



COURT OF APPEAL FOR ONTARIO

CITATION:
Trisolino v. De
    Marzi, 2013 ONCA 135

DATE: 20130306

DOCKET: C55851

Winkler C.J.O., Armstrong and Hoy JJ.A.

BETWEEN

Antonella Trisolino

Applicant (Respondent)

and

Alexander Christian David De Marzi

Respondent (Appellant)

Darrell S. Waisberg and Jennifer A. Greenwood, for the
    appellant

Phyllis Brodkin, for the respondent

Heard: February 27, 2013

On appeal from the order of Justice Michael A. Penny of
    the Superior Court of Justice, dated July 5, 2012.

ENDORSEMENT

[1]

The father appeals the July 5, 2012 order of the trial judge, permitting
    the respondent mother to move to Italy with the two children of the marriage,
    aged 10 and 7.

[2]

The father submits that the trial judge correctly identified
Gordon
    v. Goetz
(1996), 2 S.C.R. 27, 134 D.L.R. 321 (S.C.C.), the leading
    authority on parental mobility, as the governing authority.  He argues,
    however, that the trial judge erred in his application of the principles of
Gordon
    v. Goetz
to the facts of this case.  In particular, he asserts that the
    trial judge (i) focussed almost entirely on the mothers reasons for moving and
    confused her best interests with those of the children, (ii) failed to take
    into account and give sufficient weight to the disruption to the children
    should they be taken to Italy, particularly given the fact that the children
    are benefitting from Independent Educational Programs in their school in
    Toronto, and (iii) failed to give sufficient weight to the desirability of
    maximizing the childrens contact with both parents.

[3]

As to the first alleged error, the father notes that
Gordon v. Goetz
directs that the judge should consider the parents reason for moving only in
    the exceptional case where it is relevant to that parents ability to meet the
    needs of the child.  At para. 61, the trial judge wrote:

The reasons for the move are only relevant insofar as they have
    a direct bearing on the best interests of the children.  In the circumstances
    of this case, I believe the reasons for the move do have a direct bearing on
    the childrens best interests, both emotionally and financially.

[4]

We agree that in this case the reasons for the move are relevant. The mothers
    reasons for the move reflect her perception of the needs of the children, and
    her judgment about how those needs may best be fulfilled.  We accordingly do
    not give effect to the first ground of appeal.

[5]

As to the second alleged error, the trial judge noted that the father
    placed great weight on the disruption to the children that would arise from the
    move, including to their educational progress.  The trial judge reviewed the
    fathers submissions on the issue of disruption, and the mothers plan for the
    children.  The trial judge noted that the children hold Italian citizenship and
    are fluent in Italian. (Indeed, the evidence with respect to the childrens
    problems in school is that they are especially with the English.) Moreover,
    the trial judge found that the mother, the childrens primary caregiver, had
    identified a good school in Rome which is sensitive to foreign students. The
    trial judge concluded, at para. 73:

Thus, while there will, no doubt, be significant disruptions,
    there are offsetting benefits in Mothers plan for relocation which will
    mitigate the negative impact of these disruptions, at least to some extent.

[6]

There is no basis for interfering with this conclusion.

[7]

As to the third issue, namely whether the trial judge gave sufficient
    weight to the principle of maximizing contact with both parents, it must be
    noted that this is an unusual case. The parties have not yet separated; the
    parties will separate if the mother and children are not permitted to relocate.
    The trial judge noted, at para. 56 of his reasons, that the father did not know
    whether he would re-locate to Italy if the mother were permitted to move there
    with the children.  The trial judge fully appreciated that if the father chose
    not to accompany the mother and children to Italy, his contact with the
    children would necessarily be significantly curtailed.

[8]

Notably, the mother and father met in Italy. The mother is Italian, the
    children were born in Italy and the family lived in Italy during the childrens
    early years. The mother  a lawyer  can only practice her profession in Italy.
    The father  a waiter  is Canadian but speaks fluent Italian, can work in
    either country, and, in fact, worked in Italy as a waiter when the children
    were younger. The father wanted to return to Canada and ultimately threatened
    that he would do so  with or without the mother and children.  While the
    father says he did not mean it, to keep the family together, the mother
    capitulated and they moved to Canada. In Canada, the father has been the
    familys sole financial provider. The children have a large, supportive family
    in Rome who are well-known to them.

[9]

Balancing the risks and benefits associated with permitting the mother
    to move to Italy, the trial judge concluded that it was in the best interests
    of the children to permit the mother to relocate to Italy with them.

[10]

The
    trial judge in our view conducted the full and sensitive inquiry into the best
    interests of the children mandated by
Gordon v. Goetz
and made no
    reversible error in doing so.  We accordingly dismiss this appeal.

[11]

In the circumstances, there will be no award as to costs.

Warren K. Winkler C.J.O.

Robert P. Armstrong J.A.

Alexandra Hoy J.A.


