



COURT OF APPEAL FOR ONTARIO

CITATION: Porter v. Bryan, 2017 ONCA 677

DATE: 20170901

DOCKET: C63670

Laskin, Feldman and Miller JJ.A.

BETWEEN

Chad Porter

Applicant (Respondent)

and

Brooke Bryan

Respondent (Appellant)

Paul Mongenais, for the Appellant

Thomas Mann, for the Respondent

Heard: August 23, 2017

On appeal from the order of Regional Senior Justice R.D.
    Gordon of the Superior Court of Justice, dated February 1, 2017, with reasons reported
    at 2017 ONSC 756.

REASONS
    FOR DECISION

[1]

This appeal concerns the proposed relocation of a five year old child
    from Cochrane, Ontario to Thunder Bay. The parties, the childs father and mother,
    separated in November 2015. By a consent order dated September 16, 2016, they
    agreed to joint custody and a shared parenting schedule. That order was made
    without prejudice to the appellant mother bringing a mobility motion to move
    their son to Thunder Bay. That motion, heard on January 9, 2017, was dismissed.
    The mother appeals.

[2]

For the reasons that follow, we agree that the appeal should be allowed.

BACKGROUND

[3]

The nature of the mothers employment as a prisoner transport officer in
    Cochrane meant her schedule was unpredictable; sometimes working out of town,
    sometimes working overtime, sometimes both, and never knowing until the last
    minute. This would have impaired her ability to care for her son  not knowing
    in advance whether she would be called in to work in the morning before he went
    to school, or whether she would be home in time to pick him up again  but her
    employer temporarily accommodated her with a schedule that avoided
    unpredictable deployment. Eventually, however, her employer withdrew this
    accommodation. After exhausting her vacation time and sick leave, the mother
    resigned her position. Prior to her resignation, her employer invited her to
    apply for another position in Cochrane with a more parenting-friendly schedule.
    She was successful, but the employer subsequently had to revoke the offer.

[4]

The father is employed as a forest-fire crew leader with the Ministry of
    Natural Resources during the fire season from April to September. During his
    deployment, he is only resident in Cochrane eight to ten days per month. In the
    off-season, he is employed in Cochrane as a snow plow operator, municipal
    firefighter, and moose hunting guide. His extended family resides in Cochrane.

[5]

Post-resignation, the mother has not been able to find employment in
    Cochrane. She has, however, had multiple job offers in Thunder Bay, where her
    extended family and new partner live.

[6]

The mother argued that the move was necessary for her to remain
    financially viable, and to provide for her son, as she could find no employment
    in Cochrane that allowed her to fulfill her duties as a parent. She argued that
    she was her sons primary caregiver and, accordingly, her decisions about where
    to live and work ought to be given considerable weight.

[7]

The father opposed relocation on several bases. The principal objection
    is that relocation would, in the words of the motion judge, leave [the son]
    without meaningful parental influence from his father. He also argued that
    whatever financial hardship the mother is experiencing is entirely
    self-imposed, and that the necessity of taking employment in Thunder Bay is
    mere pretext to be with her new partner.

[8]

The motion judge disagreed that the mothers reasons were mere pretext.
    But he agreed with the father that neither party was the primary caregiver for
    the child, and that the mothers decisions about how best to meet the needs of
    the child were to be given no special consideration.

[9]

The motion judge characterized the issue before him as a matter of
    comparing the benefits to the child of remaining in Cochrane and maintaining a
    close relationship with his father, on the one hand, with the loss of that
    close relationship and gain of additional economic benefits from moving to
    Thunder Bay on the other. But he was unconvinced that there were any economic
    benefits to moving to Thunder Bay. He believed that the mothers financial
    difficulties were self‑imposed by her voluntary resignation from her job,
    and that she would be able to find suitable work in Cochrane. The motion judge
    therefore concluded that, from the childs perspective, life in Thunder Bay
    would provide no relevant benefit that he would not enjoy in Cochrane, but
    would carry the additional cost of a disruption with his relationship with his
    father. He dismissed the motion.

ANALYSIS

[10]

In dismissing the motion, the motion judge correctly applied the proposition
    from this court in
Berry v. Berry
, 2011 ONCA 705, 285 O.A.C. 366 that
    the superordinate consideration in a mobility case is the best interests of
    the child, determined from a child-centred perspective (para. 10). Accordingly,
    in assessing the mothers reasons for moving, the motion judge correctly held
    that the only reasons relevant to the analysis were those that related to her
    ability to meet the needs of her son.

[11]

A motion judges decision not to allow a relocation is discretionary and
    it is not the place of this Court to engage in a rebalancing of the factors
    identified in
Berry
. However, as explained below, the motion judge made
    an error in principle by not characterizing the mother as the primary caregiver
    of the child, which led to the further error that her reasons for moving were
    not entitled to the serious consideration required by
Gordon v. Goertz
,
    [1996] 2 S.C.R. 27.

[12]

Furthermore, the motion judge made a palpable and overriding error in
    concluding that the mothers financial difficulties were self-imposed. They
    were not. Her resignation resulted from her employers withdrawal of an
    accommodation that had made her former employment compatible with her parenting
    responsibilities.

[13]

The motion judge further erred in finding that the mother could be
    expected to find suitable employment in Cochrane. There was no evidence on
    which to base that finding. Although the motion judge did not have the benefit
    of the mothers fresh evidence, that evidence attests both to her continued
    inability to find work in Cochrane, and her employment opportunities in Thunder
    Bay.

[14]

The Supreme Court of Canada held in
Goertz
, at para. 48, that where
    assessing a motion to relocate:

the views of the custodial parent, who lives with the child
    and is charged with making decisions in its interest on a day-to-day basis, are
    entitled to great respect and the most serious consideration. The decision of
    the custodial parent to live and work where he or she chooses is likewise
    entitled to respect, barring an improper motive reflecting adversely on the
    custodial parents parenting ability.

[15]

The motion judge held that in circumstances of joint and shared custody,
    there is no primary caregiver, and therefore neither parents interests can have
    greater weight than the others.

[16]

We do not agree that the legal status of joint and shared custody
    forecloses the possibility that one parent can be, for the purposes of a
    mobility motion, the primary caregiver. On the record before us, it is evident
    that although the parties have joint and shared custody, the mother is
    nevertheless the primary caregiver. This conclusion is not only supported by
    the mothers evidence, but from the fathers admission on his Form 35.1
    affidavit, his answers in cross-examination, and affidavits from two of the
    fathers aunts. Accordingly, the consideration articulated in
Goertz
comes into play, and the mothers reason for moving bears special consideration.

[17]

There is, in our view, a valid and compelling parenting-based reason for
    the move: it is necessary to enable the primary caregiver to remain financially
    viable while providing care for the child. The mother has done all she can be
    expected to do to secure employment in Cochrane. It has not worked out, and
    there is no good reason for her and her son to live in poverty when she has
    secured employment in Thunder Bay that will allow her both to parent her son
    and to provide economically for him.

[18]

We are encouraged in this result by the mothers offer to facilitate
    access by providing air travel to Cochrane for the child, taking advantage of
    an employment benefit of her new job in Thunder Bay. She is also willing, we
    are advised, to accept an unequal sharing of summer and non-school days during
    the school year to accommodate the fathers work schedule as a forest firefighter
    deployed across Canada.

[19]

There was some uncertainty as to whether the order appealed from was a
    final or an interim order. The procedure leading up to the order was somewhat
    irregular, but the motion judge found the order to be final. As a result, the appeal
    is properly before this Court.

[20]

As a consequence of our order, a new access regime will be required. The
    parties are encouraged to work out an acceptable access schedule as between
    them. However, if that is not possible, they may return on motion to the
    Superior Court of Justice in Thunder Bay.

DISPOSITION

[21]

The appeal is allowed, and the appellant mother is permitted to move the
    child to Thunder Bay. The mother is entitled to costs in the amount of $7,000,
    inclusive of disbursements and HST.

John Laskin J.A.

K. Feldman J.A.

B.W. Miller J.A.


