CITATION: Reati v. Racz, 2016 ONSC 1967
COURT FILE NO.: F475/15
DATE: March 24, 2016
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Michael Anthony Reati
Iain D.D. Sneddon for the applicant (appellant in appeal)
Applicant (Appellant in Appeal)
- and -
Jennifer Michele Racz
Malcolm Bennett for the respondent (respondent in appeal)
Respondent (Respondent in Appeal)
HEARD: March 8, 2016
MITROW J.
INTRODUCTION
[1] The appellant, Michael Anthony Reati, appeals the arbitration award of the Honourable M.J.M. Nolan (“the Arbitrator”) dated August 5, 2015, in which the Arbitrator permitted the respondent, Jennifer Michele Racz, to move to Rochester, Minnesota with the child, Kaitlyn, born October 31, 2014, to take up employment at the Mayo Clinic.
[2] This appeal is governed by the Arbitration Act, 1991, S.O. 1991, c. 17 and is being heard in this court pursuant to s. 45(6)(a) of that Act, which provides that an appeal of a family arbitration award lies to the Family Court in areas where it has jurisdiction under s. 21.1(4) of the Courts of Justice Act, R.S.O. 1990, c. C.43 [as am. by S.O. 1991, c.46]. Pursuant to s. 45(2), a party may appeal an award to the court on a question of law if the arbitration agreement so provides, and pursuant to s. 45(3), a party may appeal an award to the court on a question of law or on a question of mixed fact and law if the arbitration agreement so provides.
[3] In the present case, the arbitration agreement provided for appeals on a question of law, a question of fact, or a question of mixed fact and law.
[4] In hearing an appeal from an arbitration award, the court’s powers include the following:
45(5) The court may confirm, vary or set aside the award or may remit the award to the arbitral tribunal with the court’s opinion on the question of law, in the case of an appeal on a question of law, and give directions about the conduct of the arbitration.
[5] For reasons that follow, the Arbitrator’s award is confirmed and the appeal is dismissed.
BACKGROUND FACTS
[6] The relevant background facts are discussed in the Arbitrator’s reasons and need only be dealt with briefly.
[7] The parties began dating in September 2010 and began to cohabit in March 2012. They were married to each other in August 2012.
[8] The parties have one child, Kaitlyn Olivia Reati, born October 31, 2014.
[9] There was evidence that the parties began having a conflict in their relationship prior to their marriage.
[10] The parties separated soon after the child was born. There was a dispute as to the date of separation. The respondent takes the position that the parties separated in the latter part of December 2014, while the appellant states that the parties separated mid-April 2015. Nothing in this appeal turns on the date of separation.
[11] The appellant is a secondary school teacher with the London District Catholic School Board. He does not occupy a fulltime position. The Arbitrator described his position as “4/6th” of a teaching position.
[12] The respondent is a medical doctor. In anticipation of pursuing a fellowship in surgical oncology, the respondent, in the spring of 2012, applied for a number of fellowships in Toronto, Calgary, Montreal and also a number of well-known cancer centres in the United States.
[13] The respondent had the support of the appellant in her applications for fellowships and there was evidence that the appellant would be prepared to move with the respondent, at whatever location the respondent was accepted at, to pursue a fellowship in surgical oncology.
[14] Within the specialty of surgical oncology, the respondent developed an interest in oncoplastic breast surgery.
[15] The respondent has been offered fulltime employment as an oncoplastic breast surgeon at the Mayo Clinic in Rochester, Minnesota, to start after the completion of her residency at the end of March 2016.
[16] In April 2015, the appellant commenced an application in this court seeking a divorce, spousal support, custody of the child, child support, equalization of net family property and an order restraining the respondent from moving the child from Ontario.
[17] The respondent filed an answer/claim that included a claim for a divorce, custody of the child, child support, equalization of net family property, exclusive possession of the matrimonial home and contents, and an order permitting the respondent to relocate with the child to Rochester, Minnesota.
[18] In June 2015, the parties signed a family arbitration agreement to arbitrate the issues between the parties. The issues submitted for arbitration included custody, access, child support, spousal support, all property issues and mobility. All of the issues were submitted for determination for interim relief, if necessary, and for final determination.
[19] The result of the arbitration agreement was that, other than the claim for divorce, all issues raised in the court proceeding were to be determined by the Arbitrator.
THE ARBITRATOR’S AWARD
[20] The arbitration hearing was conducted July 22, 23, 24 and 27, 2015. After the conclusion of the hearing, the Arbitrator did receive some additional evidence on July 30, 2015, consisting of a report from the child’s allergy specialist.
[21] The arbitration agreement provided that after evidence has been received and submissions on the law have been made that the Arbitrator shall deliver an award within seven days of the completion of the hearing. The Arbitrator complied with this timeline and delivered her award on August 5, 2015.
[22] As explained in more detail below, the Arbitrator’s award also dealt with permitting the respondent to move with the child to France in order to receive specialized medical training in breast oncology, and also dealt with whether the respondent could take the child with her to Toronto for the completion of her surgical oncology fellowship during the first three months of 2016.
[23] At the arbitration hearing, the parties requested on consent that they have joint custody of the child. The Arbitrator was satisfied that this was in the child’s best interests and made that order.
[24] The arbitration award, dated August 5, 2015, can be summarized as follows:
- the respondent and appellant shall have joint custody of the child;
- the respondent shall be permitted to move to Paris, France from London, Ontario with the child to complete a new fellowship for the period beginning August 15, 2015 to December 31, 2015;
- the respondent shall be permitted to move to Toronto, Ontario from London, Ontario with the child to complete her current fellowship for the period January 1, 2016 to March 31, 2016;
- the respondent shall be permitted to move to Rochester, Minnesota from London, Ontario with the child to take up employment at the Mayo Clinic;
- if the appellant decides to go to Paris, Toronto and/or Rochester, Minnesota, the appellant shall have exclusive parenting with the child while the respondent is engaged in her fellowship or employment duties, and at such other times as agreed to by the parties or determined by the Arbitrator failing agreement;
- if the appellant elects not to go to Paris, Toronto and/or Rochester, Minnesota, he shall have exclusive parenting time with the child in accordance with the agreement of the parties or determined by the Arbitrator with the understanding that the respondent will assist both financially and by providing some of the transportation to ensure that the child is able to spend maximum time with the appellant in accordance with the child’s best interests;
- at the request of either party upon a material change in circumstances, the parenting arrangement either agreed to by the parties or determined by the Arbitrator may be reviewed;
- the Arbitrator dealt with the timing of submissions on the issue of costs; and
- the Arbitrator remains seized of all financial and parenting issues in this proceeding.
[25] Accordingly, the subject of the appeal was para. 4 of the Arbitrator’s award.
GROUNDS FOR APPEAL
[26] The order of dealing with the grounds of appeal in the reasons below differ slightly from the order set out in the notice of appeal; the appeal in relation to the connection between the respondent’s proposed moves is dealt with last; the appeal in relation to the maximum contact principle is dealt with after the first two grounds of appeal.
[27] The specific grounds for appeal, as set out in the notice of appeal, are:
- The Arbitrator misapprehended the evidence and the law with respect to the appellant’s ability to relocate to and obtain employment in Minnesota;
- The Arbitrator misapprehended the evidence and the law with respect to the employment opportunities available to the respondent in Ontario;
- The Arbitrator misapprehended the evidence with respect to the connection between all of the respondent’s proposed moves;
- The Arbitrator has failed to give sufficient weight to the maximum contact principle.
STANDARD OF APPELLATE REVIEW
[28] The decision of an arbitrator deserves as much deference on appeal as does the decision of a trial judge: Palmer v. Palmer, 2010 ONSC 1565 (S.C.J.) at para. 3.
[29] In reaching an award, an arbitrator sits in the same position as a judge in a lower court when a decision is appealed to a higher court, and for a decision to be overturned on appeal, the appellate court must find that the reasons amount to an error law and that the decision is not correct or that a palpable and overriding error was made on a question of mixed fact and law: Gray v. Brusby, 2008 CarswellOnt 4045 (S.C.J.) at para. 27, and Palmer, supra, at para. 5.
[30] In Housen v. Nikolaisen, 2002 SCC 33, the Supreme Court of Canada discussed in detail the standard of appellate review. The following principles emerged from that case:
a) an appellate court should not interfere with a trial judge’s reasons unless there is palpable and overriding error; stated another way, an appellate court is prohibited from reviewing a trial judge’s decision if there is evidence upon which the trial judge could have relied to reach that decision (para. 1);
b) the role of appellate court judges is to review the reasons in light of the arguments of the parties and relevant evidence, and then to uphold the decision unless a palpable error leading to the wrong result has been made by the trial judge (para. 4);
c) on a pure question of law, the standard of review is that of correctness (para. 8);
d) the standard of review for findings of fact is such that findings are not to be reversed unless the trial judge has made a “palpable and overriding” error (para. 11);
e) appellate courts must treat a trial judge’s findings of fact with great deference, this rule being based principally on the assumption that the trier of fact is in a privileged position to assess the credibility of witnesses’ testimony (para. 12);
f) a court of appeal is clearly not entitled to interfere merely because it takes a different view of the evidence; the finding of facts and the drawing of evidentiary conclusions from the facts is the province of the trial judge, not the Court of Appeal (para. 24);
g) the standard of review for factual inference is the same as for findings of fact – there is one, and only one, standard of review applicable to all factual conclusions made by the trial judge – that of palpable and overriding error (para. 25);
h) a question of mixed fact and law involves the application of a legal standard to a set of facts; where a decision-maker applies the wrong law to a set of facts, then this will constitute an error of law subject to the standard of correctness (para. 27); and
i) matters of mixed fact and law lie along a spectrum; where a legal principle is not readily extricable so as to characterize the error as an error of law subject to the standard of correctness, then the matter is a matter of mixed fact and law subject to the more stringent standard of palpable and overriding error (paras. 36-37).
DISCUSSION – GROUNDS OF APPEAL
A. The Arbitrator Misapprehended the Evidence and the Law with Respect to the Appellant’s Ability to relocate to and Obtain Employment in Minnesota
[31] The main thrust of this ground of appeal is that the Arbitrator misapprehended the evidence as to the appellant’s ability to work in the in the United States.
[32] The appellant points to several portions of para. 67 of the reasons in support of his argument. Paragraph 67 in its entirety states:
Unlike Mr. Maxwell in Walker, Michael has the ability to go with Jennifer to Paris and to Rochester for a total of over two years without affecting his permanent teaching position in London. He may also have the opportunity to work as a teacher in Rochester or at least to explore those possibilities with the assistance of the resources of the Mayo Clinic. Michael will have to decide whether he wants to exercise that ability so as to continue to be an integral part of Kaitlyn's life. The obligation to honour the maximum contact principle must also fall on the parent who has an option to have significant contact with his or her child.
[33] The appellant submits that the evidence of both immigration lawyers “was clear” that the likelihood of the appellant being able to work in the United States is “very limited,” that the process “would take time,” and would be significantly complicated because the parties are separated and both have claimed a divorce: appellant’s factum, paragraph 45.
[34] Two immigration lawyers, Glenn Matthews (“Mr. Matthews”) and Tiffany Frederick (“Ms. Frederick”) gave expert evidence as to U.S. immigration law. Mr. Matthews had been retained by the respondent while Ms. Frederick had been retained by the appellant.
[35] Mr. Matthews and Ms. Frederick testified at the same time during the arbitration hearing. While their testimony did not follow the usual pattern of examination in-chief, cross-examination and then re-examination, nevertheless their testimony explained United States immigration laws as they pertained to the parties, and dealt with the prospects of the appellant being able to work in the United States. Mr. Matthews and Ms. Frederick generally agreed with each other and there was no difference in their evidence on matters of substance.
[36] Both immigration lawyers had provided reports that were filed as exhibits at the arbitration; those exhibits were not part of the appeal record. However, both counsel indicated that this appeal properly can be dealt with, as it relates to any evidence provided by the immigration lawyers, by referring to the transcripts of their evidence.
[37] In support of his submission that the Arbitrator misapprehended the evidence in relation to the appellant’s ability to obtain employment in the United States, the appellant relied substantially on the evidence of Mr. Matthews, concurred with by Ms. Frederick, that the appellant has only about a “one in five chance” of obtaining a visa to allow him to teach secondary school (which was the appellant’s current teaching level).
[38] During oral argument, the appellant pointed to the agreement of both immigration lawyers that he has a “one in five chance” of being granted a visa to work in the United States, following which the appellant submitted that the Arbitrator erred because she thought that the appellant can simply move to the United States and would have the opportunity there to find employment.
[39] I am unable to accept this submission for a number of reasons, as explained below.
[40] As the respondent correctly submits, this aspect of Mr. Matthews’ evidence was in the context of the appellant applying for his own visa to be able to work in the United States. However, the evidentiary record before the Arbitrator also included reference to the ability of the appellant to work in the United States by utilizing another process summarized by Mr. Matthews as “option one.” Mr. Matthews’ evidence in this regard was agreed to by Ms. Frederick as to all material aspects. As explained below, the ability of the appellant to work in the United States is enhanced, not insignificantly, by using that process.
[41] Option number one, as explained by Mr. Matthews, was based on the fact that the respondent is entering the United States on an H1B work visa to allow her to take up employment at the Mayo Clinic in Minnesota. In fact, the respondent’s employer, the Mayo Clinic, was required to file the “H1 petition” to allow the respondent to enter the United States and to work for the Mayo Clinic. During the H1B visa application process, both the child and the appellant would be shown as dependants of the respondent.
[42] Once the H1 petition is approved (and there was evidence that the petition cannot be submitted more than six months prior to the respondent’s anticipated start date at the Mayo Clinic), then both the child and the appellant are permitted to enter the United States by appearing at the border and requesting “H4 status” as the legal dependants of the H1B visa holder, being the respondent. Upon presentation of documents verifying identity, and H4 status, the appellant, as a holder of the H4 status, can enter and live in the United States for “the duration status that the officer gives them at the border” (transcript: Mr. Matthews page 736). As a Canadian citizen, the appellant does not require a visa to enter the United States.
[43] The appellant cannot work on the basis of his H4 status, but he can use his H4 status to apply for an “Employment Authorization Document” (“EAD”). The EAD application by an “H4 spouse,” in this case the appellant, can be started only once the Mayo Clinic, as the respondent’s sponsoring employer, files an “I140 immigration petition,” which is the first step in the green card process.
[44] The purpose of this petition is to request the United States government to approve the respondent for a green card. That process will take one to three months, assuming that the category used for the respondent is “extraordinary.” (There are “lower” categories, which result in longer processing times; the immigration lawyers did disagree as to how long those times could be but the evidence suggested that the respondent, in any event, was being processed according to the highest category as corroborated by the email dated July 8, 2015 from the Mayo Clinic to the respondent. Both immigration lawyers did agree with the one to three month estimate for the “extraordinary” category.) Also, both immigration lawyers agreed that the appellant’s H4 status and any EAD approval to work both were linked to the ongoing validity of the respondent’s H1B visa status.
[45] There was evidence as to the extent to which the parties’ separation and claims for divorce could amount to negative factors.
[46] As part of the “I140” process, the case is converted into an actual green card status after the I140 approval in one of two ways – the parties actually appear at the U.S. consulate in Montreal, or through an adjustment of status, where the parties file separate paperwork from within the United States (transcript: Mr. Matthews page 750). It would be the respondent’s decision as to which process to use.
[47] In relation to the interview process in Montreal, it was Mr. Matthews’ evidence that most consular visits are a “rubber stamp visit” (page 751). It is important that the parties are legally married.
[48] Mr. Matthews gave the following evidence in relation to the provisions in the manual as to how an officer handles a situation where the parties are separated (at page 751):
And that provision instructs officers in that situation who are looking at a marriage it you know instructs an officer how to handle a physical separation, separate cohabitation. And the officer has a choice, the officer can go on and approve the visas for everybody in spite of the separate cohabitation or if for some personal reason the officer feels that something’s awry or something’s not right the officer has the power and the legal authority to deny a visa petition to the dependent which would be Mr. Reati in this case if they felt that the marriage was somehow void or terminated or will inevitably become terminated. So that’s how the consular process could work, it could go either way. My experience in similar situations, not identical but similar situations is that an officer in Montreal would approve a visa application in a case like this because no affirmative step in my mind’s experience anyways, no affirmative step has been taken to terminate a marriage. The parties were merely separated. The question wasn’t raised, “…are you going to file for divorce or have you or will you…”. So it’s up to an officer to ask these questions. If they don’t ask a question they’re looking at two people sitting in front of them who are still legally married and their instructions tell them you ought to issue the visa. So that’s how Montreal works. (my emphasis)
[49] If the parties use an adjustment of status option process, the parties would file forms including a declaration that they are still legally married. Mr. Matthews testified that he has handled “thousands” of cases and that in “almost every case” he has never had an employment-based case go to interview.
[50] There was no disagreement between the immigration lawyers as to the potential negative effect of a divorce claim as that could be viewed as undermining the parties’ marital status. However, there was clear evidence from Mr. Matthews that withdrawing any claims for divorce should resolve that issue (transcript page 754).
[51] The appellant was asked in cross-examination that, if it facilitates him going to the United States, whether he would be prepared to hold off on a divorce. His response was equivocal and included the following at pages 341-342:
Q. I’m asking that if it facilitates you going to the States if you choose to go or Kaitlyn going are you prepared to hold off on a divorce?
A. Depends on how long. I would have to make that decision later and if I had no other choice because I don’t agree with moving again it would…I mean I need more detail. Maybe, I can’t give an answer without more…like I need more detail, I don’t know. I don’t know timelines, I don’t know options. There’s a lot of other factors that need to be discussed, there’s finances and everything else and this would be against my wishes and not what I think is in Kaitlyn’s best interest but…
[52] In her evidence in-chief, the respondent was asked a similar question. Her response was clear and unequivocal at pages 519-520:
Q. Mr. Bennett: Let me pose this question, if it is an impediment let’s say to securing those visas if you get divorced what would be your intention with respect to securing a divorce from Mike?
A. I would remain legally married to facilitate the process with Mike in the best interests of Kaitlyn that we be together. Certainly that’s not something I’m even considering at this point in terms of a future relationship or anything at this point so I would like to facilitate Mike getting to the States and if doing so meant that I remained legally married and not divorced I would do so.
[53] There was evidence before the Arbitrator that the Mayo Clinic was prepared to offer assistance to the appellant in obtaining employment. The appellant agreed during cross-examination that: he was aware in late February 2015 that the human resources department at the Mayo Clinic could offer him assistance and that they were requesting his resume; the appellant delayed providing his resume; the appellant has not called the Mayo Clinic to seek any assistance to find work; the appellant has not looked at the schools near the Mayo Clinic nor has he called the schools; and the appellant is not aware of what teaching jobs are available in Rochester, Minnesota (transcript pages 320-326; 332-333).
[54] Further, much of the aforementioned evidence as to the appellant’s efforts to search for employment is summarized in para. 42 of the Arbitrator’s reasons.
[55] Although the Arbitrator did not discuss specifically the immigration lawyers’ evidence, the Arbitrator, in her reasons, listed all the witnesses who had testified, including the immigration lawyers; further, at para. 39 of her reasons, the Arbitrator stated expressly that she would not be setting out the evidence of each of the witnesses in detail.
[56] Although the Arbitrator elected not to discuss the immigration lawyers’ evidence, clearly, that evidence was before the Arbitrator for her consideration.
[57] The Arbitrator concluded at para. 67 that the appellant “… may also have the opportunity to work as a teacher in Rochester or at least to explore those possibilities with the assistance of the resources of the Mayo Clinic.”
[58] I find on the evidentiary record that it was open to the Arbitrator to make that finding and that there is no basis, on appeal, to interfere with that finding; the Arbitrator made no error in principle, nor any palpable or overriding error, nor did the Arbitrator misapprehend the evidence.
[59] Specifically, the Arbitrator’s conclusion is amply supported by the evidence from the immigration lawyers, in particular, as to the appellant’s ability to obtain an EAD, based on his H4 status, and the unlikelihood that this would be affected by the parties’ separation, especially if the “adjustment of status” procedure is utilized where the parties file paperwork within the United States and where a hearing before an officer is most unlikely. Also, an EAD allows the appellant to work in any occupation. The claims for divorce would become a non-issue if each party withdrew his or her claim for divorce.
[60] In addition, a reading of the Arbitrator’s reasons as a whole contains no suggestion that the mobility decision, allowing the respondent to take the child to Minnesota, was in any way conditional on, or based on, the appellant being able to work in Minnesota.
[61] The Arbitrator’s decision on mobility merely considered that the appellant might also go to Minnesota; the respondent’s plan of care, as considered by the Arbitrator, included both options – if the appellant went to Minnesota and if the appellant did not go to Minnesota. Further, the Arbitrator found that if the appellant goes to Minnesota, then the respondent would be prepared to provide him with spousal support (reasons paras. 45, 47). This would assist the appellant during any periods of unemployment. Finally, at para. 69 of the reasons, the Arbitrator discussed both options, mainly, the appellant going to Minnesota and not going to Minnesota.
[62] As part of the same ground of appeal, the appellant further submits, at para. 46 of his factum, that the Arbitrator did not “adequately” consider the impact that the respondent’s move would have on the child’s ability to have a meaningful relationship with the appellant, especially on a long-term basis. This submission is very similar to the ground of appeal that relates to the maximum contact principle, and the discussion later in these reasons in relation to that ground of appeal applies equally to this submission.
B. The Arbitrator Misapprehended the Evidence and the Law with Respect to the Employment Opportunities Available to the Respondent in Ontario
[63] There is no substance to this ground of appeal.
[64] The evidence disclosed that the respondent had completed her general surgery residency in June 2013. In his evidence, the appellant corroborated that the respondent had concerns about obtaining employment as she was nearing the completion of her residency in general surgery.
[65] The respondent gave evidence of her unsuccessful attempts in applying for positions in Ontario in general surgery at the time she was completing her general surgery residency.
[66] The appellant agreed that prior to the marriage, he knew that the respondent wanted to subspecialize in surgical oncology. The respondent then began applying for fellowships in surgical oncology, a two-year position; the appellant agreed in cross-examination that he had encouraged the respondent to apply in Canada and the United States (which the respondent did) and that he would go with the respondent for the two years wherever she was accepted. The respondent eventually accepted a surgical oncology fellowship with the University of Toronto starting in July 2013.
[67] In relation to options other than accepting the position at the Mayo Clinic, the respondent gave evidence as to the research she had done into available jobs for general surgeons, and these included positions in Newfoundland, Northwest Territories, Yellowknife, British Columbia and Edmonton, Alberta; also, there were some possibilities in northeastern and northwestern Ontario, but those were primarily locums or for surgical assists.
[68] The respondent also testified that if she was not able to accept her position in oncoplastic breast surgery at the Mayo Clinic, that the opportunities other than general surgery included locums, which are temporary part-time positions and require travel to different areas for different lengths of time. Another option might be surgical assists. Additionally, the respondent testified that she could pursue further training to become a family doctor. This would require her to apply to family medicine fellowship programs. There are several such programs throughout Canada, primarily in large centres, and the respondent would have to go through an interview process in those fellowship centres and be accepted into a specific program, where she would likely be required to travel to a new location. The respondent did not regard that as a viable option given the time and effort that she had put into her career regarding training in relation to surgical oncology and, in particular, her training in relation to breast cancer and breast surgery.
[69] The respondent testified that the hours of work for any other potential employment would be significantly more than at the Mayo Clinic, ranging between 60 to 70 hours per week, and as a general surgeon there would be significant on-call duties, including requirements to work overnight and during the week, and to work during weekends as well.
[70] In para. 46 of her reasons, the Arbitrator discusses that at the Mayo Clinic the respondent would be working a 40-hour week, with no on-call duties and no weekend work. At para. 68, the Arbitrator stated that she accepted the respondent’s evidence as to the hours that she would be working at the Mayo Clinic, and the Arbitrator made a specific finding that such a regular routine with evenings and weekends free would be in the child’s best interests. At para. 65, the Arbitrator accepted the respondent’s evidence regarding her genuine attempts to find work “closer to home” and the Arbitrator accepted the respondent’s evidence that there are no permanent jobs in the London area.
[71] The position secured by the respondent at the Mayo Clinic is in breast surgical oncology. In his testimony, Dr. Quereshy, a surgical oncologist and the assistant program director of the surgical oncology fellowship program at the University of Toronto, described the Mayo Clinic as one of the best reputed centres in North America, perhaps the world. Dr. Quereshy testified that the respondent’s ability to work at the Mayo Clinic was “an incredible opportunity” and that no other fellow graduates from their program had gone to such a prestigious centre.
[72] It was entirely open for the Arbitrator to accept the respondent’s evidence as to available employment and employment prospects. In doing so, the Arbitrator made no error in principle, nor did the Arbitrator misapprehend the evidence.
[73] In relation to this ground of appeal, it was also the appellant’s submission that there were employment opportunities, including surgical assists, that were available to the respondent and that while not ideal, the respondent could have pursued those opportunities rather than accepting employment at the Mayo Clinic which required her to move to Minnesota.
[74] However, the hearing before the Arbitrator was not to decide the respondent’s employment – what it should be and where – but, rather, what was in the child’s best interests. In considering the child’s best interests, it was open to the Arbitrator to consider, as a factor in assessing the child’s best interests, the ability of the respondent to spend time with the child and to provide financially for the child depending on the nature of the respondent’s employment. As a result, the Arbitrator made the finding in para. 68, as discussed earlier, as to how the respondent’s work schedule would be in the child’s best interests. In making that finding, the Arbitrator implicitly rejected the appellant’s argument that other types of employment would be in the child’s best interests.
C. The Arbitrator Failed to Give Sufficient Weight to the Maximum Contact Principle
[75] The Arbitrator considered specifically the provisions of s. 24 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 and, in particular, the relevant factors listed in s. 24(2) that must be considered in determining the child’s best interests. For ease of reference, s. 24(1) and (2) are reproduced below:
Merits of application for custody or access
- (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).
Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
[76] Further, the Arbitrator also considered the provisions of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1], specifically s. 16(6), (8) and (10):
Terms and conditions
16(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.
Factors
(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
Maximum contact
(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
[77] Although not raised as an issue in either party’s factum, the court raised the issue, during the appellant’s argument, as to whether the Children's Law Reform Act or the Divorce Act was the relevant legislation that applied to the Arbitrator’s “mobility decision,” which is the decision under appeal.
[78] The appellant’s counsel, Mr. Sneddon, agreed that the mobility order was in effect a final order; Mr. Bennett, for the respondent, did not specifically dispute this. The notice of appeal described the “order” appealed from as a “final order.”
[79] In the present case, although each party seeks a divorce, the parties are not divorced. As such, there is no jurisdiction to make a final corollary relief order pursuant to the Divorce Act, unless a divorce has been granted pursuant to the Divorce Act: see Rothgiesser v. Rothgiesser, 2000 CanLII 1153 (ON CA), 2000 CarswellOnt 50 (C.A.) and Okmyansky v. Okmyansky, 2007 ONCA 427, 2007 CarswellOnt 3702 (C.A.).
[80] In their respective facta, both the appellant and respondent addressed the maximum contact principle with reference to s. 16(10) of the Divorce Act as the applicable legislation. If the order under appeal is properly characterized as a final order, then that order would be under the Children's Law Reform Act. If the court is not able to make a final order in relation to mobility under the Divorce Act, then neither can the Arbitrator.
[81] Given that the appellant had commenced an application in this court, where both parties have claimed a divorce and other relief, and considering that the arbitration agreement was entered into while that application was outstanding, it would appear that the Arbitrator could make decisions in relation to custody and access pursuant to the Divorce Act, but only on an interim basis.
[82] I propose to deal with this ground of appeal on the basis that the order appealed from is a final order, but that in assessing the child’s best interests pursuant to the Children's Law Reform Act, the principle of “maximum contact” is still “in play” and may properly be considered when the court is considering “all the child’s needs and circumstances” pursuant to s. 24(2) of the Children's Law Reform Act, including s. 24(2)(a)(i) and 24(2)(e).
[83] In addition, in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 49, the principles in relation to mobility are summarized and include a requirement that the judge should consider “the desirability of maximizing contact between the child and both parents.”
[84] The appellant submits that, while the Arbitrator made reference to the maximum contact principle, she did not give sufficient consideration as to the impact that a move to Minnesota would have on the child’s contact with the appellant.
[85] I disagree.
[86] In her reasons, the Arbitrator carefully reviewed the evidence. She focused at all times on the primary issue before her – what was in the child’s best interests.
[87] The Arbitrator reviewed the past conflictual relationship between the parties. The Arbitrator concluded that the respondent was still breast feeding the child. Further, the Arbitrator made a specific finding that the respondent is the child’s primary caregiver. Clearly there was evidence before the Arbitrator to support that finding.
[88] The Arbitrator made a credibility finding adverse to the appellant by preferring the respondent’s evidence that the appellant had threatened to take the child, despite the appellant’s denial that he had done that. The Arbitrator also found that the appellant’s credibility was damaged in relation to another incident where the Arbitrator stated, specifically, that she did not believe the appellant.
[89] The Arbitrator reviewed in detail the plan of care for the child presented by each party. In particular, the Arbitrator stated that the respondent’s plan for the child’s care in Paris, Toronto and Rochester, Minnesota, should she be given permission to go with the child, “was detailed and well thought out” (para. 43).
[90] The plan of care put forth by each party was discussed in detail by the Arbitrator (paras. 40-47).
[91] In relation to her plan regarding moving to Minnesota, the respondent’s detailed plan of care included separate plans depending on whether the appellant went to Minnesota.
[92] It was the appellant’s evidence that if the respondent was permitted to go to Minnesota with the child, that he would try to go too. The appellant’s testimony in cross-examination was as follows (at page 342):
1498 Q. If the move is allowed for Jennifer to go to Paris and Toronto so that she can follow through with the employment that she’s been offered at the Mayo and that Kaitlyn is going to accompany her are you going to try to go to the States as well, to Rochester?
A. So if she’s allowed to do everything?
1499 Q. Yes?
A. Would I try? If it’s financially feasible and able to I mean I would try. I would be open to it. I would be concerned about a number of issues, getting there and … I would try. I would be open to it.
[93] Further, the respondent gave specific details as to her plan to promote parenting time with the appellant should the respondent be living with the child in Minnesota, and the appellant would remain in St. Thomas. The specific plan included the following (transcript pages 525-526): that on the long weekends, approximately every month, the respondent would be willing to travel with the child to London or have the appellant travel to Rochester, Minnesota; the respondent would provide some financial compensation to the appellant for the travel expense; the respondent further spoke of extended time for the appellant to spend with the child during Christmas and the summer months, and also March break; and the respondent would be willing to use some of her vacation time to travel to London, not only for the appellant’s benefit but also for his extended family.
[94] In discussing the “maximum contact” principle in s. 16(10) of the Divorce Act, the Supreme Court of Canada stated the following in Gordon v. Goertz, supra, at paras. 24-25:
24 The second factor which Parliament specifically chose to mention in assessing the best interests of the child is maximum contact between the child and both parents. Both ss. 16(10) and 17(9) of the Act require that "the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child". The sections go on to say that for this purpose, the court "shall take into consideration the willingness of [the applicant] to facilitate" the child's contact with the non-custodial parent. The "maximum contact" principle, as it has been called, is mandatory, but not absolute. The Act only obliges the judge to respect it to the extent that such contact is consistent with the child's best interests; if other factors show that it would not be in the child's best interests, the court can and should restrict contact: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at pp. 117-18, per McLachlin J.
25 The reduction of beneficial contact between the child and the access parent does not always dictate a change of custody or an order which restricts moving the child. If the child's needs are likely to be best served by remaining with the custodial parent, and this consideration offsets the loss or reduction in contact with the access parent, then the judge should not vary custody and permit the move. This said, the reviewing judge must bear in mind that Parliament has indicated that maximum contact with both parents is generally in the best interests of the child.
[95] The Arbitrator assessed all relevant factors in relation to the child’s best interests, including the respondent’s plan to promote access between the child and the appellant. The Arbitrator considered, specifically, the principles set out in Gordon v. Goertz. As discussed earlier, in considering the respondent’s proposed move to Minnesota, the Arbitrator considered not only the respondent’s ability to spend more time with the child, but her enhanced ability to provide the child with financial support given her $320,000 USD starting salary.
[96] The appellant points to the last sentence of para. 67 of the Arbitrator’s reasons: “The obligation to honour the maximum contact principle must also fall on the parent who has an option to have significant contact with his or her child.” The appellant argues that the evidence is far from clear that the appellant would have regular contact with the child in Minnesota as there are “real issues” with respect to the appellant’s ability to work in the United States. The evidence relating to the appellant’s ability to work in the United States has been canvassed in detail earlier in these reasons. Given that evidence, and the evidence of the appellant that he could have a leave of absence of up to two years without loss of seniority, and the appellant’s own evidence as to his intention to try, and be open to, going to Minnesota, it was open to the Arbitrator to consider an obligation on the part of the appellant to pursue that opportunity. I find that, in doing so, the Arbitrator made no error.
[97] The appellant further submits that the Arbitrator failed to give adequate weight to the maximum contact principle because, by allowing the move, the Arbitrator ignored evidence with respect to the respondent’s reluctance to promote a relationship between the appellant and the child; and that the Arbitrator assumed that the parties would be able to work out a parenting plan if the move is granted, although the evidence did not support this notion as the parties have historically failed to agree on parenting times (factum para. 58).
[98] The Arbitrator did not “ignore” the evidence of the respondent’s alleged reluctance to promote a relationship between the child and the appellant. The Arbitrator deals with this issue specifically at para. 62. Although the Arbitrator acknowledged that the respondent’s actions could give rise to such a concern, it was the Arbitrator’s finding that the level of conflict between the parties rose to such an extent that the respondent became fearful for the child’s wellbeing; the fearfulness translated into overprotective behaviour, which had the appearance of keeping the appellant at a distance from the child. The Arbitrator also noted the significant time spent by the respondent with the child because of the breast feeding regime, described by the Arbitrator as “feeding on demand.”
[99] In relation to the “assumption” that the parties could work out a parenting plan, it was open to the Arbitrator to make that finding for her reasons discussed in para. 4, where the Arbitrator mentioned the parties’ past distrust of each other and communication issues; however, the Arbitrator referred to her numerous opportunities during the arbitration process to observe the parties communicating respectfully and calmly, which led the Arbitrator to believe that the parties could work together in the child’s best interests.
[100] In any event, in the arbitration order, the Arbitrator remains seized of any parenting issues that arise as a result of the respondent and child moving to Minnesota. Should the parties be unable to agree, then that matter will be back before the Arbitrator for a decision.
[101] In coming to the conclusion that it was in the child’s best interests to move to Minnesota with the respondent, I find that the Arbitrator gave proper consideration to the “maximum contact principle” and that, in doing so, the Arbitrator made no error in principle or otherwise.
D. The Arbitrator Misapprehended the Evidence with Respect to the Connection Between all of the Respondent’s Proposed Moves
[102] This ground of appeal has no merit. Further, it is difficult to discern from the appellant’s factum the exact nature of the alleged reversible error made by the Arbitrator.
[103] This ground of appeal appears rooted in the fact that the Arbitrator could have allowed the proposed moves to Paris and Toronto and could have declined the move to Minnesota. The appellant appears to complain about the fact that the Arbitrator found a connection between all those moves.
[104] As discussed in part earlier, as part of her surgical oncology training, the respondent was accepted to attend for training at the Paris Breast Centre. This placement was for the last four months in 2015, followed by the respondent’s return to Toronto to complete her residency, followed by the Mayo Clinic.
[105] Although no fresh evidence was filed on appeal, the appeal record did include a number of the Arbitrator’s decisions subsequent to the arbitration hearing, including the Arbitrator’s decisions as to parenting plans for both Paris and Toronto. Those reasons indicated that the appellant lived in Paris while the respondent and child were there, and that the appellant lived in Toronto after the respondent and child returned there for the respondent to complete her surgical oncology fellowship. The foregoing is provided for some context, only, and was not considered in arriving at a decision in this appeal.
[106] The Arbitrator, in para. 66, notes the position of the appellant, which was that the Arbitrator could allow some, all or none of the proposed moves. The Arbitrator found that all the moves were connected, especially in light of the evidence that if the respondent did not complete the four-month training in Paris, and did not complete her fellowship in surgical oncology in Toronto, then the Mayo Clinic offer would be withdrawn.
[107] It was open for the Arbitrator, on the evidence, to find a connection between the proposed moves and to deal with all of them. In so doing, the Arbitrator made no error.
[108] Further, given that the respondent’s plan to go to Minnesota was well known, it made sense to render a decision on all three proposed moves, rather than deal with the moves separately, likely with additional evidence and additional costs.
ORDER
[109] For reasons set out above, I make the following order:
- Paragraph 4 of the arbitration award of the Honourable M.J.M. Nolan dated August 5, 2015, permitting the respondent, Jennifer Michele Racz, to move to Rochester, Minnesota from London, Ontario with the child, Kaitlyn Olivia Reati, born October 31, 2014, is confirmed;
- The appellant Michael Anthony Reati’s appeal of para. 4 of the aforesaid arbitration award is dismissed;
- If the parties are unable to agree on costs, then the parties shall file written costs submissions with the trial coordinator subject to the following: the respondent’s costs submissions shall be served and filed within 14 days of the date of this judgment; the appellant’s responding costs submissions shall be served and filed within 14 days thereafter; the respondent’s reply, if any, shall be served and filed within 7 days thereafter; and all costs submissions shall not exceed 3 typed pages (2 pages for reply) plus copies of any offers, bills of costs, time dockets and authorities.
“Justice Victor Mitrow”
Justice Victor Mitrow
Released: March 24, 2016
CITATION: Reati v. Racz, 2016 ONSC 1967
COURT FILE NO.: F475/15
DATE: March 24, 2016
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Michael Anthony Reati
Applicant (Applicant in Appeal)
- and -
Jennifer Michele Racz
Respondent (Respondent in Appeal)
REASONS FOR JUDGMENT
MITROW J.
Released: March 24, 2016