





CITATION:
Berry v. Berry, 2011
          ONCA 705



DATE: 20111114



DOCKET: C52936



COURT OF APPEAL FOR
          ONTARIO



OConnor
          A.C.J.O., Juriansz and Watt JJ.A.



BETWEEN



Lisa Michelle Berry



Applicant (Respondent in Appeal)



and



Adrian Deryck Berry



Respondent (Appellant in Appeal)



Aaron Franks and Michael Zalev,
          for the appellant



Cory Deyarmond, for the respondent



Heard: October 17, 2011



On appeal from the endorsement of Justice Victor Paisley of
          the Superior Court of Justice, dated October 20, 2010.



Juriansz J.A.:

[1]

Despite
    the substantial deference owed to a trial judges discretion in custody and
    access matters, I have reluctantly concluded that this appeal must be allowed.
    The trial judges reasons demonstrate several errors in his application of the
    factors that govern mobility applications as set out in the Supreme Court of
    Canadas decision in
Gordon v. Goertz
, [1996] 2 S.C.R. 27.

Background

[2]

The
    parties married in Toronto in 2000. They had a son in 2007. The child was born
    with severe health issues and was subsequently diagnosed with Noonans
    Syndrome. He has had surgeries and faces the prospect of further surgeries when
    older. The parties separated early in 2010. They lived and worked in Toronto
    during their entire marriage. The mother grew up in Belleville, and after
    attending the University of Ottawa, moved to Toronto in 2000. The father lived
    in Toronto essentially his whole life. Both mother and father recognize each
    other as loving parents who provide good care for the child. For the most part,
    since their separation, they have acted reasonably and cooperated with each
    other. The parents agreement about the childs need for special medical care is
    an example of this cooperation, and so that need was not in issue in the
    mothers mobility application.

[3]

Upon
    filing an application for divorce, the mother brought an urgent motion
    returnable May 4, 2010 for custody of the child and for an Order granting
    permission to relocate on a permanent basis with the child to Kingston,
    Ontario. Czutrin J. adjourned the motion to June 10, 2010 and held a case
    conference. On June 10, 2010, the matter came before Kelly J.  Kelly J. stated,
    Based upon the evidence before me, I am unable to decide the issue of mobility
    on an interim basis. I am reluctant to allow [the child] to move from Toronto
    to Kingston until there has been an opportunity to determine his best interests
    following a complete and full hearing on all of the relevant evidence. She
    indicated that she was guided by the principle in
Datars v. Graham
(2007),
    41 R.F.L. (6th) 51 (Ont. S.C.J.) at para. 16:



The
        problem that this court faces on this motion [mobility] is that it is
        difficult if not impossible in most cases to complete the extensive child-focused
        inquiry required under
Gordon v. Goertz
on the typically conflicting and
        incomplete affidavit evidence that is often available to the court on interim
        motions.



[4]

Kelly
    J. added that [t]here is conflicting evidence in this case which must be
    resolved by way of a trial and stated her view that there is no compelling
    reason for the wife to move with [the child] to Kingston at this time. There is
    no situation of emergency or crisis. She concluded that the matter of
    mobility should proceed to trial, which was set for September 20, 2010. In the
    interim, she ordered that the childs primary residence be Toronto and that the
    parties have equal access to the child on a rotating 3 day/4 day basis.

[5]

After
    Kelly J.s order, the mother moved to Kingston to be near her sister and
    brother-in-law.

[6]

The
    issues, then, that came before the trial judge were custody, child support and
    the mothers motion to move with the child from Toronto to Kingston. During the
    course of the six day trial, the parties agreed to share joint legal custody of
    the child. The parties also agreed to make written submissions on the child
    support issue if they could not resolve it on consent. This left the mothers
    motion to move to Kingston with the child as the only issue to be decided by
    the trial judge.

[7]

The
    trial judge proceeded on the basis that the sole issue to be decided is
    whether [the child] will reside primarily with his mother in Kingston Ontario,
    or primarily with his father in Toronto, Ontario. He found that it was in the
    childs best interest to reside primarily with the mother in Kingston. His
    order provided access to the father on alternate weekends from Thursday at 5:00
    p.m. to Sunday at 5:00 p.m., to be extended to Monday at 5:00 p.m. in the event
    that a holiday Monday fell on an access weekend. An alternate schedule was
    ordered for when the child commences school on a full-time basis, and for
    holidays.

[8]

On
    December 16, 2010, Rosenberg J.A. stayed the trial judges order. Pending
    appeal, he ordered that the child live with the father in Toronto from Thursday
    at 5:00 pm to Sunday at 7:00 pm, and with the mother in Kingston otherwise.

The Test

[9]

The
    sole issue that remained at trial was the mothers motion to relocate to
    Kingston with the child. The parties agreed that the legal test set out in the Supreme
    Courts decision in
Goertz
, the leading authority on mobility
    applications, applied. In
Goertz
, the mother had sole permanent custody
    of the child and the father had generous access. The father applied for an
    order restraining the mother from taking the child out of the jurisdiction, and
    the mother cross-applied for an order allowing the move. This case differs from
Goertz
in that here both parties are custodial parents and there is no
    previous custody order to vary. Here, there is no threshold issue of whether
    there has been a change of circumstances since a previous custody order, and
    there is no relationship between the child and an access parent to consider. With
    the necessary adjustments, then, the principles from
Goertz
apply to
    this case.

[10]

In
Goertz
, the Supreme Court emphasized that the superordinate
    consideration in a mobility case is the best interests of the child determined
    from a child-centered perspective. The court set out, at para. 14, a number of
    factors to be considered. Taking into account that this case involves two
    custodial parents, those factors can be stated as follows:


·

the existing
      custody arrangement and relationship between the child and each of the
      custodial parents;

·

the
      desirability of maximizing contact between the child and both parents;

·

the views of
      the child (when applicable);

·

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;

·

disruption to
      the child of a change in custody; and

·

disruption to
      the child consequent on removal from family, schools, and the community the
      child has come to know. [Emphasis in original.]


Analysis

[11]

While
    the trial judge correctly identified the
Goertz
decision as the
    governing authority for this case, he erred in applying its principles.

[12]

In
    particular, the trial judge failed to give sufficient weight to the principle
    that a child should have as much contact with each parent as is consistent with
    the childs best interests. Instead, the trial judges reasons focus almost
    exclusively on the mothers reason for moving. A parents reason for moving is
    a proper consideration only in exceptional cases where it is relevant to the
    parents ability to care for the child. Where applicable, the parents reason
    for moving, like all the factors, should be considered from a child-centred perspective.

(i)
    Maximum Contact

[13]

The
    trial judge erred by failing to give sufficient weight to the maximum contact
    principle. He stated that maximizing the contact between a young child and both
    parents
is
    not the
primary
    goal. It is but one of a number of factors that has to be weighed and
    considered intelligently in a case where the parties cannot agree. In
Goertz
,
    McLachlin J. pointed out that the maximum contact principle is one of the two statutory
    factors set out in ss. 16(10) and 17(9) of the
Divorce Act
, R.S.C.,
    1985, c. 3 (2nd Supp.), and added that the reviewing judge must bear in mind
    that Parliament has indicated that maximum contact with both parents is
    generally in the best interests of the child (
Goertz
, at para. 25).

[14]

The
    trial judges statement that if the child lived primarily with his mother in
    Kingston, the child would continue to have regular contact with his father,
    and his statement that the child would not suffer by virtue of living in
    Kingston, are further indications of his inadequate weighing of the maximum
    contact principle.

[15]

The
    failure to attach appropriate weight to the maximum contact principle led the
    trial judge to make an order under which the child, who had been living
    approximately half the time with the father since the separation, would see his
    father only every other weekend. In addition, under the order, the child would
    spend less time with his paternal grandparents, who had cared for him after the
    mother returned to work at the end of her maternity leave. The trial judge did
    not adequately consider the disruption to the child inherent in this change.

(ii) Reason for
    the Move

[16]

The
    factor to which the trial judge attached the greatest weight was the mothers
    reason for moving to Kingston. In
Goertz
, the Supreme Court clearly
    stated that the parents reason for moving is to be considered only in exceptional
    cases and only as it is relevant to the parents ability to meet the needs of
    the child.

[17]

Here,
    the trial judge did conclude that the mothers reason for moving was relevant
    to her ability to care for the child. That conclusion was based on the trial
    judges view that the paternal extended family had failed to respect the
    privacy and boundaries that a husband and wife have the right to expect and
    that the mother found their presence controlling, suffocating, and
    overwhelming. He also based his conclusion on the mothers lack of support in
    Toronto.

[18]

The
    trial judges conclusions about the paternal family were based on their conduct
    during the marriage and around the time of separation. In fact, the trial judge
    relied on the grandfathers conduct as far back as the time of the childs
    birth in granting the mothers application to move with the child.  He also
    reviewed at length an incident on February 2, 2010, the date the parties
    separated, when the paternal grandfather physically impeded the mother as she
    reached for her child. That conduct was clearly inexcusable, and it is relevant
    to understanding the mothers desire to move. However, in order for it to be
    relevant to the mobility application, it would have to be connected to the
    childs best interests in the circumstances after the parties separation.

[19]

The
    trial judge was also persuaded that the mother had no family support in Toronto
    and couldnt function well there, but that she would have the support of her
    sister in Kingston. This was another reason cited by the trial judge as relevant
    to the mothers ability to meet the needs of the child. However, the mothers
    stated wish to have the support of her sister and a friend in Kingston had to
    be considered in the context that the parties resided in Toronto throughout
    their marriage and the child lived in Toronto his whole life. Her application
    was to relocate the child to Kingston. While the mothers wish to move to
    Kingston and live with her sister is understandable, the evidence did not
    establish that the move was necessary in order for her to meet the needs of the
    child. There was no evidence in this case that she would be anything but a good
    mother to the child no matter where she lived.

[20]

The
    trial judge did mention two recent incidents, but properly did not rely on them
    in determining the mothers ability to meet the needs of the child while
    remaining in Toronto. First, in considering reports that the child said he did
    not want to go to mommys apartment, the trial judge found that this
    sentiment was communicated to the child by the paternal family, albeit
    unintentionally. The trial judge reasoned that attributing this sentiment to
    the child was inconsistent with the Kingston witnesses testimony of how happy
    the child is with his mother. Second, the trial judge criticized the father for
    unilaterally deciding to take the child off pain medication prescribed by his
    doctor.

[21]

The
    fresh evidence also indicates that the mother recently failed to involve the
    father in the childs enrolment in school.

[22]

These
    recent incidents are mentioned here as a reminder to the parties that parents
    and their families should actively foster a childs relationship with both
    parents. As well, all significant decisions about the child must be discussed
    with the other custodial parent. Both parents need to minimize conflict between
    them for the benefit of their child.  I encourage them to continue to exhibit
    the cooperation they have largely shown in ensuring that their childs best
    interests are met.

(iii)
    Choosing between parenting plans

[23]

The
    trial judges reasons, read as a whole, disclose that he lost sight of the fact
    that the matter before him was the mothers application to relocate with the
    child. He made clear that his approach to the situation and his analysis were
    based upon the mother living permanently in Kingston and the father in Toronto.
    He saw his task as choosing between the parenting plans each had submitted. In
    doing so, he committed both an error of fact and an error of law.

[24]

It
    was an error of fact because the trial judges finding that the mother
    permanently moved to Kingston was contrary to the evidence. The mother stated
    clearly in her evidence in chief that if the court refused her application she
    would live in Toronto.

[25]

It
    was an error of law because the sole issue to be decided at trial was whether
    the mothers application to relocate to Kingston with the child should be granted
    as in the childs best interests. The trial judge erred by regarding the sole
    issue as whether [the child] will reside primarily with his mother in Kingston
    Ontario or primarily with his father in Toronto, Ontario.

Conclusion

[26]

The
    findings of the trial judge indicate that the child has always benefited from
    having two loving, caring and engaged parents.  Both parents also accept each
    other as such. Since the separation, the child has lived, more or less equally,
    with each parent in turn. The child has close bonds with the paternal extended
    family. The child is especially close to the paternal grandfather. Since the
    mothers move to Kingston, the child has also developed relationships with her
    family there.

[27]

Given
    the young age of the child, and the finding of the trial judge that the views
    of the child, to the extent they are capable of being known, do not reflect his
    actual views, there are no views of the child to consider. This is not an
    exceptional case in which it is appropriate to consider the mothers reasons
    for moving. As far as minimizing disruption to the child is concerned, reducing
    the time the child lives with the father from approximately half the time to
    every second weekend, is highly disruptive. It is also disruptive to be regularly
    shuttled back and forth between two cities. While the maximum contact principle
    is not absolute, it is mandatory. The trial judge did not attach proper weight
    to the maximum contact principle and instead relied inappropriately on the
    paternal familys past conduct as justifying the mothers desire to move.  As the
    court decided in
Woodhouse v. Woodhouse
(1996), 29 O.R. (3d) 417 (C.A.),
    while being with a a happy parent has a positive effect on a child, the legal
    test focuses on maximizing contact with both parents and minimizing disruption
    to the child.

[28]

I
    would grant the appeal, set aside the order below and replace it with an order
    refusing the mothers application.

[29]

If
    the parents are unable to agree on a schedule for the childs living
    arrangements in Toronto, they may re-attend before the Superior Court.

[30]

The
    father did not seek costs in this court nor in the court below.

[31]

I
    would suspend the effect of this courts order for 60 days to allow for a
    smooth transition.

R.G. Juriansz J.A.

I agree D.R. OConnor A.C.J.O.

I agree David Watt J.A.

RELEASED:

November 14, 2011


