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CUSTODY AND ACCESS - Considerations - Best interests of child - Maximum contact principle - Custody - Sole custody - Access - Primary residence - Removal of child from jurisdiction

Monday, April 16, 2018 @ 8:56 AM  


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Appeal by Brand from an order granting Reeves sole custody with permission to relocate from Ontario to Nova Scotia with the child. The parties married in 2006 and separated in 2015. They had one child, a 6-year-old boy. Brand had lived in Toronto her entire life. Reeves was born in Nova Scotia and moved to Toronto in 2004. The couple relocated to New Brunswick after Brand obtained a job with a winery. Upon completion of Reeves' maternity leave, the couple decided Reeves would stay at home to care for the child and Brand would support the family. Brand's employment opportunity did not work out and the family returned to Toronto. Reeves returned to work while Brand cared for the child until her re-employment. Following the parties' separation, Reeves sought sole custody with permission to return to Nova Scotia with the child. Brand requested joint custody and opposed relocation. The judge ordered that Reeves have sole custody of the child and granted her permission to relocate. He found that joint custody was not possible because the parties communicated poorly. He found that since Reeves had been the child's primary caregiver and would not limit Brand's involvement with the child, it was in the child's best interests for Reeves to be granted sole custody and to be permitted to relocate. Brand appealed the order, arguing that the judge made legal and factual errors concerning the level and quality of communication between the parties. Brand also submitted that the trial judge erred in permitting Reeves to relocate with the child because he failed to give sufficient weight to the principle of maximum contact, failed to consider the disruption of the child's relationship with Brand and her family, and improperly focused exclusively on Reeves' reasons for wishing to relocate. Brand also argued that a four-hour restriction in the access schedule was unreasonable and that the trial judge erred in principle in his costs award.

HELD: Appeal dismissed, except with respect the access schedule. The judge's findings of fact that Reeves was the primary parent and the one to whom the child was most closely bonded were reasonably supported by the record. The parties had poor parenting communication, which was an important reason for not awarding joint custody. In permitting Reeves to relocate with the child, the judge balanced the competing interests of Brand and Reeves and made an order that was in the child's best interests. This was not a case where relocation would sever a long-standing bond between the child and Brand and her family, as the child had no relationship with Brand's family for most of his life and the bond was created post-separation. Furthermore, the child had been connected to Reeves' family in Nova Scotia, given that the family had lived there for some time. The judge reasonably applied the maximum contact principle. Given the child's young age, the disruption caused by the relocation would be minimal. This was an exceptional case in which the trial judge was justified in taking into account Reeves' reasons for moving. However, the four-hour restriction on Brand's access imposed by the trial judge was unnecessary, contrary to his own finding on the bond between the child and Brand and her family, and was not in the child's best interests. It deprived the child of the opportunity of sleeping over at his grandparents’ house and it undermined the child's relationship with Brand as there would likely be times when she would need to be away for more than four hours at a time because of her work schedule. While the award of costs was large, it was within the trial judge's broad discretion over costs and there was no error in principle.

Reeves v. Brand, [2018] O.J. No. 1425, Ontario Court of Appeal, J.I. Laskin, G. Huscroft and D. Paciocco JJ.A., March 19, 2018. Digest No. TLD-April162008002