Berry v. Berry

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: O'Connor, A.C.J.O., Juriansz and Watt, JJ.A.
• Neutral Citation: 2011 ONCA 705
• Citation: 2011 ONCA 705,(2011), 285 O.A.C. 366 (CA),343 DLR (4th) 4,7 RFL (7th) 1,[2011] OJ No 5006 (QL),285 OAC 366,[2011] O.J. No 5006 (QL),(2011), 285 OAC 366 (CA),285 O.A.C. 366,343 D.L.R. (4th) 4
• Date: 17 October 2011

Berry v. Berry (2011), 285 O.A.C. 366 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. NO.027

Lisa Michelle Berry (applicant/respondent in appeal) v. Adrian Deryck Berry (respondent/appellant in appeal)

(C52936; 2011 ONCA 705)

Indexed As: Berry v. Berry

Ontario Court of Appeal

O'Connor, A.C.J.O., Juriansz and Watt, JJ.A.

November 14, 2011.

Summary:

Upon filing for divorce, the mother brought a motion for custody of the parties' child and for an order granting permission to relocate with the child from Toronto to Kingston, Ontario. Before the trial, the mother moved to Kingston. During the trial, the parties agreed to share joint legal custody. The trial judge proceeded on the basis that the sole issue to be decided was whether the child would reside primarily with his mother in Kingston, or primarily with his father in Toronto. He found that it was in the child's best interest to reside primarily with the mother in Kingston. The father appealed.

The Ontario Court of Appeal allowed the appeal and refused the mother's application.

Family Law - Topic 1861

Custody and access - Duties and rights of custodian - Residence - Upon filing for divorce, the mother brought a motion for custody of the parties' child and for an order granting permission to relocate with the child from Toronto to Kingston, Ontario - Before the trial, the mother moved to Kingston - During the trial, the parties agreed to share joint legal custody - The trial judge proceeded on the basis that the sole issue to be decided was whether the child would reside primarily with his mother in Kingston or with his father in Toronto - He found that it was in the child's best interest to reside primarily with the mother in Kingston - The father appealed - The Ontario Court of Appeal allowed the appeal and refused the mother's application - The trial judge erred in applying the principles in Gordon v. Goertz (S.C.C.) - In particular, the judge failed to give sufficient weight to the principle that a child should have as much contact with each parent as was consistent with the child's best interests - Instead, the judge's reasons focussed almost exclusively on the mother's reason for moving - His approach and analysis were based on 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 an error of fact and an error of law - It was an error of fact, as the judge's finding that the mother permanently moved to Kingston was contrary to the evidence - The mother stated that if her application was refused she would live in Toronto - It was an error of law because the sole issue to be decided at trial was whether the mother's application to relocate to Kingston with the child should be granted as in the child's best interests.

Family Law - Topic 1898

Custody and access - Considerations in awarding custody - Custodial parent moving from jurisdiction - [See Family Law - Topic 1861 ].

Family Law - Topic 1900

Custody and access - Considerations - Maximum contact with each parent - [See Family Law - Topic 1861 ].

Family Law - Topic 1948

Custody and access - Variation of custody and access rights - Change of residence of child - [See Family Law - Topic 1861 ].

Cases Noticed:

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241, refd to. [para. 1].

Datars v. Graham, [2007] O.T.C. Uned. H48; 41 R.F.L.(6th) 51 (Sup. Ct.), refd to. [para. 3].

Woodhouse v. Woodhouse (1996), 91 O.A.C. 96; 29 O.R.(3d) 417 (C.A.), refd to. [para. 27].

Counsel:

Aaron Franks and Michael Zalev, for the appellant;

Cory Deyarmond, for the respondent.

This appeal was heard on October 17, 2011, before O'Connor, A.C.J.O., Juriansz and Watt, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Juriansz, J.A., and was released on November 14, 2011.