Court File and Parties
Court File No.: Brampton 1955/07 Date: 2012-03-01 Ontario Court of Justice
Between:
Sherry Lee Hodder Applicant
— And —
Darrel Milton Hodder Respondent
Before: Justice J.C. Baldock
Heard on: February 14, 15 and 16, 2012
Reasons for Judgment released on: March 1, 2012
Counsel
Mr. R.A. Fernandez — for the applicant
Darrel Milton Hodder — on his own behalf
Ms. Faryal Rashid — for the Office of the Children's Lawyer, legal representative for the children
BALDOCK, J.:
Introduction
[1] This trial concerned the issues of access, mobility and child support.
[2] With respect to child support, however, additional and more current financial information is required and the parties have been given further time to submit that material before I render a judgment.
[3] Accordingly this judgment deals only with the mobility and related access issues.
Background
[4] The parties are the parents of two daughters: Mackenzie Vivian Hodder, born October 25, 2002 ("Mackenzie") (now 9 years of age) and Mallory Jessica Hodder, born January 2, 2006 ("Mallory") (aged 6 years).
[5] The applicant mother was awarded sole custody of the children by order of Justice Maresca, granted January 23, 2009.
[6] That order also provided for the respondent's access.
[7] The mother now wishes to relocate with the children to Corner Brook, Newfoundland. She works in Mississauga as a customer service representative for a Newfoundland based company. Her employer will allow her to move her job to Corner Brook where she would be able to work mostly from home.
[8] The mother is in a relationship with Edwin Hull. He is employed at the same company, located in Corner Brook where he also resides.
[9] The mother believes that the move would be beneficial for the children because:
a) It would reduce, if not eliminate, much of the children's exposure to conflict between the parents;
b) It would allow her to move on with her life and enjoy a loving, stable and healthy relationship with her new partner;
c) It would be financially advantageous given the reduced cost of living in Newfoundland;
d) Being able to work from home would eliminate the need for costly daycare;
e) The children have visited Newfoundland and are excited and positive at the prospect of the move;
f) She and the respondent both have extended family in Newfoundland and the children would be able to spend time with maternal and paternal grandparents;
g) Other than the father, the children have no close relatives in Ontario.
[10] The respondent father has recently been exercising regular and for the most part consistent access to the children, although there have been periods when access has not taken place.
[11] The father has a history of clinical depression which has, at times, interfered with his ability to work and to exercise access.
[12] It is his position that the children should not be moved away from this area as it would have a negative impact on his access.
[13] The access has not been without difficulty, particularly with respect to telephone contact, the reasons for which I will address below. This causes the respondent to have concerns as to how contact with the children would be implemented if they were to move.
[14] The respondent has been convicted of criminal harassment in relation to the applicant and is currently serving a term of probation which prohibits direct contact. Arrangements for access are made via a third party.
The Evidence
[15] Counsel Ms. Rashid was appointed by the Office of the Children's Lawyer to represent the interest of Mackenzie and Mallory and to advise the court of their views and preferences.
[16] She was assisted by a clinical investigator, social worker Ms. Jacqueline Iafrate, who interviewed the children, the parents and various collateral contacts, including the respondent's psychiatrist Dr. Bami. Her report is filed with the court.
[17] In accordance with the directions given by the case management judge, the parties and Ms. Iafrate provided their evidence in chief by way of affidavit and were present as witnesses for the purpose of cross examination. Ms. Iafrate's affidavit was sworn February 8, 2012.
[18] She testified that the children had voiced some concerns to her regarding their father's behaviour during access visits.
[19] He has shown the girls pictures of women on an internet dating site and asked their opinion of them. On one occasion he involved Mackenzie by asking her to type something to a woman with whom he was having a conversation via a web cam.
[20] Another incident occurred when the respondent's dog (then a young puppy) urinated inside the house. He picked up the animal and smacked it, which the children found very upsetting.
[21] These incidents, which have not been denied by the respondent, were clearly disconcerting for the children.
[22] Ms. Iafrate also testified that while the children do say positive things about their father, they are uncomfortable when he asks them questions about their mother or her new partner, and that they feel very much "in the middle".
[23] It is Ms. Iafrate's position that the applicant should be permitted to move with the children and she has, in her report, set out a plan for the respondent's continued access. She proposes that the move be delayed until mid August to allow the children to finish their school year and for the respondent to have extended summer access.
[24] She supports the respondent having two non-consecutive weeks of summer access in Ontario in future years but in her opinion they would be sad if they had to leave their mother for any longer periods. Although not included in her report, she did not oppose the applicant's position that some safeguards needed to be in place for the children's visits in Ontario, to ensure the respondent's mental health was stable. Her proposal is for liberal and generous access to take place in Newfoundland, as and when the respondent is able to make the trip, and for there to be regular contact via internet using "Skype".
[25] On cross examination by the respondent Ms. Iafrate agreed that he was being responsible if he declined to have access when feeling the effects of depression. However, she believes ongoing support from his psychiatrist, Dr. Bami, is needed to monitor his condition and also because his probation officer reported that the respondent was not taking responsibility for his actions which brought about the conviction for criminal harassment.
[26] The respondent testified that there has been a great deal of conflict between the parents since they separated in August, 2007. He believes that the main reason for the applicant's proposed move is her relationship with Mr. Hull. He accuses the applicant of lying on her original affidavit when she proposed moving to Gander Bay rather than Corner Brook. He stated that if she was to go to Gander Bay, he would have moved there as well, as he has family in that area. I do not accept this evidence as the respondent commenced his motion to prevent the move at a time when he understood the destination was in fact Gander Bay.
[27] He admitted having sent over 200 text messages to the applicant which resulted in the criminal charges but he did not seem to accept that his behaviour should have had any bearing on the applicant's decision to terminate his telephone calling privileges.
[28] The respondent's evidence was somewhat contradictory. On cross examination he said that everything between him and the applicant was going well until Mr. Hull entered the picture. However, he had earlier testified that there had been constant turmoil since the parties' 2007 separation.
[29] When asked if it would not be better for the children if the turmoil was reduced by the mother moving he replied that she was the reason for the turmoil and that she should get counselling.
[30] He testified that there had been problems with telephone access "from day one". The applicant's counsel, Mr. Fernandes, asked why if telephone access was such an issue, he did not make a specific request in this regard in the motion to change. The respondent replied that he did put that in his motion, but when asked to show where, he said that it must have been mislaid.
[31] The respondent acknowledged his ongoing battle with depression, which was first diagnosed in 2006, i.e. before the separation.
[32] He stated that the applicant's desire to move with the children had caused him stress. He denied being the cause of any problems and laid the fault at the feet of the applicant.
[33] He asked that the court help him to have a relationship with his children.
[34] On several occasions, the respondent raised the possibility that if the children were permitted to move, the stress could exacerbate his depression, which would in turn prevent him from being able to work and from having the children stay with him.
[35] This attitude was consistent with his refusal to take any responsibility for his actions and to place all the blame for his issues on the applicant.
[36] The respondent admitted that he asks the children "little questions" about Mr. Hull but denied "grilling" them. He acknowledged having cancelled a recent access visit because he was upset at the contents of an affidavit he received and that he had told the children he might give their dog away if they went to Newfoundland and did not take it with them.
[37] The respondent gave a rather self serving and unsatisfactory account of the computer web cam incident which Mackenzie reported, minimizing the impact on the child. He went on to say that he did not use the computer often when the children were present.
[38] He was asked about the children's report of an incident when he ignored Mackenzie and refused to speak to her all evening as a form of punishment for having made a father's day card for her mother's boyfriend. He replied yes, he did give her "a bit of the silent treatment" as he did not think she should have done this at his house, and he felt justified in using whatever form of discipline he deemed appropriate.
[39] Counsel for the applicant asked the respondent about his charge of criminal harassment, which was laid as a result of over two hundred text messages sent by him including some which suggested the applicant "should die". He described them as "not really threatening" and said he only wanted her to die so he could have peace in his life.
[40] Edwin Hull testified that he has known the mother for some time as they work for the same company, but more recently their relationship developed to the point where they have now made a commitment to one another and plan a future together.
[41] He has a very comfortable relationship with the girls.
[42] He enjoys spending time with the children, being involved in their activities, helping with homework and being part of the family. He not only supports the girls' relationship with their father, but regards it as essential. He acknowledged that they like to call him "daddy" and frequently reminds them that he is not their father but that the respondent is. As a compromise they now refer to Mr. Hull as "daddy Ed".
[43] Mr. Hull described himself as having strong family values and having come from a background where people help one another.
[44] He wants the applicant and children to be able to move to Newfoundland so that they can start a life together but confirmed that if this was not permitted he would continue his relationship with the applicant on a long distance basis, travelling to Ontario as and when he could.
[45] He voiced some concerns with respect to the respondent, in particular with respect to the large number of text messages which the applicant received and which had been sent during the time the children were with their father. He felt this to be a poor use of the respondent's time which would have been better spent engaged in activities with the girls. He is also troubled by what he perceives to be the respondent's "obsession" with him and his relationship with the applicant mother. Nevertheless he bears the respondent no ill will and, perhaps naively, hopes they could become friends.
[46] Overall Mr. Hull impressed me as a fair minded and considerate man who would not attempt to undermine the children's relationship with their father. I am satisfied that he would continue to support it, so long as they wanted that relationship and were comfortable having access.
[47] The applicant testified herself. Her frustration in dealing with the respondent was evident in her evidence and her demeanour.
[48] She described having been through "five years of hell" and said she "could write a novel" on the ongoing issues between herself and the respondent. She spoke of the barrage of text messages she received, which had nothing to do with the children.
[49] She began putting his calls to the children on speaker phone and could hear him asking them about what she was doing rather than being focused on the girls.
[50] She was also troubled by the fact that the respondent often cancelled access, on short notice, and was generally uncooperative in adjusting the schedule when necessary. When he cancels access, she has to leave work early to pick up the children from school resulting in a loss of pay.
[51] She is concerned that, if the children were to travel to Ontario for extended access with their father, and he became emotionally unable to care for them there would be no alternate care giver available. For this reason she asks that the respondent provide some psychiatric report of his stability and proof of having completed a parenting programme before such access take place.
[52] She is open to liberal access in Newfoundland and undertakes to facilitate "Skype" communication.
[53] Approximately two years ago she had the opportunity to travel with the children to the Dominical Republic with friends at minimal cost. The respondent refused to sign the necessary consent. She believes that this is consistent with his uncooperative attitude.
[54] On cross-examination by the respondent, she acknowledged that she had refused to allow the respondent to take the children to a concert, because it was not age appropriate and was on a school night.
[55] She has asked the respondent to assist in funding activities for the girls such as gymnastics, but he has refused.
[56] The applicant testified that following the separation she began thinking about moving back to Newfoundland but did not mention it to the respondent. Some time ago she made the decision and her original plan was to settle in Gander Bay, which is where her family resides. However, she realized that this would have meant living with her brother and giving up her job. Also is it a very small community without a great deal of opportunity for the children. Subsequently, having developed a relationship with Ed Hull, and assurance that she could keep her job, she decided Corner Brook would be a preferable location.
[57] She confirmed that she is on good terms with the respondent's family, and on a recent trip to Newfoundland, she contacted them and arranged for a visit with the children. She is committed to continuing that relationship despite her difficulties with the respondent.
[58] She has been careful about introducing Ed Hull to her children. She has done this gradually and is very happy that they seem to get along so well.
[59] The applicant frankly admitted that she had cut off the telephone access as the respondent had abused the privilege by asking the children about her private life, and using the opportunity to harass her.
[60] The respondent asked her about the risk of his depression returning if the court allowed her to move with the children. Her response was that he suffered from depression prior to the separation and she believed it had nothing to do with the prospect of them moving.
Conclusions
[61] These two girls have for most, if not all of their short lives, experienced a very high level of conflict between their parents. They seem to have weathered this remarkably well. They are closely bonded to their mother who has done a good job of protecting them from the conflict. However, as they get older this will be more difficult.
[62] They appear to have a generally positive relationship with their father, but it is not without difficulties, and they have been vocal about their concerns.
[63] Unfortunately, he has little or no appreciation of the effect of his actions on his daughters. I have no doubt he loves them dearly, and wants the best for them, but he has been unable to distinguish their best interests from his own self interest.
[64] He acknowledges that he has had an ongoing problem with depression. He has received treatment from his psychiatrist and continues to take medication. He has recently returned to work. There are, however, still days when he is not able to cope well and on these occasions he declines to exercise his right of access. This is commendable. It is the one area where the respondent appears to put the children's interests above his own. Clearly he should not have responsibility for them if he is not well enough to provide for their safety or meet their needs.
[65] However, throughout his evidence, and his submissions, the respondent made reference to the possibility that allowing the move would result in him having a relapse, and thus he would not be able to have access. The implication being that it would be the fault of the applicant and/or the court if he relapsed and could not exercise access or pay support. While I accept that the respondent suffers from depression which is not within his control, I find these comments to be manipulative and unacceptable.
[66] Overall I found the respondent's evidence to be self serving. He took no responsibility for the threatening text messages, but blames the applicant for having cut off his telephone access. He failed to grasp that it was his abuse of that privilege which caused the applicant to terminate the calls.
[67] On several occasions he asked, albeit rhetorically, how his court ordered right could be terminated by the applicant, but could not acknowledge that in using the calls to get information about the applicant and her relationship rather than to interact with his daughters, he had acted inappropriately or that his behaviour was harmful to the children.
[68] His evidence focused more on the breakup of the marriage and the applicant's new relationship than on the best interests of the children.
[69] It is to the credit of the applicant that she has facilitated physical access in spite of the respondent's mental health issues and his behaviour which has been somewhat destructive.
[70] It is also of note that the children do still have a bond with their father and I find that, in spite of their concerns, he continues to be a very important figure in their lives and their relationship with him should be preserved.
[71] In determining whether to grant the applicant her request to relocate with the children, there is no presumption in favour of the custodial parent but it is a consideration.
[72] I am satisfied that if they move to Newfoundland there is ample opportunity for the respondent to maintain a relationship with the children, but it will require some effort and commitment on his part and the nature of that relationship will, of necessity, change. However, there is some benefit to the children in this respect. If the respondent travels to Newfoundland to spend time with the girls, his family will be involved. The applicant has no issues with that family, and there is less likelihood of conflict.
[73] The children's views have been strongly, clearly and consistently expressed, they are aware that they would be changing schools, friends and many of the things which are familiar to them. They also know that they will still be able to spend time with their father.
[74] I accept that there are some financial benefits associated with the move. The need for daycare is eliminated and the overall cost of living is less. While relatively modest, these benefits are sufficient to make a difference in the lives of the applicant and children. There is also a residual benefit to the respondent as he will no longer be required to contribute to day care costs.
[75] The overall disruption to the lives of the children can be minimized by maintaining a strong connection to the respondent.
[76] I find no compelling reason to prevent the applicant from relocating.
[77] For these reasons, I make the following order:
Order
1. The applicant Sherry Lee Hodder is permitted to change the permanent residence of the children, Mackenzie Vivian Hodder, born October 25, 2002 and Mallory Jessica Hodder, born January 2, 2006 to the general area of Corner Brook in the Province of Newfoundland.
2. The children's residence shall not be changed from the Province of Ontario prior to July 16, 2012.
3. The respondent father Darrel Hodder shall, commencing March 9, 2012, have access to the children three out of every four weekends until June 30, 2012.
4. The respondent father shall have access in Ontario for seven consecutive days, to be agreed upon, between June 30, 2012 and July 15, 2012.
5. Thereafter the respondent father shall have access in Newfoundland:
(i) for two non-consecutive weeks during the summer school vacation period, on at least 30 days notice;
(ii) one weekend per month, to be long weekends whenever possible, on at least seven days notice;
(iii) one week during the children's spring school break in alternate years, commencing 2013;
(iv) one half of the Christmas school break, to include Christmas Day in alternate years commencing 2012;
(v) two non-consecutive weeks during the summer;
(vi) such other or alternate times as the parties may agree.
6. All overnight access in Newfoundland shall, unless otherwise agreed, take place at the home of the respondent's parents.
7. The respondent shall have access in Ontario:
(a) for two, non-consecutive weeks during the summer school holidays; and
(b) such other times as may be agreed.
8. All access exercised in Ontario is subject to the following terms and conditions:
(a) the respondent shall, in advance of each proposed access visit, provide the applicant with a report from his psychiatrist (or other medical professional satisfactory to the applicant) confirming that he is emotionally stable, and that he is not suffering from any mental health issue which would have an impact on his ability to provide proper care for the children or which would pose a risk to their physical or emotional safety; and
(b) the respondent shall provide proof of having satisfactorily completed a parenting programme for parents of children aged 6 to 12 years.
9. The respondent shall have access by electronic means such as "Skype" on the children's birthdays, on Father's Day each year and otherwise twice per week at a mutually convenient time. The applicant shall do all things necessary to facilitate this communication and shall ensure that the children have access to the appropriate electronic means, and that they are available at the agreed time to speak with their father.
10. All communications with the children are subject to the following terms and conditions:
(i) the respondent shall conduct himself in a polite and courteous manner and shall not say anything critical or of a derogatory nature regarding the applicant, her life, her family or friends.
(ii) the respondent shall not make enquiries of the children about the applicant, her life, her family or friends.
11. The respondent shall have such further or other access as may be agreed between the parties.
12. The respondent shall, unless otherwise agreed, be responsible for the cost of transportation for the children to visit him in Ontario and for his own transportation to Newfoundland.
13. For any overnight visits in Newfoundland, the applicant shall be responsible for transporting the children to and from the paternal grand parents' home.
14. The respondent has the right to communicate directly with the children's schools and teachers.
15. The applicant shall provide the respondent with the names and addresses of the children's schools and shall ensure that the respondent receives a copy of each of the children's school reports.
16. The applicant shall notify the respondent promptly in the event of any emergency affecting the children.
17. The applicant and the respondent shall, subject to the terms and conditions of any probation or other court order by which the respondent is bound, limit communications to email solely with regard to:
(a) confirmation of access arrangements;
(b) notification of any emergency; and
(c) any other essential issue pertaining to the children.
Released: March 1, 2012
Justice J.C. Baldock