Court File and Parties

Court File No.: FC-15-1983 Date: 2016-08-09 Ontario Superior Court of Justice

Between: Amy Stimpson, Applicant And: Robert Matthew Stimpson, Respondent

Counsel: Kellie A. Stewart, for the Applicant Mary Cybulski, for the Respondent

Heard: July 27, 2016

Reasons for Decision Before: R. Smith J.

OVERVIEW

[1] The mother has brought a motion to allow her to move to the Greater Toronto Area with her three year old daughter, Olivia.

[2] The father opposes the move and submits that it is in Olivia’s best interests to remain in Ottawa which would allow her to have maximum contact with him.

[3] The following issues must be decided:

1. Has the mother demonstrated a material change in circumstance? and
2. Which of the parties parenting plan is in the child’s best interest, considering the factors set out in Gordon v. Goertz, [1996] 2 SCR 27?

FACTS

[4] The parties were married on June 5, 2010 and separated in January 2014. They have one child, Olivia, born on October 27, 2012 whose primary residence has been with her mother since their separation. Olivia is almost 4 years of age and will start Junior kindergarten this September.

[5] The parties have entered into a separation agreement whereby they have agreed that they share joint custody of Olivia for making all major decisions. The parties agreed that Olivia’s primary residence would be with her mother. The father has had increasing access over time and they agreed that when Olivia turned three, he would have access every alternate weekend with midweek evening access as set out in their agreement.

[6] The mother seeks an order allowing her to move to the Toronto area because her support network to assist her in caring for Olivia is located there. The mother does not have any family in the Ottawa area as she moved here when she married the respondent in 2010.

[7] The mother’s family lives in Toronto as do her close friends and their children who are Olivia’s age. She has plans to marry her current boyfriend who lives in Toronto. She currently travels with Olivia to Toronto twice per month.

[8] The mother is employed at RE/MAX in the real estate business. She states that she is unable to maintain the flexible schedule necessary to meet clients for showing of a house, or attend open houses etc. as she has no one that she can rely on to care for Olivia at the last minute. She is unable to count on the father to care for Olivia as he has frequently cancelled his access visits at the last minute. As a result her employment in Ottawa is limited to marketing and performing office work.

[9] The mother currently has an offer of employment with Forest Hill Real Estate Inc. at a salary of $60-$80,000 per year which is a slight increase in salary.

[10] The mother seeks permission to move with Olivia at the present time as she starts Junior kindergarten this fall and it would be in her best interests to start and continue at the same kindergarten. The mother plans to rent a house and buy a house within a year and wishes to arrange her living arrangements near the child’s school.

[11] The father is employed with the Canadian military and works for the Joint Task Force “JTF”. The father’s job prevents him from travelling more than 90 minutes from the city of Ottawa except for work, unless a special exemption is granted.

[12] The father has worked at his present position for approximately four years and does not expect to be transferred in the near future. However he is not able to guarantee that he will not be transferred in the future and this remains a possibility. Father states that a transfer is not likely but there is no guarantee. He is unable to arrange a transfer to the Toronto area.

[13] The father resides in Stittsville which is an 18 minute drive from the mother’s residence in Ottawa.

[14] The father has had to change access to Olivia because of his work commitments many times at the last minute including:

• August 21-30, 2014 (9 days);
• September 28-October 3, 2014 (5 days);
• October 20-27, 2014 (8 days);
• October 31-November 12, 2014 (13 days);
• January 23-30, 2015 (8 days);
• February 9-13 and 16-20, 2015 (10 days);
• April 19-24, 2015 (5 days);
• May 4-June 2, 2015 (6 days);
• June 22-27, 2015 (6 days);
• July 1-18, 2015 (18 days);
• August 24-28, 2015 (5 days);
• September 25-December 3, 2015 (69 days);
• January 22-29, 2016 (8 days);
• February 22-26, 2016 (5 days);
• March 13-26, 2016 (14 days);
• April 17-May 8, 2016 (21 days);
• July 8-26, 2016 (18 days).

[15] The above cancelled or rearranged access does not include nights that the father works late. Between July 2014 and December 2015, the father has only exercised 50% of his scheduled access with Olivia. Between January and December 2015, he only exercised 42% of his access time. Since January 2016 until the present the respondent has only had Olivia for nine weekends out of 27 weekends.

[16] The father has been sent on three major deployments in the past three years with lengths of one month, two months, and 2.5 months which he states is unusual but this explains the many missed access visits.

[17] The father’s work schedule is very uncertain and constantly changing at the last minute as a result the mother is hesitant to make appointments or commitments even when Olivia is scheduled to be with the father.

[18] The father has listed the number of days which he spent time with Olivia as follows to demonstrate that he has regular contact with his daughter:

• December 2015 – 13 days;
• January 2016 – 12 days;
• February 2016 – 10 days;
• March 2016 – 12 days;
• April 2016 – 9 days;
• May 2016 – 10 days;
• June 2016 – 12 days;
• July 2016 – 6 days;
• August 2016 – projected – 15 days

[19] The respondent states that his father and his partner are available to care for Olivia if and when needed, which the mother has declined. The father also proposed that the mother use an emergency childcare program through the Military Family Resource Centre; however, he does not suggest that it should be used regularly.

[20] The father states that he has had frequent contact with Olivia and he enjoys spending quality time with her. His contact with Olivia will be reduced if she is allowed to move to the Toronto area.

ANALYSIS

[21] The decision in Gordon v. Goertz sets out a two-stage test to be followed where parents have joint custody and one seeks to move with the child and the other objects. In this case, the mother has the primary residence of the child, which is similar to the day-to-day custody of the child as discussed in the Gordon and Goertz decision.

[22] The first issue to determine is whether there has been a material change in circumstances secondly if a material change of circumstances is found to have occurred then each party should put forward his or her parenting plan and I must determine which plan is in the child’s best interest having regard to the factors set out in Gordon and Goertz.

[23] The factors include the following a) the existing custody and access arrangements and the relationship between the child and each parent; b) the desirability of maximizing contact between the child and both parents; c) the custodial parent’s reason for moving, only in exceptional case where it is relevant to that parent’s ability to meet the needs of the children and d) the disruptions to the child as a consequence of removal from family school and community they have come to know.

Assessment

[24] I advised counsel that an assessment would be of assistance in determining the child’s best interests. Both parties stated that they did not want to proceed with an assessment because they could not afford it and given the young age of the child, they both wanted me to proceed and decide the issue without obtaining an assessment.

Issue # 1 – Has the Mother demonstrated a material change in circumstances?

[25] I’m satisfied that the mother’s planned move to Toronto, to obtain new employment, and to marry her boyfriend who lives in Toronto and to be near her parents with a support to backup care for Olivia, amount to a material change in circumstances. Her proposed move was not foreseeable at the time they entered into the separation agreement and as result it constitutes a material change in circumstances.

[26] The proposed move would affect the access time that the child would have with her father which would result in a material change in circumstances.

Issue #2 – Which of the parties parenting plan is in the child’s best interest considering the factors set out in Gordon v. Goertz?

(a) Existing custody and access and relationship between the children and each parent.

[27] The child presently has her primary residence with her mother and this has existed since their separation in January 2014. The parties agreed that the mother would be the primary caregiver for the child since their separation. The mother has put her work prospects on hold and has cared for the child especially on the numerous occasions when the father has cancelled his access visits at the last minute. The mother has put her child’s best interest first whereas the father has put his employment responsibilities first. This is a strong factor in favour of finding that it is in Olivia’s best interest to remain with her mother as her principal caregiver.

[28] The mother is lonely in Ottawa has no support network here, whereas she does have a support network to assist her to care for Olivia while pursuing her employment, which is in Olivia’s best interests.

[29] The father has been provided with a lot of access time with Olivia while they lived in Ottawa and has cancelled a large part of that time. The father has put his work first and as a result his relationship with his child must have suffered.

[30] Again as a result of his work responsibilities the father has only taken Olivia to three of her eight skating lessons, has only attended Olivia’s swimming lessons twice and she has been in lessons since March 21, 2016, and he did not pursue signing up Olivia in soccer. The father has good intentions and enjoys spending time with his daughter when his work permits him to do so.

[31] On the evidence before me, I conclude that the mother has a much stronger relationship and it is in Olivia’s best interests that this relationship with her mother be maintained. She has been acting as the primary caregiver of Olivia since their separation and her plan to continue to be her primary caregiver is in Olivia’s best interest.

(b) Maximizing contact

[32] The principle of ensuring as much contact with each parent, as is consistent with the best interests of the child, is an important principle as recognized in section 16 (10) of the Divorce Act, 1985, c. 3 (2nd Supp.).

[33] The mother proposes that the father have access every second weekend and that they drive Olivia to a midpoint to between Ottawa and Toronto for his access. It’s not clear from the evidence that this would amount to much of a decrease in the father’s access because of the amount of access the time that he has missed in the last the year and a half. The mid-week access would not be possible.

[34] The mother also proposes an extended time for the father during the summer holidays, giving the father every March break, and sharing Christmas holidays.

[35] The issue of ensuring maximum contact with the father must be balanced with the child’s best interests in continuing to live with her mother as her primary caregiver and her best interest will be served by allowing the mother to obtain childcare support for Olivia from her family in the Toronto area. The mother’s improved financial situation from relocating would also be in Olivia’s best interests to allow the mother to earn increased revenue to properly care and provide for her needs.

(c) Reason for moving

[36] The mother is not moving to Toronto to attempt to deprive the father of access with his child. The father does not make such an allegation. The mother has legitimate reasons for moving to Toronto, namely to obtain new employment, to marry and live with her future husband, and to obtain a childcare support for Olivia through her family support network in Toronto.

(d) Disruption to Child (family schools and community)

[37] Olivia is not yet four years of age and as a result the bulk of her life to date has centered around her immediate family. Olivia has not yet started kindergarten and as a result she will not suffer any disruption in her school or with her school friends. In addition she has not yet developed ties to the community. I find that changing the location for taking swimming lessons and skating lessons at the age of three, would result in minimal disruption to Olivia.

[38] The mother plans to move before Olivia has started school, before she has established friends in school and in the neighbourhood, and also before she has developed ties to the community that she has come to know, and therefore there would be minimal disruption to Olivia to allow her to move with her mother at her present age to the Toronto area.

[39] Having considered all of the above factors I find that on balance based on the numerous times that the father has missed or cancelled his access with Olivia to date, that the father has put his work before his access with Olivia, and the mother has put Olivia’s interest first, the mother has always been the primary caregiver for Olivia, the mother will have support backup for Olivia’s care while she is able to pursue more remunerative employment in the Toronto area, the father’s access can still be arranged every alternate weekend which could be arranged to include the long weekends, that it is in Olivia’s best interests that her mother be allowed to move with her to the greater Toronto area.

[40] The mother is required to drive or arrange transportation to an exchange point that is a 90 minute drive from Ottawa to exchange the child. The parties to agree on the details of future access arrangements; failing which, it will be determined by a court on a further motion. The father is required to give 48 hours notice if he is unable to exercise his access.

Disposition of Motion

[41] For the above reasons, the mother’s motion for permission to move with the child Olivia to Toronto is granted.

Costs

[42] If the parties are unable to agree on costs they may make written submissions on costs within 15 days.

Justice Robert Smith Released: August 09, 2016