DATE: 20030117
DOCKET: C38953
McMURTRY C.J.O., O'CONNOR A.C.J.O. and LASKIN J.A.
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On appeal from the order of Justice Robert J. Smith of the Superior Court of
Justice dated October 10, 2002.
LASKIN J.A.:
A. Introduction
[1] This is another appeal in which this court must decide the difficult question
whether it is in the best interests of young children to permit one parent to
relocate with them over the objection of the other parent.
[2] The appellant, Mr. Young, and the respondent, Ms. Young, are the parents
of three boys, all under the age of ten. After a nearly eight-year marriage,
the parties separated in the summer of 1999. Since then, the children have lived
in the same area of Ottawa and are all going to the same school in the neighbourhood.
Although their primary home has been with their mother, they have lived nearly
half the time with their father. Under minutes of settlement signed two years
ago, Mr. and Ms. Young agreed to joint custody of their children.
[3] In the spring of 2002, Ms Young obtained a full-time teaching job in Cornwall.
She moved there herself and then brought an application to permit the children
to move with her. On October 10, 2002, in brief reasons, Smith J. granted her
application to relocate and ordered generous access for Mr. Young.
[4] Mr. Young appeals. He submits that in holding that it was in the children's
best interests to permit the move, the application judge erred by;
(i) focusing on Ms. Young's new job to the exclusion
of other relevant considerations;
(ii) failing to take into account the disruption to the children that the move
would cause;
(iii) misapprehending the existing parenting arrangement; and
(iv) failing to consider the recommendations of an independent assessment of
the children's best interests.
[5] I agree with this submission. For the reasons that follow, I would set
aside the order of Smith J. and order a new hearing, should Ms. Young still
wish to pursue her application to relocate.
B. Background Facts
[6] Mr. and Ms. Young married in November 1991. His cultural background is
anglophone; hers is francophone, a difference of some importance in the friction
that developed between them. They have three children, all boys: Miguel, Christophe
and Thomas, who were 8, 6 and 4 years old when the appeal was heard.
[7] Mr. Young is a consultant. Ms. Young has a Bachelor of Education degree
and wishes to teach primary grades in a French school.
[8] The parties separated in June 1999. At the time they were living in Kingston,
though they had been planning to move to Ottawa to facilitate Mr. Young's consulting
business. Shortly after separating, Ms. Young brought an application for custody
and also sought permission to move the children to Cornwall. Robertson J. made
an interim order on July 15, 1999, refusing Ms. Young permission to move to
Cornwall and instead ordering that the children live in Ottawa. They were to
be in the primary care of Ms. Young if she moved to Ottawa, and in the primary
care of Mr. Young if she moved to Cornwall. She chose to move to Ottawa. Under
the parenting schedule ordered by Robertson J., Mr. Young had care of the children
over 40 per cent of the time. No custody order was made. Miguel went to Chapel
Hill School, a bilingual school in the area where both his parents lived.
[9] Mr. and Ms. Young cared for their children under Robertson J.'s order until
December 2001 when they signed partial minutes of settlement. These minutes
recognized that Mr. and Ms. Young had joint custody of their children. They
also agreed on a detailed parenting schedule: in each two-week period during
the school year the three boys lived with their mother for 8 days (including
6 weekdays) and with their father for 6 days (including 4 weekdays); during
the summer months and holidays the children spent equal time with each parent.
[10] Although Mr. and Ms. Young agreed on a parenting schedule, the children's
schooling became an issue between them. Shortly after Robertson J.'s order,
Ms. Young unilaterally enrolled Miguel in a French school, but at Mr. Young's
insistence was forced to comply with the court order that he attend Chapel Hill
school. Again in July 2000, Ms. Young tried to change Miguel's school, but Kealey
J. ordered that he remain at Chapel Hill.
[11] In the summer of 2001, the parties compromised on the boys' schooling
by accepting the recommendation of an independent assessor, Dr. Leonoff: the
boys would attend a French school, but one in the Chapel Hill area. By the fall
of 2001, the two older boys went to the French school, and by the fall of 2002,
all three boys went there.
[12] Ms. Young obtained her Bachelor of Education degree in the spring of 2001.
She tried unsuccessfully to obtain a teaching position in a French school in
Ottawa. Mr. Young paid her spousal support as well as child support and agreed
to continue supporting her into 2003 to give her time to find a job in Ottawa.
[13] In April 2002, however, Ms. Young began teaching in Cornwall and she secured
a full-time teaching position in a French school there beginning in September
2002. She moved to Cornwall in June, commuting to Ottawa on weekends. She then
brought an application, as she had in 1999, to permit her to move to Cornwall
with the children. She asserted that if she were not allowed to move she would
give up her teaching job in Cornwall and move back to Ottawa.
[14] On August 15, 2002, while her application was pending, Roy J. made an
order prescribing a new parenting schedule: The boys - who were all going to
be in school full-time in the fall - would live with their father in Ottawa
during the week and with their mother in Cornwall every weekend, from Friday
night to Sunday night. Mr. Young's parents would assist him by taking care of
the children when he was working.
[15] On October 10, 2002, Smith J. granted Ms. Young's application to move
to Cornwall with the children. He ordered that their primary residence was to
be with her, that Mr. Young would have "liberal and generous access"
and that the parties were to share the driving to facilitate access. I stayed
the order of Smith J. pending Mr. Young's appeal and expedited the hearing of
this appeal. Therefore, pending this court's decision the children have been
cared for under the parenting schedule ordered by Roy J.
C. The test on a relocation application
[16] In Gordon v. Goertz (1996), 134 DLR (4th) 321, the Supreme Court of Canada
set out a two stage-test for determining whether a parent is entitled to relocate
with a child. At the first stage, the parent applying to relocate must meet
the threshold requirement of showing a material change in the circumstances
affecting the child, which was either not foreseen or could not reasonably have
been contemplated by the judge who made the original order.
[17] If the threshold is met, then the second stage of the inquiry equates
permission to relocate with the best interests of the child. Therefore, at the
second stage the court must "embark on a fresh inquiry into what is in
the best interests of the child". The court must consider and balance all
the benefits and detriments of the proposed relocation. What is required is
a "full and sensitive inquiry" into the best interests of the child.
[18] Unlike the case before us, in Gordon v. Goertz an existing order granted the mother sole custody of her young daughter (with whom she wished to move to Australia). The father had been granted access only, albeit generous access. In Luckhurst v. Luckhurst (1996), 20 RFL (4th) 373, however, this court sensibly held that the two-stage test in Gordon v. Goertz also applies where the parents have joint custody and one of the parents seeks to move with the child over the objection of the other parent. And this two-stage test should apply whether the provision sought to be varied is in a court order (Gordon v. Goertz) or in minutes of settlement (this case).
D. The reasons of the application judge
[19] The application judge was therefore correct in applying the principles
in Gordon v. Goertz to determine whether Ms. Young should be permitted to move
to Cornwall with the three boys. He first held that Ms. Young had met the threshold
requirement for being permitted to relocate. He found that Ms. Young's securing
of a full-time job as a teacher in Cornwall amounted to a material change in
the circumstances affecting the children. Mr. Young attacks this finding, contending
that the move to Cornwall was not unforeseen because his wife had intended to
move there with the boys ever since her request to do so was refused by Robertson
J. three and a half years ago. He argues that the teaching job Ms. Young obtained
was simply a pretext to facilitate the move.
[20] I would not give effect to Mr. Young's arguments on this threshold issue.
Relocation to pursue an employment opportunity is a typical material change
in circumstances well recognized by the courts. Ms. Young could not obtain a
full-time teaching job in a French school in Ottawa; she could in Cornwall.
No one can seriously question that she is justified in trying to become economically
self-sufficient. Her move to Cornwall was thus a material change, which potentially
affects the three children.
[21] On being satisfied of a material change, the application judge then turned
to the second stage of the Gordon v. Goertz inquiry. He concluded that it was
in the best interests of the children to allow Ms. Young to move with them to
Cornwall. He was satisfied that Ms. Young had an honest and responsible reason
for moving - to obtain a full-time job - and that the move was not being made
to interfere with Mr. Young's access to his children. Because of the relatively
short distance between Ottawa and Cornwall, 100 kilometres, the application
judge was of the view that the move would not unduly disrupt Mr. Young's ability
to spend time with his children. He also held that "the financial needs
of the children and the family unit will benefit from the applicant being employed
as a teacher".
E. Discussion of the best interests issue
[22] The application judge's order permitting Ms. Young to move to Cornwall
with her three children is a discretionary order. It is therefore entitled to
"significant deference" from a reviewing court. Nonetheless, a reviewing
court is entitled to interfere with a discretionary order where the reasoning
leading to the order is tainted by the failure to take into account relevant
considerations and the misapprehension of material evidence. That, regrettably,
is what occurred here. See Ligate v. Richardson (1997), 34 OR (3rd) 423 (C.A.)
per Moldaver J.A. at 442.
[23] In my view, the application judge made four interrelated errors, which,
taken together, undermine his order permitting the move. First, in allowing
the move, he focused almost entirely on Ms. Young's job in Cornwall and, therefore,
failed to undertake the "full and sensitive inquiry" required by Gordon
v. Goertz. Second, he especially failed to take into account the disruption
to the children, which would be caused by removing them from the family, schools
and community they had come to know. Third, in treating Ms. Young as the de
facto custodial parent and Mr. Young as the access parent instead of what they
were - joint custodial parents - the application judge misapprehended the parenting
arrangement that existed before Ms. Young's application. Finally, the application
judge failed to consider the independent assessment of Dr. Leonoff, who had
written a thorough report on the best interests of the children in June 2001.
1. The failure to undertake a "full and sensitive inquiry"
[24] In allowing Ms. Young to move to Cornwall with the children, the application
judge focused almost exclusively on her teaching job in Cornwall and the benefits
that flowed from it. Ms. Young's job and its associated benefits were important
considerations on the application, but they should not have been the only considerations.
[25] The application judge, however, did not expressly balance the benefits
of Ms. Young's job against the detriments of the proposed move, and he especially
did not advert to the list of considerations, which, according to McLaughlin
C.J.C in Gordon v. Goertz, a trial judge should take into account on a relocation
application. As I will discuss, three of these considerations are significant
in this case: the disruption to the children from the move, the effect of the
move on the existing parenting relationship between the children and their father,
and the desirability of maximizing contact between the children and both their
parents.
[26] The application judge did say in his decision that he was satisfied the
test in Gordon v. Goertz had been met. Without more, however, conclusory reasons
of this kind run the risk that an appellate court will not have confidence that
all relevant considerations have been addressed. McLaughlin C.J.C. at 343 addressed
this risk in Gordon v. Goertz itself, where the trial judge's reasons were also
held to be inadequate.
[52] The reasons of the trial judge fall short of demonstrating
that he engaged in the full and sensitive inquiry into the best interests of
the child required by s. 17 of the Divorce Act. He mentioned only one factor
in support of his decision: that he "relied heavily" on the reasons
of Carter J., who had already concluded that the mother was the "proper
person to have custody of th[e] child". Other factors, such as the child's
relationship with her father, her extended family and her Saskatchewan community,
were not mentioned. No reference was made to the circumstances prevailing after
the trial, the current needs and desires of the child, or the respective abilities
of each parent to meet them. One may speculate that the trial judge, having
heard full argument, had such factors in his mind when he made his decision
in favour of the mother. But one may equally infer that the necessary fresh
inquiry was not fully undertaken. In either event, it seems clear that the trial
judge failed to give sufficient weight to all relevant considerations.
[27] The Supreme Court of Canada's recent important judgment in R. v. Sheppard
(2002), 162 (C.C.C.) (3rd) 298 warns against conclusory reasons in the criminal
law context. The desirability of reasoned reasons in a criminal case rests on
three main rationales: public confidence in the administration of the justice
system, the importance of telling the losing party the reasons for having lost,
and making the right of appeal meaningful. These three rationales also apply
to a family law case and are relevant in this case. Here, as in Gordon v. Goertz,
"the reasons of the trial judge fall short of demonstrating that he engaged
in [a] full and sensitive inquiry into the best interests of the [children]".
I turn now to the specific considerations not addressed.
2. Failure to take into account the disruption to the children
[28] One of the considerations that should be addressed by a judge on a relocation
application is "disruption to the child consequent on removal from family,
schools and the community he or she has come to know". See Gordon v. Goertz
at 342. The application judge did not deal with this consideration, although
it is of prime importance in this case.
[29] For over three years the three boys have lived in the same area of Ottawa;
they have gone to two schools in the area and for over a year have all been
in the French school; and they have been cared for much of the time by their
father and by their paternal grandparents. This stable environment they have
enjoyed will be severely disrupted if they move to Cornwall. This disruption
must be taken into account in determining whether Ms. Young should be permitted
to relocate.
3. Misapprehension of the parenting arrangement
[30] The application judge's reasons show that he took the existing parenting
arrangement before Ms. Young's application to be that embodied in the order
of Robertson J. dated July 15, 1999. Under that order, although the children
lived primarily with Ms. Young, they also lived with Mr. Young over 40 per cent
of the time. Nonetheless, the application judge treated Mr. Young as an access
parent. Therefore, when he considered the effect of the move to Cornwall on
Mr. Young's time with the children, the applications judge focused on whether
Mr. Young would continue to have "liberal and generous access".
[31] The problem with the application judge's approach was that the order of
Robertson J. was superseded by the partial minutes of settlement agreed to by
the parties two years ago, in December 2001. The application judge does not
refer to these minutes in his reasons. Yet, under the minutes of settlement,
Mr. Young is not an access parent, but a joint custodial parent. And, although
the amount of time he cares for the three boys is roughly the same as it was
under Robertson J.'s order, the nature of that time is quite different. Under
the minutes of settlement, during the school year, Mr. Young has day-to-day
care of the children for four weekdays in every two-week period.
[32] The application judge's misapprehension of the existing parenting arrangement
has significant consequences for two of the other considerations listed in Gordon
v. Goertz at 342: "the existing custody arrangement and the relationship
between the child and the custodial parent" and "the desirability
of maximizing contact between the child and both parents". The record discloses
that Mr. Young is a good father, and with the help of his parents, has admirably
carried out his responsibilities as a custodial parent. One effect of granting
Ms. Young permission to move to Cornwall with the children is to remove Mr.
Young as a custodial parent, and thus to undermine the co-parenting arrangement
reflected in the minutes of settlement. In practice, Mr. Young will become an
access parent and the children will no longer benefit from his co-parenting.
This consideration should have been factored into the assessment of whether
the move to Cornwall was in the children's best interests.
[33] So too should have been the "maximizing contact" principle.
The move to Cornwall would inevitably lessen the contact between Mr. Young and
his children. Although this would not in itself be a bar to the move, two alternatives
might have been canvassed. Because teachers are not in the classroom during
the summer, one possibility - proposed by Mr. Young - would be to leave the
children in Ottawa with their father, but to give Ms. Young more time with them
during the summer months as well as on the weekends. This alternative might
better maximize contact with both parents.
[34] Another alternative would be to maintain the parenting arrangement in
the minutes of settlement, with Ms. Young commuting to Cornwall and with any
needed morning or afternoon daily care being provided by the children's grandparents.
The drive between Ottawa and Cornwall is approximately 100 kilometres on a good
highway, and thus will usually take about an hour. The relatively short distance
between the two cities can admittedly be viewed in one of two ways. On one view,
that of the application judge, Mr. Young will have an easier time seeing his
children if Ms. Young is allowed to move. On the other view, Ms. Young will
still be able to travel to her job even if she is not allowed to move with the
children. Commuting would undoubtedly be inconvenient for Ms. Young, but in
our increasingly mobile society many Canadians travel just as far or farther
to get from home to work daily.
[35] My point here is not to choose one of these two alternatives over the
one chosen by the application judge. Indeed in Luckhurst v. Luckhurst, which
was relied on by the application judge, this court upheld the trial judge's
decision permitting the mother to move with her two children from London to
Cobourg, noting that the distance between the two cities would allow the father
to see the children regularly. I say only that all alternatives ought to have
been explored.
4. Dr. Leonoff's assessment
[36] In the fall of 2000, after Ms. Young had brought a motion to put the children
in a French school in her neighbourhood and to reduce Mr. Young's time with
them, the parties agreed to an independent assessment of the children's best
interests. Dr. Arthur Leonoff, a psychologist and psychoanalyst in Ottawa, performed
the assessment. He delivered a lengthy report in June 2001, which on my reading
is sensitive, thorough and balanced. The application judge did not refer to
the report. Although it was written a year before Ms. Young's application, it
seems to me to have merited consideration.
[37] Dr. Leonoff recommended that the boys' primary residence be that of their
mother, but that Mr. and Ms. Young jointly parent the children. He suggested
"both be named legal custodians" because, in his view, "any other
solution will exacerbate conflict and place the family more at risk".
[38] In so recommending, he found "that all three children are drawn to
their mother's warmth, consistency and language and this highlights… her
essential contribution". He recognized that the risk the children would
not be educated in a French school and would lose their francophone heritage
was "at the core" of Ms. Young's distress and "represents a major
blow to her own identity and desires for her children". He therefore recommended
that the children attend a francophone school and be educated in the French
system, a recommendation that the family has implemented.
[39] But Dr. Leonoff also found that "Mr. Young's wish to be a participating
parent seems eminently reasonable considering his personality and track record".
And, with three boys to raise, Dr. Leonoff saw "this role is essential
for their well-being," even though "Mr. Young had never offered a
gender-based argument to support his continued major presence in the boys' lives".
Dr. Leonoff wrote that "Mr. Young's approach to parenting has its strengths
and I would not like to see his input restricted simply to accommodate the mother's
needs over and above the children's best interests". Therefore, even though
Ms. Young at that time preferred to move somewhere between Ottawa and Cornwall,
Dr. Leonoff recommended that "she should re-establish herself in the same
approximate area as the father or at least within very reasonable commuting
distance".
[40] Dr. Leonoff's recommendations were not binding on the application judge.
And, as Ms. Young pointed out, they were made a year before her application
to relocate. Nonetheless, Dr. Leonoff's report remains the only independent
assessment of what is in the children's best interests. Nothing in the record
suggests that his findings and recommendations were any less valid in the fall
of 2002 than they were in the summer of 2001. At the very least, especially
in the light of the high quality of his report, his findings and recommendations
deserved consideration. Apparently, however, the application judge did not take
them into account.
F. Disposition
[41] As is evident from these reasons, I am not satisfied that the application
judge took into account many of the important considerations bearing on the
ultimate question whether it was in the children's best interests to permit
Ms. Young to move to Cornwall with them.
[42] That leaves the court with two choices: to assess the evidence and the
relevant considerations itself and either affirm, vary or set aside the order
of the applications judge, or set aside the order of the applications judge
and order a new hearing. In Gordon v. Goertz the Supreme Court of Canada took
the former approach and upheld the trial judge's custody order, but varied the
access order.
[43] In this case, I prefer the latter approach. I would set aside the application
judge's order, but I would not go as far as to dismiss Ms. Young's application
outright. Instead, I would order a new hearing, should Ms. Young desire one.
Despite the parties' modest means, that is the sensible disposition in this
case because many of the findings needed to assess whether the move is in the
boys' best interests have not been made. Should Ms. Young wish to renew her
application, I strongly urge both parties to agree to an updated assessment
by Dr. Leonoff.
[44] I would therefore allow the appeal, set aside the order of Smith J. dated
October 10, 2002, and order a new hearing, if desired. I would order that each
side bear its own costs of the application. Mr. Young succeeded on the appeal
and is entitled to the costs of the appeal, including the motion to expedite
and for a stay. I would fix his costs in the relatively modest amount of $5,000
plus disbursements and G.S.T., which I consider reasonable.
Released: Jan. 17, 2003
"R.R.M"
Signed: "John Laskin J.A."
"I agree R. Roy McMurtry C.J.O."
"I agree Dennis O'Connor A.C.J.O."