K.M.S. v. G.K.S.

Court File and Parties

Court File No.: DRYDEN FO-11-000040-00 Date: 2012-02-16 Ontario Court of Justice

Between: K.M.S., Applicant

— And —

G.K.S., Respondent

Before: Justice A. T. McKay

Heard on: January 10, 11, 2012

Reasons for Judgment released on: February 16, 2012

Counsel:

• Sarah Trach, for the applicant
• Mark Van Walleghem, for the respondent

MCKAY J.:

BACKGROUND

1The parties are the parents of a three year old daughter, J.. J. was born in Red Lake on […], 2008. The parties had begun dating in 2005 when they were 14 years old. When Ms. S. became pregnant with J., the parties were 16 years old. She remained in school in Red Lake, living with her parents. Mr. S. had moved to Dryden with his family at the end of 2006 or early 2007. Shortly before J. was born, Mr. S. hitchhiked to Red Lake and found a job and an apartment there. Ms. S. remained living with her parents.

2On […], 2008, J. was born. Ms. S. was the primary caregiver for J. and remained living with her parents. For the first four to six weeks after J. was born, Mr. S. remained in Red Lake and saw J. daily, visiting her at Ms. S.'s residence. After that timeframe, Mr. S. moved back to Dryden to live with his parents. Part of the reason for his move was the fact that Mr. S. had been charged with fraud related to his employment and had been fired, and was unable to find work in Red Lake. He was subsequently convicted of that offence and placed on a conditional sentence which required him to initially live with his parents in Dryden.

3After Mr. S. moved to his parents' home in Dryden, he exercised access, usually one weekend per month, normally in Dryden. To facilitate the access Ms. S. would travel to Dryden by bus with J. and stay at Mr. S.'s parents' residence for the weekend. Ms. S. was always present during access.

4In September of 2008, the parties attempted to live together. Ms. S. moved to Dryden with J.. They temporarily lived at Mr. S.'s parents and then, after a couple of weeks, got their own apartment. At that point Mr. S. worked at a retail outlet. Ms. S. remained home caring for J., and taking correspondence courses towards her high school diploma. They were in their apartment for approximately one month when they went away for a weekend. They left Mr. S.'s brother to take care of their apartment for the weekend. As a result of some type of drinking party, the police were called to the apartment. The result was that Mr. S. and Ms. S. were evicted from the apartment. She then moved back to Red Lake to her parents' house and continued working towards her high school diploma while working at a local retail outlet. Mr. S. stayed in Dryden with his parents and their relationship ended. However, they remained in contact. In order to facilitate access, Ms. S. continued to occasionally take the bus from Red Lake to Vermilion Bay, where Mr. S. would meet her and J. and take them to his parents' house in Dryden.

5At about the time of J.'s second birthday, Mr. S. had his first overnight access visit with J.. Ms. S. was travelling to Winnipeg with a friend. The arrangement was that Mr. S. would care for J. while Ms. S was away for the long weekend. Subsequently, he refused to return J.. Ms. S. started a court action and obtained a temporary order on June 14, 2010, requiring Mr. S. to return J.. Mr. S. was granted access on alternate weekends. Ultimately, that led to the parties entering into a final order on consent on November 5, 2010. That order provided for joint custody with J. residing with Ms. S. and with Mr. S. having access every second weekend.

6Difficulties arose regarding Mr. S. exercising access on a regular basis after the November 5, 2010 order. The parties disagree as to the reasons for that. Ms. S.'s evidence is that, given Mr. S.'s actions and words, her understanding was that he no longer wanted a relationship with J.. Ms. S. had entered into a new relationship with D. O. in June of 2010. Mr. O. is her current partner, and they have a daughter, who was born in May of 2011. Mr. O. was working for a mining company for Red Lake. However, Mr. O. was offered a job in Grand Cache, Alberta, which he accepted in June of 2011. Accordingly, he moved to Alberta. Ms. S.'s position is that because she thought Mr. S. was no longer interested in a relationship with J., in July of 2011 she moved to Grand Cache, Alberta, with J., without notice to Mr. S.

7When Mr. S. learned of the move to Alberta, he obtained an order without notice allowing him to apprehend J. and return her to Dryden. He did so in August of 2011. Ms. S. returned to Dryden, and on September 6, 2011, obtained a temporary order returning J. to her care, but requiring her to stay in the Dryden area. That order was confirmed on October 3, 2011. From that time until the time of trial, J. remained in the primary care of her mother in North-western Ontario, with Mr. S. having access on alternate weekends.

8Mr. S. wants the issue of custody revisited and wants an order of sole custody. Alternatively, if Ms. S. is granted custody, he wants her restrained from relocating J. to Alberta. Ms. S. wants an order allowing her to relocate to Grand Cache, Alberta with J., in order to join her current partner.

EVIDENCE

9There is no doubt that Ms. S. has been the primary caregiver for J. since her birth. Mr. S. has had limited, sporadic contact with J. for the majority of her life. Until J.'s second birthday, Mr. S. never had overnight access without Ms. S. being present. From the date of the consent order in November of 2010, until he obtained the order without notice allowing him to apprehend J. in Alberta in August of 2011, he had almost no contact with J.. In early September of 2011, J. was returned to her mother's care, with Mr. S. going back to having access on alternate weekends.

10Ms. S. has made all of the decisions for J. since her birth. The evidence leads to the conclusion that she and J. are deeply bonded and have close emotional ties. Ms. S. and Mr. O. also have a second child, J.'s half sibling. The evidence leads to the conclusion that Mr. O. has also built a close and positive relationship with J..

11Mr. S. is now 20 years of age. He lives in the Dryden area with his current wife. Their first child was born at the time of the trial. Mr. S. is currently self-employed. When he returned to Dryden from the Red Lake area after losing his job there, he had worked at a retail outlet in Dryden for approximately 2 years. He was convicted of theft from that employer in June of 2010, and fired. He received a conditional jail sentence for that offence which required him to live with his parents initially. He later moved to his current residence and began a furniture building business.

12The parties differ significantly in their evidence. For instance, Mr. S. testified that when Ms. S. moved to Dryden and they cohabited briefly, after a month or two, she "simply up and left". His evidence was that he didn't know why she left and was unaware of where she went. In cross-examination he agreed that she alleged that he committed an assault on her, and he was subsequently charged with assaulting her. However, he could not recall the disposition of that case.

13Similarly, Mr. S. gave a very different version of what happened in the summer of 2010 when he refused to return J. after his first overnight visit. He indicated that when he initially picked up J., he saw the state of Ms. S.'s house and alleged that it was inappropriate for a child to be present there. Accordingly, he indicated that before his visit ended, he spoke with his parents and they telephoned the Children's Aid Society. Purportedly they were told that they were justified in keeping J. in those circumstances. Ms. S. denies that there was anything inappropriate about her residence at that time. As indicated, the court ordered the return of J. to Ms. S.

14Mr. S. agreed that on at least four occasions, he telephoned the Children's Aid Society to complain about the care that Ms. S. was providing for J.. That is to be contrasted with the fact that he consented to an order in November of 2010 which provided that J. would reside with Ms. S. He also testified that up to that point, he had no concerns with her parenting of J..

15The parties also differ significantly on the reasons for Mr. S.'s limited access to J.. Ultimately, in cross-examination, Mr. S. agreed that from the date of the June 2010 order to the date of the consent order in November of 2010, he had his scheduled access, unless for his own reasons he was unable to exercise it. He also agreed that he cancelled the first three access visits after the November 5, 2010 order. He cancelled the first weekend of access because he was upset due to the breakup of the relationship that he was in at that point. He cancelled the next weekend due to road conditions. He cancelled the next weekend because there had been a fire in his shop building.

16The next scheduled access for Mr. S. would have been during the Christmas period in 2010. Mr. S. was serving a conditional sentence at that point which required him to live with his parents in Dryden and to be there every night. His evidence was that he would have travelled to Red Lake for a day visit with J., but that it never took place. Ms. S.'s evidence was that he had indicated to her that he would be in jail at Christmas due to inability to make restitution payments to his former employer. In any event, there was no access at Christmas during 2010.

17In January of 2011, Mr. S. attended in Ear Falls, Ontario, to exercise access. His evidence was that Ms. S. denied access. Ms. S.'s evidence was that she denied access because she told Mr. S. that it was not in J.'s best interest unless Mr. S. was going to commit to regularly exercising access. In addition, Ms. S. took the position that the weekend in question was not a scheduled access weekend. Mr. S. unsuccessfully attempted to involve the Ontario Provincial Police in the issue.

18Mr. S. exercised access a weekend in February of 2011. After that, there was no access exercised until Mr. S. obtained the order without notice in August of 2011, which allowed him to apprehend J.. The parties differ as to why access was not exercised. Mr. S. takes the position that Ms. S. repeatedly denied access. He filed records of cell phone calls to Ms. S. which he indicated was evidence of him attempting to exercise access. Ultimately, in cross-examination, it became apparent that a large number of the calls were not related to him exercising access or attempting to. The parties agreed that they often simply argued on the phone and telephone conversations ended up with one party or the other hanging up after name calling and insults.

19It is also noteworthy that after J. was apprehended in Alberta and returned to Dryden, for the period that she was in Mr. S.'s care, Ms. S. was allowed very little contact with her. J. was very young, and Ms. S had been her caregiver all of J.'s life. Suddenly returning to Dryden without her mother could be expected to be traumatic. Mr. S. agreed in cross examination that he did get angry with Ms. S. when she called to speak to J.. He told Ms. S. not to call because she was calling all the time for no reason. He also agreed that he told her to stop calling, and that he would call her when he was ready to have her talk to J..

20The parties also have very differing versions of what happened after J. was ordered returned to Ms. S.'s custody in September of 2011. The exchange was to take place at a local coffee shop. Both parties brought family and friends to the exchange. Ms. S.'s evidence was that the exchange involved a very high degree of conflict. She indicated that she arrived at the restaurant at approximately 4:50 p.m. The exchange time was to be 5 o'clock. Her evidence is that J. saw her and started crying and wanted to come to her. Mr. S. indicated to her that she could not have J. until exactly 5:00 p.m., and he prevented J. from coming to her. At 5:00 p.m. Mr. S. demanded that he be shown the booster seat that Ms. S. intended to use for J.. He refused to give J. to her unless she provided a different booster seat than the one that she had. Ultimately, she obtained another seat and Mr. S. gave J. to her. However, her evidence is that he and his father then stood in front of the car and would not move until she threatened to call the police. Her evidence is that J. was very unsettled and needed a lot of reassurance for approximately two weeks after this incident, as J. was afraid that Ms. S. would leave her.

21Mr. S. gave evidence that he intended to return J., but asked to see the booster seat. When he was told no, he refused to return J. unless he saw the seat. He indicated that he had looked inside the vehicle and argued with Mr. O.'s father, lost his temper with him and told him to get out of the way. He indicated that he could see the booster seat in the back of the vehicle and knew that it was inappropriate for J.. He indicated that ultimately, he gave J. to Ms. S., and didn't try to stop her from leaving.

22Mr. S.'s father also testified. With respect to the exchange incident at the coffee shop, his evidence was rather vague and essentially said what he saw was two families who were deeply hurt by the outcome of the decision and reacted accordingly. His evidence was that neither side was more aggressive than the other. I am extremely sceptical of the evidence of Mr. S. and his father regarding that exchange. I accept the description of Ms. S. as to what occurred at that exchange.

23As indicated, Mr. S. travelled to Alberta in August of 2011 to execute the order which allowed him to apprehend J. and return her to Dryden. When he returned to Dryden, he took J. to a doctor in Dryden and asked that she be given a full examination. His allegation was that Mr. O. had sexually assaulted J.. Mr. S. also indicated that he made those accusations to the Children's Aid Society. He indicated that ultimately, he didn't know if the Children's Aid Society had ever opened a file regarding that allegation.

24I have noted that Mr. S. or his family had telephoned the Children's Aid Society to complain about Ms. S.'s care of J. on at least four occasions. That was completely inconsistent with his evidence that he did not have concerns with Ms. S.'s parenting, at least up to November 2010, and completely inconsistent with his entering into a consent order in November of 2010 which gave her care of J.. In my view, Mr. S. has used agencies such as the Children's Aid Society as a weapon against Ms. S. in his disagreements with her.

25I also note that in his pleadings, Mr. S. alleged that Ms. S. suffers from fetal alcohol syndrome, and that condition affects her ability to care for J.. That fact is denied by Ms. S., and denied by her family members. There is absolutely no evidence to support that allegation. Again, the allegation is inconsistent with his evidence and earlier actions in agreeing that Ms. S should be J.'s caregiver.

26There are other examples of Mr. S. displaying controlling, non child focussed behaviour. For example, approximately two years ago, he obtained J.'s health card, in spite of the fact that Ms. S. had always been the caregiver. When Ms. S. asked for a copy, he refused, indicating that she didn't need it.

27Mr. S.'s current partner filed affidavit evidence. That evidence is given very little weight. Much of it lacks detail. Other parts of it cover areas where Ms. S. should have been cross examined pursuant to the rule in Browne v. Dunn. There are significant inconsistencies in the evidence of Mr. S. Where the evidence of the parties differs, I accept the evidence of Ms. S.

DECISION

Custody

28The Children's Law Reform Act provides that cases involving custody and access shall be decided upon the test of what is in the best interests of the child. Section 24(2) of the Children's Law Reform Act sets out certain factors that are to be considered by the court in making a decision as to best interests. These reasons will not specifically review each of those factors. However, I note that all the evidence indicates that Ms. S. and J. are deeply bonded. Ms. S. has been an appropriate, consistent caregiver since the birth of J.. That is to be contrasted with the limited involvement of Mr. S. in J.'s life. While living arrangements and addresses may have changed from time to time, Ms. S. has been a stable caregiver, in spite of the challenges faced by a very young mother. Mr. S.'s behaviour and his involvement with J. have, at times, been characterized by immaturity and a lack of child focus. That calls into question his ability to act effectively as a parent.

29Given Ms. S.'s consistent, effective care of J., J.'s young age and the close emotional bonds between her and Ms. S., the only appropriate order regarding custody is one which awards custody to Ms. S. Given my other findings and the difficulties with the two parents communicating and dealing effectively with each other, joint custody is not appropriate, and accordingly it will be an order of sole custody.

Relocation

30The leading case on mobility is the Supreme Court of Canada case of Gordon v. Goertz, [1996] 2 S.C.R. 27. The mobility issue is to be decided on the basis of best interests of the child. Gordon v. Goertz also provides a number of factors to consider in making a decision on mobility. No one factor is determinative. The factors include issues such as the existing custody arrangement and the relationship between the child and the custodial parent; the existing access arrangement and the relationship between the child and the access parent; the desirability of maximizing contact between the child and both parent; and the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of child.

31The views of a custodial parent are entitled to great respect and the most serious consideration. Normally, a custodial parent with an honest reason for moving is allowed by the court to do so as long as the proposed move does not pose any direct risk to a child and as long as the proposed move is not used for an opportunity to destroy the child's relationship with the parent remaining behind.

32Ms. S. and her partner Mr. O. gave evidence as to the reasons for the move to Alberta. The primary reason for the move was what they considered to be better employment for Mr. O. It was described as stable employment as a pellet mill coordinator in Grand Cache. It involves shorter hours than his previous job in Red Lake, working a day shift of 7:00 a.m. to 3:30 p.m. Previously, in Red Lake, his work day was ten and a half hours long. The job in Alberta pays approximately 20% more than the job in Red Lake, plus offers the possibility of overtime for increased income. Grand Cache was described as a small community of approximately 5,000 people which is geared to family life, and offers a lot of recreation activities. Mr. O. has a sister and her family living in that area.

33Moving J. to Alberta without notice to Mr. S was a mistake in judgment by Ms. S. However, I find that Ms. S. has legitimate reasons for wanting to move to Alberta. I reject Mr. S.'s contention that the move is simply part of an attempt to frustrate his relationship with J.. The evidence shows that after their relationship ended, Ms. S. actually went to significant lengths in traveling by bus to Dryden in order to facilitate contact between J. and Mr. S. That is to be contrasted by Mr. S.'s behaviour in limiting contact between J. and Ms. S. for the brief period of time in August of 2011 when he had care of J..

34There is little disruption for J. involved in a move to Alberta at this time, given her age of three years. There will be an impact on her involvement with Mr. S., and extended family members on both sides. I note J.'s close relationship with her mother, Mr. O.'s employment in Alberta, and the desire of Ms. S. to have both of her children residing with herself and Mr. O. Also, given the recreational opportunities, daycare opportunities and the chance for Ms. S. to upgrade her education, thereby enhancing her ability to also care for her children, in my view it is in J.'s best interests that the move to Alberta be allowed. It is an unfortunate fact that, given the economy in Northwest Ontario, the court sees more and more mobility cases which involve the move of one parent significant distances away. It then takes significant commitment on the part of the non-custodial parent to remain involved significantly in their child's life. However, with that commitment, it is entirely possible for the non custodial parent and extended family members to still play a significant role.

Support

35There are arrears owing under the existing support order. In addition, support shall be revised to reflect Mr. S.'s anticipated income for 2012, which he indicated was $30,000.00 to $32,000.00. Mr. S. shall pay support for the child J. in the guideline amount. Based upon 2012 income of $32,000.00, support is payable presently in the amount of $293.00 per month. The arrears under the current order are as follows:

1. 2012 – 2 months at $100.00 per month = $200.00
2. 2011 – 12 months at $152.00 per month = $1,800.24
3. 2012 – 2 months at $293.00 per month = $586.00

TOTAL: $2,610.00

36An order shall issue in the form of Schedule A.

COSTS

37If costs are an issue, Ms. S. shall serve written submissions regarding costs upon Mr. S. within the next 14 days. Mr. S. shall provide written submissions to the court within 7 days of being served with any written submissions by Ms. S. The court will then release an endorsement regarding the issue of costs.