Case summary: Important relocation decision

The Ontario Court of Appeal (ONCA) recently released a decision (Shipton v. Shipton) overturning a trial court decision that had prohibited a mother from relocating from Ontario to Ireland with her young child. The decision offers some helpful insights into what is required for an appeal court to overturn a decision from a lower court and canvasses the issue of relocation when one parent has raised allegations of family violence. This decision is also a strong denouncement of the attitude and tone of the trial judge.

At trial, the judge determined that relocation was not in the child’s best interests. The mother appealed, raising four grounds that called into question the trial judge’s analysis of the issues at the heart of the case as well as his attitude towards the mother.

Background facts

The mother was born and raised in Ireland. She met the father in England, and they were married in Malta in 2014. Two years later, they moved to Toronto, because the father had employment opportunities there. The mother was not able to pursue her career in optometry, as her credentials were insufficient in Canada without further academic qualifications. Soon after the move, the father was injured in a car accident, which left him with severe depression such that he was not able to work. The mother took fill-in optometry work in England, traveling back and forth to do so. In 2019, they had a baby girl.

The mother ended the relationship about 10 months later. In her divorce proceedings, she sought permission to relocate with the child to Wales, so she could pursue her profession and so she and her daughter would have the support of her family. The father opposed the move.

The mother raised the issue of controlling and physically abusive behaviour by the father, which the father denied, despite the fact that he was charged with assault on one occasion and eventually entered into a peace bond to resolve that charge. The mother and father separated and reconciled a few times, and the mother continued to raise issues of abuse, including intimidation as well as financial and social control.

Initially following the separation, the father had limited supervised parenting time, which expanded over time to unsupervised and longer periods of time with his daughter.

The mother’s claims about abuse were substantiated by the two midwives who had provided care during and after her pregnancy. They gave evidence at the trial about the father’s controlling manner during pre-natal appointments.

In his decision, the trial judge rejected the mother’s narrative, including her claims of family violence, and made a number of highly critical comments about her, including the following:

• He described her demeanour in court as “reveling in her criticism of [the father]’
• He suggested that the mother had intentionally not taken optometry courses in Canada so she would remain unqualified
• He dismissed her claims of family violence because there was no expert evidence to support them, even though such evidence is not required by law
• In discarding the independent evidence of the mother’s midwives, he described them as a “circle of self-appointed jurors pointing their fingers at [the father]
• He found that the mother harboured a “delusion” about the child’s racial identity, with no evidence to support this
• He referred to the mother’s use of the family court system as “tactical” and said that she had “manipulated” the court process

Court of appeal

The Court of Appeal looked at a number of issues in coming to its decision to overturn the trial judge’s ruling.

Standard of review: Appeal courts must show considerable deference to decisions made at trial, because the trial judge has the opportunity to hear evidence and witnesses. They can only intervene if the trial judge made an error in law or a serious and substantive error in the analysis of the facts. On this matter, Justice Coroza, writing for a unanimous Court of Appeal said:

“In my view,  the reasons of the trial judge disclose material errors, serious relevant evidence and errors of law. He misconstrued and ignored relevant evidence. He also relied on extraneous considerations that were not before him…Given these errors, the decision must be set aside.”

Best interests of the child: The Court of Appeal also found that the trial judge’s reasons for deciding that relocating to Ireland was not in the child’s best interests revealed material errors and serious misapprehensions of the evidence, including:

• His misapprehension and ignoring of relevant evidence about family violence
• His “entirely unfounded” assumptions about the mother and her family’s attitudes to the child’s Indian heritage
• Allowing his analysis to be informed by “an unreasonable conclusion that the mother had ‘manipulated’ the system against the father.

In his decision, Justice Coroza noted that the mother had provided evidence of several incidents of abuse by the father, including physical and coercive control.

The independent evidence of the midwives corroborated the mother’s evidence; one of them testified that she had managed to tell the mother, during a brief period when the father was not in the room, that she was concerned and could provide the mother with resources if she ever wanted them. The mother later emailed the midwife and asked for those resources, telling her that she hadn’t been free to talk at the time because she was “afraid he would overhear.” The trial judge discarded this independent evidence.

The trial judge “ignored material evidence relevant to the issue of control. The mother’s evidence of coercive control is conspicuously absent from the trial judge’s analysis…He does not mention that charges were subsequently laid…Instead, the trial judge cast doubt on the veracity of the allegations…”

Relocation: The Court of Appeal found that “on a fair reading of the trial judge’s reasons, considered as a whole and in the context of the record, the relocation decision cannot stand…All of the errors discussed above pertain directly to factors that the legislation dictates must govern a relocation decision. As such, this court cannot be satisfied that the decision that was made here was in fact in the child’s best interests. I would allow the appeal on this ground.”

Burden of proof: The child, since birth, had spent more than 75% of her time with her mother, which should have meant the father had the burden of proof to establish why the relocation was not in her best interests. However, the trial judge placed an equal burden of proof on each parent with respect to providing evidence about why the relocation of the child was or was not in her best interests, apparently because the amount of time the child was spending with the father was increasing.

In his decision, Justice Coroza wrote:

“There is no suggestion in the legislation that anything other than actual time spent by the parent with the child is to be considered…In determining that the mother should not have the benefit of the presumption, the trial judge inappropriately imported into his analysis…his unfounded criticism of the original parenting order [which he described as ‘draconian’]…there is no support for the finding that the mother manipulated the system, and the finding that the mother somehow ‘manipulated’ time with the child to gain the benefit  of a presumption reflects a clear error.”

Justice Coroza ended his decision with some comments on the language used by the trial judge, first acknowledging that the case was a difficult one:

“However, several passages in the written reasons appear to show that the trial judge approached the case with a level of disdain for the mother…This mocking and inflammatory tone is inappropriate in a judicial decision.”

While the mother had sought a reversal of the trial judge’s decision and an order from the Court of Appeal that would allow her to relocate to Ireland with the child, the Court of Appeal ordered a new trial.