



COURT OF APPEAL FOR ONTARIO

CITATION: Reeves v. Brand, 2018 ONCA 263

DATE: 20180319

DOCKET: C63763

Laskin, Huscroft and Paciocco JJ.A.

BETWEEN

Terri Jo Reeves

Applicant (Respondent)

and

Irene Michelle Brand

Respondent (Appellant)

Ryan Kniznik, for the appellant

Stephen Codas and Sarah Strathopolous, for the
    respondent

Heard: December 18, 2017

On appeal from the order of Justice James Diamond of the Superior
    Court of Justice, dated April 24, 2017, with reasons reported at 2017 ONSC 2306,
    and from the costs order, dated June 12, 2017.

Laskin J.A.:

A.

introduction

[1]

The appellant, Irene Brand, and the respondent, Terri Jo Reeves
    separated in 2015 after being married for nearly nine years. Both are in their
    early 40s. Ms. Brand is a police officer; Ms. Reeves has worked in the
    financial industry. During their marriage they lived mainly in Toronto.

[2]

Ms. Brand and Ms. Reeves are the parents of a young boy, Ray
[1]
,
    who just turned six years of age. After Ms. Brand and Ms. Reeves separated,
    they litigated over custody of Ray and where he should live. Ms. Brand sought
    joint custody and asked that Ray remain in Toronto. Ms. Reeves sought sole
    custody and permission to relocate with Ray to New Ross, Nova Scotia, where her
    parents live and where Ray has spent considerable time.

[3]

After a seven-day trial during which 17 witnesses testified, the trial
    judge granted the relief Ms. Reeves asked for. He then set out a detailed
    access schedule, intended to give Ms. Brand reasonable, frequent contact with
    Ray. He also awarded Ms. Reeves costs of the action, which he fixed in the
    amount of $92,500.

[4]

In June 2017, Ms. Brand brought a motion to stay the trial judges order
    pending appeal. Justice Miller dismissed the motion.

[5]

Ms. Brand appeals all aspects of the trial judges judgment. She makes
    the following four submissions:

1.

The trial judge
    erred by failing to award joint custody because he made legal and factual
    errors concerning the level and quality of communication between the parties;

2.

The trial judge
    erred by permitting Ray and Ms. Reeves to relocate to New Ross, Nova Scotia
    because he:

·

failed to give sufficient weight to the principle of maximum
    contact;

·

failed to consider the disruption to Rays relationship with Ms.
    Brand and her family, and to his life in Toronto; and

·

improperly focused exclusively on Ms. Reeves reasons for wishing
    to relocate.

3.

The trial
    judges access schedule is unreasonable because it turns Ms. Brand into a
    holiday parent, and his order that Ray cannot stay anywhere without Ms. Brand
    for more than four hours undermines rather than promotes frequent contact; and

4.

The trial judge
    erred in principle in his costs award; he ought to have awarded no costs, or at
    most $70,000 in costs.

[6]

I would not give effect to Ms. Brands first two submissions. Trial
    judges decisions on custody and relocation are entitled to significant
    deference on appeal:
Van de Perre v. Edwards
, 2001 SCC 60, [2001] 2
    S.C.R. 1014, at paras. 11-13. Invariably, trial judges are in a better position
    than court of appeal judges to determine a childs best interests. Ms. Brands
    challenge to the trial judges decisions on custody and relocation are largely
    an attack on his findings of fact. Those findings are reasonably supported by
    the record, and thus appellate intervention is not justified.

[7]

I would give effect to one aspect of Ms. Brands submission on the trial
    judges access schedule. In my view, the four-hour restriction imposed by the
    trial judge is unnecessary, contrary to his own finding on the bond between Ray
    and Ms. Brand and her family, and not in Rays best interests. I would delete
    this restriction from the trial judges access schedule.

[8]

Finally, I would not grant Ms. Brand leave to appeal the trial judges
    cost award. Although the award is sizable, it falls within the trial judges
    broad discretion over costs, and reflects no error in principle.

B.

The issues

(1)

Did the trial judge err by failing to award joint custody because he
    made legal and factual errors concerning the level and quality of communication
    between the parties?

[9]

The trial judge concluded that awarding Ms. Reeves sole custody of Ray
    was in Rays best interests. At para. 48, he found that Ms. Reeves ha[d] been Rays
    primary care giver for the majority of his life and in particular for the last
    three years. In his view, Ms. Reeves is the parent to whom Ray is most
    closely bonded, and is not only his primary care giver, but his psychological
    parent.

[10]

The
    trial judges findings and his views are firmly grounded in the evidence. Once
    Ray turned two and a half years old, by agreement, Ms. Brand became the sole
    income earner for the family as a member of the police force, while Ms. Reeves
    became a stay at home mother. Ms. Reeves made all the major decisions for Ray 
    medical, social, choice of school  and Ms. Brand trusted her to do so.

[11]

Nonetheless,
    one aspect of the trial judges decision to award sole custody of Ray to Ms.
    Reeves and to reject an order for joint custody was his concern about the quality
    of communication between Rays parents. He found at para. 46 that Ms. Reeves and
    Ms. Brand have been unable to communicate in a constructive way on any
    sustained basis, and in particular with respect to substantive issues
    concerning Rays life.

[12]

Ms.
    Brand challenges this finding. She submits that the trial judge erred in law
    because communication between parents does not have to meet a standard of
    perfection for joint custody to be awarded. And she submits that the trial
    judges finding is tainted by factual errors because her ability to communicate
    with Ms. Reeves about Ray is and was much better than the trial judge made it
    out to be.

[13]

I
    do not accept these submissions. At para. 11 of
Kaplanis v. Kaplanis
(2005)
, 249 D.L.R. (4th) 620 (Ont. C.A.),
    in a passage quoted by the trial judge, Weiler J.A. commented on the level and
    quality of communication required for a joint custody order:

The fact that one parent professes an inability to communicate
    with the other parent does not, in and of itself, mean that a joint custody
    order cannot be considered. On the other hand, hoping that communication
    between the parties will improve once the litigation is over does not provide a
    sufficient basis for the making of an order of joint custody. There must be
    some evidence before the court that, despite their differences, the parents are
    able to communicate effectively with one another. No matter how detailed the
    custody order that is made, gaps will inevitably occur, unexpected situations
    arise, and the changing developmental needs of a child must be addressed on an
    ongoing basis.

[14]

The
    trial judge applied Weiler J.A.s comments from
Kaplanis
. He made the
    following specific findings at paras. 43, 44, and 46 of his reasons:

·

[I]n my view the parties have encountered and experienced poor
    parenting communication, especially since they separated. They have effectively
    ceased communicating, as [Ms. Brand] feels very upset with what she considers
    to be [Ms. Reeves] efforts to marginalize her as a parent, and [Ms. Reeves]
    feels trapped in an unworkable predicament.

·

[Ms. Brand] points to various text messages exchanged between
    herself and [Ms. Reeves] as evidence that the parties have made reasonable and
    consistent efforts to ensure reciprocal communication. In my view, these text
    messages are, for the most part, concerned with financial matters[.]

·

Hope that communication between parents may improve once
    litigation is over is not a sufficient basis to support an order for joint
    custody. I find that [Ms. Reeves] and [Ms. Brand] have been unable to
    communicate in a constructive way on any sustained basis, and in particular
    with respect to substantive issues concerning Rays life.

[15]

The
    record supports these findings, which are consistent with
Kaplanis
,
    and which ground the trial judges ultimate finding that the parties inability
    to communicate constructively about Ray was an important reason not to award
    joint custody. I therefore decline to interfere with the trial judges decision
    to grant Ms. Reeves sole custody of Ray.

(2)

Did the trial judge err by permitting Ray and Ms. Reeves to relocate to
    New Ross, Nova Scotia?

[16]

Having
    decided that Ms. Reeves was entitled to sole custody of Ray, the trial judge
    then decided that she and Ray be allowed to relocate from Toronto to New Ross,
    Nova Scotia, where Ms. Reevess parents live. Ms. Brand submits that the trial
    judge erred by permitting Ray to relocate. In support of her submission she
    contends that the trial judge made three errors:

·

He failed to give sufficient weight to the principle of maximum
    contact enshrined in s. 16(10) of the
Divorce Act
, R.S.C. 1995, c. 3
;

·

He failed to consider the disruption to Rays relationship with
    Ms. Brand and her family, and to his life in Toronto; and,

·

He improperly focused exclusively on Ms. Reeves reasons for
    wishing to relocate.

[17]

Relocation
    or mobility cases, where one parent wants to take a child and move some
    distance away from the other parent, are among the most difficult cases in
    family law. If the custodial parent is permitted to move with the child,
    inevitably the relationship between the non-custodial parent and the child will
    be affected and may suffer. Typically the court must balance the custodial
    parents legitimate interest in relocating with the non-custodial parents
    legitimate interest in maintaining a relationship with the child. But in every
    case, the ultimate question is what is in the best interests of the child.

[18]

I
    am satisfied that the trial judge sensitively balanced the competing interests
    of Ms. Brand and Ms. Reeves, and in permitting relocation, made an order in
    Rays best interests. And I am not persuaded that he erred in any of the three
    ways Ms. Brand alleges.

[19]

This
    case differs from many of the relocation cases that come before the court in
    two important ways. These two differences provide context for the three errors
    Ms. Brand alleges. First, this is not a case where relocation will sever a long
    standing bond between Ray, and Ms. Brand and her family. For most of Rays life,
    he has had no bond, indeed no relationship at all with Ms. Brands family.  Indeed,
    the trial judge found at para. 59 that Rays bond with Ms. Brand and her family
    was created post-separation, and is not something that has been maintained
    from the time of [Ms. Reeves and Ms. Brands] marriage.

[20]

Second,
    this is not a case where the move to Nova Scotia will take Ray from a known
    home to a new and speculative environment. As the trial judge fairly observed, since
    he was born, Ray has been connected to Ms. Reeves family in New Ross and
    benefitted from their support. He has spent at least one-quarter of his life
    there. The support of the community and the Reeves family in New Ross has been
    part of Rays status quo. As the trial judge found, from Rays perspective, a
    relocation to New Ross is a return to what is known to him.

(a)

The trial judge gave sufficient weight to the maximum contact principle

[21]

Subsection
    16(10) of the
Divorce Act
enshrines the principle of maximum contact
    with both parents:

[T]he court shall give effect to the principle that a child of
    the marriage should have as much contact with each spouse as is consistent with
    the best interest of the child and, for that purpose, shall take into
    consideration the willingness of the person for whom custody is sought to
    facilitate such contact.

The principle is important in custody disputes because
    maximum contact with both parents is usually in the childs best interests.

[22]

Ms.
    Brand submits that the trial judge did not give sufficient weight to this important
    principle. I do not agree with her submission. I make three points. First, the
    maximum contact principle is not an absolute principle; if it were very few
    relocation requests would ever be allowed. Instead, as this court said in
Bjornson
    v. Creighton
(2002)
, 62 O.R.
    (3d) 236 (C.A.), at para. 34, though the maximum contact principle is obviously
    important, it remains one factor in the whole of the analysis. It ought not to
    be treated as the governing factor. And in
Gordon v. Goertz
, [1996] 2
    S.C.R. 27, still the leading case on mobility, McLachlin J. said at para. 24:

The "maximum
    contact" principle, as it has been called, is mandatory, but not absolute.
    The [
Divorce Act
]
    only obliges the judge to respect it to the extent that such contact is consistent
    with the childs best interests; if other factors show that it would not be in
    the childs best interests, the court can and should restrict contact:
Young
    v. Young
,
1993 CanLII 34 (SCC)
,
[1993] 4 S.C.R. 3
, at pp. 117-18.

[23]

Second,
    the submission that the trial judge did not give sufficient weight to the
    maximum contact principle is not a basis for appellate intervention. Mobility
    or relocation decisions are discretionary decisions:
Porter v. Bryan
,
    2017 ONCA 677, at para. 11; and
Elliott v. Elliott
, 2009 ONCA 240, 247
    O.A.C. 174, at para. 19. The exercise of discretion involves the weighing of
    relevant considerations  here the maximum contact principle. To accede to the
    submission that an appeal court should intervene because it would have given more
    weight to a relevant consideration is to abandon discretion altogether. To be
    justified in interfering, an appellate court would have to be satisfied that
    the trial judges exercise of discretion was unreasonable. See:
R. v.
    McKnight
(1999)
,
135 C.C.C. (3d) 41

(Ont. C.A.),
at para. 35; and
Ursic
    v. Ursic
(2006), 32 R.F.L. (6th) 23 (Ont. C.A.), at paras. 18-19.


[24]

Third,
    in my view the trial judge took account of the maximum contact principle and
    reasonably applied it; even to use Ms. Brands phrase, he gave it sufficient
    weight. Appellate intervention is therefore not justified. Specifically at
    para. 61 of his reasons, the trial judge found that:

[Ms. Reeves] is well aware and promotes the maximum contact
    principle, and despite the obvious adverse consequences which her relocation
    with Ray to New Ross would have upon [Ms. Brand], [Ms. Reeves] has and
    continues to recognize the importance of  [Ms. Brands] relationship with Ray.
    Post-separation, she has continued to attempt to involve [Ms. Brand] in Rays life,
    including having [Ms. Brand] join the Reeves family in New Ross twice in late
    2015, and inviting [Ms. Brand] to [Ms. Reeves] sisters home in Huntington,
    New York.

[25]

Consistent
    with this finding, Ms. Reeves proposed an access schedule intended to facilitate
    Ms. Brands access to Ray. Thus the trial judge justifiably found at para. 62
    of his reasons:

[Ms. Reeves] draft Order proposed an extensive access schedule
    for [Ms. Brand] with substantial parenting time mindful of [Ms. Brands]
    vacation allotment and work schedule. On the record before me, I do not find
    that [Ms. Reeves] request to relocate with Ray to New Ross is being made with
    any intention to impede [Ms. Brands] access or minimize her involvement in
    Rays life.

[26]

The
    trial judges application of the maximum contact principle differs from the
    trial judges application of it in
Berry v. Berry
,
2011 ONCA 705, 343 D.L.R. (4th) 501, on
    which Ms. Brand relies. There, this court intervened because the trial judges
    reasons reflected an inadequate weighing of the principle (see para. 14). In
    other words, the trial judge in
Berry
applied the principle
    unreasonably. By contrast, the trial judge in this case applied the principle
    reasonably. He made no error.

(b)

The trial judge took into account the potential disruption to Rays
    relationship with Ms. Brand and her family and to his life in Toronto

[27]

At
    para. 49 of
Gordon v. Goertz
,
McLachlin J. said that, in a relocation case, the court must always consider
    the disruption to the child consequent on removal from family, schools and the
    community he has come to know. Ms. Brand argues that the trial judge did not
    take into account how a move to New Ross would disrupt Rays relationship with
    her and her family, as well as Rays life in the Toronto community. I disagree
    with this argument.

[28]

The
    trial judge was aware that Ms. Reeves move to New Ross would disrupt Ms.
    Brands relationship with Ray. At para. 61, he specifically commented on the
    obvious adverse consequences which her relocation with Ray to New Ross would
    have upon [Ms. Brand]. But, as I read his reasons, the trial judge concluded
    that the potential disruption was offset by Ms. Reeves genuine attempt to
    involve [Ms. Brand] in Rays life and by the absence of a long standing bond
    between Ms. Brands family and Ray.

[29]

The
    trial judge also considered whether Rays move to New Ross would disrupt the
    life he had in Toronto. He found at para. 58 that it would not because,
    regardless of the outcome of this proceeding, [there] is no real status quo
    for Ray. If Ray moved to Nova Scotia, he would obviously have to go to a new
    school. But he would have to do so as well if he stayed in Ontario, because Ms.
    Reeves had no job prospects in Toronto, could not afford to live there, and
    would have to relocate to another part of the province. In short, the trial
    judge reasonably concluded that any disruption caused by the relocation to New
    Ross did not justify refusing to permit the move, particularly as Ray would
    have to relocate even if he stayed in Ontario.

[30]

Childrens
    adaptability to change, especially at Rays age, bolsters the trial judges
    conclusion. As Furey J. sensibly noted in his recent decision in
Sexton v.
    Tipping
, 2017 CanLII 56984 (N.L. S.C.T.D.), at paras. 81-82:

It is a reality of the times in which we live that many couples
    with children come together through partnership or marriage, separate or
    divorce after a period of time and then move on with their lives.  The crux of
    these scenarios is change  for the parents and for the children.

Change is a constant in all our lives. As a general principle,
    children are adaptable in their lives. They change communities. They change
    schools. They change friends. Many change families, not because of their
    actions but because of the actions of their parents. That has happened in this
    matter.

[31]

Ray
    is young. The disruption to the life of a six year old is likely to be less significant
    than the disruption to the life of, say, a fifteen year old.

(c)

The trial judge did not focus exclusively on Ms. Reeves reasons for
    wishing to relocate

[32]

Again
    in
Gordon v. Goertz
,
McLachlin J. wrote at para. 49 that the court should consider the custodial
    parents reasons for moving, only in the exceptional case where it is relevant
    to that parents ability to meet the needs of the child. Ms. Brand submits
    that this case was not exceptional and that the trial judge improperly focused
    solely on Ms. Reeves reasons for moving. I take a different view of the trial
    judges reasons.

[33]

The
    trial judge did take into account Ms. Reeves reasons for moving. But they were
    not his sole focus. Instead he found that Ms. Reeves reasons for wanting to
    relocate were relevant to her ability to parent Ray and thus were tied to Rays
    best interests. He held at para. 64 of his reasons:

After the breakdown of her marriage to [Ms. Brand], [Ms.
    Reeves] wants to surround herself with the social (and possible financial)
    support of her family and friends with a view to regaining control and
    independence of her life. She has already taken steps to obtain employment. [Ms.
    Reeves] motives are based upon and further Rays best interests. [Ms. Reeves]
    relocation plan is not speculative. It includes concrete terms in a place
    familiar to not just [Ms. Reeves], but more importantly to Ray. Ray is no
    stranger to New Ross, and has enjoyed an established connection to New Ross
    since his birth.

[34]

This
    holding is unassailable. In the language of
Gordon v. Goertz
,
this case is an exceptional case in
    which the trial judge was justified in taking into account Ms. Reeves reasons
    for moving.

[35]

I
    would uphold the trial judges decision to permit Ms. Reeves and Ray to
    relocate to New Ross.

(3)

Did the trial judge impose an unreasonable access schedule?

[36]

The
    trial judge set out a detailed access schedule, intended to provide Ms. Brand
    with reasonable, frequent contact/access with Ray. One particular term of the
    schedule states:

During [Ms. Brands] access with Ray, Ray shall not stay
    overnight without [Ms. Brand] and for no longer than four hours during the
    daytime.

[37]

Ms.
    Brand submits that the access schedule is unreasonable: it turns her into a
    holiday parent. She also submits that the four-hour restriction is especially
    onerous. She asks this court to revise the access schedule, including the terms
    for summer holidays and March break, and to remove the four-hour restriction.

[38]

I
    do not think it appropriate for this court to micromanage the trial judges
    detailed and seemingly well thought-out terms of access. If Ms. Brand objects
    to any of these terms or wants any of them revised then she can always bring a
    variation application to the trial court.

[39]

But
    I am of the view that we ought to interfere with the specific term Ms. Brand
    complains about: that Ray cannot stay overnight without her  thus precluding
    Ray from having a sleepover alone with his grandparents  or for longer than
    four hours during the daytime. The trial judge gave no reasons for this
    restriction. I suspect, however, that he imposed it because of his concerns
    about the attitude of Ms. Brands parents to their daughters lesbian
    relationship, the pregnancy, and ultimately to Ray. Ms. Brands parents did not
    attend the wedding. They did not speak to their daughter during the pregnancy.
    And before September 16, Ms. Brand never brought Ray to her parents home. Had
    this attitude continued, the four-hour restriction may have been reasonable.

[40]

But
    Ms. Brands mother, to her credit, admitted that she had made mistakes earlier
    in her daughters and Rays lives. Recently, she began to forge a good
    relationship with Ray. Indeed the trial judge found at para. 56 that though
    late blooming, Ray has developed a strong relationship with [Ms. Brands]
    parents, and since separation has been sleeping over at their place. In the
    light of these findings, it is in Rays best interests to remove the four hour
    restriction.

[41]

The
    concerns with keeping the restriction in place are twofold. First, Ray is
    deprived of the opportunity most youngsters typically look forward to, sleeping
    over at their grandparents house when their parents are not there. And second,
    Ms. Brand will inevitably have blocks of time longer than four hours when she
    cannot be with Ray because her job entails evening and night shifts. Thus, the
    four hour restriction undermines rather than promotes the strong relationship
    between Ray and Ms. Brand and her family. It is not consistent with the trial
    judges finding and it is not in Rays best interests; I would delete this term
    from the trial judges access schedule.

(4)

Did the trial judge err in his costs award?

[42]

At
    trial, Ms. Brand acknowledged that Ms. Reeves was entitled to costs but
    contended that an appropriate award was $70,000. Now on appeal, Ms. Brand
    contends that the trial judge should have awarded no costs. Alternatively, as
    she argued at trial, Ms. Reevess costs should be limited to $70,000.

[43]

I
    would not interfere with the trial judges costs award. Courts have on occasion
    awarded no costs in relocation cases, but in many other cases trial judges have
    concluded that a costs award was appropriate. The trial judges decision in
    this case falls within his broad discretion to award costs and reflects no
    error in principle. The amount he awarded, $92,500, though sizable, is less
    than full indemnity costs and is not unreasonable. Again, the award is within
    the trial judges broad discretion. As he recognized in his costs endorsement,
    because the parties positions on relocation were not amenable to settlement, a
    full indemnity costs award would have been inappropriate. I would deny leave to
    appeal costs.

C.

conclusion

[44]

Except
    for the deletion of the four hour restriction in the trial judges access
    schedule, I would dismiss Ms. Brands appeal. As Ms. Reeves has been successful
    on the two major issues on the appeal, custody and relocation, she is entitled
    to her costs of the appeal. In my opinion the cost award should be modest. I
    would award Ms. Reeves costs in the amount of $10,000, inclusive of
    disbursements and applicable taxes.

Released: D.P. March 19, 2018

John Laskin J.A.

I agree. Grant Huscroft J.A.

I agree. David M. Paciocco
    J.A.





[1]

Ray was conceived by intrauterine insemination. The sperm
    donor was anonymous. Ms. Reeves was the birth mother.


