



COURT OF APPEAL FOR ONTARIO

CITATION: Forrester v. Dennis, 2016 ONCA 214

DATE: 20160316

DOCKET: C61051

Epstein, Pepall and Hourigan JJ.A.

BETWEEN

Timothy James Forrester

Applicant (Appellant)

and

Lindsey Nicole Dennis

Respondent (Respondent)

Elli M. Cohen and Michelle A. Raithby, for the appellant

Gavin M. Grant, for respondent

Heard: March 4, 2016

On appeal from the order of Justice Ivan S. Bloom of the Superior
    Court of Justice, dated August 21, 2015.

ENDORSEMENT

[1]

This appeal concerns whether the appellant, the father of a seven year
    old child, can move with the child from Kincardine to Whitby  a distance that
    takes approximately three and a half hours to travel by car.

[2]

After being together for about three years, the parties separated when
    the child was just a year old. For approximately four years following
    separation, the mother had primary care of the child. The parties then ran into
    difficulties. The mother made allegations that the father had abused the child.
    Pursuant to a court order, a physician conducted an assessment. The physician
    concluded that the mothers allegations of abuse were false.

[3]

After lengthy negotiations, the parties entered into a detailed
    agreement relating to the child. It was agreed that the father would have
    custody and the mother would have supervised access, to be reviewed after a
    period of three months. This agreement was incorporated into the consent order
    of Conlan J. dated November 25, 2014 (the Order).

[4]

The following clauses of the agreement are central to this appeal:

5.... k. If there are
    any incidents, allegations or investigations opened (police or CAS), access
    shall be suspended immediately at the option of the [father], and the matter
    returned before the Honourable Justice Thompson within seven (7) days by way of
    motion to vary access or for other relief to address the issue and the issue of
    the [fathers] costs in this action may be revisited.

12. The [father] shall
    not relocate from Bruce or Grey Counties without first giving the [mother]
    sixty (60) days advance notice in writing.

15. The [father] shall
    make best efforts to keep the child in her current school.

16. In this Order the
    term incidents means:



c. Confrontations
    initiated by the [mother], [the mothers husband] or their families pertaining
    to the allegation of sexual and/or physical abuse or the court proceedings;

d. Comments /
    discussion including public speech and published comments relating to or
    referring to the allegations of sexual abuse or physical abuse or the court
    proceedings.

[5]

In early February 2015, the father told the mother about his intention
    to move. In June 2015, the father, relying on para. 12 of the Order, gave
    notice to the mother that he intended to move with the child from Kincardine to
    Whitby.

[6]

A large part of the fathers reasoning for moving related to the
    allegations of abuse. The father alleged that it was better for the child to
    grow up in a community not privy to the allegations, and that the mother had exacerbated
    the situation by resiling from her position that the abuse allegations were
    false.

[7]

At a case conference, Price J. held that a motion to change was required
    to determine whether the father could move.

[8]

Bloom J. heard the motion to change. Citing
Gordon v. Goertz
,
    [1996] 2 S.C.R. 27, the motion judge set out the test for the variation of
    custody or access. The applicant must satisfy the court that there has been a
    material change in the circumstances of the child since the order in question 
    meaning there has to have been a change in the childs circumstances or the
    parents ability to meet the childs needs that materially affects the child
    and that was either not foreseen or could not have been reasonably contemplated
    by the judge who made the order. If a material change is established in
    accordance with these criteria, the court then considers the best interests of
    the child in their totality. The motion judge also noted that s. 29 of the
Childrens
    Law Reform Act
, R.S.O. 1990, c. C.12, renders these principles applicable
    to custody and access cases such as this one.

[9]

The motion judge found that the move could only be approved on a motion
    to change, as the notice provision at para. 12 of the Order did not contemplate
    the move in question, absent a variation. The motion judge concluded that there
    was no material change  that Conlan J. was alive to and could have foreseen the
    fathers concerns about the poisoned environment. Further, he reasoned that,
    given the lengthy negotiations leading to the Order, a variation so soon after
    the Order would be an indirect route to an appeal, an outcome that the Supreme
    Court sought to prevent in
Gordon
, at para. 11.

[10]

On
    appeal, the father renews the arguments he made before the motion judge. He
    says that, according to the Order, to move all he had to do was provide the
    mother with the requisite notice. A motion to change was therefore not
    necessary. In the alternative, if the motion was necessary, there was a material
    change in circumstances and it is in the childs best interests to move.

[11]

We
    disagree.

[12]

We
    agree with the motion judges view of the Order. Reading the Order as a whole,
    a motion to change was required. In particular, paragraph 15 requires the
    father to use his best efforts to keep the child in her school. This is not a
    hollow obligation. This term must be interpreted in a way that gives it
    meaning. And it must be interpreted in the context of the entire Order, the
    spirit and intent of which is to create a stable environment for the child, one
    designed to provide her with the opportunity to foster a good relationship with
    both parents (see, for example, paras. 3, 4 and 8). The fathers proposed move
    would run contrary to the schooling and access clauses in the Order and to its
    broader intent. A motion to change was therefore necessary.

[13]

This
    takes us to whether the father demonstrated a material change in the circumstances
    of the child since the Order.

[14]

In
    support of his argument that there has been a material change in circumstances,
    the father relies on the stigma associated with living in a community in which
    the allegations of abuse are publicly known. He also relies on evidence that
    the mother has, since the date of the Order, resiled from her pre-order
    admission that the allegations were false.

[15]

We
    agree with the motion judge that it is clear that, at the time the Order was
    made, Conlan J. was alive to the fathers concerns about living in the
    Kincardine community with the stigma of the abuse allegations. The father could
    have foreseen the problems upon which he now relies. We also note that para. 20
    of the Order, apparently insisted on by the father, allowed for considerable
    public dissemination of the allegations.  Furthermore, the motion judge was not
    satisfied of a material change based on the evidence before him.

[16]

The
    motion judges conclusion that the father had not established a material change
    in circumstances since the date of the Order is entitled to deference. We see
    no reason to interfere.

[17]

The
    father also appeals the motion judges costs disposition in which the motion
    judge ordered him to pay the mothers costs on a substantial indemnity scale in
    the total amount of $23,131.

[18]

Leave
    to appeal costs is required. In determining whether to grant leave, the merits
    of the costs appeal must be considered.

[19]

The
    father contends that the motion judge erred in awarding costs in respect of earlier
    steps in the proceeding and in awarding substantial indemnity costs in
    circumstances where elevated costs were not justified. In oral argument, the
    father also took the position that the motion judge erred in failing to consider
    successes of the father in those earlier steps and on the motion itself.

[20]

A
    costs award attracts considerable deference and should not be disturbed absent
    an error in principle, or unless the award is clearly wrong:
Berta v. Berta
,
    2015 ONCA 918, at para. 88. The motion judges costs award demonstrates neither
    of these factors.

[21]

First,
    with respect to the awards encompassing costs associated with other steps in
    the proceeding, as the respondent points out, the costs for these earlier
    appearances were properly before the motion judge, having been adjourned from
    those appearances.

[22]

Second,
    there is no reason to disturb the motion judges award of costs on a
    substantial indemnity basis. As this court affirmed in
Berta
, at para.
    92, citing
Biant v. Sagoo
(2001), 20 R.F.L. (5th) 284 (Ont. S.C.), at
    para 20, [T]he preferable approach in family law cases is to have costs
    recovery generally approach full recovery, so long as the successful party has
    behaved reasonably and the costs claimed are proportional to the issues and the
    result. This award is subject to the factors listed in r. 24(11) [of the
Family
    Law Rules
, O. Reg. 114/99], the directions set out under r. 24(4)
    (unreasonable conduct), r. 24(8) (bad faith) and r. 18(14) (offers to settle),
    and the reasonableness of the costs sought by the successful party:
Berta
,
    at para. 94 (citation omitted). And as articulated in
Sordi v. Sordi
,
    2011 ONCA 665, 283 O.A.C. 287, at para. 21, In the context of family law
    disputes, a court need not find special circumstances to make a costs award
    approaching substantial indemnity (citation omitted). Therefore the award of
    substantial indemnity costs is not an improper exercise of discretion.

[23]

Finally,
    the motion judge found that the mothers success on the final motion entitled
    her to costs of the three appearances. That the father may have had some previous
    successes is not a reason to disturb the motion judges exercise of discretion.

[24]

The
    appeal concerning the fathers proposed move is dismissed. Leave to appeal the
    costs award is dismissed. The mother is awarded her costs of this appeal in the
    amount of $20,000 including disbursements and HST.

Gloria Epstein J.A.

S.E. Pepall J.A.

C.W. Hourigan J.A.


