Court File and Parties

Date: April 23, 2020 File: 722/18 Ontario Court of Justice

Applicant: Shelly Erickson Counsel: Ms. H. Geertsma

Respondent: Sean Chef-dit-Berger Counsel: Ms. M. Melitto

Before: Justice Philip J. Clay

Teleconference Hearing of a Motion

Procedural Background

[1] The Respondent father filed a Notice of Motion seeking, among other things, a resumption of his parenting time with Jacob (now 3.5 years old), police enforcement of the court order and a finding that the mother has moved the child's residence in contravention of a court order. His motion, affidavit and brief of law were served upon the mother through counsel on April 6.

[2] On April 7 I made an order finding the father's motion was prima facie urgent and I scheduled the matter for a teleconference hearing on April 16 and provided filing deadlines. On April 10 I released an amended order extending the deadlines.

[3] On April 9 the Applicant mother served and filed an urgent motion seeking authorization to move and a supporting affidavit for that relief which responded to the father's motion materials. She also filed her brief of authorities. On April 15 the father served and filed a reply affidavit.

[4] This matter was scheduled for trial during the sittings that were to begin on April 27/20. Those sittings have been cancelled due to the health crisis. This matter will be organized for a trial during the next sittings of this court which is anticipated to begin on August 17/20.

[5] The court order of July 9/19 provided that Jacob's primary residence was with the mother and she was not to move the residence of the child without reasonable notice. The father had access to the child every Wednesday and alternate Fridays for 2 hours and every alternate Saturday at 10 a.m. to Sunday at 5 p.m.

[6] The notice that she wished to move from her rented apartment in Etobicoke to her parent's residence in Newmarket was effectively given in January 2020 and confirmed by her amended pleadings. The father who resides in Mississauga opposes the move. At a TMC held on February/20 the case management justice held that the re-location issue was an issue for trial. When he made that order the trial was anticipated to be held on April 27.

Issues

[7] The issues before the court are as follows:

1. Should the mother be able to move the child's primary residence to Newmarket prior to trial?

2. If not under what terms should she be required to return to Etobicoke?

Father's Position

[8] Ms. Melitto advised that the parties had agreed to make up time for the access time missed that was referred to in the father's first affidavit.

[9] The evidence with respect to the move is that the mother had wanted to move to her parent's home since prior to her formal confirmation of her intention in January 2020. The court order of July 2019 had provided that the mother could not move the child's primary residence without notice. Once formally notified the father opposed the move. The mother was living in Etobicoke in a rented residence. The mother has not provided the father with her address and until her affidavit filed for this motion the father did not know that the mother was residing with someone at that residence. This is a high conflict case so the parties had agreed to exchange the child at the Peel Regional police station at the corner of Dixie Road and Eglinton Ave. The father believed that this was approximately halfway between the party's respective residences.

[10] In his initial affidavit the father stated that the mother had moved the child without notice to him. By the time of the motion it was apparent that the mother had taken the child to her parents on March 13 for a March Break visit. The provincial emergency health crisis was declared on March 17 and the mother's step-father was still working at the time and he had interacted with someone at work who had COVID 19. This information was communicated to the father and access was suspended for a 14 day period (now to be made up).

[11] Ms. Melitto noted that the relocation issue had nothing to do with the health crisis. The mother had planned to move to her parent's home in Newmarket and at the TMC it had been made clear that this was an issue for the upcoming trial. The mother's evidence was that she had not yet moved from the Etobicoke residence. The mother's affidavit set out for the first time that she and the child shared the residence with the landlord's brother who has ALS. In her affidavit the mother said that the other tenant was a particularly vulnerable person. She had expressed concern that if she resided with Jacob in that home that would mean that Jacob would be leaving the home to attend access and this would expose not only Jacob but also the vulnerable tenant to increased risk of COVID 19.

[12] Ms. Melitto said that Jacob's home had been in Mississauga the father also had a concern about the mother residing with her mother and step-father due to past domestic violence in that household. She said that this concern needed to be addressed at the trial.

[13] The father also stated that if the mother was permitted to relocate at this time that the child would be forced to spend too long in a vehicle travelling to and from access. The mother had initially asked the father to change the exchange point so that it would be halfway between her parent's residence and the father's home. By the time the motion was argued the mother was prepared to continue to take Jacob to the existing exchange point. The father still noted that it was a 70 km trip from his home to Newmarket and the child would be in the car for almost as much time as he would be at the visit.

[14] The father said that the child's life was mostly in Mississauga. The mother moved to Etobicoke in February/19 and that led to the order in July /19 that she was not to move any further.

The Mother's Position

[15] Ms. Geertsma stated that there were two aspects of the relocation motion that directly related to the health crisis.

[16] Firstly, when the mother and the child were in the home with the tenant with ALS they did not present a health risk to him. She rents a townhome with completely shared access to all but the bedrooms with this other tenant. The mother does not feel comfortable moving back to the home. As the tenant is the brother of the landlord she is also concerned that she will be asked to leave.

[17] Secondly the mother said that as the father is now not working he has stopped paying the child support. She is not employed and the child support and government benefits are her only source of income. She said that she could not afford her rent if she was to return to the Etobicoke home.

[18] The mother said that she took all three of her children to her mother's home for the March Break. The elder two children primarily live with their father in Milton and attend school there. The mother is responsible for getting them to school after her access time.

[19] The mother denied that there was any issue of domestic violence in her mother's home. She said that this issue was raised when Jacob was only months old. There was no police report or charges laid. There has been no restriction upon her taking Jacob to the mother's home.

Father's Reply

[20] Ms. Melitto stated that there is no evidence before the court that the mother is financially unable to pay the rent on her residence due to a reduction in child support.

[21] The father still receives limited EI on the claim that he had before he returned to work in March. The father may be able to work in the near future which will mean that the full amount of child support can be paid. The father has paid child support to the end of February.

Decision

[22] This matter was brought to this court as an urgent motion to ensure that access continued and that the mother returned to the residence in Etobicoke. The access issue was resolved prior to argument of the motion.

[23] There is no doubt that at the TMC an order was made that the issue of the mother's relocation would be dealt with at the trial. At the time it was anticipated that the trial would take place during the sittings that were to begin April 27. The trial will now not occur before at least August 17/20. This delay is caused by a health crisis which may impact the educational plans of Jacob who will turn 4 on […]/20 as he will be eligible to attend J.K. in September/20. Given that J.K. is not mandatory and given that a young child can change schools in the midst of a term I find that the delay in the resolution of the residence issue will not impair Jacob's educational progress.

[24] The evidence was that the mother went to her mother's home to spend March Break with her three children. It appears that when she did that on Friday March 13 she did not have the intention of not returning to her Etobicoke townhome. She left with her the clothing and necessary items that the children would need for a school holiday. She then had to isolate with the children due to the step-father's contact with someone at work who came down with COVID-19. The evidence leads me to conclude that when the emergency measures were introduced and it became clear that the health situation was more serious and the restrictions would be more long lasting the mother decided that as she was now at the MGM's home with Jacob it did not make sense to move back to Etobicoke. This was especially so as her position at the upcoming trial was for a move to the MGM's home.

[25] I do not find that the mother initially used the health crisis as an excuse to circumvent the order made at the TMC on January 20/20. I do find that at some point during her isolation process the mother made a decision not to return to Etobicoke. If the mother felt that there were urgent reasons why she could not comply with a court order the onus was upon her to bring an urgent motion to the court. She failed to do so. This put the father in the position of being required to seek an order requiring the mother to move back.

[26] At the time for filling her responding affidavit the mother accompanied it with her motion to authorize the move. As a date had already been set to hear the father's motion, for practical purposes I held that the mother's motion would be adjourned to that date as it engaged the same issue and made clear her intentions. This does not mean that at the time I found that the mother's motion was urgent. In fact on the evidence before me I do not find that the mother's move to be necessitated by the health crisis and if the motion had been brought by the mother at first instance it would not have been found to be urgent.

[27] The first reason given for the move prior to trial was the increased risk posed to the other tenant, the landlord's brother with ALS. The health crisis was declared on March 17, the motion was heard on April 16. There was no evidence put before the court about this tenant's health condition, there was no evidence that the brother had told the mother that she could not return. In fact the mother stated that she still had an existing lease, she has left most of her contents in the home and there was no impediment to her returning there.

[28] The second reason was that the mother could no longer afford the rent as the child support payments had not been made since the end of February. This is a legitimate concern. The father has a court order requiring the payment of child support. He cannot simply stop paying without notice. I understand that he drives a dump truck for construction sites and his work was suspended shortly after it recommenced after the winter. Still the father had an existing E.I. claim, there is the ability to apply for the CERB federal government benefit and the father's evidence was that he expected to transition back to work in the near future. (It is noted that some construction sites were permitted to remain open after the emergency health crisis was declared so they make come back sooner that other sectors).

[29] The father should have immediately contacted the mother when he knew of his change in employment status. He should have immediately paid to FRO an amount that would be consistent with the CSG table amount on the income that he actually did receive. It was not acceptable to simply stop payments to the mother and his child particularly when he knew that they had no source of income other than government benefits.

[30] It is not reasonable for the mother and child to be expected to return to the Etobicoke town home with knowing that she can afford to remain there. The father notes that he paid a costs order of over $2,000 so the mother should have access to money. That order was not for child support. The child support issue is not before me. The existing order must be paid. The father had stated that he was contacting FRO and expecting to return to work.

[31] I will order the mother and child to return to the rented residence pending the trial of this matter. This order is without prejudice to the mother's claim, at trial, to move to Newmarket. The relocation of the child is a triable issue. I find that there is no urgent health related reason why the mother has to move the primary residence of the child before trial. I will not order police enforcement in this matter. I am confident that the mother will comply with this order.

[32] I need to make an order that is capable of being complied with. I recognize that the mother cannot pay her rent if the father is not paying any child support. I also recognize that the father's income may be reduced due to the heath crisis. However if the father is back to work he should pay the full amount of the order and make any claim for adjustment due to temporarily reduced income at trial. If the father is legitimately unable to return to work he must at least pay the CSG table amount upon the income he actually received in March and April. I recognize that I cannot make an order enforcing child support in a motion to which the FRO is not a party. I think the wording of this endorsement is sufficient to convey the message to the father.

Costs

[33] To the credit of the parties and counsel an agreement was reached on the issue of the resumption of access and make up time for missed access. As noted above by the time of argument the issue was narrowed to whether the motion for relocation was urgent.

[34] I had found the request to prevent the move and the denial of access without full communication to be urgent. The Respondent did need to bring a motion to block the move. He was successful in his motion and is presumptively entitled to costs pursuant to R. 24 (1) of the Family Law Rules.

[35] Usually I address costs after a motion by putting timelines on submissions and request offers to settle. In this case it was clear from all of the correspondence and emails attached to the affidavits that I had a full record of the negotiations between the parties from mid March on. The Respondent is entitled to costs, the only question is the amount of the costs.

[36] In his affidavit material the Respondent essentially said that the Applicant acted in bad faith, hid the location of his child from him and intentionally breached two court orders. The Respondent seeks full indemnity costs in the amount of $6,381.68.

[37] I find that the Respondent somewhat overreacted to the situation by involving the police to locate his young child. He knew that the Applicant's mother lived in Newmarket and that the mother wanted to move to her mother's home. Taking the child to the MGM where he would spend time with his half siblings at March Break could not have been unexpected. The mother was a little slow in explaining why the child needed to be isolated and she did initially ignore the father's requests for information and make up time. I note that once Ms. Geertsma became involved the communication was timely, informative and productive.

[38] There were some facts that provide explanations for the mother's failure to immediately return the child to Etobicoke. I have found those facts to not justify the mother's actions given the clear direction the court gave at the TMC on January 20/20 that the relocation to the MGM's home was a matter for trial.

[39] I find that costs in this matter should be on a partial indemnity scale and that there should be a further discount for the efforts made to narrow the issue for argument. The mother may have taken some self help in this matter but when all of the circumstances are considered I do not find her taking the child to her mother's for March Break and not immediately returning to be egregious behaviour. I find that the isolation for 14 days was the proper step to take given the exposure of the step-father to a person who developed symptoms. Her loss of child support in March and April did make it difficult for her to determine how she could comply with the court order and remain in a rented residence.

[40] In the end result, costs will be awarded for the fact that the father was required to bring a motion to have the mother return to Etobicoke and he was successful on that ground of relief. I will order $2,500 inclusive of HST and disbursements. I will grant the mother time to pay the costs. I recognize that the father asked for time to pay his December costs order in a similar amount. I note that the order was made when he was working on a full-time basis and he had not paid any of the costs prior to this motion being brought. The mother is in a different position. She has yet to receive her child support for March and April and she owes a lump sum for her rent. I will begin the payment of the costs on June 1 and they will be paid on a monthly basis.

Next Steps

[41] This matter has already been administratively adjourned from the April 1 trial audit to the July 22/20 trial audit to be conducted by the undersigned.

Without Prejudice Temporary Order

1. The Applicant shall not move the primary residence of the child Jacob Erickson born […], 2016 from the rented residence that she occupied in Etobicoke on March 13/20 without the written consent of the Respondent or further court order.

2. If the Applicant has not already returned to the said residence with the child she shall do so by Saturday April 25/20.

3. There shall be no change to the terms of the Respondent's access to the said child notwithstanding the current health crisis. The Applicant shall provide to the Respondent any make-up time for missed access agreed to between the parties.

4. The Applicant shall pay to the Respondent his costs of this motion fixed in the amount of $2,500 inclusive of HST and disbursements. The said costs shall be paid at the rate of $250 per month beginning June 1 and continuing on the first day of each and every month until fully paid.

5. This matter remains adjourned to July 22/20 at 9:30 a.m. in court 201.

Justice Philip J. Clay