



COURT OF APPEAL FOR ONTARIO

CITATION: Sferruzzi v. Allan, 2013 ONCA 496

DATE: 20130723

DOCKET: C57228

Laskin, Gillese and Strathy JJ.A.

BETWEEN

Anthony Sferruzzi

Appellant

and

Jennifer Lorraine Allan

Respondent

Anthony Sferruzzi, in person

Jennifer Lorraine Allan, in person

Heard: July 16, 2013

On appeal from the judgment of Justice R.B. Reid of the
    Superior Court of Justice, dated June 14, 2013.

Gillese J.A.:

OVERVIEW

[1]

Anthony Sferruzzi and Jennifer Allan were married in May 2002.  Their
    son Mason was born on November 23, 2006.  Ms. Allans child from a previous
    relationship, Jasmine (born in 1995), lived with them as a child of the
    marriage.

[2]

In 2008, when Mason was approximately 16 months old, he was diagnosed
    with autism.  He has significant special needs.

[3]

Mr. Sferruzzi is an Assistant Crown Attorney.  He has regular work hours
    from Monday to Friday, but works overtime as needed for case preparation.  Ms.
    Allan is currently a senior support provider with an organization that provides
    residential care to adults with special needs.

[4]

Mr. Sferruzzi and Ms. Allan separated in 2009.  They agreed that Mr.
    Sferruzzi would have sole custody of Mason and Ms. Allan would have sole
    custody of Jasmine.  Those custody arrangements have continued throughout,
    without contest.  Both parties live in Waterloo.  Ms. Allan has regular access
    with Mason.

[5]

Mr. Sferruzzi has been in a committed relationship with Robin Packer for
    just over four years.  Together, they have a three-year old son, Nicholas.  Ms.
    Packer also has two teenage children from a previous relationship.

[6]

Mr. Sferruzzi wishes to move to Pickering so that Mason and Nicholas can
    grow up with one another and so that he, Ms. Packer and their children can live
    together as a family.  He is confident that this will be in Masons best
    interests.

[7]

A court order precludes Mr. Sferruzzi from moving Mason from the
    Waterloo region without Ms. Allans consent.

[8]

Mr. Sferruzzi brought a motion to vary the court order so that he could relocate
    to Pickering with Mason.

[9]

Ms. Allan opposed the motion.  She was concerned about the reduced
    frequency of contact that she would have with Mason, and about the disruption
    in Masons relationships with members of her family and his treatment
    providers.  She was also concerned about the expenses associated with access
    travel and the difficulties involved in Mason being in a car for lengthy
    periods while travelling for access visits.

[10]

The
    motion judge found that the proposed relocation to Pickering was a material
    change in circumstances for Mason, with the result that he was empowered to make
    a variation order under s. 17(5) of the
Divorce Act
, R.S.C. 1985, c. 3
    (2nd Supp.).  However, he concluded that the proposed relocation was not in
    Masons best interests.  By order dated June 14, 2013 (the Order), he
    dismissed the motion.

[11]

Mr.
    Sferruzzi appeals.

[12]

At
    the motion and on appeal, both parties were self-represented.

[13]

For
    the reasons that follow, I would allow Mr. Sferruzzis appeal and grant the
    motion.

BACKGROUND

(1)

Masons
    Needs

[14]

Mason
    requires specialized and extensive treatment.  He does not learn at the pace of
    other children his age, nor does he have the same level of social and
    environmental engagement.  He sleeps poorly, and engages in self-stimulatory
    behaviours such as hitting himself.  He is aggressive with others, sometimes pinching
    or biting his caregivers and those around him.  Historically, he had no
    interest in other people or children.  His condition makes it nearly impossible
    for him to be left alone.  He requires constant care.

[15]

Mason
    receives daily treatment known as intensive behavioural intervention (IBI)
    therapy.  IBI therapy is based on Masons specific needs and helps him to stay engaged,
    thus connected to his real environment.

[16]

In
    the mornings, Mason attends school from 8:00 a.m. to 1:00 p.m.  However, he
    spends only about fifteen minutes each day in a regular classroom. The rest of
    the time, he is in a separate room receiving one-on-one support.  In the
    afternoons from 1:00 p.m. to 5:00 p.m., Mason works with his therapist in Mr.
    Sferruzzis home.

[17]

Over
    time, Mason has made some progress.  He now formulates basic sentences, makes
    eye contact more frequently, plays functionally with toys, and wishes to play
    with other children.

(2)

The
    Current Access Arrangement

[18]

In
    Ms. Allans current job, she works on Sunday from 2:00 p.m. to 9:00 p.m.,
    Monday through Wednesday from 12:00 p.m. to 9:00 p.m., and Thursday from 9:00
    a.m. to 3:00 p.m.  Since she began her current job in March 2011, Ms. Allan has
    had access on a weekly, alternating basis.

[19]

One
    week, Mason is with Ms. Allan from 5:00 p.m. on Thursday to Friday morning
    before school, and then again after therapy on Friday from 5:00 p.m. to 7:30
    p.m.  The next week, Mason is with Ms. Allan from 5:00 p.m. on Thursday to
    Friday morning before school, and then again after therapy on Friday through to
    Sunday at 12:30 p.m.

(3)

Masons
    Care and Treatment

[20]

Both
    parents enjoy a loving and meaningful relationship with Mason.  Before the
    motion judge, Ms. Allan described Masons close bond with herself, Jasmine, and
    Ms. Allans friends and family.  Ms. Allan often takes Mason to visit her
    extended family in London and St. Thomas. Masons former therapist attested to
    Ms. Allans support of his treatment.  Although Mr. Sferruzzi calls into
    question Ms. Allans commitment to Masons therapy, the motion judge found that
    [t]here was no evidence of significant resistance or lack of cooperation on
    the part of [Ms. Allan] to Masons current therapy regime.

[21]

Mr.
    Sferruzzi plays a much larger role than Ms. Allan in Masons treatment and
    care.  He is Masons sole caretaker the vast majority of the time.  He
    participates in and monitors Masons therapy and progress, and tracks Masons
    medication.  As the motion judge found:

[T]he evidence is clear [Mr. Sferruzzi] has been highly
    focussed on Mason and his special needs both before and after the separation.
    He obviously has a strong commitment to Masons case and to ensuring that Mason
    achieves his maximum potential. The IBI therapy regime has been supported by [Mr.
    Sferruzzi] in his own interaction with Mason and in the financial commitment
    that it requires.
There is no suggestion by
    [Ms. Allan] that custody should change and no evidence supports that conclusion
.


[22]

Mr.
    Sferruzzi also now bears the full financial burden of Masons IBI therapy
    regime, albeit with some minor relief by means of set off against the child
    support he pays for Jasmine.  In March 2013, the limited public funding for
    Masons IBI therapy expired.  The financial support received for Masons treatment
    at school will end in the fall of 2013.  Although Mr. Sferruzzi has held
    fundraising events to assist with funding Masons therapy, he doubts his
    ability to continue to pay $2,500 to $3,000 per month for that therapy while
    maintaining his own separate household.

(4)

Background
    on the Proposed Relocation

[23]

Ms.
    Packer is a registered nurse who works for Central East Community Care Access
    Centre and resides in Pickering.  Mr. Sferruzzi knew Ms. Packer when they were
    both children.  They reconnected as adults, initially as friends, and then in
    an intimate relationship after he and Ms. Allan separated.

[24]

Ms.
    Packer spends time with Mason at least once per month but also on some
    weekends, long weekends and special occasions.  She facilitates play between
    Mason and Nicholas.  She is well aware of Masons needs.  Her employment is
    sufficiently flexible that she will be available to respond to assist with the
    needs of Mason and Nicholas during her working hours.

[25]

Having
    sole custody of Mason has taken a toll on Mr. Sferruzzi.  Because Mason must be
    engaged and supervised at all times, household chores must be done after Mason goes
    to bed.  So, too, must any of his work obligations that carry over from the
    regular work day.  Mr. Sferruzzi describes himself as exhausted, at times
    falling asleep at the dinner table.  He has installed special locks on the
    doors in his home to ensure that Mason cannot leave the house if he falls
    asleep accidentally.

[26]

Notably,
    because of the stress from caring alone for Mason and the exhaustion due to long-term
    loss of sleep, Mr. Sferruzzi has had to take three stress leaves from his job. 
    He also suffered a significant depression in the summer of 2012.

[27]

Mr.
    Sferruzzis depression contributed to a break in his relationship with Ms. Packer
    in late September 2012.  It was an amicable break up and the two continued to
    see one another as friends.  After being prescribed medication and attending
    counselling, his depression lifted, and he and Ms. Packer were fully reconciled
    by late January or early February 2013.

[28]

Significantly,
    Mason has developed a relationship with his brother, Nicholas.  Mason sees
    Nicholas a day or two per month, on average.  Both Mr. Sferruzzi and Ms. Packer
    describe the two boys playing and being affectionate with each other.  Ms.
    Packer reports that she recently saw Mason comfort Nicholas when he was upset,
    by hugging him and kissing him on the head.  Mason will seek Nicholas out and
    has taken some responsibility for him.

[29]

Mr.
    Sferruzzi obtained a contract position with the Durham Crown Attorneys office
    in May 2013.  The Durham Office held the position for him, pending the outcome
    of the motion below.  When the motion failed, he was forced to give up the job
    offer.  However, he has been assured that he remains competitive and it seems
    likely that he will be able to get a contract position there.

(5)

The
    Proposed Relocation

[30]

Mr.
    Sferruzzi submits that the move to Pickering would benefit Mason in a number of
    ways.  By virtue of sharing a family and a home, Mr. Sferruzzi and Ms. Packer
    will be able to provide one another with greater emotional, financial, and
    logistical support.  Mr. Sferruzzi anticipates that such an arrangement will
    improve his physical and mental health, and make him a better parent to Mason.

[31]

Mr.
    Sferruzzi also argues that Mason will benefit from daily contact with his
    brother Nicholas, with whom he shares a special bond.  Despite the age
    difference between the brothers, they are at approximately the same stage of
    development.  Mr. Sferruzzi submits that spending time with Nicholas will help
    Mason to acquire new skills and practice existing ones.  It will also enable
    Mason to develop a meaningful relationship with a sibling and a peer.

[32]

Mr.
    Sferruzzi has proposed a number of measures to make the relocation, if
    permitted, as easy as possible for Mason.  For example, Mr. Sferruzzi plans to
    initially maintain his own residence with Mason in Pickering.  Only after Mason
    has settled into his new school and therapy program will Ms. Packer, Nicholas, and
    her other children join the household.  Mr. Sferruzzi has also arranged for a
    new clinical supervisor to oversee Masons IBI therapy in Durham, and has coordinated
    with Masons current supervisor to ensure continuity in Masons treatment. 
    Masons daily schedule in Durham will be the same as his current schedule: he will
    attend school in the mornings, and work with his therapist at home in the
    afternoons.

[33]

Mr.
    Sferruzzi also remains committed to facilitating Ms. Allans access. He
    proposes that Ms. Allan have access every other weekend from Thursday at 5:00
    p.m. to 12:30 p.m. on Sunday.

[34]

Ms.
    Allan reiterated her concerns about the impact that the move would have on
    Mason: the reduced frequency with which she would see him, a disruption in
    Masons time with members of her family and his treatment providers, the
    challenges for Mason having to travel from Pickering to Waterloo for access
    visits, and the expense associated with access travel.  Ms. Allan was also
    concerned about Mason missing school and therapy every second Friday on the
    proposed access plan.

[35]

When
    asked by the court, Ms. Allan indicated that she did not have an alternate
    access proposal, should the move be allowed.

[36]

Before
    the motion judge, Mr. Sferruzzi offered to contribute to additional expenses Ms.
    Allan may incur as a result of the relocation. For example, he offered to
    subsidize Ms. Allans fuel costs.  This offer was renewed on appeal.

[37]

Finally,
    Mr. Sferruzzi has received assurances from a number of Ms. Allens friends and
    family members that Masons relationships with them will continue as before, if
    Mason moves to Pickering.  Mr. Sferruzzi has undertaken to facilitate such
    access.

THE FRESH EVIDENCE APPLICATION

[38]

Mr.
    Sferruzzi sought to introduce fresh evidence on appeal, the most significant
    aspects of which are as follows.

[39]

First,
    after mid-June of this year, Masons primary one-on-one worker in Waterloo will
    no longer work at his school.  The workers back-up staff do not know if they will
    be returning.  Further, he will have a new classroom teacher if he remains at
    the same school.  Therefore, come the fall, Mason will have a new support
    worker, along with a new classroom teacher, whether or not he remains in
    Waterloo.

[40]

Second,
    if permitted to relocate, Mr. Sferruzzi has found a school for Mason in
    Pickering that has similar resources (workers, educational assistants, speech
    pathologists, occupational therapist) and occupational equipment as his current
    school.  This includes a quiet work room, which is the same as the classroom
    in which Mason spent most of his time at his current school with his worker. 
    He and Ms. Packer have already met with the principal to begin to formulate a
    transition plan for Mason in the event that his appeal is allowed.  The
    principal has agreed that Mason would be put into the class with the teacher
    having the most experience with students with needs similar to those of Mason.

[41]

Third,
    as noted earlier, after the dismissal of his motion, Mr. Sferruzzi was forced
    to give up his job offer from the Durham Crown Attorneys office.  However, he is
    confident that he can obtain employment in Pickering if permitted to relocate
    with Mason.

ANALYSIS

The Governing Legal Principles

[42]

Gordon
    v. Goertz
, [1996] 2 S.C.R. 27 is the seminal case on mobility in family law
    cases.  In it, the Supreme Court set out the principles that govern such
    matters.  Paragraphs 49-50 of
Gordon
contain the following summary of
    those principles:

1.

The parent
    applying for a change in the custody or access order must meet the threshold
    requirement of demonstrating a material change in the circumstances affecting
    the child.

2.

If the threshold
    is met, the judge on the application must embark on a fresh inquiry into what
    is in the best interests of the child, having regard to all the relevant
    circumstances relating to the childs needs and the ability of the respective
    parents to satisfy them.

3.

This inquiry is
    based on the findings of the judge who made the previous order and evidence of
    the new circumstances.

4.

The inquiry does
    not begin with a legal presumption in favour of the custodial parent, although
    the custodial parents views are entitled to great respect.

5.

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.

6.

The focus is on
    the best interests of the child, not the interests and right of the parents.

7.

More
    particularly the judge 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 parents
    reason for moving,
only
in the exceptional case
    where it is relevant to that parents ability to meet the needs of the child;

f)

Disruption
    to the child of a change in custody;

g)

Disruption to the
    child consequent on removal from family, schools, and the community he or she
    has come to know.

In the end, the importance of the child remaining with the
    parent to whose custody it has become accustomed in the new location must be
    weighed against the continuance of full contact with the childs access parent,
    its extended family and its community. The ultimate question in every case is
    this: what is in the best interests of the child in all the circumstances, old
    as well as new?

Appellate Intervention is Warranted

[43]

The
    Supreme Court of Canada has confirmed the narrow scope of appellate review in
    all family law matters relating to custody and access:  see
Van de Perre v.
    Edwards
, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 11.  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:
Van
    de Perre
, at paras. 11-12.

[44]

In
    my view, appellate intervention in the present case is warranted for two
    reasons: the motion judge erred in law in placing the burden of proof on Mr.
    Sferruzzi, and he seriously misapprehended some aspects of Mr. Sferruzzis evidence
    and failed to afford it proper respect.

The Burden of Proof

[45]

The
    motion judge erred in law by placing the burden of proof on the appellant. 
    This error is evident from the following passage at p. 23 of the motion judges
    reasons:

I am called upon [to] decide whether, based on all of the
    factors, there is sufficient evidence to convince me that the proposed move and
    the related changes to Masons access to the respondent are in his best
    interest. [
Mr. Sferruzzi
]
has
    made the motion and bears the onus of satisfying me in that regard.
[Emphasis
    added.]

[46]

The
    second point in the extract from
Gordon
, set out above, makes it clear
    that once the threshold requirement of demonstrating a material change in the
    childs circumstances is met, the judge must embark on a fresh inquiry into
    the best interests of the child.  Accordingly, it was an error for the motion
    judge to approach the motion on the basis that the appellant had to persuade
    him that the relocation was in Masons best interests.  As the threshold had
    been met, the ultimate question on the motion was: what is in Masons best
    interests in all the circumstances, old as well as new? (See
Gordon
,
    at para. 50.)

Misapprehension of the Evidence

[47]

The
    motion judge further erred by misapprehending Mr. Sferruzzis evidence and by failing
    to afford his views, as the custodial parent, great respect: see
Gordon
,
    at para. 49.

[48]

At
    p. 19 of his reasons for judgment, the motion judge says:

Even if this is an exceptional case where the custodial
    parents reason for wanting to move relates to the best interests of the child,
    I am not satisfied that the evidence is sufficiently clear by way of a benefit
    for Mason to convince me that it should be given significant weight.

[49]

With
    respect, it appears that the motion judge fundamentally misapprehended Mr.
    Sferruzzis evidence as to the benefits to Mason from moving to Pickering.  The
    move has everything to do with Masons best interests.    Mr. Sferruzzi has had
    three stress leaves while caring for Mason.  He is the sole financial provider
    for Masons therapy.  He does not know if he can continue to pay between $2,500
    and $3,000 per month for Masons therapy.  He cannot continue to provide the
    lions share of Masons care, on his own.  If permitted to relocate to
    Pickering, he will have Ms. Packers support in looking after Mason, and in
    sharing the associated financial and emotional burdens.  Mason will have the
    benefit of a healthy, happy parent who is better equipped physically,
    emotionally, and financially to care for him.

[50]

Further,
    Ms. Shaw, a therapist who has been working with Mason for four years, gave evidence
    that she incorporates siblings into therapy where possible, because the sibling
    can engage the autistic sibling and, in some cases, provide an age appropriate
    example for the autistic child.  The motion judge gave no weight to the additional
    benefits likely to accrue to Mason from living with Nicholas, saying that
    there was no certainty about how the brothers relationship would develop.

Application of the Gordon Factors

[51]

In
    light of these errors, it falls to this court to apply the factors set out in the
    seventh point of para. 49 of
Gordon
.

[52]

Factor
    #1  the existing custody arrangement  This factor does not apply as there is
    no change to custody.

[53]

Factor
    #2  the existing access arrangement - The proposed arrangement will reduce the
    frequency with which Ms. Allan sees Mason.  However, provided that Mason spends
    the full access time with Ms. Allan  and not part of it in school or therapy 
    the amount of time will remain the same or slightly increase the overall number
    of hours they are able to spend together in any given month.

[54]

Factor
    #3  maximizing contact between the child and both parents  As indicated,
    while the frequency with which Ms. Allan sees Mason will be reduced, the
    overall time they will spend together will be roughly the same.  Further, and
    very importantly, Mr. Sferruzzi has committed to continuing to facilitate Ms.
    Allans access, including by providing financial support for the costs of
    access transportation.  There is nothing in the record to suggest that he will
    be anything but supportive of continued access.

[55]

Factor
    #4 - the views of the child - Mason is not capable of giving his views, thus
    this factor does not apply.

[56]

Factor
    #5  the custodial parents reason for moving as relevant to his ability to
    meet Masons needs  I will not repeat the comments made earlier except to reiterate
    that Mason will benefit from a happier, healthier, and more stable custodial parent. 
    Mr. Sferruzzi has had to take three stress leaves while caring for Mason.  Furthermore,
    he has borne the full financial cost of Masons treatment since the government
    funding ended.  If permitted to relocate, he will live with Ms. Packer.  The
    savings coming from joining the two households will lighten Mr. Sferruzzis
    financial burdens and stress, and ensure that he is able to continue to financially
    provide for Masons therapy.  Ms. Packers emotional and logistical support
    will also be invaluable in terms of Mr. Sferruzzis ability to meet Masons
    needs.  Further, as I have explained, there is the very real possibility that
    Mason will benefit from living with his brother, Nicholas.

[57]

Factor
    #6  disruption to the child of a change in custody  There is no change in
    custody and therefore this factor is not relevant.

[58]

Factor
    #7  disruption to the child consequent on removal from family, schools, and
    the community he or she has come to know  Several points need to be made in
    relation to this factor.

[59]

The
    first is that the nature of Masons condition has led to him to have little
    involvement with his community, apart from his family and therapists.  In a
    very real sense, there will be no disruption in that regard.

[60]

As
    for disruption in family relations, Mr. Sferruzzi led evidence to show that Ms.
    Allans family will continue to see him, as they did before, when Ms. Allan has
    access.  On the other side of the equation, Mason will benefit from being part
    of his brothers life, and part of Mr. Sferruzzi and Ms. Packers blended
    family.

[61]

There
    will be no additional disruption in terms of school as the fresh evidence shows
    that Mason would have had to have a new teacher and support worker even if he
    had remained at the same school.  The fresh evidence further shows that the new
    school in Pickering will provide a very consistent environment to that which Mason
    had in grade 1 in Waterloo.  And, Masons daily schedule will remain
    unchanged.

[62]

Further,
    Mr. Sferruzzi gave a great deal of evidence on how Masons treatment would be
    transitioned, if the move is permitted.  One salient piece of evidence, not
    referred to by the motion judge, relates to the IBI therapy that Mason
    receives.  Over the five years that Mason has been receiving IBI, he has had at
    least 16 instructor therapists.  If permitted to move, Masons current
    instructor therapist has committed to spending time with Mason and his new
    therapist in his new environment to effect a smooth transition.  This is the
    same process that was used by Masons prior instructor therapists.  There is no
    evidence that the previous changes of therapists caused any significant
    disruption to Mason.

CONCLUSION

[63]

The
    ultimate question is: considering all of the circumstances, old and new, what
    is in Masons best interests?  There will be some disruption caused by the move,
    of course.  But, for the reasons given, it is in Masons best interests to
    permit Mr. Sferruzzi to move, with Mason, to Pickering.

DISPOSITION

[64]

Accordingly,
    I would allow the appeal, set aside the Order and grant the appellant
    permission to move, with Mason, to the region of Durham, Ontario.  The
    respondent shall have access to Mason on alternating weekends from Thursday
    evening at 5:00 pm to Sunday at 12:30 pm, commencing the second Thursday after
    Mason moves to the region of Durham.  If the parties are unable to reach an agreement
    on arrangements for pickup and dropoff, they shall take the matter to the
    Superior Court.

[65]

The
    appellant has offered to pay the respondent $75 per month to help cover the
    costs of access transportation.  To the extent that an order is required to
    make this undertaking binding, I would so order.

Released: July 23, 2013 (E.E.G.)

E.E. Gillese
    J.A.

I agree. John Laskin J.A.

I agree. G.R. Strathy J.A.


