The Aug. 21 decision in Shipton v. Shipton, 2024 ONCA 624, focused on an appeal from an order denying the mother, Kathleen Marie Shipton, permission to relocate her then-3-year-old daughter to Ireland from Toronto. The mother was from Ireland and met the father, Aamir Saleem Shipton, in England. The two got married and relocated to Toronto in 2016 for the father’s employment.
The father was injured in a car crash shortly after the move. He could not work due to severe depression and the mother took locum work in England. Their daughter was born in 2019 and the couple separated 10 months later, with the mother applying for divorce, child and spousal support, and sole decision-making responsibility for the child.
The trial judge noted that the Divorce Act requires the court to consider the best interests of the child in relocation cases. He found that relocation was not in the child’s best interest. The mother raised grounds of appeal, which included uneven scrutiny of the parties’ evidence, factual errors, legal errors and a reasonable apprehension of bias. The appellate court found that the trial judge’s decision revealed errors in all of the categories.
The mother posited that relocation was in the child’s best interests as she had a job opportunity in her field of optometry waiting in Ireland and could become financially secure, and her parents and sister would help care for the child.
There were allegations of controlling and abusive behaviour on the part of the father, which the father denied. The trial judge also rejected the mother’s narrative and evidence of other witnesses who testified “about their perceptions of the father’s coercive behaviour,” finding that the evidence worked against the mother.
“Instead, in the trial judge’s view, what controlled the mother was her lack of professional qualifications to practice optometry in Toronto,” wrote Justice Steve Coroza of the appellate court. “Had she been qualified, the trial judge commented, ‘perhaps she would have responded more sympathetically to her husband’s illness.’”
“The trial judge also found that the mother intentionally did not take optometry courses in Canada so that she would remain unqualified, therefore bolstering her rationale for relocating to Ireland. The trial judge concluded that there was insufficient evidence to show that the mother had better financial prospects in Ireland versus Toronto.”
“In this analysis, the trial judge placed significant weight on the child’s biracial identity, being of both Indian and Irish heritage, and on what he perceived as the superiority of Toronto as a place for a biracial person to live, as compared with Ennis, Ireland,” he later added.
The appellate court found that the judge erred by misapprehending or ignoring relevant evidence regarding the claim of coercive control, which is directly relevant to the Act. He also made assumptions about the mother’s attitude towards the child’s Indian heritage, which were unfounded, tainting his findings and further “allowed his analysis to be informed by an unreasonable conclusion that the mother had ‘manipulated’ the system against the father.”
The mother asserted that the father had “controlled her, ‘trapped’ her, isolated her from friends and family, manipulated her psychologically, and physically restricted her ability to leave the home.”
An incident resulted in a criminal charge later withdrawn when the father entered into a peace bond for 12 months in November 2016, requiring good behaviour and prohibiting him from having contact with the mother unless there was written consent.
The court said that the mother’s evidence of coercive control was “conspicuously absent from the trial judge’s analysis, including ” not mentioning that charges were laid or a peace bond was entered into as a result of the charges. The trial judge “cast doubt on the veracity of the allegations” and said that there was no expert evidence. However, expert evidence was not required.
Two midwives had testified to what they perceived as “concerning behaviour displayed by the father during medical appointments.”One expressed that his behaviour “caused her to be concerned that he was making unilateral decisions on behalf of the mother.” The trial judge discarded this evidence and said that the midwives were a “circle of self-appointed jurors pointing their fingers at [the father].”
“Also concerning is the trial judge’s characterization of the father’s agreement to use a midwife as ‘wholly incongruous with the behaviour of a misogynist and a gaslighting abuser,’” wrote Justice Coroza. “Unsurprisingly, trial counsel for the father did not make this submission. This is not ‘incongruous’ as the trial judge states, but rather a complete non sequitur,” he added.
The trial judge had also drawn upon text messages that were not the subject of testimony or submissions in order to “support his conclusion that the mother was motivated by a desire to erase her child’s Indian heritage from her identity,” the appellate court found.
“The trial judge found that the mother harboured a ‘delusion’ about the child’s racial identity, that she and her family had a motive to ‘assimilate’ the child, and that the town to which the mother proposed to return was, in his words, ‘small and strict’ and would be unwelcoming to a biracial child. These findings were disconnected from any evidence in the record.”
The appeal court ruled that such a view was not articulated by anyone at trial and reflected stereotypical reasoning on the part of the trial judge. It was a perspective that he had brought to the decision entirely himself, noted the decision. He also brought up residential schools and mass family dislocations of the Second World War relating to “assimilation.” The appellate court found the comments “inappropriate” and “unnecessary.”
He also mischaracterized a number of text message exchanges between the mother and the father. The mother sent the father texts that she would like to change the child’s last name. The trial judge was said to make an unfounded conclusion attributing malicious intent to the mother as he said she was “cleansing traces of [the father] from [the daughter’s] identity.”
The appeal court agreed with the mother that despite the case being framed and argued as a relocation case, the trial judge “appeared determined to treat it as a case about spousal support,” which was a clear legal error.
“By treating this as a support case and the mother’s motivations for moving as financial only, the trial judge circumvented the list of legally mandated considerations relevant to relocation,” wrote Justice Coroza, adding that both the mother’s career motivation and her description of family support should have been considered in relation to the child’s best interests.
The court noted that 18 months had passed since the trial, which was “an enormous amount of time in the life of a 4-year-old child” causing “important new developments that should be considered as part of the ‘best interests’ analysis.”
Justice Coroza encouraged the parties to come to an agreement to settle the matter, as a new trial would still be unlikely to result in an order that suits the parties better than an arrangement they can one up with themselves.
The appeal was allowed, and a new trial was ordered on an expedited basis. Justices Sally Gomery and Lois Roberts agreed.
Counsel for the appellant were Aaron Franks of Epstein Cole LLP and Michael Tweyman of Modern Family Law LLP, who were unable to provide comments as the matter was still before the courts.
Counsel for the respondent were David Tobin and Christina Hinds of Frenkel Tobin LLP, who were not immediately available for comment.
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