COURT FILE NO.: FS-19-11575
DATE: 20201026
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
JEFFREY O’BRIEN
Appellant
– and –
BIA CHULUUNBAATAR
Respondent
Self-represented and acting in person
Self-represented and acting in person
HEARD: October 13, 2020
REASONS FOR DECISION
“Relocation or mobility cases, where one parent wants to take a child and move some distance away from the other parent, are among the most difficult cases in family law. If the custodial parent is permitted to move with the child, inevitably the relationship between the non-custodial parent and the child will be affected and may suffer. Typically the court must balance the custodial parent’s legitimate interest in relocating with the non-custodial parent’s legitimate interest in maintaining a relationship with the child. But in every case, the ultimate question is what is in the best interests of the child.”
Laskin J.A., Reeves v. Brand 2018 ONCA 263
DIAMOND J.:
Overview
[1] The respondent was born in Mongolia. She resided there for much of her life before coming to North America, and then Canada in 2010.
[2] The appellant has resided in Ontario his entire life.
[3] The parties began dating in 2010 after the appellant was settled in Ontario. In early 2013, they started cohabiting and resided together until they separated in September 2014.
[4] The parties have one child together, Caitlyn, who was born on December 12, 2013 and is currently almost seven years of age.
[5] Shortly after their separation, the appellant commenced an application in the Ontario Court of Justice, which was resolved by way of the final consent Order dated August 9, 2016 of Justice Sullivan (“the consent order”). Pursuant to the terms of the consent order,
(a) the respondent was granted sole custody of Caitlyn, with the ability to make final decisions after consulting the appellant on medical and educational issues;
(b) the appellant was granted liberal and generous access to Caitlyn as agreed upon between the parties, including alternating weekends from Friday after school to Sunday at 4:00 pm; and,
(c) both parties could travel with Caitlyn for up to eight weeks a year (with proper notice and travel itinerary being provided to the other party).
[6] In early July 2018, the respondent initiated a Motion to Change the consent order. Specifically, the respondent requested permission to move back to Mongolia with Caitlyn. The appellant opposed the respondent’s Motion to Change, and sought an order for joint custody together with a modified parenting schedule.
[7] The trial of the respondent’s Motion to Change was heard over three days from May 7-9, 2019. By Reasons for Judgment released on July 5, 2019, the trial judge granted the relief sought by the respondent, and varied the consent order to permit the respondent to relocate with Caitlyn to Mongolia. The trial judge granted the appellant access to Caitlyn as follows:
(a) commencing in 2021, 10 weeks during Caitlyn’s summer vacation. For 2019, the access would last four weeks. For 2020 the access would last six weeks. All access is to take place in Canada, or another location of the appellant’s choice; and,
(b) 3 to 4 weeks during Caitlyn’s December break. All access is to take place in Canada, or another location of the appellant’s choice.
[8] The appellant was further granted access to Caitlyn in Mongolia anytime during the school year (during Caitlyn’s school breaks) for up to two weeks on the condition that he provide the respondent with one month’s notice. The appellant was also permitted to contact Caitlyn electronically two times per week.
[9] The respondent was ordered to pay for the appellant’s airfare costs of all scheduled access, with the appellant paying full table child support to the respondent.
[10] The appellant’s claims for joint custody and a variation to the parenting schedule were dismissed.
[11] The appellant now appeals all aspects of the trial judge’s decision save and except for the order requiring him to pay table child support to the respondent.
[12] The respondent cross-appeals and requests that, inter alia, the appellant’s December access take place in Mongolia with a corresponding reduction to child support to compensate the appellant paying for his own airfare and travel expenses.
[13] On consent of the parties, the trial decision was stayed pending the disposition of the appeal and cross-appeal. Each party also brought motions seeking leave to admit fresh evidence on their respective appeals.
[14] The appeal, cross-appeal and both motions were argued before me on October 13, 2020. At the conclusion of the hearing, I took my decision under reserve.
[15] These are my Reasons.
The Evidence at Trial
[16] In support of her Motion to Change, the respondent filed two affidavits (an original affidavit sworn April 4, 2019, and a reply affidavit sworn April 30, 2019), together with two brief affidavits from Anne Armstrong (“Armstrong”, the respondent’s friend and former landlady) and Jill MacDonald (“MacDonald”, the respondent’s mental health counsellor whom the respondent saw in 2015-2016 and 2019).
[17] The appellant tendered his own affidavit, along with the affidavits of his mother, aunt and sister-in-law.
[18] The appellant and his three witnesses were all cross-examined on their respective affidavits. The respondent was cross-examined on her affidavits, but from my review of the trial transcript, the appellant’s two witnesses were not cross-examined on their respective affidavits.
[19] What follows is a summary of the salient findings of fact made by the trial judge.
The Respondent’s Life in Canada
[20] The respondent is well educated, having earned a bachelor’s degree (from Mongolia) in Financial Management, and a Master’s degree (from Japan) in Economics. Prior to coming to Canada in 2010, she held various positions including an economic analysist, financial sector specialist, and a consultant for various international companies.
[21] Unfortunately, since arriving in Canada in 2010 the appellant did not reach the same level of employment success. She was only able to secure jobs such as a coffee shop server, bank administrative assistant, data entry clerk and translator despite her networking efforts and hiring several employment counsellors. The trial judge found that the respondent was never able to obtain employment in Canada at a similar level to her work in Mongolia.
[22] The respondent experienced a difficult life in Toronto, full of struggle, isolation and a lack of financial, social and family support.
[23] The respondent’s relationship with the appellant was traumatic at times, causing the respondent emotional damage. The trial judge found that, having been raised in a conservative Mongolian family, the respondent was shocked to learn that the appellant smoked marijuana regularly, watched pornography and saw prostitutes while he was away on business trips.
[24] While the respondent did have community involvement as it related to Caitlyn’s activities, the trial judge found the respondent to be quite isolated, with few friends in Toronto.
The Appellant’s Relationship with Caitlyn
[25] The respondent has always been supportive of the appellant’s role with Caitlyn, and the respondent was clear in her evidence that the appellant has a good relationship with Caitlyn as they have developed a strong and affectionate bond together. There is no dispute that Caitlyn looks forward to seeing the appellant and enjoys spending time with him.
[26] As the parties lived in close proximately to one another since early 2017 (a ten minute walk between homes), the appellant has enjoyed access with Caitlyn every other weekend from Friday at 5:00 pm to Sunday at 5:00 pm.
[27] For several years after the consent order, the parties were in agreement that Caitlyn was not yet ready for overnight access with the appellant. The parties worked together to accommodate and improve Caitlyn’s comfort level at Caitlyn’s speed. Daytime weekend access with the appellant eventually began to include overnight access; as at trial, Caitlyn spent most Saturday nights with the appellant at his home, even on weekends she was scheduled to be with the respondent.
[28] Despite the conflict between them, the parties did work co-operatively to be flexible when it came to access arrangements. The appellant was always the first person approached by the respondent to care for Caitlyn in the respondent’s absence.
[29] The appellant took Caitlyn to extra curricular activities, including ballet lessons, musical theatre programs and various day trips.
The Respondent’s Reasons for Moving Back to Mongolia
[30] The trial judge found that the respondent’s reasons for her proposed move to Mongolia fell into three categories:
(a) economic reasons;
(b) family support reasons; and
(c) the respondent’s mental health, isolation and loneliness.
[31] With respect to the respondent’s economic reason, the trial judge held as follows:
“The mother believes she will not be able to build a successful professional career in Canada. But in Mongolia, her education, ability and experience is accepted without doubt. In Mongolia, she had many connections and professional networks, and friends and colleagues, many of whom hold high ranking positions at big companies, with international organizations, and in government. All of her past employments in Mongolia were found through or offered by her friends and former co-workers. Her expectation is to find a permanent, full-time job there as a mid-level professional with an international organization or foreign company.”
[32] With respect to the respondent’s family support reasons, the trial judge found that the respondent’s family (her parents, uncles, aunts, cousins, nieces and nephews) all live in Mongolia, and the respondent’s family has “supported her since separation”. The respondent’s mother and aunt came to Canada to help the respondent when Caitlyn was born, staying with the parties for approximately six months. The respondent gave evidence that she did not share “some of her struggles” with her family in Mongolia because it would only worry them.
[33] Finally, with respect to the respondent’s mental health, isolation and loneliness, the trial judge found that the respondent experienced significant difficulty integrating into life in Canada, even after legally changing her first name to try and fit in, and changing her faith from Buddhism to Christianity. The trial judge found that the respondent suffered ongoing hardship, stress and anxiety arising from her desire to be accepted professionally, and the two years post-separation have been very hard on the respondent leaving her feeling isolated, lonely and unhappy. This is what led the respondent to retain her mental health counsellor Jill MacDonald.
The Respondent’s Plan for Life in Mongolia
[34] According to the respondent, she planned to move back Ulaanbaatar, Mongolia’s capital city. It has a population of approximately one million people, offering similar choices to Toronto (parks, arts, restaurants, etc.).
[35] The respondent’s initial intention was to reside with her parents in a two bedroom apartment owned by her grandparents. The respondent would then sell two apartments (one allegedly held in trust for her, and one owned by her grandmother) to purchase an apartment on her own, and move into that new apartment by the fall of 2019 so that Caitlyn would have her own bedroom for the first time.
[36] The respondent provided the trial judge with the Mongolian’s annual school calendar, which was slightly different than the Ontario annual school calendar.
[37] The trial judge found that Caitlyn does not speak Mongolian, but understands it at about a 40% level (according to the respondent). This is despite the trial judge’s finding that the respondent only spoke English to Caitlyn at home, and that Caitlyn has only been to Mongolia once with the respondent when Caitlyn was two years old.
[38] The trial judge found that the respondent wants Caitlyn to be fully bilingual in both English and Mongolian, and to that end Caitlyn will attend an English Immersion School in Mongolia. That English Immersion School is a private school that the respondent said she would pay for, although it is unclear how she would do so without any financial assistance.
[39] It is the respondent’s belief that she has far better opportunities to flourish financially in Mongolia, and she testified that she expects to receive short term consulting contract within a short time of her arrival in Mongolia through her friends, university contacts and former co-workers.
The Appellant’s Concerns
[40] Simply put, the appellant’s position was and is that the consequences of Caitlyn moving to Mongolia outweigh any possible benefits to Caitlyn. The appellant was greatly concerned that it would be impossible for him to continue to grow the relationship he enjoys with Caitlyn if she relocates to Mongolia. There would be no substitute for physical contact, and communicating with Caitlyn over the internet could only produce limited results.
[41] While the parties agree that their communication is poor and they rarely have face to face meetings, when it comes to Caitlyn they are typically able to work through their difficulties.
[42] The appellant argued that Mongolia is not a signatory to the Hague Convention on the Civil Aspects of Child Abduction. The appellant fears that the damage to his relationship to Caitlyn will be devasting, long lasting and likely irreparable in the event Caitlyn relocates to Mongolia with the respondent.
The Trial Decision
[43] The respondent’s request to move amounted to a material change in circumstances. The appellant does not dispute this finding.
[44] The trial judge properly referenced and relied upon the Supreme Court of Canada’s seminal decision in Gordon v. Goertz 1996 191 (SCC). As found by the trial judge, when dealing with mobility requests, the Court must always be mindful of and consider the following key principles:
The Court must embark on a fresh inquiry into what is in the best interest 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.
The Court does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect and the most serious consideration.
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.
The focus is on the best interests of the child, not the interest and rights of the parents.
More particularly, the Court 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 reasons for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;
f. the disruption to the child of a change in custody; and,
g. the disruption to the child consequent on removal from family, schools and the community he has come to know.
[45] The trial judge summarized “the only options before the Court” as follows: is Caitlyn better off moving to Mongolia with the respondent, or staying in Ontario with the respondent? The trial judge then asked if the respondent is permitted to move to Mongolia with Caitlyn, will the benefits for Caitlyn outweigh the losses, thereby rendering the relocation to be in Caitlyn’s best interests?
[46] The trial judge found that careful attention was to be paid to the potential negative effects on Caitlyn should the respondent’s relocation request be refused. Even though a party’s reasons for moving back to Mongolia are to be reserved for the exceptional case (i.e. only where the reasons are relevant to the respondent’s ability to meet a child’s needs), the trial judge spent considerable time assessing the respondent’s reasons for relocating, and ultimately concluded that Caitlyn’s environment would be much improved by the respondent (i) returning to her home country, (ii) becoming financially self supporting and (iii) regaining her confidence and her emotional, psychological, social and economic well being.
[47] Below are the relevant excerpts from the trial judge’s Reasons for Judgment permitting the respondent to relocate with Caitlyn to Mongolia:
“The court accepts that the mother and her family in Mongolia have a loving and strong relationship. The mother’s family has repeatedly made the mother and the child a priority in their lives (which the father and his family have not done), and they will continue to do so, particularly now, as the mother really needs their help. She will not be struggling in Mongolia. She is struggling in Toronto and will be struggling as a single mother living alone, even if she is receiving the proper table amount of child support and the father’s proportionate share contribution to s. 7 costs.
One of the factors a court should carefully assess before limiting a custodial parent's decision to move with the child is the economic effect of its decision on the child. But the fact that the mother’s financial life will be better in Mongolia and her life as a single parent will be easier there are not the only reasons that the mother wants to return to Mongolia.
The court considered all of the following: that the mother feels isolated and insecure in Canada; that she would benefit from the support of her family and friends in the other location; that her employment prospects are better there; that the child will benefit if the mother is able to become independent and live in a stable environment; and that the child will suffer if the mother is restricted and remains insecure.
The court accepts that the mother and the child will have a better life in Mongolia. The mother will be financially more secure. She will not be isolated in Mongolia. She will have help from her family financially and with child care, for as long as she needs it.
Requiring a parent to stay in a community isolated from her family and social supports, and in difficult financial circumstances would have an unquestionable adverse impact on the child in her care. The court must consider the advantages of a move to the moving parent in respect to that parent’s ability to better meet the child’s needs.
By returning to her home country, the mother will become financially self-supporting. She will regain her confidence and her emotional, psychological, social and economic well-being. This will have a positive effect on the child. The child’s environment will be much improved.
There is also a psychological, social and emotional component to her desire to move, in order for her to regain the general stability and control in her life that has been absent since the relationship with the father ended in September 2014. There is a connection between the quality of a parent’s emotional, psychological and social and economic well-being and the quality of the child’s primary care-giving environment
An improvement in the mother’s physical, emotional, and financial circumstances can only benefit the child and therefore be in the child’s best interests.
It is in the best interests of a child to be in the care of a parent who is happy and who feels secure, and thus the parent should not be denied the opportunity to be the most fulfilled person she can be.
In some relocation cases, the move proposed is relatively neutral from the child’s perspective, aside from reducing contact with the stay-behind parent. That is not so in this case. This is not a neutral move for this child. On balance, and taking into account all the issues for consideration, including the reduction in contact with her father, this move is still a positive event for this child.
The court seriously considered the relationship between the father and the child, and the disruption to that relationship that may result from a reduction or a dramatic change in their time together. The importance of the father's contact in this case cannot override the positive effects that the move will have for the child. The advantages for the mother and the child in moving outweigh the disadvantage of the possible reduction of contact with the father.
Caitlyn will remain in the primary care of her mother, who will be happy, living in a supportive environment, and financially secure. It is in the best interests of Caitlyn that her mother be permitted to move to Mongolia and to take Caitlyn with her. The mother may move to Mongolia with the child immediately.”
The Appellant’s Grounds of Appeal
[48] In support of his appeal, the appellant raises the following grounds (which I have re-organized from his factum prepared by previous counsel):
(a) the trial judge erred in not applying the maximum contact principle to the facts of this case by failing to have sufficient regard for the existing access arrangements and relationship between the appellant and Caitlyn; and,
(b) the trial judge erred in placing far too much emphasis on the respondent’s reasons for moving to Mongolia, and considering the respondent’s best interests over Caitlyn’s best interests.
[49] The above two grounds are inter-connected.
The Respondent’s Grounds for her Cross-Appeal
[50] In support of her cross-appeal, the respondent put forward three grounds:
(a) the trial judge erred in failing to properly consider the costs and benefits for Caitlyn in having her travel to Canada for the Christmas vacation;
(b) the trial judge erred in failing to consider the financial obligations upon the respondent as a result of the Christmas school vacation taking place in Canada; and,
(c) the trial judge erred in failing to properly consider the continuing level of conflict between the parties when deciding the access arrangements.
The Motions for Fresh Evidence
[51] Before addressing the appeal and cross-appeal, I will briefly address and decide the parties’ respective motions seeking leave to file fresh evidence. The legal test for admitting fresh evidence is set out in R. v. Palmer 1979 8 (SCC), [1980] 1 S.C.R. 759. The relevant principles are as follows:
(a) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial;
(b) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
(c) the evidence must be credible in the sense that it is reasonably capable of belief; and,
(d) the evidence must be such that if believed it could reasonably, when taken with the other evidence adduced to trial, be expected to have affected the result.
[52] As held by Justice Akbarali in A.P. v. L.K. 2019 ONSC 7256, the Palmer test is typically relaxed in family law cases where there are issues involving children so that the Court may discharge its obligation to consider the best interest of the children. In other words, the Court may relax the above principles where their rigid application in a case involving children may lead to a miscarriage of justice.
[53] Dealing first with the respondent’s motion for fresh evidence, none of the proposed documentary evidence satisfy the Palmer test, whether that test is applied rigidly or in a more relaxed manner. The respondent’s proposed fresh evidence consisted of 12 documents dealing with the following issues:
• The appellant’s continuing alleged desire to hurt the respondent financially;
• The respondent’s attempts to seek new residential rental arrangements in Toronto;
• The appellant’s efforts to publicly fund the legal costs of his appeal;
• The respondent’s 2018 income;
• Documents purportedly (but not officially) translated from Mongolian to English relating to the respondent opening a bank account in Mongolia;
• Post-trial efforts by the respondent to secure employment in Toronto; and,
• Documents relating to the effects of jet lag upon passengers who travel long distances.
[54] None of the above evidence would be conclusive or decisive of any issues on the appeal. Further, most of the evidence is not reliable or admissible as it consists of hearsay from third parties. The respondent’s motion for fresh evidence is dismissed.
[55] With respect to the appellant’s two motions for fresh evidence, I come to the same conclusion. The appellant’s proposed fresh evidence consisted of post-trial emails between the parties dealing with a variety of issues including neighbourhood safety, school registration, holiday access and medical information (all in Toronto). These documents attempted to portray the respondent in a negative light. In my view, they have no bearing on the issues in this appeal, and do not meet the Palmer criteria.
[56] The appellant also sought to introduce documents relating to current travel restrictions in the midst of the COVID-19 pandemic. While the Court could possibly take judicial notice of the official, government protocols set out in those documents, they are not conclusive or decisive of any issue in the appeal.
[57] Accordingly, the appellant’s motions for fresh evidence are also dismissed.
Standard of Review
[58] As held by the Supreme Court of Canada in Housen v. Nikolaisen 2002 SCC 33, [2002] 2 S.C.R. 235, for questions of law the standard of review is correctness, and for questions of fact the standard of review is palpable and overriding error.
[59] In dealing with factual inferences, the majority decision in Hausen held as follows (my emphasis in bold):
“In discussing the standard of review of the trial judge’s inferences of fact, our colleague states, at para. 103, that:
In reviewing the making of an inference, the appeal court will verify whether it can reasonably be supported by the findings of fact that the trial judge reached and whether the judge proceeded on proper legal principles….While the standard of review is identical for both findings of fact and inferences of fact, it is nonetheless important to draw an analytical distinction between the two. If the reviewing court were to review only for errors of fact, then the decision of the trial judge would necessarily be upheld in every case where evidence existed to support his or her factual findings. In my view, this Court is entitled to conclude that inferences made by the trial judge were clearly wrong, just as it is entitled to reach this conclusion in respect to findings of fact. [Emphasis added.]
With respect, we find two problems with this passage. First, in our view, the standard of review is not to verify that the inference can be reasonably supported by the findings of fact of the trial judge, but whether the trial judge made a palpable and overriding error in coming to a factual conclusion based on accepted facts, which implies a stricter standard.
Second, with respect, we find that by drawing an analytical distinction between factual findings and factual inferences, the above passage may lead appellate courts to involve themselves in an unjustified reweighing of the evidence. Although we agree that it is open to an appellate court to find that an inference of fact made by the trial judge is clearly wrong, we would add the caution that where evidence exists to support this inference, an appellate court will be hard pressed to find a palpable and overriding error. As stated above, trial courts are in an advantageous position when it comes to assessing and weighing vast quantities of evidence. In making a factual inference, the trial judge must sift through the relevant facts, decide on their weight, and draw a factual conclusion. Thus, where evidence exists which supports this conclusion, interference with this conclusion entails interference with the weight assigned by the trial judge to the pieces of evidence.
We reiterate that it is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence. If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference-drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion. The appellate court is not free to interfere with a factual conclusion that it disagrees with where such disagreement stems from a difference of opinion over the weight to be assigned to the underlying facts. As we discuss below, it is our respectful view that our colleague’s finding that the trial judge erred by imputing knowledge of the hazard to the municipality in this case is an example of this type of impermissible interference with the factual inference drawn by the trial judge.”
Decision
[60] To begin, I am not prepared to disturb any of the trial judge’s findings with respect to the respondent’s mental health, isolation and loneliness. These were findings of fact that the trial judge was clearly entitled to make on the record before the Court. The appellant argues that the respondent failed to produce any job applications in support of her claim that she had been unable to secure gainful employment in Canada. While this contention may be accurate, there was a plethora of other direct evidence tendered by the respondent to support her position that her life in Toronto was replete with struggle, isolation and a lack of financial, social and family support. The respondent’s affidavit evidence about her own personal experiences since coming to Canada in 2010 was lengthy, and she was thoroughly cross-examined upon that evidence at trial.
[61] The respondent also tendered (a) the affidavit of Armstrong who gave independent evidence about the respondent’s loneliness and isolation, and (b) the affidavit of MacDonald who gave independent evidence that the respondent consistently sought support to cope with the many challenges she continued to experience in Toronto with very little support. Neither Armstrong nor MacDonald were cross-examined on their affidavits, and as such their evidence was unchallenged.
[62] I do not find the presence of any palpable or overriding errors on the part of the trial judge with respect to the factual conclusions that the respondent was indeed isolated, lonely and suffering from mental health issues.
[63] Even though the parties were not married, and section 24 of Children’s Law Reform Act, R.S.O. 1990 c. C12 (“CLRA”) does not contain the “maximum contact” language found in the Divorce Act R.S.C. 1985 C3, the jurisprudent is clear that the same considerations apply under the CLRA. The maximum contact principle may be mandatory, but it is not necessarily absolute. The Court must respect the maximum contact principle to the extent that such contact is consistent with the best interest of the child. As held in Gordon, “if other factors show that it would not be in the child’s best interest, the Court can and should restrict contact.”
[64] While the trial judge included the maximum contact principle as a factor to be considered in the disposition of the respondent’s Motion to Change, the appellant argues that the trial judge failed to properly apply the principle to the facts of this case. Specifically, the appellant submits that the trial judge’s reasons focused almost exclusively upon the respondent’s reasons for moving, without considering the existing relationship and access arrangements between the appellant and Caitlyn. In support of his position, the appellant relies upon the Court of Appeal for Ontario’s decision in Berry v. Berry 2011 ONCA 705. In Berry, the Court of Appeal for Ontario held that a failure to give sufficient weight to the maximum contact principle is a reversible error:
“The failure to attach appropriate weight to the maximum contact principle led the trial judge to make an order under which the child, who had been living approximately half the time with the father since the separation, would see his father only every other weekend. In addition, under the order, the child would spend less time with his paternal grandparents, who had cared for him after the mother returned to work at the end of her maternity leave. The trial judge did not adequately consider the disruption to the child inherent in this change.”
[65] Given that the trial judge found (and the respondent herself confirmed) that the appellant was a good father and capable of carrying for Caitlyn when she is with him, the appellant submits that the trial judge erred by finding that “the importance of the appellant’s contact with Caitlyn could not override the possible affects the move would have on Caitlyn.”
[66] From my review of the trial judge’s Reasons for Judgment, there was little analysis of the effect a move to Mongolia would have on Caitlyn, and how the move would no doubt impact the relationship between the appellant and Caitlyn. It appears that in the trial judge’s view, any negative impact upon the appellant’s relationship with Caitlyn was outweighed by the reasons behind the respondent’s wish to move back to Mongolia, and the positive effect that move would have upon the respondent. In my view, for the reasons which follow this was a reversible error.
[67] As set out in paragraph 47 of these Reasons, the basis for the trial judge’s decision to permit Caitlyn to relocate with the respondent to Mongolia was the improved life the respondent would experience upon returning to Mongolia. While I do not quarrel with the trial judge’s finding that the respondent wanted to (and would likely) improve her life by relocating to Mongolia, that is not the test to be applied when considering Caitlyn’s best interests. The post-Gordon jurisprudence confirms that a party’s reasons for moving should only be considered in the exceptional case where those reasons are relevant to - but not dispositive of - that party’s ability to meet the needs of the child.
[68] In leading evidence to satisfy the Gordon criteria, the respondent bore the onus of showing that her reasons for moving back to Mongolia rendered this case to be an exceptional one. In my view, that onus could only be discharged upon an evidentiary record which not only explained the respondent’s reasons for wanting to relocate back to Mongolia (which the respondent did), but how the relocation would be in Caitlyn’s own best interests. The trial judge seemed to place all those proverbial eggs in one basket by drawing a straight line between the respondent’s pending happiness and Caitlyn’s new life. In other words, if the respondent enjoyed a happier life, so would Caitlyn.
[69] This was not a traditional finding of fact, but a clear factual inference which must be based upon credible, cogent and admissible evidence. Caitlyn’s best interests must be determined from a child-centered perspective. I rely upon the Court of Appeal for Ontario’s decision in Reeves v. Brand 2018 ONCA 263 (my emphasis in bold):
“Again in Gordon v. Goertz, McLachlin J. wrote at para. 49 that the court should consider “the custodial parent’s reasons for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child”. Ms. Brand submits that this case was not exceptional and that the trial judge improperly focused solely on Ms. Reeves’ reasons for moving. I take a different view of the trial judge’s reasons.
The trial judge did take into account Ms. Reeves’ reasons for moving. But they were not his sole focus. Instead he found that Ms. Reeves’ reasons for wanting to relocate were relevant to her ability to parent Ray and thus were tied to Ray’s best interests. He held at para. 64 of his reasons:
‘After the breakdown of her marriage to [Ms. Brand], [Ms. Reeves] wants to surround herself with the social (and possible financial) support of her family and friends with a view to regaining control and independence of her life. She has already taken steps to obtain employment. [Ms. Reeves’] motives are based upon and further Ray’s best interests. [Ms. Reeves’] relocation plan is not speculative. It includes concrete terms in a place familiar to not just [Ms. Reeves], but more importantly to Ray. Ray is no stranger to New Ross, and has enjoyed an established connection to New Ross since his birth.’
This holding is unassailable. In the language of Gordon v. Goertz, this case is an exceptional case in which the trial judge was justified in taking into account Ms. Reeves’ reasons for moving.”
[70] Unlike the facts in Reeves, the respondent’s plan for Caitlyn upon relocating to Mongolia was far more speculative. The respondent’s plan was set out in her own affidavit and without any independent, corroborative evidence from any admissible source whatsoever. Surprisingly, there was no evidence from any of the respondent’s family members, friends or business colleagues in Mongolia.
[71] While the respondent stated in her trial affidavits that she intended to register Caitlyn in a private school in Mongolia that offers English Immersion classes, she failed to produce any evidence to substantiate the qualifications of that private school or the requirements of admission. There is no guarantee that Caitlyn would be admitted to that private school, which teaches children who wish to learn English (as opposed to Caitlyn who currently speaks English).
[72] Similarly, while the respondent gave evidence that she would be paying for the tuition fees in the event Caitlyn is admitted to the private school, based upon the respondent’s self-described financial situation, and in the absence of any evidence from the respondent’s family or friends, it is unclear how the respondent would pay for that expense.
[73] The respondent testified that she would be receiving “short-term consulting contracts” within a few weeks or months of arriving in Mongolia. Those contract opportunities would be coming through her friends, university contacts and former co-workers. There was no independent evidence at all to substantiate the respondent’s claims in this regard. The only document which the respondent sought to tender in support of that evidence was a single sheet of paper allegedly written by her cousin in Mongolia offering her a three-month consulting contract. This document was excluded by the trial judge as being inadmissible for hearsay concerns. Other than the excluded single sheet of paper, there was no other evidence, documentary or otherwise, to support the respondent’s claims in this regard.
[74] While I understand that the chances of improving the respondent’s life increase by relocating to Mongolia, she has already lived through a very disappointing relocation experience. If the respondent is to be granted permission to relocate with Caitlyn, the Court should have received admissible evidence to allay all of the above concerns.
[75] The trial judge held that “the fact that the Court or the father might not know much about Mongolia, or might see it as foreign, unknown and remote should not determine or even influence the outcome of the mother’s request to relocate there.” I disagree as the Court should have received at least some foundational evidence about Mongolia in order to ensure that the move was in Caitlyn’s best interest, and not just beneficial to the respondent. Mongolia is certainly not a place familiar to Caitlyn; she does not speak the language, and has not been there since she was two years old. Despite her young age, a move to Mongolia would uproot Caitlyn from the only community she has ever known, and most importantly significantly and likely detrimentally impact her relationship with the appellant. The access schedule set by the trial judge would create enormous gaps in personal contact between the appellant and Caitlyn. Communicating with her father over the internet cannot replace the consistency and frequency that Caitlyn has come to know and enjoy with the appellant.
[76] A parent’s reasons for moving can be a relevant consideration, albeit only in an exceptional case. That said, a parent’s reasons for moving cannot be the only reason upon which to ground a request to relocate with a child. In my view, the trial judge erred in focusing solely upon the respondent’s reasons for relocating, especially in the absence of a proper evidentiary record to support how that relocation would translate into being in Caitlyn’s best interest, as opposed to just the respondent’s. For these reasons, the appellant’s appeal is allowed and paragraphs 1 through 5 of the trial judge’s order are hereby set aside.
[77] With respect to the respondent’s cross-appeal, given my disposition of the appellant’s appeal, the cross-appeal is now effectively moot and is dismissed for that reason. For completeness of the record, had I dismissed the appellant’s appeal, I would have also dismissed the respondent’s cross-appeal on the merits as the relief sought therein did not comply with the maximum contact principle, and would have risked further reducing the appellant’s access time with Caitlyn.
Costs
[78] If either party wishes to seek costs of this appeal, absent an agreement between the parties they may serve and file written costs submissions (totaling no more than five pages including a Costs Outline) in accordance with the following timetable:
(a) the appellant shall serve and file his costs submissions within ten (10) business days of the release of these Reasons for Decision; and
(b) the respondent shall serve and file her responding costs submissions within ten (10) business days of the receipt of the appellant’s costs submissions.
Diamond J.
Released: October 26, 2020
COURT FILE NO.: FS-19-11575
DATE: 20201026
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
JEFFREY O’BRIEN
Appellant
– and –
BIA CHULUUNBAATAR
Respondent
REASONS FOR DECISION
Diamond J.
Released: October 26, 2020