Court File and Parties
Court File No.: Toronto DFO 09-10025-B1 Date: 2014-09-03 Ontario Court of Justice
Between:
Erika Hovgaard Applicant
— AND —
Dino DelVaille Respondent
Before: Justice Ellen Murray
Heard on: August 19 and 20, 2014
Reasons for Judgment released on: September 3, 2014
Counsel:
- Mr. Theodore Nemetz, for the applicant
- Ms. Phyllis Brodkin, for the respondent
MURRAY, J.:
Introduction
1Erika Hovgaard and Dino DelVaille are the parents of Aaden Joseph Hovgaard, born October 9, 2008. The parties separated before Aaden was born. Father has lived in Brooklyn, New York, since long before Aaden's birth. Aaden has always lived with Mother. Except for some brief periods noted below, she and Aaden have always lived in Toronto, Ontario, some 800 kilometres distant from Brooklyn.
2Mother has custody of Aaden pursuant to an order made March 25, 2009. On July 9, 2013, an order was made on the consent of the parties providing that Father have access in Toronto on weekends on three days' notice, and for substantial periods during summer and holiday time at his home in New York.
3Mother moves for permission to change Aaden's residence to Surrey B.C., a bedroom community of Vancouver, and to change the access order to facilitate this move. Father opposes the request. Mother submits that the move will have little or no impact on the child's relationship with Father. Father's view is that if the move is allowed, the child's relationship with him and his family will be badly damaged.
1. Statutory Provisions
4Under the Children's Law Reform Act a court may make an order for custody of and access to a child, including an order that deals with "any aspect of the incidents of custody". Section 29 of the Act provides that a court shall not vary an order for custody or access "unless there has been a material change in circumstances that affects or is likely to affect the best interests of a child".
5In Gordon v. Goertz, the Supreme Court of Canada dealt with a case in which a custodial parent wished to change a child's residence. Justice Beverly McLachlin (as she then was), set out the principles developed by the court for such decisions, which involve application of a two-part test:
The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.
This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.
Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
The focus is on the best interests of the child, not the interests and rights of the parents.
More particularly the judge should consider, inter alia:
- (a) the existing custody arrangement and relationship between the child and the custodial parent;
- (b) the existing access arrangement and the relationship between the child and the access parent;
- (c) the desirability of maximizing contact between the child and both parents;
- (d) the views of the child;
- (e) 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 the child;
- (f) disruption to the child of a change in custody;
- (g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
6In a recent edition of the Annual Review of Family Law, Alfred Mamo summarized the principles from Gordon v. Goertz which should guide a court once an applicant passes the material change threshold:
While there is no presumption in favour of approving a move, a court should give great respect to the bona fide wishes of a custodial parent.
That a move would result in a significant reduction in access is not a reason to deny the move.
The parents' conduct is only relevant insofar as it affects parenting.
A custodial parent need not prove that his or her reasons for wishing to move are "necessary". It is sufficient if the move is proposed in good faith and not to frustrate or interfere with access.
7Gordon v. Goertz was determined under the Divorce Act. Caselaw has established that the principles in that case apply to cases under provincial statutes in which the same relief is sought.
2. Background
8Mother is 37 years old. She was born and raised in British Columbia near Surrey, and moved to Toronto 10 years ago. When she first arrived she supported herself by waitressing, and enjoyed what she described as a "singles' lifestyle".
9Father is 44 years old. He was born in Jamaica, and moved with his family to Brooklyn when he was six years old. He is a self-employed music consultant/promoter.
10In 2007/2008 Mother and Father had a brief relationship, cohabiting at Father's home in Brooklyn for approximately five months before they separated. Mother then returned to Toronto and subsequently discovered that she was pregnant.
3. History of Case
11Aaden was born in October 2008. Mother advised Father of the child's birth. He had doubts about paternity. She proceeded to obtain a custody order on an undefended basis in 2009. Father said that he had never been served, and commenced an action to set aside. He obtained a paternity test. The results satisfied him that he was Aaden's father.
12After Aaden's birth Mother was reliant on social assistance payments. She was obligated to seek support from Father, and obtained a court order in New York state providing that he pay $425 U.S. monthly.
13Father began seeing Aaden on supervised visits in Toronto in July 2010. The parties worked through a court mediator, and agreed on a gradual expansion of visits, which progressed to include weekend visits in Toronto and occasional longer visits to New York and even Jamaica.
14On July 5, 2013, the parties signed a consent, the terms of which were incorporated into a court order on July 9, 2013. Those terms are set out below.
July 9, 2013 Access Order
The Respondent shall have access with the child, namely Aaden Joseph Hovgaard, born October 9, 2008 ("Aaden") as follows:
Every weekend that the Respondent is in Toronto provided he gives no less than 3 days' notice to the Applicant. The Respondent shall have Aaden from Friday afternoon until Sunday evening at 8:00 p.m.
Such further and other times as the parties may agree.
The Respondent shall have access to Aaden for six (6) weeks during the summer, commencing the summer of 2013. Commencing the summer of 2015 the Respondent shall have access to Aaden for two (2) months during the summer. The dates for this trip shall be agreed upon by the parties, in advance, with no party unreasonably withholding consent.
The parties shall alternate the Christmas holidays every year. On the years that the Applicant has Aaden for Christmas, the parties agree that the Respondent can have Aaden for the balance of the Christmas holidays as long as the Applicant has Aaden for Christmas Eve and Christmas Day, if he so chooses.
The parties shall alternate the Thanksgiving holiday with Aaden being with the Respondent for Thanksgiving in 2013.
The parties shall alternate the Easter holiday with Aaden being with the Respondent in 2014.
Aaden shall be with the Respondent on Father's Day. The access shall be exercised in New York.
Aaden shall be with the Applicant on Mother's Day.
The parties shall confirm the dates for the holidays set out in paragraphs 4-7 above at least one month before the holiday.
Aaden's Birth Certificate shall be amended to include the Respondent's name. The Applicant shall complete any and all documents necessary for the Birth Certificate to be amended.
15After the consent was signed, Aaden spent six weeks of the summer in 2013 with Father in New York. He was returned by paternal grandmother, Sonia Ewers ("Grandmother"), to Mother in Toronto at the end of August, 2013. Mother moved with Aaden to Surrey on September 10, 2013.
16Although Mother initially suggested in her materials that she had told either Father or Ms. Ewers about the move in advance, during this trial she conceded that, although she had mooted the possibility of a move out of Toronto to another municipality in the GTA, that there was no warning of a move to the Vancouver area. Father discovered the move in early October 2013.
17Father tried through his lawyer to persuade Mother to return the child to the Toronto area. When these efforts failed, he initiated a contempt motion, returnable on December 18, 2013. Mother faxed to the court a responding affidavit and a request for an adjournment. She said that she had not thought she required the court's permission to move Aaden, as the court order did not contain a non-removal clause. She said she did not have the means to return to Toronto. The adjournment was granted, on condition that Mother facilitate the child's Christmas visit with Father in New York. Grandmother flew from New York to Vancouver and back again to transport Aaden for the visit.
18Mother did not appear on the adjournment date, and a further order was issued directing her to attend on March 18, 2014.
19Mother did attend on March 18th, in response to the contempt motion, indicating that she wished to move to change the July 9, 2013 order. She indicated that Aaden was with her in Toronto. I found that Mother was in contempt of that order, in that by her move to B.C. she had made it impossible for the weekend access in Toronto provided for in the order to take place. I provided that she could purge her contempt by insuring that Aaden continue to reside in the Toronto area until further order of the court. I provided further that, in addition to the access that Aaden was to have to Father pursuant to the July 9, 2013 order, the child was to reside with Father in New York until April 1, 2014, while Mother arranged her move back to Toronto.
4. The Facts
4.1 Mother's Situation
20I focus on Mother's financial circumstances because it is her evidence that financial difficulties were at the root of her move to the Vancouver area.
21Mother's financial circumstances have been and continue to be very modest. After Aaden's birth, she and the child were supported by social assistance payments.
22In 2010 she completed a "level one" training program as a dental assistant. Her evidence is that this training permits her to assist in a dental office, but not to work inside a patient's mouth as a dental hygienist does.
23Mother was lucky to obtain a full-time position as a chair assistant in a periodontist's office, working 41 hours a week. She initially earned $19 hourly, and later received a raise to $20 hourly. This was $5 more than the hourly rate usually paid to someone with only level one training.
24Mother's only source of income was her earnings and child support payments from Father. These payments were not always made on time. Twice, Father fell into arrears of payment for five months.
25At the time that Mother signed the consent to the July 9, 2013 order, she and Aaden lived in a basement apartment for which she paid rent of $1189 monthly. Mother had applied for a subsidy for daycare costs, and although she was eligible for that benefit, she was too far down the waiting list to actually receive the subsidy. Without subsidy, Mother had to pay over $800 monthly for daycare costs for Aaden. Mother's evidence is that she asked Father to contribute to daycare and that he agreed to pay half the cost, but did not follow through. Father did not recall this conversation.
26Mother had a hard time paying for rent, daycare, and other expenses, and sometimes had to take "payday" loans. She sometimes told Father or Ms. Ewers of her financial difficulties, and Ms. Ewers occasionally forwarded funds intended to help with a payment.
27Mother hoped to attend a "level two" dental assistant course in late 2011 that would have qualified her to become a dental hygienist, a qualification that would open the door to higher paid employment. She testified that she was unable to enter the course because she could not afford it. Although she had qualified for a loan for tuition fees, her income would have been reduced while in the course (to part-time wages), and she would not have been able to pay for daycare, rent and other expenses.
28Mother's family all live in the Vancouver area. It does not appear that she maintained much communication with them after she moved to Toronto. In 2011, however, maternal grandmother began to experience serious medical problems—the onset of dementia and chronic respiratory illness—and needed care. Mother took Aaden and moved to live with grandmother in Port Coquitlam in order to help. She found the demands of her mother's condition overwhelming, and she advised Ms. Ewers that the environment was not suitable for Aaden. After a short period of time, Mother arranged for other caregivers for her mother, and she and Aaden returned to Toronto.
29Mother has a 14 year old daughter, Arabella, from a previous relationship, who has lived with her father in Vancouver for the past ten years. Mother testified that she sees this child infrequently, despite a court order which permits contact, because the child's father will not facilitate contact.
4.2 Father's Situation
30Father testified that his business may involve intense work for 2-3 weeks at a time, 2-3 times a year, but allows him considerable freedom for the rest of the year. Father has employees who handle the day-to-day work involved in music promotion, such as booking and management of tours.
31Father testified that he earns about $35-40,000 U.S. annually. He did not contest Mother's evidence that he lives what to her appears to be a lavish lifestyle-- residing in a penthouse in Brooklyn and driving a Mercedes truck and a BMW sports car. Father's evidence is that the cost of his lifestyle exceeds what he can fund, and the shortfall is provided by his parents, Ms. Ewers and Robert Iannucci, his adoptive father, who live close by in a home which they own. Ms. Ewers is involved in the management of the family company, Clocktower Properties.
32Father married in 2010, and has two children from this marriage, Shiloh, born June 2, 2011, and Sage, born November 2, 2013. Father's wife Lindsay works from home as a makeup/artistry consultant.
4.3 Aaden's Time with Father
33Mother does not dispute that Aaden enjoys and benefits from his time with Father and with Father's family.
34Father's evidence is that prior to the July 9, 2013 order he saw Aaden in Toronto about every 6 weeks (excluding the holiday/vacation time the child spent with him in New York), until January 2013. In the first six months of 2013 Father had only one visit with Aaden, on a weekend in April. Father explained that he was unable to come to Toronto more often during this period because Lindsay was having a difficult pregnancy, and needed his support.
35Father involves his family, and particularly his mother, Ms. Ewers, in his time with Aaden. Grandmother has attended every visit except one that Father has made to Toronto to spend time with Aaden. Usually they stay at the Thompson Hotel, which has a rooftop pool which Aaden enjoys. Occasionally Grandmother has come to Toronto alone for a visit with the child. Sometimes Lindsay and Shiloh joined Father and Grandmother for the Toronto visits, and stayed with Lindsay's sister and her children, who live in Mississauga.
36Aaden has also had longer visits to Father in New York over Christmas holidays, American Thanksgiving, and summer. On those visits he regularly spends time not only with Father and Lindsay and their children but with his paternal grandparents. He also sees more extended family such as Father's aunts and cousins. Transportation for these longer visits is usually provided by Grandmother, although on occasion Mother has transported the child, and Father or his family have paid the costs of her airfare and stay in New York.
37Aaden has visited Jamaica three times, twice with Grandmother and Father, and once with Grandmother alone. Last year Aaden went to Jamaica for a family celebration of his great grandfather's 100th birthday, an event in which many members of the extended family participated.
38Father testified that his family is "a loving, nurturing, hardworking family of highly educated people". He is proud of the cultural, social, and intellectual stimulation which Aaden receives during the time he spends with him and with his parents.
39This past summer Aaden was with Father from Father's day in June to July 29th; after that time he resided with his paternal grandparents until his return to Mother on August 18, 2014. Aaden's move to his grandparents' home occurred because Father was unexpectedly required to work with one of his artists, work that occupied him from early afternoon to late evening for 2-3 weeks.
40During his time with Father this past summer, Aaden was enrolled in a morning athletic program, and met with a tutor three afternoons a week, with a goal that he would be able to read when he enters Grade 1 this fall. Aaden spent one week at Southampton with Father, Lindsay, and their children. During Aaden's time with his grandparents they took him to museums and other attractions in the New York city area. Grandmother then took the child to Florida to visit family and go to Disneyworld.
41As may be evident from the description of Aaden's summer above, Grandmother is an organic part of time set aside for Father to be with Aaden. Grandmother's evidence is that when Aaden was at Father's house this summer, she saw him almost every day, perhaps taking him to day camp or treating him to an ice cream in the afternoon. Some time ago, before Mother's move, Grandmother and Mother established a routine in which Grandmother spoke to Aaden by phone every Sunday. More recently, Aaden has been speaking to Grandmother 3-4 times a week on 'Facetime", using an IPAD purchased for him by his grandparents.
42Father testified that Grandmother "has had unrestricted access to Aaden on her own with or without me, and we wish for this same type of access to continue".
43Evidence establishes that Grandmother and Mother maintained a cordial relationship prior to the move to B.C., and exchanged emails about Aaden and events in Mother's and Aaden's life. After Father fell into arrears of support payments, Grandmother took over the responsibility of making sure that payments went to Mother on time.
44Although in her written material Mother testified that Father's visits to Aaden in Toronto prior to the July 2013 had been considerably less frequent than he claimed, in viva voce evidence she agreed that he had come to Toronto every 6 to 8 weeks for a visit (excluding the holiday/vacation time the child spent with him in New York) until 2013, when he visited only once (the April visit) before Aaden went to him for the summer holiday.
45Mother testified that she has been and continues to be very supportive of Aaden's relationship with Father. She is, however, critical about what she sees as Father's lack of effort to nurture that relationship. In Mother's view, it is Grandmother and not Father who is most interested in having a relationship with Aaden.
- Mother says that historically Father has shown little interest in issues involving Aaden – e.g., his school, his daycare arrangements, his health issues. It is Grandmother who keeps in touch with her about the child.
- Mother says that Father rarely phones Aaden; it is Grandmother who calls the child on a regular basis.
- Mother says that the time allotted for Aaden to spend with his Father is frequently spent with Grandmother. She does not allege that there is anything wrong with the care that Grandmother provides. In her view, however, Grandmother has stepped out of what Mother sees as the secondary role that a grandparent should occupy.
46Although the evidence does not indicate that Mother made these complaints prior to Father's efforts to stop her move, she asserts them now. The easy-going attitude which Mother appeared to have with respect to arrangements for Aaden to spend not only with Father but with Grandmother has stiffened.
4.4 Mother's Decision to Move
47Mother signed the consent to the July 9, 2013 access order on July 5, 2013. A short time before she did so, she was advised that her work hours were being cut back from 41 to 30 hours per week. This represented 25% of her income.
48Mother's evidence is that she believed that the cutback was temporary, the result of a business slowdown that was expected to resolve itself. The cutback put significant pressure on her. In an email to Grandmother on June 29th, she confirmed that she wanted to proceed with the final agreement with Father for access and at the same time complained that she and Aaden would have to move because she simply couldn't afford the apartment any more—her rent had increased and was going into arrears, $190 for daycare was due the next week, and she was having to take another payday loan. Mother raised the possibility that she would have to move outside of Toronto--"somewhere in York region or Brampton, etc." --where she believed there would be no waiting list to receive subsidy for daycare. Grandmother replied, suggesting that perhaps she could cover the daycare cost for the next week, and asking how far Brampton was from the "inner city" of Toronto. She suggested that Mother consider moving to New York, a plan that was impractical given the fact that Mother, as a Canadian citizen, cannot work in the U.S.
49As per the agreed-upon schedule, Aaden went to Father for summer access on July 21, 2013. He was returned by Grandmother to Mother in Toronto on August 31, 2013.
50In September, Father tried to call Mother, but was unable to connect. On September 15, 2013, Mother sent Father an email, the gist of which was that she and Aaden were in B.C. because "my mom isn't doing well." Father took that to mean that they were temporarily in B.C. However, by early October, he discovered that Mother had given up her apartment and that she had moved to B.C.
51In evidence before me, Mother denied that she had attempted to conceal her plans to move from Father. She said that she did not think that the order prevented her from changing Aaden's residence, and that, in any event, she believed that she and Father would "just work out" any changes required to the access schedule. She pointed out that Father had often changed his access plans in the past on short notice, and that she had accommodated those changes without complaint.
52Mother may have believed that she was legally free to move because there was no non-removal clause in the court order. However, I do not accept that she believed that Father would not object to the move, and that there was no reason to advise him of her plan. Her email of September 15th to Father supports the inference that she intended to conceal the move for a time, perhaps out of concern that Father would take legal steps to try to prevent it, as he ultimately did.
53Mother testified as to the circumstances that led her to make the move to B.C., a decision which she said she made within about a month of the access order being made.
- She learned that the cutback in her hours was permanent, and not just temporary.
- She searched for other employment. All she could find was work as a dental assistant at $15/hour or lower (25% less than her prior rate), and many positions required evening work, which she could not consider because of her childcare responsibilities.
- She considered a move outside Toronto to areas such as Brampton or Durham, in hopes of being able to receive daycare subsidy. She found that, contrary to her expectation, she would not be eligible to receive a subsidy for daycare immediately upon a move to those regions.
- In a telephone conversation with a girlfriend from Vancouver who was also a single parent of a young child, Mother was advised that she would be eligible to receive subsidy for daycare immediately if she moved to B.C. She was also understood that she would be able to obtain less expensive accommodation in the Surrey area.
- Mother contacted authorities in B.C., who confirmed that she would be eligible to receive daycare subsidy if she and Aaden were resident there.
- Mother decided to make the move.
4.5 The Move
54Mother and Aaden moved on September 10, 2013. Initially they stayed with a friend. Within a week, Mother had signed a lease for an apartment in Surrey, and had enrolled Aaden in a full-day kindergarten program at a nearby school, which was an eight-minute walk from her apartment. She was happy with the apartment, located in the basement of a home, which she described as a spacious 2-bedroom with lots of light; rent was $300 less monthly than what she had paid in Toronto. Mother enrolled in college for level two dental assistant training, financing this through a student loan. She was able to enrol Aaden in a before and after school program, at no cost to herself because she was eligible for daycare subsidy. She was able to manage this financially on her employment insurance payments, and later on her wages from a part-time position as a dental assistant.
55Mother testified that she had the support of family and friends in the area, which she expects will continue if she is able to return to Surrey.
56One sister and brother live nearby, as well as a number of childhood friends with whom she has maintained contact. They assisted her when necessary in caring for Aaden.
57Mother testified that she also had some contact with her mother and a brother who lives with her. She acknowledged that interactions with this brother were not pleasant, and does not count him as one of her supports.
58After Mother moved to B.C., she met and become engaged to a man there who works in Correctional Services and who shares custody of his two children with his former wife. Mother testified that this relationship foundered when she was compelled to return to Toronto by my order, and that the engagement was broken.
59Mother testified that if she is permitted to move Aaden's residence to Vancouver, that he is already registered for Grade 1 in the same school in which he attended kindergarten last year. He will be able to return to the same daycare facility. She and Aaden will be able to occupy the same apartment, because Mother arranged for her former sister-in-law to take over the lease, and she is willing to vacate the apartment if required. Mother plans to attend college again, either for the level two dental assistant program or for a veterinary assistant program. Mother plans to support herself and Aaden while she is in school through part-time work as a dental assistant.
60Mother led little evidence about her circumstances in Toronto since she returned at the end of April 2014. She and Aaden have been staying with friends. She has not looked for work, or a place to live, or a new school for Aaden in the fall. I do not take this failure on her part to make necessary preparations to keep Aaden in Toronto as a factor in support of her wish to move.
4.6 Aaden's Contact with Father Since His Return to Toronto
61Father complains that Mother has not facilitated visits as required since her return to Toronto.
62He pointed to an email he sent Mother in May, saying that he was "thinking of coming up this weekend to see him (Aaden)". Mother replied that she and Aaden had plans for that weekend, but asked if Father could take Aaden earlier than set out in the court order for the summer, as she "needed to be in B.C." for a while. They agreed that Aaden would go to stay with Father on Father's day, and stay until August 18th.
63Father also pointed to two occasions on which Grandmother tried to arrange visits for herself to see Aaden in Toronto without Father; Mother advised Grandmother that she had other plans for those weekends. At trial, Mother testified that although she was happy for Aaden to have a relationship with Father's family, including Grandmother, she did not feel obliged to facilitate Grandmother having independent visits.
64Father and Grandmother also complained that for some weeks in April/May, 2014 they were unable to connect to Aaden through his "Facetime" program. They believed that Mother was trying to restrict their communication with the child. Mother explained to Grandmother that the program was not working, and that the IPAD was broken. She said that she planned to take the IPAD to the Apple store for repair, but didn't have the money to do that immediately. She proposed using Skype on her phone for these calls.
65I do not conclude from this evidence that Mother was failing to comply with the July 9, 2013 order for access to Father. The evidence with respect to Father's request for a visit indicates he said he was "thinking of" coming, and Mother replied that she had other plans for that weekend. No definite plan was put forth and refused. Mother is not obligated pursuant to the order to accommodate visits from Grandmother or other family members separate from visits with Father. Although Father and Grandmother had difficulty communicating Aaden for a limited period using a particular program, Mother was ready to facilitate audio/visual contact by other means.
4.7 Mother's Plan for Access in Light of the Proposed Move
66Mother's proposal for access between Aaden and Father if the move is approved is as follows:
- Two months each summer;
- Every spring school break;
- Every Christmas school holiday;
- Other times that Father chooses to come to Vancouver, on reasonable notice.
67Mother acknowledges the obvious, that travel time between New York and Vancouver is longer—about four hours longer—than travel time between New York and Toronto. Mother's plan is that for the longer holidays when Aaden will be traveling to New York to spend time with Father that she will drive the child to Seattle; from there he is eligible, under U.S. regulations, to take a non-stop flight as an unaccompanied minor to New York city. Mother has researched the cost of such a flight; if booked well in advance, it would be $277, plus an additional $200 for the unaccompanied minor fee, for a total of $477.
68Father objects that Aaden is too young to fly alone, and says that if the court did approve this plan that he or Grandmother would fly to accompany the child, which would greatly increase the cost. He disagrees as to Mother's evidence on the cost of airfare, and offers evidence from Maria Manno, his lawyer's law clerk, on the issue. Ms. Manno deposes that the cost of the Christmas 2013 visit-- during which Grandmother traveled from New York to and from Vancouver to transport Aaden on short notice – was $3,750. This figure included three tickets costing $2950, two nights in a Vancouver hotel costing $500, and taxi fares.
69I find that if Aaden were to live in Vancouver, Father's access costs would increase, but not by the amount he suggests. The cost figures offered by Father represent the cost of last-minute air fares at Christmas time. If the proposed move were permitted, Father would be able to book tickets well in advance. I accept that, as stated by Mother, the cost for Aaden would be approximately $500 round trip, including the unaccompanied minor fees. If an adult accompanied Aaden on a trip to New York, an additional fare would be involved, and likely the expense of a 1-night hotel stay on each leg of the trip. Weekend visits would require the cost of an adult fare to and from Vancouver, plus hotel and meals for three days; there is no evidence to suggest that these costs (other than airfare) would be higher than the costs which Father has paid for visits in Toronto.
5. Arguments of the Parties
70Mother's lawyer submits that she has clearly established a material change in circumstances occurring since the date of the July 9, 2013 order—the significant reduction in her income and her consequent financial inability to remain in Toronto and maintain an adequate standard of living. Counsel says that Mother explored all the reasonable alternatives which would have accommodated remaining in the Toronto area (other employment and/or reduced daycare costs through a subsidy), without success, before deciding to move.
71If it is accepted that Mother has established a material change in circumstances and the court moves to a fresh consideration of Aaden's best interests, Mother's counsel submits that the court should remember that, at this stage of the inquiry, there is no onus on either parent to prove that his or her plan is in the child's best interests. Having said that, counsel argues as follows:
A move to Vancouver will have little or no effect on Aaden's relationship with Father. The relationship has always been conducted long distance. Aaden can still spend long summer vacations and other holiday periods with Father in New York. When those periods are taken into account, based on Father's projected visiting schedule for weekend visits every 6 weeks, three or possibly four weekends a year are involved. Those weekend visits can occur in Vancouver. Father can well afford the increased cost of airfare, particularly as he is paying a modest amount of child support under an order that does not even require him to contribute to the child's daycare costs.
Counsel urges the court to remember that Grandmother has no separate and independent right to access to Aaden. The fact that Grandmother may have the desire and ability to come to for weekend visits more frequently than Father should not be a relevant factor in the court's determination as to whether Mother may change Aaden's residence.
Mother has the benefit of receiving subsidized daycare for Aaden in Surrey, a significant benefit that she does not have in Toronto. This allows her to work, part-time, return to school, and still maintain an adequate standard of living. This is obviously a benefit to Aaden.
Mother is strongly of the view that a move to Surrey is in the best interests of both her and Aaden. She appreciates having an attractive apartment within her means, close to school and daycare for Aaden, with a yard in which the child can play. She believes that in Surrey she will have a more reliable support network, as she has family and friends residing nearby. Those individuals can provide assistance with care for Aaden when needed.
72Father lawyer argues forcefully that Mother has established no material change since July 9, 2013, when the order for access was issued. Counsel points out that Mother's cutback in hours and income occurred before the order was made on consent, and says that Mother should have anticipated that the cutback could be permanent. She says that, in any event, Mother did not make sufficiently extensive efforts to canvas alternatives that would allow her to remain in Toronto before making a decision to move. Counsel argues further that Mother could or should have investigated a second job to supplement her reduced income, or that she should have asked Father to commit to contributing to Aaden's daycare cost.
73If the court does find that Mother has established a material change in circumstances, Father's lawyer submits that, weighing the factors set out in Gordon v. Goertz, Aaden's best interests lie in remaining in Toronto. She argues as follows:
A court determining whether to allow a child's relocation should keep in mind the principle that "maximum contact" with the non-residential parent should be promoted.
Caselaw establishes that economic improvement to a parent's financial situation is not sufficient to justify a move, if the move will mean much reduced contact between the other parent and the child.
The proposed move will mean a significant reduction in contact between Aaden and Father and his extended family. The possibility of "hopping on a plane" in New York Friday afternoon, spending the weekend in Toronto, and returning to the office in New York on Monday morning, is eliminated if Aaden is in Vancouver.
Elimination of visits in Toronto will mean that Aaden will lose contact with relatives here—Lindsay's sister and her children who live in Mississauga.
Mother's plan offers little evidence of the prospect of an increase in social support for herself if the move takes place. It lacks the detail which one would expect with respect to how Aaden's needs would be met; for example, there is no mention of a doctor or dentist being available for the child.
Mother cannot rely on the disruption to Aaden that has been caused by the court-ordered move back to Toronto (after her unilateral decision last September to go to Surrey) to support an argument that the child should move to Surrey.
6. Analysis
6.1 Is There a Material Change?
74I find that Mother has established that a material change in circumstances relevant to her ability to meet Aaden's needs did occur after the July 9, 2013 order.
75I accept Mother's uncontested evidence on the following issues:
- Even before the cutback in her work hours, she was having difficulty meeting her expenses.
- At the time she signed the consent containing the provision for weekend visits in Toronto, she believed that this reduction in work hours would be temporary.
- She subsequently found, to her dismay, that the hours were not being increased back to her prior level.
- She searched for other employment and was unsuccessful in finding anything that offered income comparable to the income she received from her job when she had full-time hours.
- She investigated other ways of dealing with her financial predicament that would have allowed her to remain in the Toronto area. As part of this investigation, she contacted authorities in other parts of the GTA, to determine if she would be able to begin receiving a daycare subsidy if she moved to their region—as she hoped—and found that this was not possible.
76When a parent earns a modest income, such as Mother did prior to the cutback of her hours, a 25% reduction in that income can have very significant negative consequences. From Mother's point of view, the cutback meant that she could not support Aaden and herself adequately. I do not accept the submission that Mother anticipated or should have anticipated that the cutback in her hours would be permanent at the time she signed the consent to the access order. It does not make sense that Mother would have committed to weekend visits in Toronto if it was clear to her that she could not financially manage to live there. A court mindful of the best interests of the child would not have approved such an order under those circumstances.
6.2 What is in Aaden's Best Interests?
77I begin by noting Justice McLachlin's direction in Goertz v. Gordon, that at this stage of the analysis, neither parent has an onus to "satisfy a specific burden of proof".
78I turn next to a consideration of the differences between the many relocation cases cited by Father's counsel and the circumstances in the instant case.
Almost all cases cited by Father involve variations of joint custody arrangements, not situations in which one parent is designated as the custodial parent. As Justice Julie Thorburn observed in Meijers v. Hasse, in cases such as that "unlike the situation in Gordon v. Goertz, there is no one primary parent and as such, neither party's views should be given more serious consideration than the other's in determining the best interests of the children."
All cases cited by Father involved variations of arrangements in which the parent objecting to the proposed move had residential time with the child on a weekly basis at minimum; in many cases the child spent roughly equal time with each parent. The cases reflect the typical situation of separated parents envisioned by the Supreme Court and described by Justice McLachlin in her introduction to Gordon v. Goertz:
"When parents separate, one typically enjoys custody of the child, the other access. So long as both parents live in the same area, this arrangement protects the child's continuing relationship with both parents. However, if the custodial parent decides to move away and change the principal residence of the child, the situation may change. The access parent may be unable to see the child as often as before, if at all."
79The circumstances in this case differ in significant ways from those which pertained in Father's cases.
Here, Mother has custody of Aaden. Decision-making and responsibility for the child are not shared, legally or in practice. It is Mother who has the responsibility of providing for the child on a daily basis, and of making decisions, major and minor, about his upbringing. As Justice McLachlin held in Gordon v. Goertz, a custodial parent's views on a child's best interests are entitled to "great respect" from the court.
Here, Father has never lived in the same area as Aaden, and has never had anything approaching the "typical" arrangement involving access alternate weekends and mid-week, let alone more frequent regular contact. He has not been able to participate in Aaden's daily life. His contact with Aaden has involved holiday/vacation time, and occasional weekends.
80I turn now to a consideration of the factors set out in Gordon v. Goertz to consider afresh what order is in Aaden's best interests.
81Existing custody arrangement/disruption to the child of a change in custody. These factors are not relevant, as there is no issue here about a change in custody.
82Existing access arrangement and the relationship between the child and the access parent. Mother does not challenge the assertion that Aaden has a warm, close relationship with Father, and that the child benefits from his time with Father as well as with Grandmother and other members of Father's family, and I find that this is the case.
83This does not mean that Father has been closely involved in Aaden's upbringing. He has not. He had no contact with the child for the first 2½ years of his life. Since Father began seeing Aaden, their in-person contact has necessarily been relatively infrequent, because of the distance between Toronto and New York.
84The evidence establishes that Father attended for weekend visits in Toronto approximately 4-5 times annually (except for 2013), in addition to longer periods in New York during the summer, Christmas, Easter, and American Thanksgiving. According to Father, he intended to continue this pattern of contact under the July 9, 2013 order.
85Desirability of maximizing contact. In variation applications as in applications of first instance, a court must keep in mind the principle that it is desirable that a child should have as much contact with a parent as is consistent with his best interests. What represents the realistic expectation for maximum contact between a child and a parent in any particular circumstance is dependent on a number factors. In this case, even without a proposal by Mother to move from the Toronto area, the possibility of daily or frequent in-person contact by Aaden with Father does not exist because Father lives and works in New York.
86Father's expectation as to the access he would enjoy with Aaden after the July 9, 2013 order is set out above—generous holiday/vacation time, and 4-5 weekends a year in Toronto. Would the proposed move to the Vancouver area materially alter Father's ability to exercise this access?
87In my view, the expectation which Father had for contact with Aaden can be accomplished without much difficulty for Father if the move to Vancouver is allowed. Father has always had to take time and pay airfare and hotel costs to visit with Aaden in Toronto; he (or Grandmother, if authorized by him) has always had to take time and spend money to transport the child to New York for longer visits.
88A move by Aaden to Vancouver means that there will be some additional cost and additional travel time for visits. I agree that, even though Aaden has often travelled by air, that he may be too young to travel unaccompanied, and that it would be reasonable for Father (or, if he authorizes, Grandmother) to choose to accompany the child on trips from Vancouver (or Seattle) to New York. In my view, the increased cost of exercising access – primarily in increased fees for airfare-- is quite manageable for Father, given what appear to be comfortable financial resources available to him. The additional travel time should also be manageable. Father is not tied to a 9-5 desk job. He is self-employed, with a flexible schedule. If Father and Grandmother agree that she should accompany Aaden for travel, then Grandmother also appears to have flexibility in her work hours, as she is in a management position in the family company.
89A move to Vancouver will also mean some additional travel time for Aaden, for 3-4 visits annually. That does not appear to be onerous for Aaden, particularly if Father follows through on his intention to arrange for Grandmother or himself to travel with the child.
90Views of the child. This is not a relevant factor, given Aaden's age.
91Custodial parent's reason for moving, in the exceptional case where it is relevant to meet the needs of the child. In Gordon v. Goertz, Justice McLachlin made it clear that the reason for a custodial parent's decision to move should rarely be considered in determining a relocation case:
"…the custodial parent's conduct can be considered only if relevant to his or her ability to act as parent of the child. Usually, the reasons or motives for moving will not be relevant to the custodial parent's parenting ability. Occasionally, however, the motive may reflect adversely on the parent's perception of the needs of the child or the parent's judgment about how they may best be fulfilled. For example, the decision of a custodial parent to move solely to thwart salutary contact between the child and access parent might be argued to show a lack of appreciation for the child's best interests….However, absent a connection to parenting ability, the custodial parent's reason for moving should not enter into the inquiry."
92Father's suspicion is that Mother decided to move because she feels threatened by Aaden's enjoyment of visits with him.
93There little evidence to support this allegation.
Although in some circumstances Mother's foolish efforts to conceal her move to B.C. in September 2013 might indicate that she does not support access between Aaden and Father, that is not the picture which emerges from the evidence as a whole. I find that Mother's lack of honesty on this point was the result of a misguided attempt to avoid what she has said she feared-- Father's "steamrollering" her in court with superior resources.
The history of visits before the July 9, 2013 order reflects a pattern of cooperation between the parties to facilitate visits for at least two years.
Mother complied with my order with respect to access this past Christmas and additional access in April of this year, and has complied with the provisions of the July 9, 2013 order with respect to access with Father since her return to Toronto.
Mother's plan for access if the move is permitted proposes an increase in the time the child is scheduled to spend with Father. Rather than alternate Christmas holidays, she suggests that Aaden spend every Christmas vacation with Father, in addition to two months in the summer and every spring school vacation.
94Disruption to the child consequent on removal from family, schools, and the community he or she has come to know. There is little evidence that Aaden had roots in a community in Toronto, and thus little support for the assertion that a move to Surrey would be disruptive for him. Mother has moved frequently while in Toronto. Father and his family are critical of this pattern; Mother points to her difficult economic circumstances, as well as her 2011 move to assist her mother, as an explanation. Father asserts that at the time of the move to Surrey, Aaden had finally found a community, having completed one year at Kingslake elementary school in North York. I understand that submission, but find that it is likely that even if Mother had at that point remained in Toronto, that she would have had to move from that neighbourhood because she could not afford the rent. Mother advised Ms. Ewers of that likelihood in her email of June 29, 2013.
95Father points to Aaden's likely loss of contact with Lindsay's nieces and nephews in Mississauga if the move is approved as another disruption for the child. I am not persuaded that this relationship, although enjoyable, is significant for Aaden, and do not consider his reduced contact with these children as an impediment to a move.
6.3 Conclusion
96Father's counsel submits that ultimately the court should find that Aaden's best interests are not served by a move from Toronto to Surrey. She questions the reality of the support that Mother can expect from friends and relatives, given that there are no affidavits presented confirming that support. She argues that an economic benefit to Mother from a move does not justify a reduction in Aaden's contact with Father. She submits that if the cost of daycare for Aaden was and is the decisive factor in Mother's decision to move, that she should have asked Father or Grandmother for a contribution to this expense. When I questioned Father and Grandmother on this point, they said they would agree to furnish funds for Aaden's daycare cost and that such a provision could be incorporated into the order for access. Father's lawyer in submissions clarified that the daycare expense should be agreed upon as reasonable before a contribution could be expected.
97When I questioned Mother on this point, she replied that a promise now to contribute to daycare did not change her views about the desirability of a move. She does not wish to contemplate a life in Toronto dependent upon the money that might flow from these undertakings, even if they can be incorporated into the access order. Her lawyer submits that this caution is justified, as Father has twice been in arrears of support for five months.
98Mother's view is that she can provide a better life for Aaden and herself in British Columbia. She has arranged for an apartment and a school, for daycare services and daycare subsidy. She has identified a training program which would help her advance in her field. She is confident that, with the daycare subsidy, her plan is affordable if she works part time. Caselaw recognizes that in some cases, an improvement in a parent's standard of living resulting from a move is in a child's best interests, even if the move results in significantly decreased contact with the other parent.
99The evidence about Mother's support network is sparse, and affidavits from some of the individuals involved would have been welcome. However, I am aware that Mother had a chance to "test drive" her plan in the six months she and Aaden spent in B.C. before she returned the child to Toronto pursuant to my order. Her evidence is that her friends and relatives there were of great practical and emotional support, greater support than she had from her friends in Toronto. That more substantial support is a benefit to Aaden.
100Justice McLachlin's caution in Gordon v. Goertz about the respect to be given to the views of a custodial parent is relevant at this point in the analysis:
"While a legal presumption in favour of the custodial parent must be rejected, the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent's parenting ability."
101The British Columbia Court of Appeal discussed the weight to be given to the views of a custodial parent in Orring v. Orring, 2006 BCCA 523. The facts of that case are similar to the situation here. Orring involved a custodial mother's application to vary an access order to move two children from Kelowna to Bowen Island in B.C., where she had a new partner and a business opportunity. Father lived in Norway, was of comfortable means, and pursuant to the court order had generous access to the children in Kelowna on reasonable notice, as well as vacation access in Norway. He exercised access in Kelowna 4-5 times a year, and stayed for lengthy periods of time, renting accommodation to do so. Father objected to the move, because accommodation and transportation would be more difficult for him.
102The trial judge found that the move would not substantially interfere with existing access arrangements. However, he disallowed the move, finding that the mother had not established that the move would result in better circumstances for the children than those in Kelowna. His decision was reversed by the Court of Appeal, and the move was allowed.
103The Court of Appeal found that, given the finding that the move would not materially alter the father's ability to exercise access, that the court was not required to enter into a "balancing" between the benefits of the proposed relocation against the child's interests in maintaining maximum contact with the access parent. The Court of Appeal found that the trial judge erred in giving insufficient weight to the mother's view that the move would provide enhanced financial and emotional security for her and the children, and in effect placing an onus on her to establish that the move was in the children's best interests. The Court observed:
"Despite the judge's conclusions and his recognition that the maximum contact principle is "of course, a principle consideration", the judge failed to consider that when the proposed relocation did not jeopardize the access parent's contact with his children, there was no longer any reason to question the custodial parent's wish to get on with her life……
There is nothing in Gordon v. Goertz to suggest that possible negative consequences from a proposed relocation should undermine the weight given to a custodial parent's views, contrary to the judge's analysis in this case. Both Lowcay v. Lowcay, supra, and Ganson v. Ganson, 2003 BCSC 544, 121 A.C.W.S. (3d) 1097 confirm that mobility cases inevitability involve some degree of uncertainty about what may happen in the future following a relocation but that alone is no reason to disregard the custodial parent's views about the potential benefits. It is true that economic prospects may dissolve, relationships may fail and educational opportunities may disappoint. Nonetheless, barring an improper motive reflecting adversely on the appellant's parenting ability - and there was no such improper motive suggested here - the judge ought to have accorded great weight to the appellant's views about the prospective benefits of the relocation."
104I have already found that Mother's proposed move will not materially alter Father's ability to exercise access to Aaden in the manner contemplated when the consent to the July 9, 2013 order was executed. I have rejected the argument that the move is motivated by a desire to thwart Father's access. In my view, Mother's plan to move is made in good faith. It is Mother who has the responsibility of making decisions about Aaden and of meeting Aaden's needs on a day-to-day basis. Her views about the benefits of the move for herself and the child deserve considerable respect. In my view, the move should be permitted. A further order for access shall issue, to expand Father's access as suggested by Mother.
105My order, which varies the order of July 9, 2013, is as follows:
Order
1. Mother shall be permitted to change Aaden's residence to the Vancouver area of British Columbia.
2. Father shall have access to Aaden as follows:
a) The months of July and August each year;
b) Every Christmas vacation, from the day following the child's last day in school preceding the holiday to two days prior to the child's return to school in January;
c) Each spring school break, from the day following the child's last day in school preceding the holiday to the day prior to the child's return to school;
d) On weekends in the Vancouver area, on at least three weeks' notice to Mother of the dates selected, provided that the child shall always be with Mother on Mother's Day weekend.
3. Father shall also have access to Aaden by phone and by any form of video-calling that may be arranged by the parties.
4. a) Father's access as set out in paragraphs 2(a), (b), & (c) above may be exercised in New York City or in any location of his choosing. Mother shall sign any documents necessary to facilitate this travel. Father is responsible for the costs of Aaden's transportation for these visits.
b) With respect to Aaden's transportation for these visits, if Father wishes, Mother shall insure that the child boards a non-stop flight in Seattle arranged by Father, and shall pick the child up in Seattle on a return flight. If Father does not choose to exercise this option, then he shall pick the child up and return him to Vancouver.
c) If Father determines that Aaden should be accompanied on these flights, then he may authorize paternal grandmother or some other family member to accompany Aaden.
d) Father shall cooperate with Mother to insure that Aaden has regular contact with her by phone or videoconferencing during these longer periods that the child spends with him.
5. Father shall be entitled to inquire and be given information as to the health, education and welfare of the child. Mother shall advise Father of the particulars of the child's school, daycare provider, and doctor, and shall keep him apprised of any changes.
6. Each party shall advise the other in writing in advance of any plan to move his or her residence and the particulars of such plan.
Released: September 3, 2014
Justice E. B. Murray