



COURT OF APPEAL FOR ONTARIO

CITATION: Jones v. Jones, 2014 ONCA 822

DATE: 20141120

DOCKET: C58784

Cronk, Gillese and Rouleau JJ.A.

BETWEEN

Mark Lewis Jones

Applicant

(Respondent in Appeal)

and

Mandy Lee Jones

Respondent (Appellant)

Raymond J. Wrubel, for the appellant

Anna Towlson, for the respondent

Heard: November 13, 2014

On appeal from the order of Justice James W. Sloan, dated
    April 3, 2014, with reasons reported at 2014 ONSC 2122 sitting on appeal from
    the order of Justice Paddy A. Hardman of the Ontario Court of Justice, dated June
    12, 2013, with reasons reported at 2013 ONCJ 383.

By the Court:

[1]

The appellant mother appeals the order of Sloan J. of the Superior Court,
    dated April 3, 2014, made on appeal from the order of Hardman J. of the Ontario
    Court of Justice, dated June 12, 2013.

[2]

The Superior Court ordered that the children of the marriage are to move
    from Lindsay, Ontario, to Waterloo, Ontario. The order also provides that their
    primary residence shall be changed from that of the appellant to that of the
    respondent unless the appellant relocates her residence from Lindsay to
    Waterloo.

[3]

Briefly stated, the facts are as follows. The appellant and respondent
    married in October 2004 and separated on October 4, 2010. They have two
    children of the marriage, Megan Isabella Jones, born May 20, 2006, and Evan
    Luis Joseph Jones, born March 13, 2009. Prior to the separation, the parties
    resided in the Waterloo region. Upon separation, the appellant moved with the
    two children of the marriage to Lindsay, to be closer to her extended family
    and so that she could take further education. Megan was four years old and Evan
    was one and a half years old at the time.

[4]

The parties entered into minutes of settlement that were incorporated
    into an October 7, 2011 order. They agreed to joint custody of the children and
    that the childrens primary residence would be with the appellant who then
    resided in Lindsay where she was attending college. The settlement agreement
    also provided that the appellant would attempt to secure employment in the
    Waterloo region upon completion of her schooling. It further provided that the
    order would be reviewable within three months of the appellant completing that
    schooling.

[5]

When the appellant completed her studies, she did not seek employment in
    Waterloo as was contemplated by the minutes of settlement and subsequent order.
    Instead, she found employment in Lindsay and continued to reside there.

[6]

The appellants failure to pursue employment in the Waterloo region led
    to contempt proceedings and motions to change the terms of the October 7, 2011
    order. Those and other proceedings culminated in the decision that is now on
    appeal before us.

[7]

The appellants appeal is focused on two issues. She maintains that
    there has been no material change in circumstances such as to warrant a fresh
    consideration of the primary residence of the children. She further argues
    that, even if there has been a change in circumstances, the Superior Court
    judge erred in ordering a change in primary residence of the children from her
    to the respondent.

[8]

The Superior Courts decision that there has been a material change in
    circumstances warranting a review of the order is, in our view, well supported
    in the record. The terms of the settlement provided for review of the order
    after the appellant had completed her schooling. It was also anticipated that
    after completing those studies, the appellant would seek employment in the
    Waterloo area and, consequently, relocate with the children to Waterloo. It is
    apparent that the appellant has not done so. In these circumstances it was open
    to the court to find that there had been a material change.

[9]

The difficulty with the decision of the court below, however, is the determination
    that the best interests of the children would be served by changing their primary
    residence from that of the appellant to that of the respondent in the event
    that the appellant did not voluntarily relocate to Waterloo. The reasons in
    both the Superior Court and the Ontario Court of Justice contain little discussion
    of why this would be in the best interests of the children. For example, they
    contain no analysis of the impact on the children of changing their primary
    residence.

[10]

Both
    courts appear to have given considerable weight to what may or may not have
    been in the best interests of the children at the date of the separation and to
    what appears to have been agreed to by the parties when the minutes of
    settlement were entered into. Their analysis also focuses on the benefit to the
    children if the appellant and children relocate to the Waterloo area. As
    explained by both judges, this would be in the best interests of the children
    as they would be close to both parents and would no longer have to undertake
    the significant travel between Lindsay and Waterloo to maintain contact with
    both parents.

[11]

Although
    there would be benefit to the children if they lived in the same area as the
    respondent, this does not address the central issue the court had to decide, which
    is whether a change in the childrens primary residence from that of the
    appellant to that of the respondent is in their best interests.

[12]

We
    acknowledge that the appellant has indicated that she would move to Waterloo
    rather than see a change in the childrens primary residence. This, however,
    does not provide a basis for the order under appeal which orders a change in the
    childrens primary residence if the appellant chooses now or later not to
    reside in Waterloo.

[13]

Regrettably,
    in the absence of the fact finding and analysis required to determine whether a
    change in the childrens primary residence is in the best interests of the children,
    we are left with no option but to set aside the orders of the Superior Court and
    the Ontario Court of Justice and remit the matter to the Ontario Court of
    Justice for a new hearing. The determination of whether it is in the best
    interests of the children to order a change in their primary residence from
    living with the appellant to the respondent, must be based on a proper and up
    to date evidentiary record. In addition, it may well be that a trial of that
    issue will be required. The court may also wish to obtain an updated report
    from the Office of the Childrens Lawyer, as the original report is now some
    three years out of date. These, however, are matters to be decided by the
    parties and the Ontario Court of Justice.

[14]

For
    these reasons, the appeal is allowed, the orders of the Superior Court and the
    Ontario Court of Justice are set aside, and the matter is remitted to the
    Ontario Court of Justice for a new hearing. The appellant is entitled to costs
    of the appeal fixed at $5,000, all inclusive. The cost awards in the Superior
    Court and the Ontario Court of Justice are set aside and there shall be no
    order as to costs for those two proceedings. Accordingly, the respondent shall
    return any monies paid by the appellant further to the costs orders in those
    two matters.

Released: NOV 20, 2014

EEG

E.A.
    Cronk J.A.

E.E.
    Gillese J.A.

Paul
    Rouleau J.A.


