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News and Views — Epstein's This Week in Family Law

Mobility — The Court of Appeal Finds Error Below, Reverses and Allows a Move

By: Philip Epstein

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Sferruzzi v. Allan, 2013 CarswellOnt 10024  (Ont. C.A.): In addition to R. (L.J.) v.
R. (S.W.)
, 2013 CarswellBC 2283 (B.C. S.C.), (see Newsletter 2013-37 last week) this is another mobility case and it demonstrates quite clearly that even judges in different courts cannot agree on whether a relocation should be permitted. In this case, the Ontario Court of Appeal reversed the motions court judge who concluded that a proposed relocation from Pickering, Ontario, to Waterloo, Ontario, was not in the best interests of the child. It was the father, in this case, who had primary and wanted to relocate, but the mother opposed the move because she was concerned about the reduced frequency of contact she would have with the child.

This is an unusual case in that the child has been diagnosed with autism and has significant special needs. The father is the primary caretaker and spends an enormous amount of time and money on the care of the child.

The father had submitted that the move to Pickering would benefit the child in a number of ways and he made an excellent case for relocation. In fact, one would have thought that the father had made an overwhelming case for the relocation. The motions court judge did not think so, but the Court of Appeal said that was an error because the motion court judge erred in placing the burden of proof on the father, seriously misapprehended some aspects of the father's evidence and failed to afford it the proper respect.

The motions court judge certainly did place the onus on the father. That is contrary to Gordon v. Goertz, 19 R.F.L. (4th) 177 (S.C.C.) because once the threshold requirement of demonstrating a material change in circumstances is met, the judge must embark upon "a fresh inquiry" into the best interests of the child. It was indeed an error for the motions judge to find that the father had the onus to persuade him that the move should be permitted.

The motions court judge also failed to consider that given that the father was the custodial parent, his views were to be accorded "great respect" [Gordon]. In the Court of Appeal's view, this move had everything to do with the child's best interests and that the child will benefit from a happier, healthier, more stable custodial parent and thus the appeal was allowed and the move permitted.

I can understand the mother's concern about the child's relocation, but in the particular circumstances of this case it is hard to see how the move was not going to be permitted. I note that neither party had counsel at the Court of Appeal and neither had counsel below. The absence of counsel for the parties likely prevented any mediation or reasonable discussion of a sensible resolution of this case other than litigation, and the absence of counsel likely contributed to the motions court judge falling into error in the first place. I cannot help mentioning that had the British Columbia law been in effect in Ontario, this proposed move would have been found to be in good faith, the presumption would have been in favour of the custodial father and the case would likely have been avoided or settled.

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