of Costs and other relevant supporting material. Any party seeking costs shall do so by filing the above submission within two weeks of the release of these Reasons. Any party wishing to respond to a request for costs shall file their submission, subject to the same limitation, within a further two weeks.
PENNY J.
Released: July 5, 2012
COURT FILE NO.: FS-11-17576
DATE: 20120705
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANTONELLA TRISOLINO
Applicant
– and –
ALEXANDER CHRISTIAN DAVID DE MARZI
Respondent
REASONS FOR JUDGMENT
Penny J.
Released: July 5, 2012