Court File and Parties

Court File No.: FO96-12 Date: 2012-10-23 Ontario Court of Justice

Between: Rachel Roberts Applicant

— And —

David Roberts Respondent

Before: Justice Lawrence J. Klein

Heard on: September 19, 2012

Reasons for Judgment released on: October 23, 2012

Counsel:

• Hugh McLachlan for the applicant(s)
• Self for the respondent(s)
• Peter Rutland for the Office of the Children's Lawyer, legal representative for the children Michael David Roberts and Nicholas Steven Roberts

KLEIN, J.:

Background

[1] This matter was heard September 19, 2012 on the issue of whether the Applicant mother, Rachel Roberts, should be permitted to move with the children namely: Michael David Roberts, born May 12, 2000 and Nicholas Steven Roberts, born June 9, 2004 to Thompson, Manitoba with the necessary modifications to the Respondent's access to the children.

[2] As with many cases that come before this court, this matter has a long and involved history. This latest foray into the court began as a Motion to Change brought by the Respondent father, David Roberts, dated March 26, 2012 and returnable May 3, 2012. The request was to change the Consent Final Order of Justice J. D. Keast of October 16, 2008 to amend the police assistance clause to require rather than permit the various policing agencies to render assistance in enforcing the custody/access terms of Justice Keast's order.

[3] Before the Motion to Change was returnable before this Court, the Applicant mother advised the Respondent father of the possibility that her long-time common-law partner, Richard Guillemette, the father of her youngest child Natalie Guillemette, born November 2, 2010, was in the process of possibly obtaining a job in his chosen field as a miner in Thompson, Manitoba. The Respondent acting upon that information, moved to amend the Motion to Change to include an order that the children remain in Ontario until the present motions before the court could be heard.

[4] On April 10, 2012 Justice G. P. Rodgers received a motion by the Respondent father brought without notice to the Applicant mother and made an order that the children not be relocated by the Applicant without a further court order permitting such relocation.

[5] On May 3, 2012 Justice L. Duchesneau-McLachlan, in the presence of the parties, granted the Respondent father's request to amend his motion to include a request for a change in custody and child support. She also made an order requesting the assistance of the Office of the Children's Lawyer.

[6] On May 17, 2012 Justice L. Duchesneau-McLachlan, made a temporary order to deal with some access problems and on June 7, 2012 Justice G. P. Rodgers made a temporary order reducing the child support payable by the Respondent to accord with his annual income as disclosed.

Positions of the Parties

[7] The Applicant mother argued through counsel that the best interests of the children required them to accompany her to Thompson, Manitoba to reside with their step-father, Richard Guillemette, and their half-sister, Natalie. She proposed that access to the Respondent father be for lengthier periods occurring three times per year namely: 2 weeks at Christmas, the week of the March break and for much of the summer vacation. She would arrange and pay all expenses for the children's travel from Thompson, Manitoba to North Bay area and return. Also, she would make the children available for regular skype conversations with their father. The children's lengthy stays in the North Bay area would allow them to visit with both maternal and paternal grandparents in the Golden Valley area.

[8] The Respondent father opposed the relocation of his sons to Manitoba and proposed that he could make necessary renovations to the basement of his home to accommodate the boys with the other children in that house. He was concerned that he would lose contact with his sons and that their mother would alienate them from him. In the event that this court did not change custody of the children to him, he sought extensive long-term access periods with them and on-going communication through skype or face time.

Office of the Children's Lawyer Report

[9] The Office of the Children's Lawyer through children's counsel Mr. Rutland with a clinical assist felt that the views and preferences of the boys were ascertainable and reliable. The OCL provided a good overview of the children's life for the past six years or so. During that entire time they had been in the care and custody of their mother and had reasonable access to their father. Both boys were doing well in school and were reasonably unaffected by the many moves which were necessitated by the employment changes for Richard Guillemette. They appeared to have adapted well to those changes. Significantly, they were clear in their strong preference to remain in the care and custody of their mother and could articulate the reasons therefore. They did not find the father's accommodations to be adequate for them on a long-term basis. This crowded situation was confirmed during the OCL visit to the father's home. The boys did not get on well with the other children in the father's home. They also felt that the father/step-mother relationship was problematic. The OCL confirmed that the children have a strong and close relationship with their grandparents, both maternal and paternal, who reside in Golden Valley. This is seen to be a very positive aspect of the children's lives and they would expect to spend time with their grandparents whenever they are in the North Bay area. Both sets of grandparents support the move to Thompson, Manitoba by the mother and the children despite the distances involved.

The Law & Analysis

[10] The relevant factors for this court to consider in a mobility case such as is before the court have been enumerated in the leading case Gordon v. Goertz, [1996] 2 S.C.R. 27. Like the case before me, Gordon v. Goertz was a matter that was not an originating application but a variation of an existing custody/access order. The principles involved are well-trodden legal ground. In a variation proceeding there is already in existence a determination that the relocating parent is the parent best suited to meet the children's needs. Somewhat surprisingly in following this line of cases, the parents' reasons for moving are relevant only if they disclose an improper purpose such as: to frustrate the access parent's relationship with the children; or if the custodial parent is moving away from something and not to something; or where plans for the move are poorly thought out and fraught with uncertainty. In cases where the parents shared equally the tasks of parenting and were equally involved with the children an order preventing relocation would be appropriate. None of those above factors are present in this case.

[11] The desirability for maximum contact between the children and their father has been answered by the mother's proposal for three annual periods of lengthy access and by the availability of technology such as skype and face time that allow for frequent and meaningful contact between the children and their father. The views of the children as expressed by their lawyer, the OCL, are very clear and strongly support the move to Manitoba. The children's removal from the community, their family and school, although not ideal, represents the norm for them given the conditions of employment of their step-father Mr. Guillemette. In other words, this mobility is what they are accustomed to expect in their lives. Finally, the disruption to the children by removing them from their family, i.e. mother's home, through a change in custody in the face of their clearly and strongly expressed wishes would be nothing less than catastrophic under those circumstances.

Decision

[12] A Final Order will be issued as follows:

1. The children, namely, Michael David Roberts, born May 12, 2000 and Nicholas Stephen Roberts, born June 9, 2004, shall remain in the care and custody of the Applicant mother, Rachel Roberts.

2. The Applicant mother shall be at liberty to relocate with the children to Thompson, Manitoba.

3. The Respondent father, David Roberts, shall enjoy access with the children as follows:

a) A two-week period during the Christmas school break;

b) A one-week period during the March/Spring school break;

c) A summer access period commencing one week following the end of the school year to one week prior to the commencement of classes;

d) Regular communication via skype or face time or such other available real-time communication which shall occur no less than two times per week;

e) Such other and further access as may be agreed upon and arranged by the parties.

4. The Applicant mother, Rachel Roberts, shall bear the responsibility for arranging for and payment of the costs of transportation of the children from their home in Thompson, Manitoba to their father's home in North Bay, Ontario and return to provide access as ordered above.

5. There shall be a police assistance clause requiring the police to render all assistance necessary to ensure compliance with the custody/access provision of this order.

6. The Temporary Order of Justice G. P. Rodgers dated June 7, 2012 in clauses 1 through 6 as relating to on-going child support shall be made Final.

7. There shall be no order as to costs.

Released: October 23, 2012

Signed: Justice L. J. Klein