Court File and Parties
COURT FILE NO.: 224/16 DATE: 2016-10-12 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
MARK LEWIS JONES Appellant – and – MANDY JONES Respondent
COUNSEL: A. Towlson, on behalf of the Appellant R. Wrubel on behalf of the Respondent
HEARD: September 2, 2016
REASONS FOR JUDGMENT on appeal
A.J. Goodman J.:
Introduction
[1] This is an appeal brought by the appellant, Mark Jones (“the father”) in respect of the Reasons for Judgment and final order of K.S. Neill J. of the Ontario Court of Justice rendered on February 5, 2016.
[2] Justice Neill presided over a five day trial that dealt with a Motion to Change a final order dated October 7, 2011.
[3] The respondent Mandy Jones (“the mother”) brings a cross-appeal.
[4] At the very heart of this case is custody and access of Megan Isabella Jones born May 20, 2006, and Evan Lewis Joseph Jones born March 30, 2009 (“the children”).
Issues on Appeal:
[5] Did the trial judge commit an overriding and palpable error in her assessment of the evidence and the application of the appropriate legal principles to the facts?
[6] Did the learned trial judge err in concluding that the mother’s views were entitled to due consideration and that the material change in the circumstances in this case was properly considered and applied?
[7] Did the trial judge err in finding that it was in the best interests of the children to remain with the mother in Lindsay, Ontario?
[8] This case has been in the legal system for almost six years, in the course of which the parties have pursued, contested and obtained various types of orders for relief. I am advised that no less than eight different judges at the various levels of courts in Ontario have addressed parts of this litigation.
[9] While there is no dispute about the dates and orders arising from the numerous court appearances, both parties to this appeal have divergent interpretations as to the interpretation or results of various proceedings leading up to the trial in November 2015. These polarized positons have been reflected in the facta presented to the Court and in oral submissions before me.
[10] In her extensive Reasons for Judgment, Neill J. amply outlined the history of the proceedings. For the purposes of this appeal, I only refer to certain segments of the litigation chronology as addressed by the trial judge.
[11] On October 4, 2010, without notice, the mother left the father and relocated with the two children to Lindsay, Ontario. The father commenced his application on November 4, 2010, and brought a motion for temporary custody of the children. On November 19, 2010, the parties agreed to a without prejudice, temporary order that the children reside with the mother in Lindsay, with alternate weekend access to the father.
[12] On April 1, 2011, an order was made requesting the involvement of the Office of the Children’s Lawyer (“OCL”). The OCL agreed to become involved, and Brian D’Arcy was appointed to represent the children as a clinical investigator. Mr. D’Arcy released his report on September 2, 2011 recommending that the mother have sole custody of the children and that the father continue to have alternate weekend and other access.
[13] Following a settlement conference on October 7, 2011, the parties agreed to a final order before Caspers J. of the Ontario Court of Justice. The interpretation and enforcement of para. 12 of this order was and remains a fundamental issue at trial and on this appeal.
[14] The mother completed her schooling in April, 2012 but failed to secure employment in the Waterloo Region. In July, 2012, the mother advised the father that she was not returning to the Waterloo Region and was offered full-time employment during her community placement in Lindsay and she eventually accepted this position.
[15] On July 19, 2012, the father commenced a motion for contempt against the mother for failure to make attempts to secure employment in the Region of Waterloo, and at the same time requested that the children be placed temporarily in his care. Justice McSorley heard the motion for contempt on September 28, 2012 and stated that:
The mother presented evidence that she had applied for only one position in the Waterloo Region, but only after the motion for contempt was brought.
It was clear from the material filed by the mother that she does not wish to move back to Cambridge and the children are settled in Lindsay, which is an argument that the mother could make on a motion to change and not on the contempt motion.
The mother knew that the order of October 7, 2011 meant that there was a strong possibility that once she finished school she would have to look for work in Cambridge or the area, and if she got a job she would be returning to this area with the children.
[16] Justice McSorley found the mother to be in contempt of the October 7 order. She ordered that the mother pay costs to the father in the amount of $3,500.00 and that the mother commence a motion to change by October 22, 2012. Justice McSorley was not prepared to change custody to the father (as he had requested), concluding that there needed to be a full examination of the issue of the best interests of the children. The father’s child support was increased to $1,191.00 based on his 2011 income of $81,600.00. The September 28, 2012 order and finding of contempt against the mother was not appealed.
[17] On October 22, 2012, the mother commenced a motion to change seeking an order deleting para. 12 of the October 7, 2011 order requiring her to seek employment in the Waterloo Region, and requesting a sharing of holiday time. On December 21, 2012, an order was made that the mother serve and file an affidavit outlining her employment search efforts since May, 2012 and the specific outcomes of those efforts by January 14, 2013. The matter was adjourned to a settlement conference on January 23, 2013.
[18] By the time the matter was next before the court for a settlement conference, the mother had failed to pay the costs order, she failed to file an affidavit as ordered, and she failed to file a settlement conference brief. On January 23, 2013, the settlement conference judge made an order that the residence of the children be returned to the Waterloo Region by April 1, 2013, failing which the mother’s pleadings would be struck, and the children’s primary residence would be with the father, with the outstanding costs order to be paid by the mother at a rate of $300.00 per month. This order was made notwithstanding the fact that the father had not asked for the return of the children in his settlement conference brief.
[19] The mother appealed the January 23, 2013 order. On March 28, 2013, Broad J. of the Superior Court of Justice granted a stay of the order on the condition that mother continue to pay the monthly installments of the prior costs order. At para. 35 of his endorsement, Broad J. stated: “There was no suggestion that the respondent, as the primary caregiver, is to be considered in any way unfit. Based upon my comments set forth above, there is a significant chance that the appeal will be successful”. The parties agreed to proceed with the mother’s motion to change rather than pursue an appeal of the January 23, 2013 order.
[20] The mother’s motion to change was heard before Hardman J. and in her decision of June 12, 2013, she ordered that the primary residence of the children be returned to the Region of Waterloo by September 1, 2013; but should the mother fail to relocate to the Region of Waterloo, the children shall reside in the father’s primary care with access to the mother as agreed upon by the parties. Justice Hardman stated that the issue of contempt was complete with regards to McSorley J.’s order of September 28, 2012. To that end, at para. 65 of her Reasons for Judgment, Hardman J. stated the following:
In dealing with the ongoing issue of the Notice of Motion regarding the contempt, it seems to me that the matter is complete. The mother was already found in contempt and in my view that should have been the end of it. Further, the mother has agreed to return the children to the area if ordered and that was what the contempt was all about. Should the mother fail to obey this order, a new motion should be brought for the court to consider what remedy is appropriate.
[21] The mother appealed Hardman J.’s ruling and on August 21, 2013, Taliano J. of the Superior Court of Justice ordered a stay of the order. On April 3, 2014, Sloan J. of the Superior Court of Justice opined that the settlement conference judge did not have the jurisdiction to make the January 23, 2013 order that she did. Justice Sloan upheld Hardman J.’s decision, and ordered that the primary residence of the children be returned to the Waterloo Region or as otherwise agreed by the parties in writing on or before September 1, 2014; with the children to remain primarily with the mother should she relocate to the Waterloo Region, or with the father should the mother choose not to relocate.
[22] The mother appealed Sloan J.’s order to the Ontario Court of Appeal. On November 20, 2014, the Court of Appeal allowed the mother’s appeal, set aside the orders of both Sloan and Hardman J.J. respectively and remitted the matter back to the Ontario Court of Justice for a new hearing. The Court of Appeal supported Sloan J.’s finding that there had been a material change in circumstances since the settlement and final order of October 7, 2011.
[23] The Court of Appeal also acknowledged that the terms of the settlement provided for a review. However, the Court of Appeal found that the reasons in both the Ontario Court and Superior Court contained little discussion of why it would be in the best interests of the children to change primary residence from the mother to the father should the mother fail to relocate back to the Region of Waterloo and that such a determination “must be based on a proper and up-to-date evidentiary record”. The appellate Court also suggested that an updated report from the OCL be obtained.
[24] Again, Mr. D’Arcy was engaged and completed a second OCL report. Mr. D’Arcy wholly acknowledged the very important role that both parents play in their children’s lives. Mr. D’Arcy noted the myriad of issues with regards to the needs of the children along with the abilities and situation befalling each respective parent. The children’s views were obtained and lead to the constant recommendation that the children ought to remain with their mother in Lindsay.
[25] As mentioned, this matter was ultimately tried before Neill J. of the Ontario Court of Justice during the course of a five day trial in November 2015. Justice Neill ordered the deletion of para. 12 of the October 7, 2011 final order. In effect, the mother was to remain the primary caregiver of the children and they would continue to live in Lindsay, Ontario. The trial judge directed significant vacation or holiday access time for the father amongst other ancillary orders. The trial judge declined to grant the mother any costs despite her success at trial.
Positions of the Parties:
[26] The appellant submits that the heart of the issue at trial was one of enforcement of the mother’s contempt of a previous court order and not a question of mobility. The appellant says that the mother did not accept the best interest findings and orders of various judges, electing to continually appeal the matter to various courts. The mother’s appeal of the final decision of Hardman J. was resolved on a final basis with the decision of Sloan J. of April 3, 2014. The Superior Court judge made an identical decision as to the best interests of the children as determined by the lower court, to the effect that the primary residence of the children was to be the Region of Waterloo. Both judges turned their minds to the father’s relationship with the children. Both recognized that as the children age, become more involved and focused on their friends and social lives, obtain part-time jobs, engage in extra-curricular activities, etc. the relationships will likely be further compromised.
[27] The learned trial judge erred in not giving consideration to the OCL report or the rulings of Hardman and Sloan JJ. The appellant submits that the trial judge’s finding that the final order of October 7, 2011, permitted the children to relocate to Lindsay with their mother is an error. The appellant stresses that the gist of the final order contemplated the children and the mother returning the Region of Waterloo within approximately three months of her course completion. In no way did the final order of October 7, 2011, suggest that the mother and the children would be remaining in Lindsay, Ontario – quite the contrary.
[28] The evidence adduced at trial supports the appellant’s assertions in this regard. He argues that the trial judge erred in finding his work schedule would be a detriment. If both parties resided in the same region they could arrange a schedule wherein the children would be in the care of parents rather than third parties most of the time. The trial judge erred in failing to consider or in overlooking the father’s evidence that he would enroll Megan in French immersion if he had to – he would not let the school issue be a deal breaker. The learned trial judge also erred in failing to consider father’s evidence that Megan’s views and preferences may have been different had she been fully informed about the curriculum in the public school system. The trial judge erred in placing too much weight on Evan’s views and preferences and adopting the mother’s status quo stance. The trial judge also erred in her interpretation and application of the maximum contact principle.
[29] Overall, the appellant says that the trial judge committed numerous errors in her application of the jurisprudence and principles in dealing with the best interests of the children. The appellant submits that the trial judge misapprehended the evidence at trial, applied erroneous legal analysis to the facts, and that the evidence presented at trial does not support the jurist’s conclusions.
[30] The respondent submits that the appellant’s reference to the facts in her factum and oral argument contain a combination of self-serving comments and judicial findings taken out of context. The respondent says that the appellant has misapplied the legal principles regarding a material change in circumstances to the facts of this case.
[31] The respondent submits that the trial judge neither made any material errors, nor misapprehended the evidence. Accordingly, there are no grounds to overturn her ruling.
[32] For the purposes of the cross-appeal, the respondent submits that, having been entirely successful at trial; the judge erred by refusing to hear submissions on costs. The trial judge erred in unilaterally reducing the father’s child support payments, an issue that was not squarely placed before the judge at trial.
Analysis:
[33] At the outset, it is important to enunciate the parameters of this Court’s jurisdiction. An appellate court is entitled to intervene only where the trial court committed a material error, seriously misapprehended the evidence, or made an error in law.
[34] An “error in principle” is described as failing to take into account a relevant factor, taking into account an irrelevant factor, overemphasizing or failing to give sufficient weight to relevant factors, and, more generally, it includes an error of law. If there is an indication that the trial judge did not consider relevant evidence, this might indicate that he/she did not properly weigh all of the factors. In such a case, an appellate court may review the evidence proffered at trial to determine if the trial judge ignored or misdirected himself with respect to relevant evidence. This being said, omissions in the reasons will not necessarily mean that the appellate court has jurisdiction to reconsider the evidence heard at trial.
[35] Custody and access decisions are inherently exercises in discretion. It is inevitable that custody matters are heavily dependent on the particular facts of the case. Trial judges may sometimes appear to stress one factor over another. However, that does not open the door on appeal. There is a narrow window for an appeal court to delve into the circumstances of the best interests of the child where no material error exists: Van de Pierre v. Edwards, 2001 SCC 60, [2001] S.C.J. No. 60.
[36] Much of the materials filed and the position taken by appellant’s counsel focused on matters that tended to call for a revisiting of the evidence, the merits of the case or a re-evaluation of previous findings of various courts at all levels. Indeed, throughout appellant’s oral submissions, I had to repeatedly remind counsel of this Court’s role in this hearing. This proceeding is an appeal, not a retrial of the issues or a de novo review of prior orders, per se. An appellate court is not entitled to overturn a custody order by substituting its own views or a different weighing of the facts: King v. Mongrain, 2009 ONCA 486, [2009] O.J. No. 2466 (C.A.).
[37] In tackling the party’s respective positions, Neill J. stated at paras. 26 & 27:
The mother’s position on the motion to change was merely seeking an order deleting paragraph 12 of the order of October 7, 2011 requiring that the search for employment in the Waterloo Region.
The father’s position is not as clear… he maintains his original position that should the mother relocate to the Waterloo Region with the children, the mother could retain primary residence that he would be seeking mid-week periods of care with the children, which he qualified in oral testimony could including (sic) overnight access. However, he also stated that he was seeking primary residence of the children regardless of where the mother resides. His position is that the children were born in Cambridge, the parents initially agreed to raise the children in Cambridge, and the children should remain in the Waterloo Region... The father does not believe that the mother will permit the children to relocate to the Waterloo Region regardless of any order, that the father has changed his position to seek sole custody of the children. However, father’s counsel acknowledged that it was an option for the court to order that the children relocate to the Waterloo Region with the children continuing to primarily reside with the mother.
[38] A fundamental issue at trial and raised during this appeal is the interpretation of the final order of October 7, 2011. After a settlement conference, the parties agreed to certain terms. Paragraph 12 of the impugned order contained the following term, which is the focus of the litigation:
The Respondent (mother) shall attempt to secure employment within the vicinity of the jurisdiction of the Region of Waterloo or surrounding area upon the completion of her current schooling. This order shall be reviewable within three months of the Respondent’s completion of her schooling.
[39] As mentioned, the appellant’s legal position presented at trial and during this appeal is that this is an enforcement case and not a mobility matter. There are many assertions raised by the appellant in support of his argument some of which include; after finishing school and graduating in June 2012, the mother would return to the Waterloo Region with the children; The order would be reviewable in the summer of 2012; The original order is deemed to be correct on its face; The father is a very capable and loving parent and has consistently stated that he is in tune with his children and it is in his children’s best interests to have a closer and stronger relationship with him.
[40] The appellant vigorously argues that distinct from the standard mobility cases, the mother is asking the various courts to forgive and forget her original decision to unilaterally relocate with the children and to further forgive her non-compliance with the October 2011 order. The mother should not be permitted to rely on her own non-compliance to succeed in her motion to change.
[41] While all that information was presented and available to the trial judge, in my opinion, Neill J. decided the issue of mobility over that of enforcement of a previous order. At paras. 34 & 35 of her Reasons, Neill J. stated:
The father also argues that this is not a mobility issue, but an enforcement issue and that the father should succeed on his cross-motion simply because of the mother’s non-compliance with the order of October 7, 2011. I disagree. The issue of the mother’s non-compliance with the order of October, 2011 was dealt with on the contempt motion. To simply enforce that order of over 4 years ago, which provides that the mother shall search for employment in the Waterloo Region and does not specifically state that the children must relocate back to the Waterloo Region, simply puts the parties and the children again in a state of uncertainty. A decision must be made regarding what is in the best interests of the children given the present circumstances.
What is at the heart of this matter is what order is in the present best interests of the children, and if a change in custody from the mother to the father is in their best interests. This is the evidence that the Court of Appeal found lacking and why the matter was sent back to the Ontario Court of Justice for a new hearing.
[42] From the evidence before her, the trial judge determined that both parties were represented by legal counsel at the time that the consent order of October 7, 2011 was entered into. The trial judge specifically addressed both parties’ positions and interpretations of the impugned order. The trial judge was satisfied that neither counsel indicated there was a clear intention that the mother was obligated to relocate to the Waterloo Region.
[43] Justice Neill also had the benefit of the previous judicial commentary on the motion for contempt. The trial judge noted that McSorley J. commented that all the mother was obligated to do was to make efforts to find employment, and if she brings a motion to change that section of the order, then it is up to the court to decide whether that is something that should be changed. Similarly, Taliano J. of the Superior Court of Justice indicated that by consenting to the order dated October 7, 2011, the mother only agreed to seek employment in the Waterloo Region and “it did not go so far as to require the mother to accept employment in that community nor did it say anything about living in that community”... and “to convert the mother’s three-year-old obligation to simply seek employment into an obligation to obtain employment and to live in an unspecified community in the Waterloo Region is an exercise that is not warranted by the wording of the order”.
[44] With respect to the enforcement argument, the trial judge was in a unique position to assess and dismiss the argument in favour of the mobility question. The trial judge was entitled to read the plain language of para. 12 and on the entirety of the evidence, find that the term required the mother to search for employment in the Waterloo Region and if she obtained such employment she would obviously relocate. The trial judge could reasonably conclude that nowhere in the order does it stipulate an obligation or provide a guarantee that the mother would obtain employment in the Waterloo Region.
[45] Despite the appellant’s urging on point, the mother’s contempt of court and related enforcement was addressed by the Ontario Court of Justice, well before the time of trial. The trial judge correctly dealt with this entire issue in concluding that the contempt issue was spent. The trial judge’s finding that the specific language of the impugned order did not obligate the mother to return to Waterloo Region and her ultimate conclusion that the case was one of mobility rather than enforcement is amply supported by the evidence.
[46] Having dismissed that part of the argument, the trial judge next turned to the issue of the best interests of the children related to custody and access.
[47] Justice Neill did not need to get into a discussion of the onus on a party to demonstrate a material change in circumstances. At the July 27, 2015 trial management conference, both parties agreed that there had been a material change in circumstances and need not be argued at trial. Justice Neill acknowledged that there was no issue in respect of the threshold issue of whether there was a material change in circumstances as a result of consensus reached prior to trial. No doubt, the commentary from the Court of Appeal and the review clause found in para. 12 of the impugned order are instructive.
[48] What turned out to be somewhat convoluted were the appellant’s submissions to me on whether there was any discernable error with regards to the trial judge’s assessment of a material change of circumstances. Whether it was my confusion or misunderstanding of counsel’s submissions, Ms. Towlson eventually resiled from her initial submissions in favour of an argument about the determination of a material change being specifically linked to the discrete issue in para. 12 of the October 2011 final order. The appellant says that the trial judge erred by considering a material change in circumstances on the basis of other evidence or irrelevant considerations.
[49] With respect, I must disagree with the appellant’s narrowly construed interpretation in reference to the test for determining the best interests of the children. In my view the scope of the issue that was before Neill J. is premised on the leading authority of Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.). In her reasons, the trial judge correctly set out the legal principles. Once any material change in circumstances is found to exist, a court may undertake a fresh examination of the best interests of the children and consider all of the relevant factors as outlined in Gordon v. Goertz, along with the criteria found in ss. 24 and 29 of the Children’s Law Reform Act.
[50] In this case, the trial judge was entitled to consider all the evidence as the parties did not dispute that a material change had occurred. At para. 36, the trial judge stated: “Once a material change in circumstances is demonstrated, the court must embark upon a fresh inquiry of determining what is in the children’s best interests by reference to that change.”
[51] The trial judge referred to the fresh inquiry wherein both parents bear the evidentiary burden of demonstrating where the best interests of the child lie. There is no legal presumption in favour of the custodial parent: Gordon v. Goertz; Bubis v. Jones, [2000] O.J. No. 1310 (Ont. S.C.). However, as the jurisprudence reveals, the custodial parent’s views are entitled to great respect.
[52] The appellant submits that the trial judge’s findings do not support her decision that it is in the children’s best interests to continue to reside with their mother in Lindsay, Ontario as opposed to residing in the Region of Waterloo. The appellant points to examples such as: Evan would likely take the relocation to Waterloo Region in stride and not be negatively affected; At all levels of court the mother stated she would relocate to Cambridge should the court order the children to move back to Waterloo Region; The Father’s decision not to relocate to Lindsay is child-focused, as to lose his job and not be able to support the children; The drive between Lindsay and Cambridge has been difficult. The OCL clinical investigator saw that the father’s role in the children’s lives had been compromised by the mother’s move to Lindsay; The OCL’s initial investigation report stated that both children were comfortable and happy with each parent and Mr. D’Arcy indicated that Evan appeared to be particularly close to his father; The OCL acknowledged that it would have been best if mother had relocated with the children back to the Region of Waterloo.
[53] From the reasons, it is clear to me that the trial judge acknowledged these concerns along with the OCL’s updated investigation that revealed, inter alia; both children clearly love both parents; both parents are very conscientious and involved; the mother has been making the major decisions because she resides in Lindsay with the children; both children saw their mother’s home as their primary residence. Both children get along well with the new partners of both parents. There was no evidence of poor communication or conflict between the parties as it related to the children.
[54] The appellant submits that the learned trial judge erred in failing to give consideration to the initial plan proposed by him in these proceedings, namely, that the children be returned to the Region of Waterloo and continuing to reside primarily with their mother in the Region of Waterloo and exercise liberal and generous periods of care with their father.
[55] The trial judge was cognizant of the appellant’s position including but not limited to his testimony that both children have also advised him they want to live with him; that both parents provide excellent care for the children; Mr. D’Arcy’s opinion is that “all things being equal” it is in the best interests of the children that both parents play a significant role in the children’s lives and that the most potential “upside” would be to have the parents reside in the same jurisdiction.
[56] In oral argument, appellant’s counsel again stressed that the evidence overwhelmingly supported a finding that it was in the children’s best interests to return to the Region of Waterloo and reside in the primary care of their mother. If the mother cannot accept this as being in her children’s best interests then she may not be the most appropriate primary caregiving parent. Again, the appellant reiterates that the proposed plan that Hardman and Sloan JJ. accepted and endorsed was the intention of the October 7, 2011 court order. What was in the children’s best interests in 2011 warrants and deserves deference, especially when the only change in circumstances in this case is the mother’s non-compliance with that decision. The appellant says that the mother’s current reasons for wanting the children to remain in Lindsay are identical to her reasons back in 2010 and 2011 – she and the children are settled. The children have remained in Lindsay because the mother chose to renege on her original agreement and because she exercised her right to appeal court decisions.
[57] The appellant’s argument ignores completely the consensus reached at trial that there was a material change in circumstances since 2011 and the live issue at trial was that of the best interests of the children. Nonetheless, the trial judge considered this and other related issues including the “double bind” dilemma. At paras. 57 & 58 of her Reasons, she stated:
However, the court should first determine which parent is to have primary residence. Only when the question of primary residence is evenly balanced and the court finds that the best interests of the children require both parents in the same locale, then the court will need to choose between the shared parenting options offered by the parents, without presuming the current care-giving and residential arrangement is to be the preferred one. T.K. v. R.J.H.A., [2015] B.C.J. No. 31 (B.C.C.A.) The double-bind question may then be relevant to determining which of the two joint custody/shared residency scenarios is in the children’s best interests. Stav v. Stav, 2012 BCCA 154, [2012] B.C.J. No. 673 (B.C.C.A.)
In the circumstances of this case, I do not need to consider the parents’ positions on relocation, as for the reasons outlined below, I have made a determination that it is in the best interests of the children to be in the primary care of one parent regardless of location.
[58] The trial judge was persuaded that Mr. D’Arcy did not perceive the mother as trying to alienate the father; in fact, she facilitated and encouraged access, and did not denigrate the father in the children’s presence. In her analysis, the trial judge referred to the OCL report and Mr. D’Arcy’s recommendations. The trial judge considered the potential disruption to the children’s lives if relocated, including but not limited to Megan’s special needs.
[59] The trial judge also addressed the maximum contact principle and stated at para. 63 & 64 of her Reasons:
While maximum contact between the parents is generally in the best interests of the child, it is but one factor to be considered. Bjornson v. Creighton, Berry v. Berry 2011 ONCA 705 (Ont. C.A.) Further, while the maximum contact principle must be respected to the extent that such contact is consistent with the best interests of the child, it also directs the court to consider the willingness of the parent with primary residence to facilitate contact with the other parent. Gordon v Goertz
There is no evidence that the mother moved to Lindsay to deliberately restrict the father’s access with the children.
[60] It is clear from the Reasons that the trial judge was alive to the father’s concerns about unilateral moves without notice to the other parent and the status quo argument premised on the mother’s non-compliance and disregard of court orders. Justice Neill agreed that this practice should be rightly discouraged and she properly admonished the mother for her unilateral conduct. At paras. 107 & 110 of her Reasons, Neill J. stated:
To punish the mother due to her unilateral move to Lindsay and breach of the court order of October 7, 2011 by making the order sought by the father at this stage would ignore what is in the best interests of the children, which is an approach that has been found to be inappropriate. Abbott-Even v. Ewen, [2010] O.J. No. 2034 (Ont. S.C.). The father is critical of the mother for her numerous appeals and lack of compliance with orders that the children relocate to the Region of Waterloo. I appreciate the father’s frustration with the court process.
One must remember that this case originally commenced when the mother unilaterally moved without notice to the father, which conduct should always be discouraged. Mother’s counsel agreed that it would have been preferable if the mother obtained an order for primary residence before moving with the children. In making my decision, I am not condoning the mother’s actions, but considering what is in the best interests of the children based on the present situation. This is why the Court of Appeal directed this matter back to the Ontario Court of Justice for a re-hearing and encouraged the re-involvement of the Office of the Children’s Lawyer so that the present views of the children could be independently put before the court.
[61] For what it is worth, I agree that the mother’s conduct in this case ought not to be condoned. However, at this stage of the proceedings, I acknowledge that my obiter dicta comments may provide little comfort for the father.
[62] The appellant says that the trial judge erred in overemphasizing “deference to custodial parent argument” referred to in the case of Wharton v. Prieur, 2015 ONCJ 5129 presented in argument by the appellant before the trial judge and in this appeal. Having penned the decision in Wharton, I agree with the respondent that the facts in that case are clearly distinguishable.
[63] I am reminded that caution should be exercised by appellate courts before interfering with the exercise of discretion by a trial judge in custody matters: Gordon v. Goertz, at para.145.
[64] There was extensive evidence adduced during the trial. The trial judge fully addressed the issue of the best interests of the children, including but not limited to her comments at para. 100 of her Reasons:
When considering the best interests of the children, many of the factors in s.24(2) of the Children’s Law Reform Act have been considered in the test under Gordon v. Goertz. It is clear that the children love both parents and have good relationships with the parents’ respective partners. Both children have not expressed that they want to relocate back to Cambridge and Megan is clear that she wants to continue to reside in Lindsay.
[65] I do not find an error or a misapprehension of the evidence in the trial judge’s analysis or conclusions.
Cross-appeal:
[66] The respondent raised two issues. Did the trial judge err by making an order for child support when it was not sought by either party and was not in accordance with the Child Support Guidelines? Did the trial judge err by not allowing either party to make submissions regarding costs?
[67] Briefly, in the circumstances of this case, the trial judge was entitled to make the child support orders ancillary to the custody and access issues that were squarely before her. In doing so, it is clear from the Reasons that the trial judge was giving effect to her determination of the best interests of the children; while fully recognizing the additional personal and financial strain on the father. In my opinion, the trial judge had the inherent jurisdiction to deal with the father’s child support obligations in favour of a reduction to the quantum. Frankly, given the mother’s equivocal positions taken throughout the entirety of the litigation, it seems to me that the respondent’s cross-appeal with regards to the child support amounts ordered here is somewhat incongruous. I am not persuaded that there is merit for this ground of appeal.
[68] In respect of costs, I tend to agree with the respondent that, generally speaking, a judge ought to permit the reception of submissions as to costs following success at trial. This practice is well established and codified by the presumption to entitlement to costs pursuant to Rule 24 of the Family Law Rules. However the trial judge has a residual discretion and Neill J. chose to exercise it. Even allowing for full submissions on costs and the possible introduction of an offer to settle, in my view, the trial judge would have likely arrived at the same determination, which is entirely within her purview under the Rules. Thus, while I cannot disagree with the respondent’s position on costs, I am not satisfied that this Court ought to intervene in the circumstances of this case.
Conclusion:
[69] In this case, there was fundamental disagreement about the nature and scope of prior court orders that precipitated the subsequent, protracted litigation. The previous court orders speak for themselves and have already been addressed by various judges of the Ontario Court of Justice, the Superior Court of Justice, and in part, by the Ontario Court of Appeal.
[70] As mentioned, much has been discussed along with judicial observations critical of the mother’s unilateral removal of the children from Waterloo Region. Litigation has flowed as a result from the disagreement over the interpretation of a settlement reached by the parties and repeated allegations of outright disobedience of court orders. In my reading of the Reasons for Judgment, the trial judge was alive to all of these issues.
[71] The trial judge correctly determined that the mother’s contempt of prior court orders had been purged or spent. Despite the able arguments of appellant’s counsel, the trial judge correctly concluded that this was a mobility case and not an enforcement matter.
[72] The parties agreed that there was a material change in circumstances since the final order of October 2011. Justice Neill was entitled to make findings of fact from the evidence adduced at trial and correctly applied the requisite legal principles flowing from the relevant jurisprudence.
[73] It seems to me that the appellant desires that I review the entirety of the case and substitute my own views as to the merits of the best interests of the children. That is not my function in this appeal and I decline to do so. The trial judge was in a superlative position to deal with this very question. Justice Neill had the advantage of an up-to-date OCL report along with viva voce evidence over the course of five days of trial. The trial judge made findings of fact from the evidence presented at trial as she was entitled to do. There is ample evidence on the record to sustain the trial judge’s analysis and ultimate findings.
[74] In my opinion, I do not find an overriding and palpable error or a misapprehension of evidence warranting appellate intervention.
[75] The appeal and cross-appeal are dismissed.
[76] I encourage the parties to settle the issue of costs for this appeal. Failing which, the parties may file their respective submissions on costs within 15 days of the release of this decision. The materials to be filed shall not exceed three pages in length, (excluding any Bills of Costs and Offers to settle.)