



COURT OF APPEAL FOR ONTARIO

CITATION: Moreton v. Inthavixay, 2021 ONCA
    501

DATE: 20210712

DOCKET: C68806

Brown, Roberts and Zarnett JJ.A.

BETWEEN

Christian Moreton

Applicant

(Respondent)

and

Douangta Inthavixay

Respondent


(Appellant)

Michael H. Tweyman and Ashley Waye, for
    the appellant
Christian Moreton, acting in person
Caterina E. Tempesta and Jean Hyndman,
    for the Office of the Childrens Lawyer
Heard: June 30, 2021 by video conference
On appeal
    from the order of Justice James F. Diamond of the Superior Court of Justice,
    dated October 22, 2020, with reasons reported at 2020 ONSC 6267.
REASONS FOR DECISION
[1]

The appellant mother appeals from
    the final order that the parties children primarily reside with their father,
    the respondent, in Lindsay, Ontario (the relocation order), with substantial
    parenting time to the appellant.
[2]

The respondent moved to
    Lindsay in late September 2020, primarily for financial reasons. He resides in
    a spacious home on a large parcel of land that is owned by his father, from
    which he works on various consulting contracts. The home is a five-minute walk
    from the local elementary school where he has enrolled the children. The
    children have been living with their father in Lindsay since the release of the
    relocation order.
[3]

The relocation order varied
    the previous July 17, 2018 order of Kristjanson J. that the childrens
    primary residence was to be with the respondent in Toronto, with access granted
    to the appellant. While there have been some temporary changes, this was the
    longest standing arrangement before the relocation trial. The children are now
    12 and 8 years of age. The parties have been embroiled in high conflict
    litigation almost since their separation on October 1, 2017. The details of the
    adjournments and frequent litigation with which this file has been plagued are
    set out in numerous endorsements. The children have expressed to the clinician
    assisting the Office of the Childrens Lawyer (OCL) who represents their
    interests in these proceedings that they love their parents and simply want the
    conflict to end and their parents to get along.
[4]

By the September 1, 2020
    order of Shore J., the trial was bifurcated: the relocation and residential
    schedule of the children would be determined first in September 2020 because it
    was in the best interests of the children to have these issues heard as soon as
    possible, and the issues of custody and financial matters were ordered to be
    tried in December 2020 (the bifurcation order). The trial was peremptory on
    the appellant and respondent. On September 11, 2020, Shore J. dismissed the
    appellants request that she be permitted to proceed with a long motion on the
    issues of relocation and the childrens residential schedule and that a trial
    of those and the other outstanding issues be heard in December 2020. She noted
    that there had been 15 court attendances and 11 court orders at that point and
    that the evidence shows that the children were suffering because there had been
    no final resolution. She enumerated the history of the litigation, the various
    adjournments granted to the appellant, and set out accommodations for the appellants
    participation in the trial.
[5]

The appellants motion for an
    adjournment of the trial was dismissed by the order of Nishikawa J. dated
    September 16, 2020. The appellants motion for leave to appeal the bifurcation
    order was dismissed by the Divisional Court on September 22, 2020. The
    relocation order was granted on October 22, 2020. The appellants motion to
    stay the relocation order was dismissed by Pepall J.A. of this court on
December 9, 2020
.
[6]

The trial judge granted an adjournment of the
    second trial because the appellant retained counsel on the eve of the second
    trial. The second trial took place in February and March 2021 and judgment on
    the issue of custody/decision-making authority was released on April 23, 2021. Subject
    to an outlined consultation process with the appellant, the respondent was
    granted final decision-making authority with respect to major decisions
    concerning the children. The appellant has appealed that decision, which is not
    the subject of this appeal.
[7]

The appellant submits that the relocation order
    should be set aside because: 1) the trial judge erred by determining the
    question of the childrens relocation to Lindsay before deciding the issue of
    custody contrary to this courts decision in
Bjornson v. Creighton
(2002),
    62 O.R. (3d) 236 (C.A.), leave to appeal refused, [2003] S.C.C.A. No. 14; 2) the
    trial judge erred in his application of the law on relocation to the facts of
    this case; and 3) the trial proceeded in an unfair manner to the appellant
    whose adjournment and accommodation requests because of her disability went
    unheeded such that a new hearing is required.
[8]

We do not accept these submissions.
[9]

First, we do not read this courts decision in
Bjornson
as establishing an absolute rule or requirement that the
    issue of custody must be determined before the issue of relocation. Rather, the
    sequence depends on the circumstances of the case and, specifically, on the
    best interests of the children.
Bjornson
arose out of the particular circumstances of that case: the
    sequence in which the trial judge dealt with relocation and custody was
    criticized because it caused him to err  he did not make the depth of enquiry
    required in the circumstances and failed to give the evidence of the custodial
    parent the great respect or most serious consideration to which it was
    entitled.
[10]

Further, the bifurcation order here correctly determined
    the sequence of the proceedings. Echoing the sentiments of previous judges, as
    the trial judge observed, it was in the best interests of the children to have
    the relocation issue determined as quickly as possible to provide stability in
    their living arrangements, finality and closure. Dismissing the appellants
    motion for leave to appeal, the Divisional Court found that Shore J.s bifurcation
    and trial management decisions are clear, thoughtful and well-reasoned, fall
    well within the discretion available to the court in trial scheduling and other
    procedural matters, and were the only reasonable outcome in the particular circumstances
    of this case. We also note that the appellant had twice requested before Shore
    J. that she be permitted to proceed with a long motion on the issues of relocation
    and the childrens residential schedule and that the trial of those issues and
    the other outstanding issues be heard later.
[11]

With respect to the appellants second argument, we see no
    error in the trial judges determination that it is in the childrens best
    interests that their primary residence be with the respondent in Lindsay. His
    determination is amply supported by the evidence that the trial judge was
    entitled to accept and is entitled to considerable deference on appeal:
Bourke v. Davis
, 2021 ONCA 97, 154 O.R. (3d) 431, at para. 42. The trial
    judge carefully considered the relevant factors concerning the question of the relocation
    of the childrens primary residence as outlined in
Gordon v. Goertz
, [1996]
    2 S.C.R. 27. His primary focus was, properly, the best interests of the
    children. Among other factors, he considered that the children advised the OCL
    that they wish to relocate to Lindsay with their father but still spend time
    with the appellant; the respondent will be home almost every day to attend to
    the childrens needs as they arise; and at only 90 minutes distance from
    Toronto and with the parenting time schedule proposed by the OCL, the children
    can maintain their relationships with the appellant, her family and the
    childrens friends. He concluded that any potential disruption caused by a
    relocation to Lindsay to live with their primary caregiver did not justify
    refusing to permit that move, given the benefits to the children. We see no
    basis to intervene.
[12]

We do not agree that the trial judge misapprehended the
    childrens evidence concerning their preferences. Nor did he err in considering
    the respondents enhanced ability to better meet the needs of the children by
    having more disposable income and time, a larger house in which each child has
    her own room and shares a bathroom, and an elementary school within five
    minutes walking distance of the house. The improved ability to satisfy the
    childrens needs, including financial viability, is a valid and compelling
    parenting-based reason for the move of a primary caregiver:
Porter v. Bryan
, 2017 ONCA 677, 6 R.F.L. (8th) 41, at para. 17;
Bourke
, at
    paras. 27, 51-52. This is consistent with the recent amendments to the
Divorce Act
,
    R.S.C., 1985, c. 3 (2nd Supp.) and the
Childrens Law Reform Act
, R.S.O. 1990, c. C.12.
[13]

Most important, the children are thriving with their father
    in Lindsay. The OCL supported the move to Lindsay, opposed the appellants
    unsuccessful motion to stay the order under appeal, and opposes this appeal. As
    fresh evidence, the OCL has tendered updated affidavit evidence concerning the
    children from Michelle Nagy, the clinician who has been involved in this case
    since April 2019. We admit the fresh evidence because it is important that we
    have the most current information bearing directly on the best interests of the
    children, it is provided by the OCL, and is reasonably capable of belief:
Decaen v. Decaen
, 2013 ONCA 218, 303 O.A.C. 261, at para. 13. By all
    accounts, the children are settled, happy, and doing well in their new home,
    school, and community, and are generally content with and do not want a change
    to their living arrangements.
[14]

We do not allow the appellants fresh evidence motion. The
    appellant concedes that the substance of the tendered fresh evidence from the
    second trial was available at the time of the relocation trial. More important,
    we do not see how it would have made any difference to the relocation order. Specifically,
    the proposed fresh evidence does not invalidate or undermine the trial judges
    credibility assessments and other findings from the relocation trial nor give
    rise to inconsistent findings. Any issues with the trial judges April 23, 2021
    reasons are properly the subject of the appellants pending appeal.
[15]

Finally, we see no error in the trial judges refusal to
    adjourn the trial or any failure to accommodate the appellants meaningful
    participation in the trial. There is ample evidence supporting the trial
    judges dismissal of the appellants request for an adjournment of the
    bifurcated trial that had already been adjourned and made peremptory on the
    appellant. He outlined in detail the appellants history of seeking
    adjournments and found that there was very little, if any, reliable or
    credible medical information to support the [appellants] repeated, vague
    contentions of medical illness and lack of accommodation. The record reveals
    that the appellant was given accommodations and participated meaningfully in
    the trial of the issues of the childrens primary residence and parenting time.
    There is no indication of any prejudice or unfairness to the appellant
    warranting appellate intervention.
[16]

For these reasons, the appeal is dismissed.
[17]

Neither the respondent nor the OCL sought any costs of the
    appeal. Accordingly, we order that there be no costs of the appeal.
David
    Brown J.A.
L.B.
    Roberts J.A.
B. Zarnett
    J.A.
