Court File and Parties

Court File No.: Guelph D-179-11 Date: 2012-07-18 Ontario Court of Justice

Between: Frank Orsan, Applicant

— AND —

Angele Spears, Respondent

Before: Justice P.A. Hardman

Heard on: April 30, May 1 and May 2, 2012

Reasons for Judgment released on: July 18, 2012

Counsel:

• Harald Schneider for the applicant
• Angele Spears on her own behalf

HARDMAN J.:

Introduction

1The father has brought an application seeking custody of Ayden born […], 2003 pursuant to section 21 of the Children's Law Reform Act (R.S.O. 1990, c. C.11) as well as child support pursuant to section 33 of the Family Law Act (R.S.O. 1990, c. F.3). The mother has cross-claimed for the same relief. Both parties request that the other should have access. There has been no previous separation agreement or court order regarding Ayden.

Background

2After dating for about five months, the respondent mother and her two children, Julianna born […] 1997 and Andrew born […] 1995, then aged approximately 4 and 6 respectively, moved in with the applicant father in 2001 into a home in Kitchener that he had purchased in 1999. According to the father, he had previously had a tenant/roommate who had been paying $500/month towards the bills. He said he was having trouble meeting his expenses after the roommate moved out.

3In the beginning, despite the mother and the father being in an intimate relationship, the mother paid the father $800/month and covered her own car lease, insurance as well as the household groceries. While the evidence is not clear on the timing, the father stated that after six months, the mother started paying the leases and insurance on the two vehicles as well as the household groceries instead of the monthly $800. He told the court that this arrangement continued until she moved out, despite her financial circumstances being adversely affected by her illness and her maternity leave.

4Ayden was born […], 2003. It appears that he was baptized and did his First Communion in the Roman Catholic Church. He attended the nearby St. Mark's Catholic School for both junior and senior kindergarten.

5The mother testified that during the relationship she was the one who made the decisions regarding Ayden and that the father went along with them. She was the one who organized all the dental and health care for the child. She said that this continued after they separated. She said that the father was content to go along with the decisions that she made regarding Ayden. The father's evidence does not dispute the differences in their roles when together or apart.

6At some point the mortgage on the father's home was renegotiated and both the mother and the father ended up on title. In early summer 2007, the mother told the father that she and the three children were leaving the home and the relationship. However, they stayed in the home until October 2007 when the mother, using a $10,000 payout of her interest in matrimonial property, purchased a home on Mill Street in Kitchener, about four kilometers from the father.

7The mother testified that while she wanted the father to have a lot of contact with Ayden, she never intended that he would have Ayden more than 49% of the time or be the person in charge. She said that she did not trust his judgment enough. She noted that while he had Ayden in his care a great deal, he did not participate in decisions and functioned more as a daycare provider would.

8After the mother and the three children moved out, the father then proceeded to have Ayden in his care alternate weeks, coordinating with the alternate weeks that the mother's other two children spent with their father, Shane. Ayden continued to attend St. Mark's. The mother testified that it started out Tuesday to Sunday as the father had darts on the Monday but eventually evolved into the full week.

9Unfortunately the mother had become quite ill with the return of her cancer. She testified that the father was not available to help. She noted that his parents and friends sometimes helped although once she separated from the father, the support from his family for her and the children lessened. She said that it was Shane, her ex-husband, and not Ayden's father, who helped her with all three of the children as well as some household bills. Therefore, when Shane moved to Guelph to take a job at the university, the mother indicated to the father that she intended to move with the children to Guelph because she needed the support Shane was able to provide for all three children. Therefore a year and a half after the separation she and the three children left their Mill Street home in Kitchener to move to a house that she had purchased on June Avenue in Guelph. Ayden began attending the nearby June Avenue Public School. The mother told the court that the father had complained at the time about Ayden being in the public school system.

10Unfortunately, as a result of her illness, the mother was unable to maintain her employment and support the home. Indeed she borrowed $5000 from her father to maintain the mortgage and more to pay back taxes. Therefore she had to sell that home and move into a rental accommodation on Schroeder Avenue in Guelph; once again Ayden had to change schools, this time to Holy Trinity Catholic School in the fall of 2010.

11Throughout the time that Ayden resided in Guelph with his mother, each day during his alternate access weeks the father would drive Ayden to school in Guelph and pick him up from after school, usually from the care of his siblings or Shane. The father noted that the drive to Holy Trinity was 45 minutes each way.

12During the time he was living in Kitchener and Guelph, Ayden participated in first in T-ball and then baseball, power skating and then hockey, swim lessons and music lessons. Until 2010 when the mother was having financial difficulties, it appeared that the cost of the activities was shared. At the mother's suggestion, the father paid for the hockey registration on his own for the 2010-2011 season and changed his hockey league to the one in Kitchener.

13The father met Shonna in May 2009 and in September 2010, Shonna and her daughter Kree-Lynn, born […] 2001, moved into his home. They subsequently married in July 2011.

14When her own mother became very sick, the mother started going up to the Sudbury area regularly to help out. After her mother died in 2009, she continued to be in the north a lot as she was the executor of her mother's estate and her father had fallen apart emotionally and needed her help. During this time, she began dating Josh, someone that she had known for thirteen years. While initially they considered trying to work and live in the Guelph area, the mother had another cancer scare. While the tumour fortunately turned out to be benign, the mother decided that she wanted to be near her father and other members of the family for to support them and for their support. Further she had been unable to obtain a job in this area. Therefore, she decided to move north given a job opportunity, her relationship with Josh, her concern about supporting her father and sister, and her desire for the children to get to know her very large family (she has 97 first cousins) in the Sudbury area.

15Given their ages and the mother's confidence in his ability to parent, the mother and her ex-husband Shane discussed the mother's proposed move extensively with Andrew and Julianna and gave them the choice of whether to stay with their father Shane in Guelph or move with the mother; despite their excellent relationship with their father they chose to move north to be with the mother.

16The applicant father did not want the mother to move to the Sudbury area with Ayden but the mother decided that they would go. The mother moved herself and her three children to Skead, a small community located 30 kilometres northeast of Sudbury in June 2011 and they have remained there since.

17The father brought a motion seeking interim custody of Ayden which motion was heard September 2, 2011 by this court. The mother was granted interim custody for oral reasons provided that day. The issues of access and child support were worked out on consent and are contained in a temporary order dated September 30, 2011.

18Since that time, the father has had access about every three weeks. Where ever possible, that weekend access has been organized next to a PD day to provide the extra time. The mother has driven the children to Waubaushene, a point 100 kilometres beyond the half way point, for the exchange. Further, the drive for the pick-up and drop-off is shared by the two fathers as all three children travel for access at the same time.

19There was also summer access by the father at his mother and stepfather's cottage located a couple of hours from the mother's new home.

Reasons for the Separation

20Although the separation of the parties occurred over four years ago, the nature of their relationship with each other and the children both before and after separation is important in the determination of this matter.

21There were a number of reasons for the separation. While the father has suggested in his evidence that the mother had a relationship with someone else, the mother was not asked about that and if there was one, it did not appear to play a role in the mother's decision to leave the matrimonial home. The father testified that they "fell out of love". While that may be the case, there were a number of concerns that led to the mother's decision to leave with the children.

The Father Was Not Committed to the Relationship or the Family

22The mother testified that the father was more interested in his partying and sports than he was in being committed to the family. She said that she first considered leaving when she was three months pregnant with Ayden as she realized that the father still wanted the party life. She testified that he continued to do things on his own.

23She told the court that she and the father were on a sports team together and one time she was very sick and unable to go. The father not only left her to go and play himself, he brought a woman home with him, stayed up most of the night, and the mother discovered them sleeping together unclothed at 7am in the morning when she went to work. However, she testified that they tried to work it out as she was pregnant with Ayden. The mother testified that they had a number of disputes about his lack of commitment to his family, his overuse of alcohol, and finances.

24The mother explained to the court that when she was diagnosed with cancer again in 2005, the father was not helpful. When she had surgery, her mother and father had to come down to stay to look after both her and the children. She told the court about an incident where she was being physically ill during her chemotherapy treatment for cancer and the father was angry about the noise and turned the television louder. While the father denied this, the maternal grandfather confirmed the incident and was not challenged on his evidence in cross-examination.

25She told the court that the father would complain about having to do anything if she or the children were ill.

26The father told the court that he was "touched" "emotionally" by the mother's illness but that she often did not want help. However, he then acknowledged that he "maybe" could have supported her better. There was little in the father's evidence to contradict the allegation of his failure to be completely engaged with the family during this time.

27The maternal grandfather confirmed that he and his wife, now deceased, were upset that the father cared more about his sports and partying that about helping the respondent mother and the family. Once again, he was not challenged on cross-examination regarding his view of the father's lack of commitment.

28The mother testified about another incident that demonstrated the father's lack of focus on the family. She said that when Ayden was ten months old, both he and she were admitted to hospital with influenza A virus. She told the court that they were allowed to remain in the same room but were quite isolated as anyone entering the room had to scrub up and mask. She said that the father dropped in for a few minutes New Years Eve with a friend but left because he had a party to go to. The next day, she tried to reach him all morning to have him come to pick them up but he was not answering his phone. Finally she called his mother and stepfather and they came and picked them up at the hospital and took them to their place. It was not until early evening that the father called looking for them, saying that he had slept in.

29The father remembered that they had been in the hospital at the same time but did not remember whether it had been New Years Eve nor could he recall the issue of not being available to take them home from the hospital. However, both the paternal grandmother and step-grandfather confirmed that they had picked Ayden and the mother up from the hospital and that they had spent hours at their home before the father showed up to take them home.

30The father's difficulty in being a responsible parent was also illustrated in his failure to supervise Ayden who was left in his sole care in July 2006, resulting in Ayden falling in the hot tub and effectively "drowning". Fortunately the child was revived but even his own mother and her husband were furious with the father's failure to focus on Ayden. Indeed it was the mother's daughter Julianna who discovered Ayden floating in the hot tub, not the father.

31The maternal grandfather said that while the father was "not a bad guy", he was always consumed with work and "liked" his hockey games and sports. He testified that the father was not focused on the children.

The Father's Treatment of Julianna and Andrew

32The mother has said that the father treated her two older children badly. While the father did not show meanness towards Ayden, she told the court that the older children complained about him being mean to them. She said that Andrew in particular was afraid of him and would stop playing and become quiet when the father was around. She said that often the father ignored them as a family.

33One specific incident involved the father's treatment of Andrew one morning two years before separation while they were getting ready to leave the house. The father was the one who got the children ready for school as the mother left early. The father testified that they were running late and he asked Andrew if he had made his bed, knowing that he hadn't. He said that when Andrew said that he had, he asked him another couple of times. When Andrew lied to him, he pulled him upstairs to make him do it. He said that he was yelling at Andrew and Andrew was crying. He admitted that it was "not the best thing to do".

34At school, Andrew told the teacher that the father had hurt him and showed him the marks on his wrist. The police and the society became involved but no charges were laid. While the mother told the court that it was her understanding that the issue was Andrew not wearing socks, it is clear that the incident happened and that the father had essentially dragged Andrew upstairs in frustration.

35The mother testified that as she was not there to witness the incident, she decided to stay as the father agreed that there would be no other incidents. She noted that the children's aid society followed up to ensure that there were no further incidents.

36Despite telling the court that Andrew and Julianna were polite, respectful children, the father acknowledged that he had taken his stress out on the children although he was upset with the mother about her decision to leave. He told the court that he "did not want to lose (his) family" and that part of that was raising her two children.

37In cross-examination, the father admitted that he did become upset with the children and thought that was what the children had meant about him being mean to them. He told the court that it was a "tough" relationship "at the end" and that he has apologized for some of the things that he had said and done and that he felt that the two children had forgiven him. The stepmother told the court that the father had described his relationship with Andrew and Julianna as "a little stressed" prior to separation.

38The mother testified that her brother who was at their home taking out a window for them and putting in a sliding patio door and a deck left without completing the project because of the father's arrogance and rudeness as well as the way that he treated Andrew and Julianna. While he did return to finish the project for her, he never visited the children at the home again.

39It seems clear that despite their young ages of about four and six when they started living with him, the father did not treat Andrew and Julianna as his own children. The paternal step-grandfather acknowledged that he had never seen the father "cuddle" with Andrew or Julianna and confirmed that he treated them differently than Ayden, showing favouritism toward Ayden over the other two children. Further, despite having lived with them for six years from such a young age, he never sought any access to the two children after separation or helped with them financially in any way. While he has been seeing them recently during the drives from Waubaushene to Guelph, that contact is due to the shared access arrangements with their father Shane.

40Interestingly, the father is described by the paternal step-grandmother as treating his wife's daughter Kree-Lynn "like a daughter", a contrast to his relationship with the mother's two children. He has also been attending Kree-Lynn's school events and appointments with Shonna, something he did not do with Andrew and Julianna.

The Father's Drinking

41The father testified that he did not have an alcohol abuse problem and minimized his involvement with alcohol in the past. He acknowledged that he had been fined and received a one year driving suspension for impaired driving in 2001. When he was asked about the "failure to remain at the scene of an accident" charge that happened in 2006, the father talked vaguely about leaving the scene of an accident where he had done some property damage and later suggested that he had had long hours at work. However, in cross-examination, it became clear that he had smashed his vehicle into the front of a store after drinking at a bar and then had left the scene to drive back to the hotel. Further, when asked if he had consumed alcohol afterward to cover up the impaired driving, the father acknowledged the further consumption of alcohol. Despite the readings of 160 and 165 milligrams of alcohol in 100 millilitres of blood, the charge of impaired driving was dropped and in 2007 he was found guilty of leaving the scene of an accident. It appears that the court ordered a year of probation with a term not to drive for three months.

42The mother testified that there was a constant battle over his drinking. The paternal grandmother acknowledged in cross-examination that the mother had called her about the father's arrest on these last charges; indeed she said that the two of them were crying together on the phone. She told the court that the mother was so upset that she was sick. Both she and her husband confirmed that they came over and spent the night with the mother and Ayden until the father was released from custody the next day.

43When he was asked in cross-examination about his substance abuse assessment at the John Howard Society, the father admitted that they had concluded that he was in the higher risk category of having a problem with alcohol and that he had attended a two day treatment program. When asked if he had been abusing alcohol, he would only admit that that was what the John Howard Society told him. He denied drinking routinely, stating that he only had one or two if watching a hockey game.

44His own father, the paternal grandfather, told the court that they had been concerned about the father's drinking in his mid-twenties but was not at the time of trial. Of interest to note is that the father's failure to remain at the scene of the accident happened when the father was approximately thirty two years of age, not in his mid-twenties. When the applicant's mother was asked if she had concerns about her son's alcohol abuse, she told the court that he had had problems in the past. Indeed it appeared from her evidence that the father's brother who is a police officer has had concerns about the father's consumption alcohol.

45Clearly the father has had issues with his drinking despite his minimizing of the same.

The Father's Anger Management Issues

46It has already been noted that the father's treatment of the mother's children at times suggested that he had anger management issues. When asked about the day that the mother moved out, the father appeared to be vague about the specifics but acknowledged that he had come to the home when it had been arranged that he was to stay away and that they had argued. Despite the mother apparently taking few things from the home bedsides the children's furniture, he admitted that there had been yelling over items in the home.

47In his evidence, the maternal grandfather confirmed that the father had had "a little temper issue with the kids" and that he would worry about the father as a full-time parent.

In Summary

48It is important to note that the father told the court that having Ayden was the best thing that had ever happened to him and that it changed his life. While no doubt some parts did change, it would appear that his focus on his own pursuits and his poor choices may have continued for some time despite his new responsibility.

49While the father has complained about the mother's transience during the past few years, it appears that the mother's decision to leave the father and the matrimonial home was an understandable one given the issues in the home and the father's behaviour. In fact, the paternal grandmother acknowledged that when the mother said that she was leaving the father, she did say that she wondered why it had taken her so long to leave. She said that she had told the mother that she should leave if the relationship was harmful to her health.

50The paternal step-grandfather also testified that he had not agreed with what the father had done in the past but thought that he had "cleaned up his act" since.

The Father's Plan

51The father wants the court to give him custody subject to access by the mother. He has proposed that that access would be the same as he currently has.

52The father has submitted that his plan is the more stable one and the one that is in the child's best interests for a number of reasons including:

His Stable Home and Neighbourhood

• the child lived in his home while with the mother and the father for the first seven years of his life
• after separation, the child spent half the time with him in the same home
• the child has neighbourhood friends there
• the child played hockey in the local league in his municipality
• the child will have his own bedroom

His Parenting

• he is more available to be there to parent the child as he has successfully managed his Crohn's Disease and is in good health while the mother has had cancer issues in the past more than once
• he is the one who is prepared to ensure that the child has the opportunity to be involved in organized sports and music

His Financial Stability

• he owns and operates a successful business that is capable of supporting himself and his family including Ayden

Family Support and Connection

53A cornerstone of the father's position is the supportive family that Ayden has left behind as a result of moving with the mother.

54First there is the relationship with his new wife and her daughter Kree-Lynn who is about seventeen months older than Ayden and according to all the evidence is a wonderful child that plays well with Ayden. The stepmother testified that she and the father met in May 2009; then in September 2010 she and her daughter moved into his home. The father and stepmother were married July 26, 2011.

55The stepmother appears to be a good parent, perhaps even a stabilizing force for the father. Unfortunately it appeared from the stepmother's evidence at trial that the father had not been forthright with her about the extent of his criminal record; hopefully that discovery will not have an adverse effect on his relationship.

56She acknowledged that she and Kree-Lynn had only been living in the home while Ayden was there for week about access from September 2010 to June 2011 when he moved north with his mother. Nevertheless, she described the relationship between the children as a close one"like brother and sister". The plan is that Ayden will attend the same school as Kree-Lynn who is in grade five although it appears that in another year, Kree-Lynn will have to change schools for grade seven. The proposed school is the local public elementary school, not the original separate school that Ayden previously had attended.

57The father also has family support, particularly his parents and their partners. The paternal grandfather and his wife since 1989 have been quite busy with their small business but nevertheless are involved with both her two grandchildren as well as his three. The grandfather told the court that they used to see Ayden 20-30 times over an eight month period but since the move to the Sudbury area that had been reduced to 5-6 times. The grandfather said that he would miss the opportunity to see Ayden grow up.

58The paternal step-grandmother told the court that when Ayden was in the father's care more often, they would "pop" in to visit. However, since he has moved, she has only seen Ayden four times.

59The paternal grandmother and her husband of thirty years also live near the father. She told the court that they saw Ayden often when he lived half the time with the father. Indeed, the "odd time" they babysat to help out and other times just "borrowed" him to have a visit. She acknowledged that their contact did start dwindling when the mother moved to Guelph.

60The paternal step-grandfather was particularly close to Ayden and often took him to his hockey, music and swimming lessons.

The Mother's Plan and the Father's Concerns

61The mother wants Ayden to stay with her in her new home near Sudbury. She has told the court that she and her three children live in a home on a lake, a home that she intends to purchase once the severance issues are sorted out. It is a home they share with her fiancé Josh who appears to be fully employed and involved with the children. The maternal grandfather confirmed that he has seen Josh interact with the children and he appears to get along well with them.

62Josh testified that he enjoyed his interaction with the children and denied that Ayden was bored. He also said that the mother's family was close and supportive. He noted that there were new children moving into their immediate neighbourhood. He did struggle to name many of the family members that he has met.

63As supports in the area, the mother has her father, her sister and many other cousins. The maternal grandfather told the court that he lives only twenty minutes away and has looked after the children.

64The mother told the court that she was starting a new job the Tuesday after the trial which is why the court invited written submissions.

65She testified that her other two children have grown up with Ayden and are worried that they are going to lose him from their home and family. All the evidence supports the conclusion that Ayden and his brother and sister have been raised together and share a close bond. They participate in activities with each other and support each other.

66The father has raised a number of issues with her plan. First he is concerned about the child not being registered in any organized sports. The mother has told the court that he was not interested at this point but instead expressed an interest in dance which does not start until the fall. Further at his request he has only recently become a member of a martial arts club and participates in fishing, swimming and playing outdoors with friends.

67While there are a lot of benefits with organized sport, there are other ways for children to play, learn and socialize with friends. At the mother's home, the child has access to a number of outdoor pastimes but if he wishes, I presume that he can also participate in an organized sport. There was no suggestion in the evidence that the mother was ever opposed to the child's participation in the past. Indeed she facilitated his continued participation closer to the father's home when she no longer could pay her half. Further, the father acknowledged that when the child was at his parents' cottage, the swimming and fun was stimulating for the child.

68The father and some of his family have expressed concern about the risks facing a child living on the lake. The mother and her fiancé both explained that the child is not allowed past the gazebo without supervision and that he understands that. They have also confirmed that the child is a much better swimmer now from all the practice last year. The mother testified that both of her other children have badges in swimming/lifesaving so hopefully she will ensure the same opportunities for Ayden.

69The father also testified about his concern about Ayden having to share a bedroom with his brother at the mother's home. He told the court that Ayden complains about his brother being messy. While the mother acknowledged that Andrew can be messy, she said that they get along fine. Further, she pointed out that while she and the father lived together, the two boys shared a bedroom.

70The father also expressed concern about the child's bedroom being in the basement with no heat and only a concrete floor. However, both the mother and her fiancé said that the bedroom was located above ground but three steps down, with ample windows, and was heated and had proper floor and drywall. This was somewhat confusing as the father had actually attended the home and seen the room yet seemed to have come to his conclusions about the unfinished nature of the room based on comments from the child. It appeared that the father must have forgotten what he had seen on his visit and was mistaken in his understanding of any remarks made by the child as neither Josh nor the mother were challenged on the issue.

71The father also expressed concern about the remote location of the new home and the distance to school and medical help. However, the mother testified that there was medical help nearby and there seemed no basis for his concern. She also testified that the school bus ride was about forty minutes long. While it may be true that every parent would prefer their children to attend a school within walking distance, it cannot be said that it is contrary to a child's best interests to be bused to school. Indeed the provincial education mandate for a number of years appears to have been to close many of the elementary schools that were close to small communities and neighbourhoods, forcing children to travel by bus.

72The father's concern about the weather, snow and the road the school bus had to travel in my view was supposition on his part and not particularly of concern.

73The father has testified that the child has a number of friends in his neighbourhood. However, it should be noted that the child has not lived fulltime in that neighbourhood for some time and currently has made new friends up north. The father acknowledged that the child had mentioned a friend on the bus and a sleepover at another friend's. Further there was evidence even from the father that the child was able to make friends wherever he went.

74The father also had some concerns about the school report cards but it appears that the child is doing much better and is working on the issues identified by the teacher.

75The father suggested that the child be placed with him because of the mother's health and her potential future hospitalizations. First of all, there was no evidence about any current health issues that might affect the mother's ability to parent. Further there was no suggestion that the mother had been unable to parent in the past despite the serious difficulties that she encountered. Certainly there were two changes of residence and schools as a result of her illness as she needed support and could not financial manage her home. However, throughout that time there appears to have been no complaint about the care of the children.

76Also, I would think that generally if a parent were to be diagnosed with a serious disease, one of the considerations might very well be to maximize the child's time with that parent as long as the child's needs could continue to be met in his or her care. It would also be expected that the access parent would be willing to assist if asked to assume more responsibility for the child temporarily until the custodial parent was well enough to resume fulltime care of the child.

77In reviewing the issues raised by the father, none appear to be of any great significance. While children unfortunately can put themselves at risk, the mother has taken steps to address those risks identified. The other concerns raised by the father are not significant factors to be considered in determining the child's best interests.

78One of the considerations for a court in determining custody is often the attitude and relationship of the parents. The evidence supports the finding that the mother has been the child's primary caregiver since birth despite the amount of time spent with his father after separation. She has always functioned as the "child's manager", arranging the appointments and ensuring that the child's needs were met. It was in that context that she took Ayden with her and the rest of her family when she separated. Also it was in the same frame of mind that she took Ayden when she moved to Guelph and then north to be with her family. While there was no custody order, the mother has been the one to exercise the incidents of custody: making the decisions affecting Ayden on her own.

79There is no evidence to suggest that she moved Ayden to the Sudbury area in order to interfere with the father's involvement in the child's life. Instead, having faced yet another threat to her health, she wanted to move to reconnect with her family and their support. In her mind, she was the primary parent and Ayden needed to be with her.

80Her attitude to access supports the view that she believes that a child's relationship with the other parent is important. Despite taking Ayden with her, she encouraged the father to have a lot of time with Ayden after separation. She continues to encourage regular contact not only with the father who speaks to Ayden three to four times a week but also with the extended family. During the summer she allowed Ayden to spend time at the paternal grandmother's cottage.

81Indeed, during the trial, she asked members of the father's family why they never called Ayden as she would like them to and was supportive about the step-grandfather's recent acquisition of a computer and Skype in the hope that he and Ayden could have regular communication. The mother currently drives the extra hundred kilometres to facilitate the father's access.

82The mother also has worked at providing information about the child not only to the father but also to other family members. Her respect for their involvement with the child was obvious as was her gratefulness for their support particularly when she was struggling within the relationship with the father.

83The father's attitude to the mother is somewhat less supportive. During his evidence, he seemed to want to insert negative remarks about the mother whenever he had the chance. He said that the exchange of days at Christmas to accommodate a family dinner was a "farce" given the small number of people there. Given the fact that the time was made up it was hard to understand why he would take such issue with what sort of dinner the child attended. Further, when asked about the mother's other two children, he acknowledged that they were good children. He said that Andrew was a "nice" kid- that he had "a lot of his father in him"- which seemed intended to be a completely unnecessary criticism aimed at the mother.

84At one point the father acknowledged receiving information about the child from the mother but was dismissive about it, saying that he couldn't believe her. When asked why he said that, the father had no explanation and admitted that he had not even attempted to follow it up on his own.

Procedural Concerns

Credibility

The Father

85In listening to the father's evidence, I had noted him to be evasive at times when dealing with the questions posed in cross-examination. Further, it was clear that he minimized his problems with alcohol and was not truthful about some of the incidents put to him. It is most unfortunate that he appears not to have been completely forthright with his new partner about his past criminal issues and issues related to his drinking.

The Mother

86There are a number of concerns about the mother and her ability to be guided by the law and the court. Costs were ordered against her on two occasions by the court for failing to have her material ready as ordered. She compounded those failures by not paying the costs during the time she was given. Further she failed to file her submissions on time, submissions she had asked to be in writing due to her new employment.

87However, the worst and most disturbing behaviour on the part of the mother was her fabrication of both a letter of employment dated November 29, 2011 from TESC and a contract. The mother actually filed these fake documents in the Continuing Record on December 12, 2011 as Justice Frazer had ordered that she file proof of her employment. Until told about a witness from TESC waiting to testify, the mother did not hesitate to lie. Her behaviour was absolutely astounding.

88Prior to this admission, the court had directed the mother to answer the questions put to her on cross-examination more directly as she appeared to "wander" in her answers. When counsel for the father suggested to her that the letter and contract were fabrications, the mother replied quite defiantly that that statement was a fabrication. It was not until she knew about the witness from TESC and was cautioned by the court about telling the truth that the mother finally acknowledged that she had indeed fabricated the letter and contract.

89In explanation, the mother told the court that she had been negotiating a contract with the company but that when it had not materialized, being afraid that the court would make her move back, she made up the documents. She said that she was afraid that her failure to get that job would hurt her family's chances of staying together and told the court that the father had told her in a phone call that he would take "every measure" to get the child. She said that she was scared and made the wrong decision.

90At trial, her evidence about her relationship with the company was all over the place; she clearly had made up all sorts of details to explain the changes to her story.

91Her fiancé Josh confirmed that the mother had been in negotiations with TESC for a fulltime job but that it had not come through. He confirmed that the mother was starting a different job the Tuesday after the trial.

92This was not the only challenge to the mother's credibility. Her explanation of her part time employment in Guelph also at times seemed vague and contradictory. The father called some reply evidence challenging her evidence about one part time position but that witness appears not to have been the primary person who dealt with the mother and did not appear to be in a position to contradict the mother. Further, the allegation regarding alcohol use seemed to have stemmed from drinking during a business lunch and there was no other evidence suggesting that the mother had an alcohol problem.

93The mother's evidence that she had not received child support was challenged by the production of cheques noted as support. Her explanation that any money she received from the father was as a result of invoiced work that her company had done for him but those invoices were not produced. However, the father acknowledged that he had contracted with the mother's company for work and some of the cheques were not marked as support; therefore, only the cheques marked as support appear to be at issue. There were only a few of those and they are not of significance substantively.

94The mother's evidence about the nature of the contract she and her fiancé had regarding their home was also confusing. Despite initially saying that they bought it, she then explained that they could not have title right away due to the number of homes on the site. However, her fiancé appeared to support the proposition that ultimately they would obtain title to the property.

95The mother's explanation about the child's registration in activities and the delays and changes was also not very straightforward. Unfortunately given her preparedness to fabricate some of her evidence, it is difficult not to feel that she is manipulating her testimony when it is not given to the court in a direct and honest manner. Fortunately, the mother's evidence about her home has for the most part been corroborated by her father and fiancé Josh.

96In fact, most of her evidence about her life with the father and events in separation seemed to have also been corroborated by other evidence or at least not challenged.

97While the costs have been paid and the submissions were ultimately filed, her disregard of the specifics of her obligations is concerning. Her behaviour was so extraordinary that one has to wonder if she should be seeking help. I cannot see that she will be successful in any endeavours unless she is able to demonstrate a better commitment to following through with her obligations. Certainly she tends to not to be direct in her evidence and to "spin" her responses.

98While the court is obviously concerned about the mother's incredible fabrication, the issue of custody should not in my view be determined based on the misconduct of the mother except to the extent that it may affect the best interests of the child. It is the court's view that the mother needs to take ownership of how wrong her behaviour has been in order to insure that the father is obtaining real information about the child and in order to model appropriate behaviour for the child. However, as has been noted, despite the father suggesting that he did not trust what the mother said to him, he has taken no steps to find out about the child directly. He clearly trusts her with the child and the child's wellbeing.

The Father's Witnesses

99As this issue was mentioned in submissions, it should be addressed. Incredibly a number of the father's witnesses in describing the relationship between Ayden and Kree-Lynn said that they were like "two peas in a pod". It struck the court as being extraordinary that so many would use the same unusual expression in exactly the same way. It cannot be coincidence; clearly the witnesses discussed the issue amongst themselves giving aspects of their evidence a rehearsed quality about it. The "matching" nature of their evidence could also be seen in their evidence about their recent observation of Ayden, about him being withdrawn and subdued. While there may not have been deliberate rehearsing of evidence, they clearly shared what they intended to say or had already said. Having made those observations, for the most part it was clear that the witnesses were trying to be honest and that they very much miss seeing more of Ayden.

Issues Regarding the Submissions

100It also should be noted that within the written submissions, there were factual references primarily by the unrepresented mother that were not part of the evidence at trial. The evidence that I have noted in this decision does not include reference to or reliance on any of those inaccurate factual submissions.

Case Management

Just as I was concerned about the mother's dishonesty with the court, so too was I taken aback by the father's failure to share the proof of that forgery with the court prior to trial. It appears that the events occurred as follows:

• The mother said that she had a job at TESC and took that position at the motion September 2, 2011
• October 14, 2011: the father received correspondence from TESC stating that while she had a limited contract with them, she was not a full-time employee
• November 16, 2011: Justice Frazer ordered the mother to file proof of her employment
• December 12, 2011: the mother filed the November 29, 2011 letter and contract stating that she was a full-time employee of TESC
• February 2, 2012: the father received confirmation from TESC that the correspondence of November 29, 2011 was a forgery and confirming once again that she was not a fulltime employee of TESC
• April 12, 2012: a settlement conference was held and the father made no disclosure regarding the letters received disputing the employment

101It is always in the best interests of a child to reduce litigation and attempt to settle matters. Family litigation involving children must not be treated in the same way as general civil matters. There is a consequence to children and families when disputes are drawn out in the court system.

102Subrule 2(4) of the Family Rules notes the court's duty to promote the primary objective to deal with a case justly, a responsibility shared by the parties and their counsel. Part of dealing with a case justly is to save time and expense and ensure that the procedure is fair to all parties. In examining Rule 17, it is clear that there is an expectation in trial management that the parties share the list of their intended witnesses and the nature of the evidence that they intend to call (Rule 17(5)(g) and 17(6)(d)).

103The disclosure that is directed by the Rules is in part to assist in settlement. One has to wonder if the court had been advised back in October whether there would have been a settlement of the issues or perhaps a recommendation by the court for a further motion to reconsider the interim situation.

104Having learned about the sequence of events, the court is concerned that, when the father was asked by the court to clarify why he had testified that he would not trust anything the mother said and he did not explain, he was referring to this employment issue but deliberately withholding the explanation from the court until the mother took the stand. Such a tactic runs the risk that the court's impression of a witness' evidence could be impacted.

105In matters affecting children, the court has to consider other issues besides censoring a parent's behaviour; therefore, it is important to ensure that all of the evidence affecting the child and the decision to be made is properly before the court.

106Ultimately in this matter I am satisfied that the trial was not hijacked or derailed in any way by the midtrial exposure of the extraordinary and unacceptable behaviour of the mother.

The Child

107Ayden appears for the most part to be a healthy child. There was evidence from the father's side of the family that Ayden is more aloof, more detached since he moved and that it takes awhile for him to warm up. The paternal grandfather said that he was "shy" and a "totally different kid". The paternal grandmother and step-grandfather testified that he was "more reserved". There was evidence that the child now seemed to prefer to sit in front of the television instead of going outside.

108It might be expected that there could be some change in the nature of the interaction between the child and family members now that he does not see them as often as he used to. However, in this matter, the situation is complicated in my view by the number of people on the father's side including the paternal grandfather, step-grandmother and the father's new wife, who have taken the child aside to ask him about how he feels living in the north. The child is obviously aware of the dilemma facing everyone involved. Presumably he knows that complaints about his situation with the mother would be better received that any expression of contentment. Indeed the mother told the court that he has told her that he told them that he wants to live with the father but that what he wants is for the two of them to be back together again, a not uncommon wish by a child despite not being a realistic one.

109The mother has correctly made it clear to the child that he does not have to choose. As she noted, he is eight and should not have to choose. The child's apparent detachment with the father's family could be the result of being worried that they are going to ask him questions. Generally children will want to try to please everyone that they care about and that certainly can put pressure on them.

110The only complaints received seem related to his brother being messy, being bored and watching TV, missing his friends, a cold bedroom and having no friends. Certainly some of these remarks may be related to when he first moved there. The evidence is clear that he has made new friends at school, on the bus and near his home. The issue of the "cold" in the basement was a onetime issue explained by Josh. The child seems to be participating in a great outdoor life in all seasons. There is nothing of significant concern in the remarks attributed to him.

Application of the Law

111Section 20 of the CLRA confirms that the father and the mother are equally entitled to the custody of a child. Any decision made under Section 21 of the Act must be determined on the basis of the best interest of the child (Section 19). Section 24 sets out some of the "needs and circumstances" that should be considered by the court in making its determination.

112Counsel for the father has provided the court with well-known case law regarding custody of children when a parent moves. The courts have emphasized the importance to a child's best interests of a relationship with both parents.

113In Gordon v. Goertz, [1996] 2 S.C.R. 27 the Supreme Court of Canada dealt with the changing of the custody of a child starting with the threshold of material change given the existence in that case of an order and the subsequent focus on the child's best interests in the particular circumstances of the case. In that circumstance, the court noted the importance ultimately of weighing the importance of remaining with the parent to whose custody the child had become accustomed in the new location against the continuance of full contact with the child's access parent, the child's extended family and the child's community.

114In the Court of Appeal in Young v. Young, the lower court ruling was overturned for a number of reasons. The Court of Appeal emphasized that the courts on a relocation application should consider the "disruption to the child consequent on removal from family, schools and the community he or she has come to know". In that case as in this, the parents were very involved in the child's life. However, in that case there was a joint custody order and the parents co-parented.

115The case of Stark v. Little, 2007 CarswellOnt 9225 (SCJ) also reflected a shared parenting scheme not unlike the one before this court. The mother wished to move the children on an interim basis to pursue a new relationship in the United States. However, the court refused the order, stating that the court should not allow the move as it would change the de facto custody and make the outcome of the trial a foregone conclusion.

116Obviously the circumstances of that case are different than those in this matter. Here the previous "de facto custody arrangements" have already been changed. It is of note that there appears to be a conclusion by that court that consideration of the child's best interests at trial would have to include the new status quo established by any temporary order.

117The trial decision in Elliott v. Elliott 2008 CarswellOnt 3225 (SCJ) was affirmed by the Ontario Court of Appeal. Despite concern about whether there was a material change in circumstances, the court identified that where there were two parents who have a deep bond with the children and are able and willing to provide for them, courts should be unwilling to allow one parent to leave the jurisdiction with the children.

118In this matter, both the parents and their respective families do have a deep bond with Ayden. Both parents are willing to care for him. The father has looked after Ayden in his care for close to if not half the time. However, in the past the mother has been the one, despite her setbacks and challenges, who has remained the more focused on parenting. An order of custody to the father would not be confirming the role he has played in Ayden's life; indeed it would be asking him to take on those responsibilities that the mother has done historically.

119While the father has had the support of his parents and their spouses, they were not able to help him focus on his responsibility to his family or his over use of alcohol. Indeed the primary change in the father's sense of responsibility appears to have occurred as a result of his relationship with Shonna. That evidence supports the mother's view that it will not be the father assuming the duties of a custodial parent but rather his spouse of one year, Shonna.

120In the appeal in Elliott, the court agreed with the decision that the child should not be allowed to move noting that such a move would mean the loss of the familiarity and security of friends, neighbourhood, school and activities. Further it noted that there would be adverse effects of a significant change not only in the amount of time spent with the father but also in the nature of that time.

121The Ontario Court of Appeal in Berry v. Berry, 2011 ONCA 705 (November 14, 2011) allowed the appeal noting that the trial court had failed to apply the principles in Gordon v. Goertz. In that matter there was no order of custody and the mother sought to move with the special needs child age three from Toronto to Kingston. While permission was refused at the interim stage and a three day/four day access regime was implemented with the mother in Kingston, the trial judge allowed the move and ordered alternate weekends of access by the father. The order however, was suspended pending appeal so that the child remained with the father from Thursday to Sunday in Toronto and otherwise with the mother in Kingston, presumably making that trip twice a week for more than a year of his life until the decision of the court of appeal in November 2011.

122In that matter, the mother also wanted to move to Kingston to have family support. There were issues about the paternal side of the family's negative treatment of her. Further the child was exposed to negative remarks about her that were being picked up by the child. The trial court had noted that the father had unilaterally taken the child off pain medication and the mother had unilaterally dealt with school registration but did not see these issues as impacting the mother's ability to meet the child's needs in Toronto. The Court of Appeal too mentioned these incidents but just "as a reminder to the parties that parents and their families should actively foster s child's relationship with both parents". The court "encouraged them to continue to exhibit the cooperation they have largely shown in ensuring that their child's best interests are met".

123While this approach properly reflects the law in this area, there are significant factual differences between that case and the one before this court.

124First, it appears that the parents in that matter were working together, making the decisions affecting the child together. That was not the situation in this matter. The mother clearly was making the decisions affecting Ayden and had been throughout his life. Of course, there was cooperation in making the access arrangements for Ayden in the care of his mother and his father. But the decision-making otherwise appears to have been exercised by the mother.

125Also, in that matter, there appeared to be none of the issues of employment or significant relationship that are so often part of a desire to move and impede the option of simply returning to where the other parent is.

126Further and most significantly, the court of appeal had the alternative of having both parents in one place as they clearly relied on the evidence that the mother said that she would move back to Toronto if the court did not allow the child to be moved to Kingston. In other words, they had the unusual option of putting the matter back to the way it was.

127The facts in this matter do not support that option. It appears from the evidence that given the circumstances the child can have one or the other parent most of the time and access to the other. This matter is further complicated by the fact that the move and change have happened and therefore the court has to consider also whether it is in the best interests of the child to have yet another change.

Decision

128There is no question that it would have been better had this trial been heard before the mother moved north. The same can be said about the motion. It is also important that the court keep in mind that temporary orders are intended to be for an interim period and wherever possible, the court should try to minimize the prejudice of a decision made without the opportunity of a full trial.

129Indeed, I have at times changed my own temporary orders when it appeared appropriate to do so having heard the full evidence at trial.

130Had the mother not moved prior to the hearing of the motion, it would have perhaps been more difficult for her to convince a court that the child should go with her on a temporary basis while awaiting trial.

131However, even without her move before trial establishing a new status quo for the child, there would have been a number of best interest considerations for the court.

132It is my view that the mother is and always has been the child's primary parent, the one who since his birth has been the one to make sure that he was looked after and cared for. The evidence is clear that she, not the father, has focused on the child throughout his life. The father on the other hand despite the amount of time spent with the child appears to have only recently become more focused on parenting Ayden. It appears that his new relationship with Shonna has played a role in that interest. Despite that interest, even after the move, the father did not taken action to ensure that he had independent direct access to information about Ayden and how he is doing.

133Clearly the mother did not move to the north for a specific employment opportunity. While it appears that she was initially hopeful of fulltime work in a particular company, that hope was not realized. Her desperate effort to dodge that fact unfortunately made the situation very difficult. However, it does appear that the mother was able to get contract work and ultimately a full-time position near Sudbury. Further, both the mother and Josh have told the court that there are a number of employment opportunities in the Sudbury area for someone with her education, bilingual abilities and skill-set, opportunities the mother says were not available to her in Southern Ontario.

134Although it is clear that the mother did not move to take advantage of a particular employment opportunity, she did have reasons to want to go. After losing her mother, her father was distraught and unable to function. The mother had the responsibility of driving up there to handle his affairs and those of her mother's estate which she did every second week for a long time. The loss of her mother and the struggles of her father coupled with her own new cancer scare made the mother want to be near her family. While many of the father's family were supportive of the mother and the father while together, after separation she had less of that support. Instead, she became more dependent on her ex-husband Shane. The mother wanted to be closer to her family to support them and be supported in return. She also wanted to reconnect with family and allow all three of her children to get to know that side of the family.

135Further, as a result of her travelling north so often to help her father, the mother and Josh started a relationship that both hope will be permanent. While in some cases a parent may go from relationship to relationship in quick succession, there is no evidence of this behaviour by the mother before the court. While there are no guarantees in any relationship, both the mother and Josh appear to be seeking a permanent relationship. Josh is well employed in the north and there is no suggestion that he could obtain the same opportunities in the south.

136Ayden has been raised with his half brother and half sister, the only siblings that he has known. Both these children seem well-grounded, good at school and very close to Ayden. While there is an age gap, it does not appear on the evidence to have interfered with their bonding. Although a move to the father's home might give him the opportunity to be with a step-sister close to his own age, she is not a relative that he has been raised with. This connection between Ayden and his siblings is an important factor in the consideration of his best interests. He has always lived with them, at least half time.

137As counsel has pointed out in submissions, there probably will be a time when one or both of Ayden's siblings will leave the mother's home either to pursue education or to obtain employment. However, in the meantime, the opportunity to enjoy and reinforce that relationship is important for Ayden.

138As has been noted in the cases above, it is important that a child wherever possible develop and maintain a strong relationship with each parent. Unfortunately in this matter, the court is also faced with the fact that the mother has real and substantial reasons for moving to the north and wanting to stay there. Her health history would suggest that she needs to ensure that she is in a position to be well-supported in the future.

139Also, in this matter Ayden has already experienced many changes. He has already lost his home in Guelph, his school in Guelph and his community in Guelph including his health supports, his doctor and his dentist. He had been part of the sports community in Guelph as well prior to mother's financial difficulties. The father is proposing the same neighbourhood that he used to have but a different school again.

140Certainly families where the parents reside together may frequently decide to change communities. In many cases the move may be necessary for employment. In those circumstances, the parents may consider the ages of their children and the impact the move may have on them but ultimately they feel that they have to move. Families also change communities simply to be able to afford a larger home. In those circumstances, the children usually change schools, friends, sports leagues and communities. They may end up farther away from their family support.

141For those children it is not what changes that is significant but rather what stays the same. For those children, the move generally does not impact their relationship with their parents.

142When the court is dealing with separated parents and change for the child, the emphasis also is trying to maintain the relationship with the parents. However, where there are changes in the nature of the relationship, the court generally looks at the other factors in the child's life to try to reduce change and increase stability. The consideration of stability of home, school and community can help shore up the new instability or change in the child's relationship with one or both parents. Therefore case law generally looks at the existing circumstances of a child to evaluate what step would be in the best interests of a child.

143Regardless of whether it should have happened, Ayden has just settled in after a year in a new school, a new home, a new relationship with a step-parent, and a new way of life. The evidence shows that he is able to make friends and that he has. He appears to be doing better in school than he did when he was in Southern Ontario. While he is not as involved in organized sports, it sounds as if he is able to participate in activities that he wants.

144There is also a practical problem with simply reversing the plan. I would mean that the mother would be driving every weekend to either deliver or pickup one or more of the children, assuming that the older two children would be in Guelph the weekends that Ayden was not with his mother.

145Ayden has no doubt experienced quite a bit over the last few years: the issues between his parents, maybe between his father and siblings, and the illness of his mother. He loves both of his parents. Members of the father's family have testified that Ayden has appeared at times to be a bit subdued: no doubt he is concerned about what is happening and what role he ought to play.

146Much as the court is concerned about people making unilateral and potentially non-child focused decisions and subsequently brazenly lying about some of the circumstances, it is not the role of this court to make orders to undo the wrong of those decisions when it is at the cost of a child's best interests.

147Having considered all of the evidence, I find that it would not be in the best interests of Ayden to be ordered back to live in Kitchener with his father. The person who has always ensured that his needs have been met is his mother and given all the circumstances, it is in Ayden's best interest that he remain in her primary care with access by the father.

Access

148Both the mother and the father have proposed similar access schemes for the other. The court is prepared to order access as proposed.

Child Support

149No submissions were received regarding child support. The court has made the interim order that was made on consent final.

ORDER

1) Custody to the mother

2) The father is to have reasonable access on reasonable notice to include the following:

1. every March break
2. every Family Day weekend
3. every Labour Day weekend
4. alternate weeks at Christmas
5. half of the summer holidays
6. alternate Thanksgivings
7. alternate Easter weekends

3) The father shall have at least one weekend each month together with the PD day if there is one available at the same time.

4) The father shall have such other access as agreed by the parties.

5) The father shall have access to any school or medical records of the child.

6) The mother shall provide half of the transportation for access as arranged by the parties.

7) The father shall pay child support of $350/monthly to the mother for Ayden commencing August 1, 2012.

8) The father shall pay half of any special expenses upon the request of the mother. The mother shall provide independent confirmation of such expense when asked.

9) The father shall provide the mother with a copy of his income tax return and attachments and his Notice of Assessment by June 1 for the previous year.

10) The father shall notify the mother in writing within seven days of any change in his employment or income together with details of such change.

11) The mother and the father agree to maintain Ayden on any benefits available through their respective places of employment. The parents agree that they will share equally in any medical, dental or drug costs not covered by any plan.

150Should the parties agree that certain of the details of access should be changed given circumstances not known to the court, they may file a consent prior to the issuing of this order to incorporate that change in the order.

151Should either party seek costs, that party is to serve and file their submission regarding costs together with details of such costs within thirty days of this decision. Upon receipt of such a submission, the other party shall serve and file with the court their response within fourteen days. The party seeking costs has a further fourteen days to serve and file reply.

Released: July 18, 2012

Signed: "Justice P.A. Hardman"