Court File and Parties
COURT FILE NO.: FS-19-00007252-0000 DATE: 20190214 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ELISABETH PANDURO Applicant – and – WILLIAM JOSIAH EDWARDS DAVIS Respondent
COUNSEL: Adrienne Lee, for the Applicant Brian Burke & Courtney Wile, for the Respondent
HEARD: February 6, 2019
BEFORE: Hood J.
Reasons for Decision
Introduction
[1] The applicant (“Elisabeth”) and the respondent (“Josiah”) were married on July 17, 2014 having lived together for a few years prior to marriage. Their daughter Freya was born on April 30, 2017. She is now 1 year and 9 months old. They separated in late 2018. Elisabeth fixes the date as October 25, 2018. Josiah says the date is unclear but does say that on December 7, 2019 (sic) Elisabeth told him that their marriage was over and that she intended to move to British Columbia with Freya. They continue to live in the matrimonial home with Freya.
[2] Josiah says he made it clear to Elisabeth that he was opposed to any movement of Freya. His counsel certainly made this clear by letter on December 21, 2018.
[3] Elisabeth commenced her application on January 2, 2019. In it she sought an order that she be permitted to relocate with Freya to Victoria, B.C. Rather than proceeding to a case conference, Elisabeth brought a motion seeking, among other things, that a mobility motion could be brought before a case conference due to urgency.
[4] The urgency was a result of the fact that on December 12, 2018 she had been offered a job in Victoria working for the B.C. Government. On December 27, 2018 she was advised that her job had a February 1, 2019 start date.
[5] Elisabeth had some discussions with her potential employer and on January 3, 2019 she confirmed that the start date had been pushed back to February 25, 2019 as she had requested. It is unclear when the actual arrangement was made to change the start date. She accepted the job on January 3, 2019.
[6] In her notice of motion Elisabeth seeks an order that she be permitted to relocate to Victoria with Freya, that Josiah be given parenting time with Freya every 4th or 5th weekend, with Elisabeth and Josiah alternating as the person travelling between Victoria and Toronto, along with additional parenting time by FaceTime, equal holiday time and with Josiah paying child support for Freya. When Elisabeth travels she would take Freya to Toronto. On the motion itself, Elisabeth indicated that initially the weekends could be more frequent, perhaps every second weekend, but that eventually it would be every 4th or 5th weekend. Josiah is opposed to the motion and asks that it be dismissed.
Decision
[7] For the following reasons, I dismiss Elisabeth’s motion.
Facts
[8] A brief recitation of facts is set out in paragraphs 1 to 5 above.
[9] Elisabeth and Josiah met in Victoria in 2010 or 2011. They disagree as to when. He was an assistant professor at the University of Victoria. She worked at an insurance brokerage.
[10] Josiah was unhappy in his job and decided a career in law would be a better alternative. They disagree as to when he decided to do this. He was accepted at the University of Toronto law school for the fall of 2014. They decided to move to Toronto.
[11] Elisabeth and Josiah disagree over whether it was their plan to stay or return to Victoria. Elisabeth says that the move to Toronto was not permanent; she did not plan on living in Toronto after Josiah finished law school and she kept her home in Victoria rather than selling it because she assumed that at some point in the future they would return to Victoria. Josiah says that he made it clear that he had no intention of returning to Victoria because living in that city had caused his depression. Josiah says they made a mutual decision to move to Toronto for law school and to build their lives together in Toronto. He says the Victoria home was kept as an investment. For the purpose of this motion, what the plan was in 2014 is irrelevant. The fact that they are both now in Toronto with Freya is the reality of their lives and Freya’s.
[12] Freya was born just after Josiah finished law school and prior to his bar exams in June, 2017. There were all sorts of evidence both in the affidavits filed and elicited through cross-examination of what both Elisabeth and Josiah did during Elisabeth’s pregnancy. For example, there was evidence about how many pre-natal classes there were and how many Josiah attended, the number of doctors’ appointments and how many Josiah attended, who contacted potential daycares and when and how they did it, whether by telephone call or email, who found and signed up for the actual daycare chosen, who decorated the nursery, who found and obtained the nursery furniture and who put the crib together. The parties disagree over their involvement and commitment as parents prior to Freya’s birth. I believe this evidence to be of little use in deciding the issue before me.
[13] There was also much evidence as to who did what after Freya’s birth. Elisabeth took a 9 month maternity leave followed by 3 months with a shortened work week. Freya was breastfed. On Elisabeth’s evidence Josiah, during this time, was in effect an absentee father, either studying all day or working at his articling position. In her affidavit Elisabeth said she was overwhelmed with her responsibilities and returned to Victoria for 3 months in order to have support from her family in caring for Freya. She admitted on the motion that this was an error and that she was actually there for 2 months, not 3. There was no evidence as to how her life with Freya changed while in Victoria. While an affidavit from her mother says she provided support to Elisabeth and Freya, there is nothing to say what this “support” consisted of.
[14] After Josiah’s articles Elisabeth stated that Josiah was slightly more involved in parenting Freya, but once he started work as an associate lawyer he reverted to his past ways of being in effect an absentee father.
[15] Josiah in his evidence disagreed with Elisabeth’s description of his parenting of Freya from birth to now. While acknowledging that he studied and put in long hours at work, his evidence was that he would look after Freya in the morning and would do what he could to help out with Freya when he could. He would also do most of the housekeeping at night. He also gave evidence that once hired back as an associate his hours improved so that he was able to spend more time at home.
[16] Clearly Elisabeth felt that she did more than Josiah for Freya. She focused on his hours spent at work. Her unhappiness with what she perceived to be Josiah’s preference for work over family, and how his job prevented him from helping out as much as she would have liked, made looking after Freya more difficult on her and led to the break-up of their marriage. As she put it, she could no longer shoulder the parenting on her own and the life she was living was not working for her. She saw a return to Victoria as the answer to her marital problems.
Analysis
[17] Whether someone is a good parent is not something that can or should be quantified by the time each parent spends with a child. It is much more than that. When parents live in a functioning family unit nobody pays too much attention to the minutes each parent is there and who is the primary caregiver. This only happens when the family unit becomes fractured. Elisabeth argues that Josiah does not prioritize parenting over work and that he believes in the assistance of professional child care, such as using day care or having a nanny. While Elisabeth does not believe in having a nanny, she is prepared to use day care because of the socialization aspect associated with it. Elisabeth’s position was that Josiah was too involved in his work and career, and because of this had forfeited his right to parent Freya on a regular basis. The underlying argument and premise to this motion, that one can be a Bay Street lawyer or a proper parent, but not both, is not only misguided but is also not what this motion should be about. This motion should be focused on what is in the best interests of Freya.
[18] While Elisabeth believes that Freya is more attached to her than Josiah, she acknowledges that Josiah is a loving, caring and good parent to Freya. Freya looks to him for comfort and contact, just as she looks to Elisabeth. He reads to her, he sings to her and plays with her. He looks out for Freya and worries about her needs. He is attentive. Elisabeth acknowledges that he is fully capable of looking after Freya on his own. She acknowledges that Josiah and Freya have a good and strong attachment. She acknowledges that Freya and Josiah care for and adore each other.
[19] Elisabeth says however that the potential job in Victoria is a dream job that will never come again and that she has to take it for the benefit of Freya. She argues that because this job, among other things, has less stress, shorter hours and a pension, she will be happier and therefore Freya will be happier.
[20] This is not a case where the parent asking to move with a child cannot obtain employment where she currently resides and because of this is incapable or severely constrained in looking after their child in the current location.
[21] The job Elisabeth currently has in Toronto pays very well. It pays more than the Victoria job. The hours are not overly onerous, from 8:00 a.m. to 4:30 p.m., versus 8:30 a.m. to 4:00 p.m. for Victoria. The amount of vacation – four weeks – is the same. The stress that Elisabeth feels apparently comes from the fact that she might get a phone call in the evening or on the weekend if a client of the insurance company she works for has suffered a major loss. There was no evidence of the number of such calls in the past or the likelihood of such calls in the future.
[22] She says that with the job in Victoria – because of its hours, the pension and the reduced stress – she can be a single mother to Freya in Victoria. I fail to see why the job in Toronto does not allow her to be the same mother to Freya that she could be in Victoria. Moreover, if in Toronto she would not be a single mother, as Josiah would be there to also be a father to Freya, just not in the same house as Elisabeth.
[23] The other reason given for Elisabeth’s request to relocate is that she currently feels psychologically isolated in Toronto. She says she has no friends or acquaintances and that her whole life is in Victoria. As she argues, it is not in Freya’s best interests for her, as Freya’s mother, to be upset by being forced to remain in Toronto rather than being in Victoria, where she wants to be. If she is upset then Freya will also be upset.
[24] Elisabeth however did not have any evidence to suggest that her psychological isolation in Toronto was such that she was unable to properly care for Freya or that Freya would be adversely affected if she remained in Toronto.
[25] As part of this she says that Freya will have more opportunities in Victoria to take part in activities such as dance recitals, because with her family support network others will be able to assist her in getting Freya to events. Elisabeth says that Freya will never have access to such activities if she stays in Toronto.
[26] I find this to be an argument without merit. There is no factual underpinning for it. It is misguided to suggest that there are no opportunities for Freya to take part in activities in Toronto. It is equally misguided to suggest that children in Toronto whose parents have separated do not have the opportunity to take part in activities. Freya, with two committed parents with excellent jobs and financial stability, will have plenty of opportunities to take part in lots of activities in Toronto.
[27] In Elisabeth’s evidence there was minimal recognition of the importance of Freya having a relationship with her father, Josiah.
[28] Because of the timing of this motion, being brought immediately after the issuance of the application, there was no opportunity for Josiah to call evidence from an expert on child development and attachment, or to obtain a s. 30 assessment under the Children’s Law Reform Act, R.S.O. 1990, c. C.12, to assess Freya’s needs and the ability and willingness of Elisabeth and Josiah to satisfy those needs.
[29] The courts however have recognized that children of Freya’s age are at the attachment phase of development and that this is when children begin to form attachments to parents and caregivers. Children who are separated from one parent for extended periods of time at this age may not be capable of sustaining a meaningful relationship with that parent thereafter in addition to sustaining other adverse impacts. Young children, such as Freya, need frequent and meaningful contact with both parents to develop meaningful relationships with both: Prasad v. Lee (2008), 2008 ONSC 24545, 53 R.F.L. (6th) 194 (Ont. S.C.) at paras. 48-49.
[30] For Josiah to be a weekend visitor with Freya, for two and then one weekend a month, will not allow their current loving relationship to continue. If anything, it will have a deleterious effect. It is in Freya’s best interests at this stage of her life to have Josiah as an involved parent. Whether it is shared parenting is something for the parties to work out. Nor can it be in Freya’s best interests to require, at her age, regular travel between Victoria to Toronto and back again over a few days, with time changes, even if only once a month.
[31] Josiah also argues, although not strenuously, that Elisabeth’s motion should be dismissed as being premature in that custody has yet to be decided and that a relocation motion such as this should not be heard until custody has been determined.
[32] While Gordon v. Goertz, [1996] 2 S.C.R. 27, 1996 SCC 191, dealt with relocation within an existing custody arrangement, it is not essential that custody be determined first. The factors as set out in paras. 49-50 of Gordon v. Goertz all point to one issue. Ultimately, the only real issue is what is in the best interests of Freya.
[33] Although the parents do not wish to remain together and they are not compatible as partners, this does not mean or lead to the inevitable conclusion that they cannot be compatible as parents. In fact, it is in Freya’s best interests that they try to work together as parents.
[34] A decision dealing with mobility after a full trial where the court has had a better opportunity to determine what is in the best interests of the child after a full airing of the evidence is preferable to a motion for an interim move. The court however must deal with what is put before it. The onus is on Elisabeth. Based upon all of the evidence I cannot conclude that a move as proposed here is in Freya’s best interests having regard to the inevitable result that contact between Freya and Josiah would be drastically reduced.
[35] This would be the case whatever access arrangements are put in place. Being separated and having access weekends is just not the same as being there and being part of Freya’s daily existence. So much of parenting does not always take place on an access weekend. The normal daily and weekly interaction between a parent and a child cannot be shoehorned into a weekend where the parent or child shows up as a visitor. It is often the regular little things that make the relationship, not the special visits. If Freya moves, Josiah will no longer be able to feed her and dress her in the morning before taking her to day care. He will not be part of her normal interaction with others at day care. Everything will be forced and will feel forced.
[36] Having dismissed the motion to relocate, it is not for me to determine what should be the appropriate parenting schedule for Freya. The parties will have to work that out between them, cognizant that their focus should be on Freya and what is best for her, recognizing, as the parties testified before me, that both of them are committed and loving parents who adore and who are adored by Freya. The parties have not had a proper case conference. They should arrange for one so as to move this matter forward as expeditiously as possible.
Costs
[37] If Josiah wishes to pursue the issue of costs and the parties cannot agree, he may make written submissions of no more than 2 typed double spaced pages along with any cases relied upon on or before March 1, 2019, to be provided in hard copy to Judges’ Administration, Rm 170, at 361 University Avenue. Elisabeth may make responding submissions subject to the same directions on or before March 15, 2019.