C.B. v. E.C.C., (2002) 166 O.A.C. 44 (CA)

• Judge: Weiler, Austin and Laskin, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: August 27, 2002
• Jurisdiction: Ontario
• Citations: (2002), 166 O.A.C. 44 (CA);2002 CanLII 45125 (ON CA);2002 CanLII 45125 (NS CA);62 OR (3d) 236;221 DLR (4th) 489;31 RFL (5th) 242;[2002] CarswellOnt 3866;[2002] OJ No 4364 (QL);166 OAC 44

C.B. v. E.C.C. (2002), 166 O.A.C. 44 (CA)

MLB headnote and full text

Temp. Cite: [2002] O.A.C. TBEd. NO.041

C.B. (plaintiff/appellant) v. E.C.C. (defendant/respondent)

(C35031)

Indexed As: C.B. v. E.C.C.

Ontario Court of Appeal

Weiler, Austin and Laskin, JJ.A.

November 19, 2002.

Summary:

The primary issues in an action were custody of the parties' child and the mother's mobility. She wished to return to Alberta where she had family support and an established career.

The Ontario Superior Court, in a decision reported at [2000] O.T.C. Uned. D40, awarded sole custody of the child to the mother, but not the right to return to Alberta with him. The mother appealed the mobility issue. The father cross-appealed, seeking joint custody or joint parenting and variation of the child support award of $475 monthly, plus 70% of extraordinary expenses.

The Ontario Court of Appeal allowed the appeal, permitting the mother to relocate. The court allowed the cross-appeal respecting child support. The court ordered that any arrears of child support or child expenses be paid forthwith and that regular child support payments be maintained and continued until two months after the mother and son returned to the Calgary area. Thereafter, support and expense payments would be reduced to $1 per year.

Family Law - Topic 1865

Custody and access - Duties and rights of custodian - To remove child from jurisdiction - The primary issues in an action were custody of the parties' child and mobility - The mother wished to return to Alberta where she had family support and an established career - The Ontario Court of Appeal stated that the trial judge appeared to have decided the question of mobility first and the question of custody second - The court stated that "With respect, that strikes me as putting the cart before the horse." - See paragraph 19.

Family Law - Topic 1865

Custody and access - Duties and rights of custodian - To remove child from jurisdiction - The primary issues in an action were custody of the parties' child and mobility - The mother wished to return to Alberta where she had family support and an established career - The trial judge awarded sole custody to the mother, but not the right to return to Alberta with the child - The Ontario Court of Appeal held that the trial judge erred in not contemplating what improvement, if any, would result to the child's interests if the custodial parent were permitted to move to Alberta - The trial judge failed to appreciate the multi-faceted nature of the mother's desire to return to Alberta with the child and the concomitant positive effects on the child's best interests in being cared for by a well-functioning and happy custodial parent - See paragraphs 17 to 30.

Family Law - Topic 1865

Custody and access - Duties and rights of custodian - To remove child from jurisdiction - A mother had family support and an established career in Alberta - A trial judge granted her sole custody of her son, but not the right to return to Alberta with him - The Ontario Court of Appeal held that the trial judge erred in focusing his attention on the child's contact with his father and the fact that the father's ready access would be compromised by the relocation, instead of considering contact with each parent - He did not consider that if the mother moved to Alberta, her contact with the child would be maximized because she would be able to work straight days, as opposed to the shift work, including evenings, that she worked in Ontario - While the "maximum contact" principle applied, it was not the governing factor - See paragraphs 31 to 35.

Family Law - Topic 1865

Custody and access - Duties and rights of custodian - To remove child from jurisdiction - The primary issues in an action were custody of the parties' child and mobility - The mother wished to return to Alberta where she had family support and an established career - The trial judge awarded sole custody to the mother, but not the right to return to Alberta with him - The Ontario Court of Appeal held that the trial judge erred in permitting stereotypes to enter into the analysis by placing more importance on the father's career than the mother's - See paragraphs 37 to 38.

Family Law - Topic 1900

Custody and access - Considerations in awarding custody - Maximum contact with each parent - [See third Family Law - Topic 1865 ].

Family Law - Topic 2073

Custody and access - Joint custody - Considerations - A mother sought sole custody of a child, while the father sought joint custody - The trial judge held that this was not an appropriate case for joint custody - He based his decision on the following: the evidence regarding the termination of the relationship between the mother and father; the father's rather different style of parenting (sometimes described as "rambunctious" or "aggressive"); and the father's tendency to control and distrust the mother - The Ontario Court of Appeal held that the trial judge's reasoning was entirely correct on this issue - See paragraphs 15 to 16.

Family Law - Topic 2357

Maintenance of wives and children - Maintenance of children - Considerations - A mother had family support and an established career in Alberta - A trial judge granted her sole custody of her son, but not the right to return to Alberta with him - The Ontario Court of Appeal allowed the mother's appeal and permitted her to relocate with the child - The mother had indicated that once reemployed in Calgary, she would be able to maintain herself and her son without help from the father - The court ordered that any arrears of child support or child expenses be paid forthwith and that regular child support payments be maintained and continued until two months after mother and son returned to the Calgary area - Thereafter, support and expense payments would be reduced to $1 per year - See paragraph 53.

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. 17].

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161, refd to. [para. 21].

Woodhouse v. Woodhouse (1996), 91 O.A.C. 91; 136 D.L.R.(4th) 577 (C.A.), refd to. [para. 29].

Carter v. Brooks (1990), 41 O.A.C. 389; 30 R.F.L.(3d) 53 (C.A.), refd to. [para. 42].

MacGyver v. Richards (1995), 84 O.A.C. 349; 123 D.L.R.(4th) 562 (C.A.), refd to. [para. 42].

Counsel:

D. Smith, for the appellant;

Anthony T. Keller, for the respondent.

This appeal was heard on August 27, 2002, by Weiler, Austin and Laskin, JJ.A., of the Ontario Court of Appeal. Austin, J.A., delivered the following decision for the Court of Appeal on November 19, 2002.