Court File and Parties
Ontario Court of Justice
Between:
Ross James White Applicant
— And —
Marie Paulette Noel Respondent
Before: Justice P. J. Jones
Heard on: June 3, 4, 5, 2014 and July 21, 2014
Reasons for Judgment released on: October 1, 2014
Counsel:
- Mr. Ross J. White — on his own behalf
- Ms. Ghina Al-Sewaidi — counsel for the respondent
JONES, P. J. J.:
Overview
1This is my decision with respect to the contempt motion brought by the Applicant, Ross James White (father), the outstanding motion to change brought by the Respondent, Marie Paulette Noel (mother) and the cross motion to change brought by the father.
2The parties are the natural parents of the child, Jesse William Noel White, born March 7, 2006. The existing court order, in effect since 2007, gives the mother custody and the father access. There is also a provision that the mother not remove the child from the jurisdiction except for holiday purposes.
3In the face of a non-removal order and an access order that includes a provision for alternate weekend access to the father, the mother permanently relocated with Jesse to New Brunswick in the summer of 2012. She did so without permission of the court or the consent of the father.
4In response to this unilateral move by the mother, the father brought a contempt motion in August, 2012 seeking the immediate return of the child to the jurisdiction.
5The mother responded to the contempt motion by commencing a motion to change in which she sought an order permitting her to relocate with the child to Fredericton, New Brunswick, as well as a variation of the access order which would allow for such a move. She also made a claim for an increase in child support and a repayment order relating to outstanding arrears.
6The father responded to the motion brought by the mother by bringing his own motion to change in which he sought a change in custody, or, in the alternative, defined terms of access.
7The father is 39 years old and works as a roofer in the good weather and is employed in snow removal in the winter.
8The mother is 47 years old. She has worked in a number of different jobs. Since the birth of Jesse, while in Ontario, she supported herself and her son for the most part on public assistance. She was born and raised in New Brunswick where her mother and a number of her siblings and their families still reside.
9Jesse is the first and only child born to either parent. The parties never married and in fact, at the time of Jesse's conception, they had known each other for only about a week. This was an unplanned pregnancy. To say that they were virtual strangers at that time would be an understatement.
10When the mother found out she was pregnant, she moved in with the father.
11This attempt at cohabitation was short-lived and ended when Jesse was approximately three months old. It ended with an argument between the parties which became physical; the police attended and the mother and baby left to go to a local women's shelter.
12Both parties told different stories as to what happened that night.
13The mother alleged that the father grabbed her by the throat when she was sleeping because he was angry that the cat had jumped onto the seat in which the baby was sleeping and he blamed her for leaving the cat in the house. She testified that when she awoke to find the father's hands on her throat, she pulled him off with her hands and pushed him away.
14The father denied touching the mother. He testified that the mother had attacked him and scratched him during an argument. The father called evidence to corroborate his assertion that he had scratches on his body that night. As no one other than the parties was present that evening during the argument, and each party told a different story, it was unclear to me how these injuries occurred. It was clear, however, that these parties did not get along.
15Within days of the parties separating, the father brought the case to court seeking an order that the mother not remove the child from the jurisdiction. According to the father, the mother had indicated to him that she wished to return to her family in New Brunswick. On an ex parte basis, the court ordered that the mother not remove the child from the jurisdiction.
16In response to this application, the mother claimed sole custody and denied any intention to move permanently to New Brunswick but did indicate a desire to visit her family in New Brunswick.
17This first court application was resolved on consent on December 13, 2007. The consent order included the following terms:
- The mother was granted final custody,
- The Father was granted specific access including overnight access and special holiday access.
- The father was ordered to pay child support in the amount of $327 based on an income of $35,292 pursuant to the Child Support Guidelines.
- Neither party was to remove the child from the jurisdiction except for vacation purposes for a period greater than 2 weeks upon reasonable notice.
18The parties never resumed cohabitation. Having said that, I am satisfied that there were times that the parties were able to cooperate around parenting. For example, it is not disputed that the father assisted the mother in locating permanent housing close to his residence and that he became an involved access parent. I accept that the father enjoyed his time with Jesse, and for a number of years he coached his young son's soccer team, attended his son's baseball games and exercised regular weekend access. The father's parents were also quite involved with Jesse. When the father was working on the weekend, I heard from the paternal grandmother that she frequently cared for Jesse and took him to her cottage and to various parks and other amusement attractions.
19However, I am also satisfied that there were times when this parenting arrangement was not working in the best interests of Jesse.
20In April, 2009, the mother brought a motion to change seeking an order that the father's access to Jesse be supervised because the father had been abusing cocaine while in a care-giving role. According to the mother, she had gone to the father's apartment to pick up Jesse and had seen what she believed to be powdered cocaine in the father's bathroom. She then contacted the Children's Aid Society who arranged for Jesse to undertake a hair follicle test, the results of which indicated that the child had been exposed to cocaine for approximately the preceding nine months.
21Initially, the father denied that he used cocaine and accused the mother of abusing cocaine. Both parties submitted to hair follicle tests. The mother's test came back negative and the father's test came back positive for cocaine at a fairly high level of usage. At this point the father admitted to using cocaine and agreed to attend treatment and to have his access supervised on an interim basis until he was able to establish to the court that he no longer was using cocaine.
22As well as seeking an order that access be supervised, the mother also sought permission from the court to relocate with Jesse to New Brunswick to be closer to her family. She indicated that she was a single parent in Toronto without supports. If she were permitted to relocate, she undertook that she would encourage appropriate and generous access to the father.
23The father strenuously resisted any attempt to delete the non-removal order. It was his position that the mother was struggling with parenting and that he was providing needed assistance to the mother in meeting their son's needs. He also indicated that he loved Jesse and Jesse loved him and that if the mother were allowed to move to New Brunswick the father/son bond would be destroyed.
24After approximately eleven months, the parties entered into a consent order dated June 28, 2010 which included the following terms:
- The father was granted unsupervised access to Jesse which included alternate weekend access.
- The order contained a provision that the father would submit to hair follicle testing for cocaine and alcohol every six months for five years, or such other time period as may be agreed to by the parties in writing. The order provided that in the event tests were to reveal cocaine usage, access was to immediately revert to supervised access. The father agreed to provide written authorization to the mother to allow her to communicate directly with the testing laboratory.
- The mother was granted permission to travel outside the Province of Ontario with the child for a period not exceeding 4 weeks without the father's prior written consent upon reasonable notice to the father.
25The mother did not pursue her request to be permitted to relocate permanently to New Brunswick.
26Once the access became unsupervised, the parties resumed their prior parenting roles.
27During the time the mother lived in Toronto, it is clear to me that the mother was not only the custodial parent, but the primary caregiver of Jesse. It was the mother who spoke to the teachers, dealt with the child's doctors, and provided the day to day care for the child. For example, the mother indicated that there was a time when Jesse was quite ill and she was the parent who managed this issue (he suffered from a blood disorder which required frequent trips to the specialist at Sick Children's Hospital.) I think it is quite telling that the father was unable to name the specialist and agreed that he had not attended any of Jesse's medical appointments dealing with this issue. As well, the father agreed that he had never attended even one of Jesse's parent-teacher meetings at the school.
28The father was the access parent. He enjoyed his time with Jesse and I accept that Jesse enjoyed his time with his father and his father's extended family. The father was involved in Jesse's extracurricular activities as described earlier and spent many days and weekends with Jesse.
29When everyone lived in Toronto, because of Jesse, the parties were forced to interact frequently. It is clear from the evidence that the parties had a very difficult relationship. Both the mother and father complained about the behaviour of the other. Both parents admitted to arguing with one another, and each parent described very disturbing scenes between the other played out in front of the child or within earshot of the child.
30The mother complained that she found it difficult to deal with the father as he was so changeable and angry. She testified that the father often yelled and swore at her and would threaten her when he did not get what he wanted. She said that he often drank after work and she suspected there were times when the father was impaired while in a care-giving role. On a couple of those occasions she said she had called the police.
31The father denied using drugs or abusing alcohol when Jesse was with him and he denied threatening the mother. He said that the mother called the police because she was malicious and he believed that she had "psychological" problems.
32The mother testified that she felt isolated in Toronto and frustrated by her failure to fulfill her goals. She was unemployed, yet wanted to get back into the workforce. She said that she tried to go back to school to retrain on at least two different occasions, but had to drop out for various reasons including access problems and health issues affecting Jesse. She testified that the father was not supportive of her dreams and would say, "You are too old. No one would want to hire you. You are too old for that." She said she was depressed and very unhappy; she felt she had no time for herself and talked about feeling like she was "losing herself."
Current Litigation
33The contempt motion and the two motions to change arose out of an incident that occurred on the 2012 Easter weekend. Both parties agree that regular access terminated after this particular weekend.
34The parties tell quite a different version of the events of that weekend.
35The mother testified that Jesse was at his father's home for the Easter weekend. Sometime on Saturday morning she phoned the father on his cell phone and six-year-old Jesse answered the phone. She said Jesse told her he was hungry and he couldn't wake up his father. Concerned, the mother said she told Jesse to lock the door and she would be right over. When she arrived at the home, Jesse let her in and she found the father asleep on the couch. She said that she shook the father but was unable to rouse him. She indicated that she was concerned the father had passed out due to drug use (she said that she had seen him like this before when he was using cocaine). As Jesse said he was hungry and she could not rouse the father, she decided to take Jesse to a local restaurant for lunch. She said she would have left a note if she could have found any note paper. She and Jesse were having lunch when the police arrived and they told her that Jesse had been reported missing by his father so she and Jesse went back to the father's home. She told the court that the father indicated that he was tired from a recent surgical procedure on his ear and he agreed to let her take Jesse to her home so that he could sleep. (The mother testified that the father had an ear operation because his ear had been cut by a bouncer at a bar during an altercation between the two in which a knife was used.)
36The father testified that he was at home with his son on Saturday morning of the Easter weekend and was asleep on the couch. He told the court that he recently had surgery on his ear and had worked the previous day and was very tired. Also, he said that he had a friend staying over who he thought would have been in the apartment to look after Jesse while he slept, but who had apparently stepped out to do her laundry. He said he was awakened by his house guest who told him she could not find Jesse. They found Jesse's coat, became concerned and he phoned the police and reported Jesse missing. Jesse was returned home by the police within a short time. He spoke to the mother and agreed she could take Jesse home so that he could sleep. He denied taking cocaine or abusing drugs. He said that on the following Tuesday he took Jesse and the mother to Walmart to buy an Easter present for Jesse and that was the last time he saw Jesse.
37Both parties agreed that they argued about the Easter visit.
38The mother testified that they argued about the circumstances relating to that visit and that she told him she would take him back to court to get his access supervised because she was concerned he was using drugs. She said he told her he would "make her disappear" if she took him to court. As well, she said he threatened to call the Children's Aid Society and tell them that she was beating Jesse, a threat he in fact carried out. (The mother provided a letter from the CAS written in August, 2012 which noted that they were closing their file as no protection concerns had been identified.) She said that she took the father's behaviour and his threat seriously: she called the police to report the threat and she discontinued access.
39She said she began to investigate taking the matter back to court. While sorting out legal aid issues, and before bringing a motion to change, she decided to take a break and go on vacation to New Brunswick.
40She said that after she spoke with a lawyer in New Brunswick about her case, she decided to move home permanently and bring her motion to change in New Brunswick. However, before she could bring such a change motion, she was served with the father's contempt motion. Immediately, she responded with her motion to change which is before me.
41The father was unable to tell the court exactly about what it was that the parties were arguing. He denied threatening the mother that he would "make her disappear." He said that he felt the mother was in a bad mood because her sister had cancelled a holiday and the mother was very disappointed.
42Because the mother denied him access, he hired a lawyer to bring a contempt motion. He said that he was unaware that the mother had permanently moved to New Brunswick until late in the summer when he noticed that the mother's belongings had been removed from her apartment balcony.
43Once the father became aware that the mother had permanently removed Jesse from Ontario, the father sought to have the mother found in contempt for wilful non-compliance with the non-removal clause and asked the court to order that the mother return the child to the jurisdiction forthwith with a police assist provision.
44This motion was heard by the case management judge who had been managing this case since 2007. After reviewing the materials filed by the parties, she noted that the affidavits raised issues of credibility and that an oral hearing would be required to resolve the issues. Given the fact that the mother had brought a motion to change to allow her to move permanently to New Brunswick with the child, in the circumstances of this case, she determined that the contempt motion and the interim motion to change to permit the mother to relocate to New Brunswick should proceed by oral hearings seriatum. She determined that the oral hearing relating to the motion to change should proceed first followed by the contempt motion.
45No motion date was ever requested by either party. As such, the child has been living and going to school in New Brunswick since July, 2012.
Motion to Change—Legal Issues
46In Canada, the leading case on relocation is Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27. In that case, as in the case before me, there was a request to change a previous custody order because of the decision of the custodial parent to relocate with the children.
47Justice Beverley McLachlin, writing for the majority of the court, in paragraph 49 provides a summary of the law that applies in these cases. She wrote:
49 The law can be summarized as follows:
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 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.
Discussion
(A) Material Change in Circumstance
48The threshold requirement of material change in circumstances of the child and the parents' ability to meet them is established by the mother's relocation to New Brunswick. By moving to New Brunswick the mother disrupted the child's life and restricted the child's access to his father and his father's extended family in a significant way.
49Having found a material change in circumstances, I propose to commence a "fresh inquiry into Jesse's best interests" as contemplated by paragraph 49 of Gordon v. Goertz, supra and in doing so to consider the factors set out in that paragraph in light of my findings of fact.
(B) Existing Custody Arrangement and Relationship Between the Child and the Custodial Parent
50I am satisfied that the mother is both the custodial parent and primary caretaker of Jesse and has been so since his birth. From the evidence adduced, I am satisfied that Jesse has a close and loving relationship with his mother.
(C) Existing Access Arrangement and the Relationship Between the Child and the Access Parent
51At present, Jesse has not seen his father since just after the 2012 Easter weekend. Prior to that time, I am satisfied that Jesse had a close and loving relationship with his father and his extended family. Since access terminated, the relationship between father and son has been diminished.
52I understand that recently Jesse has refused even to speak to his father on the telephone. The mother testified that she has arranged counselling for Jesse in an attempt to deal with this issue. The evidence adduced as to why Jesse is refusing even telephone access was very confusing. I say this because both parties made reference to Jesse complaining that he had heard the word "shit" during the telephone conversation with his father and that was the reason Jesse had given for refusing to speak further with his father. This did not make much sense to me. However, I also heard from the mother that the father was telling Jesse on a regular basis that he was "going to fight for him to bring him home" and that these comments had upset Jesse to the point that she had had to plead with Jesse to even speak to his father. Because Jesse was upset, she told the court that she had taken to monitoring telephone calls between Jesse and his father. It was by monitoring the calls she became aware of what the father was saying to Jesse.
53I find that this attempt by the father, (and maybe the mother), to involve the child in the hotly contested, lengthy dispute between the parents as to where Jesse will live, is more likely to be the cause of the child's reluctance to speak to his father. He is no doubt both confused and anxious and feels like he is in the middle of a dispute he is unable to understand, control or resolve. Hopefully, with the release of my decision, the child's anxiety about where and with whom he will be residing will dissipate, and it is then up to the parties to begin to work together in the interests of Jesse on access issues.
(D) The Desirability of Maximizing Contact Between the Child and Both Parents
54While this maximum contact principle is a concept included in the Divorce Act (R.S.C. 1985, c.3 as am.) but not replicated in the Children's Law Reform Act, R.S.O. 1990, c.C.12, it is accepted law that the principle of "maximum contact" is applicable to considerations of best interests made under the Children's Law Reform Act. (see Woodhouse v. Woodhouse, 1996 CanLII 902 (ON CA), [1996] O.J. No. 1975 paragraph 32).
55This concept of maximum contact is an important consideration in determining best interests. Children have the right to have a full and meaningful relationship with both parents. However, it is clear from a reading of the factors enumerated in Gordon v. Goertz that this is not the only factor to be considered and although it is mandatory it is not determinative. Justice McLachlin in Gordon v. Goertz, supra paragraph 25 wrote:
25. The reduction of beneficial contact between the child and the access parent does not always dictate a change of custody or an order which restricts moving the child. If the child's needs are likely to be best served by remaining with the custodial parent, and this consideration offsets the loss or reduction in contact with the access parent, then the judge should not vary custody and permit the move. This said, the reviewing judge must bear in mind that Parliament has indicated that maximum contact with both parents is generally in the best interests of the child.
56In this case, it is clear that the fact of relocation has greatly diminished the role of the father in the child's life. When Jesse was in Toronto the father saw Jesse very frequently and exercised alternate weekend access with his son. Since moving to New Brunswick, the father has not seen his son.
57As to why this might be so, is more complicated than distance or lack of money. Partly, it is caused by the father's anger at the mother and at the court system for its failure to enforce its orders. The father told the court that unless Jesse was returned to Ontario, he wished nothing further to do with his son. He said that the mother had "illegally" taken Jesse out of the province, and in fact, if Jesse was not returned, he "would quit his job and move to Costa Rica". (He withdrew this comment, and told the court that he had said this out of anger.) At different times in his testimony he gave various reasons as to why he has not exercised access to Jesse. He said:
i. he would not go to New Brunswick because he could not afford it, ii. he did not want to set a precedent, iii. he would not cooperate with the mother as long as she is breaking the law by not bringing Jesse back to Ontario. iv. the mother would block access even if he went to New Brunswick--look how she had interfered with his telephone access.
58Based on this testimony, it is clear to me that the only way the court could "maximize contact" between the father and Jesse would be to make an order that would result in Jesse being returned to Ontario. It is of note that even when the court attempted to arrange for a visit between Jesse and his dad in Toronto midway through the trial, access did not take place. When the trial had to be adjourned, I suggested to the parties that the mother might consider traveling with Jesse to Toronto for the last day of trial. She agreed to come early with Jesse if the father would pay for the child's ticket. I assured the father that if he paid for the ticket I would reduce his arrears accordingly. I was advised by the mother's counsel that she attempted to make the arrangements but the father did not reply to her letter.
(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
59In this case I am satisfied that the reason for the mother's move is relevant to her ability to meet the needs of the child.
60The mother was very clear that she moved to New Brunswick to make a better life for herself and Jesse. She was very unhappy in Toronto. She was on welfare and unable, because of her lack of supports, to retrain or get a decent job.
61Her main parenting support came from the father, a man she distrusted and with whom she had a toxic relationship. Because of this toxic relationship, Jesse often found himself in the middle of his parents' disputes. Over the course of his young life he has witnessed his parents yelling and swearing at one another and on few occasions, when he was present, police attended to settle a dispute between his parents.
62As well, the mother questioned whether the father was still using drugs. As such, at trial, the question of the father's continued drug use was a live issue. The mother suggested that the father, who had admittedly abused drugs (cocaine) in 2009, may have relapsed on the Easter weekend of 2012.
63It is important to note that, in this context, the father failed to abide by the term of the order of 2010, which required him to submit to hair follicle testing every 6 months for 5 years. As a result, there was no independent evidence confirming the father's assertion relating to his non-consumption of drugs in March 2012. No hair follicle test for that period was available. (Indeed, the father actually admitted to attending for less than half of the ordered hair follicle tests.)
64The father testified that he had not used drugs since 2009. In support of this contention, during submissions he presented a recent report from Motherisk that showed "trace" cocaine without any detectable metabolite, (the presence of a metabolite is usually associated with active usage). He denied any usage and indicated that any trace cocaine detected by testing must have resulted from accidental contact with drug users.
65At the request of the father, the report and accompanying letter from the testing facility were admitted into evidence. The letter from Motherisk, dated July 17, 2014, contained an explanation as to what the "trace" positive result for cocaine might represent given the lack of detectable metabolite. The explanation as set out in the letter was premised on the contents of a conversation between the writer and the father in which the father purportedly admitted to drug use before November 2013, but claimed to have been abstinent thereafter. The letter was an attempt to explain how any cocaine, even in trace amounts, could have been detected in May 2014 if there had been no usage since November 2013, and the hair tested had grown after November 2013.
66According to the letter, because of the way hair grows, the low level positive cocaine results, combined with the absence of detectable metabolites, would be consistent with Mr. White's self-reported abstinence from cocaine since November 2013. The letter suggested that the most likely scenario was:
ii. Much higher-level (i.e. frequent/intensive) use of cocaine in the recent past (within 3 months prior to February 2014) and these results are residues left over from the previous use. At any given time, 10-15% of hair are in the 'resting' (as opposed to 'growing') phase: meaning that the 'older' hairs may contain information from an earlier time period.
67Given the state of the evidence, I was unable to conclude, as the father claimed, that he had not used cocaine since 2009. In any event, the father's possible drug use is only one factor in the many I have considered in arriving at my decision.
68Because the mother and Jesse have now been in New Brunswick for over two years, the court had the benefit of assessing how her plan to relocate has worked out.
69I find that the mother has made a new life for herself and Jesse in New Brunswick surrounded by her supportive family. Since going home, she has been employed at various jobs and is currently working for the Department of Public Safety as a receptionist-administrative assistant earning $1365.00 every two weeks. She told the court that she is hopeful that this temporary position will become permanent. She and Jesse have an apartment close to family. Jesse is going to school, and, as of September, 2014, he will be attending a French immersion, grade three class. According to his report card, he is doing well and is well settled. Jesse has been enrolled in taekwondo lessons and hopes to join cadets this year. From a review of family photos, it appears that Jesse is enjoying himself with new friends and with his extended family. The mother testified that she is happy at home surrounded by her family, feels supported and is proud to be employed.
(F) Disruption to the Child of a Change in Custody
70The mother has always been Jesse's custodian and primary caregiver. To move Jesse to Toronto and out of his mother's care would be very disruptive to Jesse. He is now settled in New Brunswick and is, according to the mother and according to his school report, thriving.
(G) Disruption to the Child Consequent on Removal from Family, Schools, and the Community He Has Come to Know
71This disruption occasioned by a move from Toronto has already occurred. Jesse's life is now in New Brunswick. If Jesse were to be returned to Toronto he would suffer a significant disruption in the life he has come to know in the last two years.
Analysis
72Gordon v. Goertz, supra paragraph 50 sums up the task the court must perform in deciding these relocation cases in the following terms:
50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in the circumstances, old as well as new?
73In this case, although the father seeks custody, it is clear to me what he really wants is the situation to return to the way it was before the mother moved. He would like to continue to be the access parent and be able to visit with Jesse whenever he wants. His custodial plan was very poorly thought out and had no air of reality.
74On the other hand, the mother has demonstrated her ability to care for Jesse and provide for his needs. Her plan of care is well thought out and well executed. To remove Jesse from his mother would be very upsetting to the child. To refuse to change access and require the mother to return to Toronto with Jesse would be very upsetting to the mother and to Jesse.
75The father urges me to change custody or order the mother to return to Toronto because she left Toronto "illegally" and has thereby destroyed his father/son bond.
76However, I am not prepared to grant custody to his father as a means of punishing the mother for disobeying a court order because to do so in this case would be to ignore the child's best interests. See Abbott-Ewen v. Ewen, [2010] O.J. No. 2034.
77The principle of maximum contact is mandatory but not decisive. It is clear that the principle of "maximum contact" must be respected only to the extent "it would be in the child's best interests" to do so. See Gordon v. Goertz, supra paragraph 24. In this case the principle of "maximum contact" cannot be reconciled with best interests of the child. It is not in Jesse's interests to be returned to the dysfunctional, often toxic parenting arrangement that existed prior to his move to New Brunswick.
78Jesse is well settled and thriving in New Brunswick. The mother wishes to remain there, and as I have found no improper motive for the move, her wishes as the custodial parent are to be given "great respect and the most serious consideration." See Gordon v. Goertz, paragraph 48.
79When the court weighs the value of continuing "full contact" with the father and his family left behind in Toronto, against the value of maintaining Jesse with his mother in New Brunswick, there can be only one decision. Jesse's best interests lie with his mother in New Brunswick.
80Accordingly I am deleting paragraph 4 of the order of Justice Cohen dated December 13, 2007 to permit the mother to relocate to New Brunswick with Jesse.
Father's Access
81Now that I have deleted the provision prohibiting the mother from relocating with the child to New Brunswick, the father's specified access as set out in the 2010 order requires adjustment.
82I have carefully reviewed the evidence and the submissions of the parties. As well, I have considered the fact that the father has not exercised any face to face access with Jesse for over two years and has testified that if I did not order the child returned to the jurisdiction, he wanted nothing further to do with the child.
83Notwithstanding the father's consistent statements on the witness stand that he did not want anything further to do with Jesse if Jesse was not ordered returned to Ontario, in submissions he sought an access order that was very specific and was in accordance with the relief claimed in his original pleading. For example, he sought an order for access for 7 days in Ontario for Christmas and 28 days during the summer vacation, transportation costs to be borne by the mother.
84On the facts of this case, I am not prepared to make such a detailed order. I am convinced that if I were to make such an order, I would be setting the mother up for further contempt motions given the father's attitude towards access and his pervasive antipathy towards the mother.
85In all the circumstances I make the following access order:
Paragraph 2 of the order of Justice Cohen dated June 28, 2012, detailing the Applicant's access shall be deleted in its entirety. The following order shall be substituted:
The Applicant father shall have reasonable telephone access to Jesse as agreed by the parties.
The Applicant father shall have reasonable access to Jesse in New Brunswick on reasonable notice to the Respondent mother.
The Applicant father shall have reasonable access to Jesse in Toronto, Ontario during school breaks on reasonable notice to the Respondent mother at times to be agreed to by the parties. The Applicant shall give 30 days' notice of the dates selected to the Respondent mother. Once the access dates have been confirmed, the Applicant father shall send a prepaid airline ticket for Jesse to the Respondent mother. For the first three visits each year, the cost of such tickets shall be deducted from the child support otherwise payable to the Respondent mother; one quarter of such cost to deducted from each of the next four support payments.
The applicant shall, at his cost, submit to a hair follicle test for cocaine and alcohol every January and every July until July 2018, or other period as may be agreed to by the parties in writing. Upon receiving results of each test, the Applicant shall immediately provide them to the Respondent. If any test reveals cocaine usage, access above shall immediately revert to supervised access by such person or institution as the parties may agree. The cost of supervised access, if any, shall be the responsibility of the Applicant. As may be required from time to time, the Applicant shall provide the Respondent with written authorization for her to be able to communicate directly with laboratory in respect to interpretation of hair follicle results.
Variation of Child Support
86I am dismissing this claim as I am not satisfied that there has been a change in the father's income under the Guidelines.
Repayment Plan
87Dismissed. No evidence called on this issue.
Travel and Passport
88The mother is residing in New Brunswick and the father has very little contact with the mother or the child. In the circumstances it is in the best interest of Jesse to permit the mother to travel with the child and obtain his passport and other government issue documents.
89Accordingly, I make the following orders:
The Respondent mother shall be entitled to travel with the child outside Canada without the written consent of the Applicant.
The Respondent mother shall be entitled to apply for the child's passport, other travel documents and other government issue identification documentation without the consent of the Applicant father.
Various Incidents of Custody and Access
Each party shall keep the other advised in writing of his or her current address and telephone number.
The Applicant father shall have the same rights to the release of information concerning the child as if he were the party having custody, including, but not limited to matters of education, extracurricular activities and health directly from the relevant source without the necessity of any release or acknowledgment executed by the party having custody. This order shall constitute sufficient authorization, direction and release for so doing.
Upon the written request of the Applicant father, the Respondent mother shall advise the Applicant father of the name, address, and telephone number of any counsellor or the therapist or doctor treating Jesse and she shall sign such releases as are necessary to allow the Applicant father to speak to such counsellor, therapist or doctor and to obtain such information as would otherwise be available if he were the custodial parent.
Motion for Contempt
90I have proceeded in the fashion as outlined in the endorsement of Justice Cohen dated December 13, 2012. As such, I decided the motions to change before dealing with the contempt motion. As the evidence was identical on both issues, on consent, I have applied the evidence adduced on the motion to change to the contempt hearing.
91In the result, I granted the mother's motion to change and dismissed the father's motion to change.
92On the contempt motion, I find the mother permanently removed the child from the jurisdiction in the face of a non-removal clause without the consent of the father or permission of the court. I am satisfied that the mother did so knowing that if she did she would be in contravention of a court order. The mother offered no lawful excuse for her actions. Accordingly, I find her in contempt.
93As to disposition, the father urged me to commit her to jail. Counsel for the mother suggested that I impose a fine.
94In the circumstances, I am prepared neither to commit the mother to jail nor to impose a fine. I am convinced that if I were to do either not only the mother would be punished but so would the child. To incarcerate the mother would deprive the child for a time of his single parent in New Brunswick, and to fine the mother would jeopardize the precarious financial situation of the mother and Jesse.
95The penalties for contempt are set out in Rule 31(5) of the Family Law Rules O. Reg. 114/99 made under the Courts of Justice Act R.S.O. 1990, Chap.C.43. Rule 31(5) reads as follows:
31(5) If the court finds a person in contempt of the court, it may order that the person,
(a) Be imprisoned for any period and on any conditions that are just;
(b) Pay a fine in any amount that is appropriate;
(c) Pay an amount to a party as a penalty;
(d) Do anything else that the court decides is appropriate
(e) Not do what the court forbids;
(f) Pay costs in an amount decided by the court; and
(g) Obey any other order.
96This rule allows the court great latitude in crafting an appropriate penalty. In the circumstances of this case, given the fact that I have decided the mobility issue in favour of the mother and dismissed the father's motion to change, I think the most appropriate way to deal with this contempt would be by way of costs.
97The mother claimed costs, and since she was the successful party, according to the Family Law Rules she is presumptively entitled to her costs.
98However, in these circumstances, in light of my finding of contempt, I am not prepared to grant the mother her costs. The mother's unilateral move without first obtaining either the consent of the father of court permission not only showed disrespect for the court, but also inflamed the situation to such an extent that any negotiated settlement was not possible between these parties. In making this order, I have adopted the approach taken by Mr. Justice Gareau in Abbott-Ewen v. Ewen, supra who, in similar circumstances, denied costs to the successful party even while ultimately allowing that party to relocate.
99In the circumstances, each party shall bear his or her own costs.
Released: October 1, 2014
Signed: Justice P. J. Jones