Court File and Parties

Court File No.: Toronto DFO 10065/12 Date: 2012-05-14 Ontario Court of Justice

Between: Jason Christopher Blunt, Applicant

— And —

Carrie Ann Girard, Respondent

Before: Justice B. M. Scully

Heard on: April 3, 2012

Reasons for Judgment released on: May 14, 2012

Counsel:

• Mr. Jason Christopher Blunt, on his own behalf
• Mr. Brahm D. Siegel, for the respondent

SCULLY, B. M. J.:

I. INTRODUCTION

[1] Jason Christopher Blunt and Carrie Ann Girard are the parents of Malik Raja Blunt, born […], 2001. Mr. Blunt and Ms. Girard never married. They cohabited from August 2000 to August 2007.

[2] Prior to their separation, both parents were actively involved and supported each other in the care of their son. For a period of approximately ten years until January 2011, Ms. Girard was employed by Club Monaco, a retail enterprise. Her employment often required work in the evening and occasional travel. Mr. Blunt was employed by Quantum Murray, a building services company. His employment required him on occasion to be away from home for up to two months and on one occasion for a period of six months. When away, he organized to return on weekends to be with Ms. Girard and Malik.

[3] When Malik entered Junior Kindergarten, the parents arranged home daycare with Ms. Patti Craine in close proximity to Malik's school, Norway Junior Public School. Ms. Craine continues to provide daycare service for Malik to the present. A pattern developed whereby Ms. Girard would normally drop Malik off with Ms. Craine or at school in the morning and Mr. Blunt would pick up Malik from school or Ms. Craine's in the afternoon. As Ms. Girard was required to work evenings during the week, Mr. Blunt would prepare dinner for Malik and put him to bed. As Ms. Craine operates a home daycare she is available to care for Malik into the evening when necessary.

[4] Prior to their separation, the parties lived in a basement apartment at 327 Kenilworth Ave., Toronto, in a middle income neighbourhood on the east side of Toronto, known locally as the Beaches due to its proximity to Lake Ontario. Following separation, the parties engaged in counselling to explore the possibility of reconciliation. From September to December 2007, Ms. Girard and Malik resided with two of Mr. Blunt's uncles. In January 2008, Ms. Girard and Malik moved in with one of her uncles. When it became clear by August 2008 that Mr. Blunt was committed to continuing a relationship with Ms. Louise Cooper, and reconciliation would not be possible, Ms. Girard and Malik moved into a two bedroom apartment at their prior address, 327 Kenilworth Ave. where they continue to reside.

[5] Initially, following their separation, Mr. Blunt exercised access to Malik on average one day a week and alternate weekends. By August 2009 the parties agreed to a schedule whereby Mr. Blunt has Malik from 4:00 p.m. to 8:00 p.m. each Monday and Thursday and alternate weekends. The parents share Thanksgiving, Easter and Christmas holidays and Mr. Blunt has Malik for up to two weeks during the summer.

[6] Mr. Blunt has continued his relationship with Ms. Cooper. They began to cohabit in 2010 and became engaged in February 2011. They reside at 36 Warren Crescent, Toronto, a middle income neighbourhood situated in the west end of the city. Mr. Blunt is the Environment, Health and Safety co-ordinator for Quantum Murray. He earns approximately $60,000 per annum. Ms. Cooper owns a vintage clothing retail store in Toronto. She has two employees and earns approximately $130,000 per annum.

[7] Ms. Girard, desirous of being more available to Malik, changed her employment in January 2011. She is presently the Senior Manager at the Apple Store situated in the mall known as Square One in Mississauga Ontario. Mississauga is a large urban community bordering on the west of the city of Toronto. Ms. Girard earns $90,000 per annum.

[8] Mr. Blunt is no longer required to travel for his employment. The last time he was required to be away from home was 2010. Ms. Girard enjoys a more family sensitive employment with the Apple Corporation than she did when working for Club Monaco. However, due to her work as Senior Manager she was required to work extra evening hours from September through December 2011. Fortunately, Mr. Blunt's schedule was sufficiently flexible such that he was able to provide care for Malik. On average, over the course of those months, Malik was spending in excess of fifteen days a month with his father. At one point when Ms. Girard was diagnosed with stress and exhaustion, Mr. Blunt cared for Malik for a continuous period of two weeks.

[9] Both parents describe Malik as a normal child who is well liked and outgoing. He can be somewhat shy at times. He enjoys sports particularly soccer, volleyball and swimming. He really likes to fish and go bowling. He enjoys technology, computers, reading books and going outside to play with his friends.

[10] For the past seven years Ms. Girard and Malik have had a very close relationship with neighbours Bill and Ann Whyte and their son Cole. Malik and Cole have had many sleep-overs at each other's home and Malik spends nine days at the Whyte's cottage in the summer. Ms. Girard did note that as Cole is two years younger than Malik, recently Malik has been closer to his school friends Finn and Derek. Finn, Derek and Malik have been good friends for seven years since Junior Kindergarten.

[11] Malik has been assessed with a learning disability. In October 2008, a psychologist, Dr. R. Greenbaum found that Malik's learning and academic performance are affected by dyslexia as well as a learning disability specific to working memory and Attention Deficit Hyperactivity Disorder (ADHD). Malik has an Individual Education Plan (IEP) and receives individualized teaching in a specialized class for approximately one half the day each school day at Norway Junior Public School. The focus in the specialized class setting is on reading, mathematics and comprehension. Malik is enrolled in Grade 5. He is presently reading at a Grade 3 level. Recently, on the basis of marked improvement in his mathematics he was upgraded to a Grade 4 level. Mr. Blunt focuses on Malik's math when Malik is with him on Monday and Thursday afternoons and evenings. Ms. Girard described Mr. Blunt as the parent who is more focused on structure and schedule for Malik.

[12] Ms. Girard has a brother, Brian, who resides in Toronto. She testified that Malik has a very close relationship with Brian and describes Brian as his favourite uncle. When Ms. Girard has to open the store early or work late and Mr. Blunt is not available to assist, Ms. Girard relies on her brother to care for Malik.

[13] Ms. Girard has been offered the position of Senior Manager at a new Apple Store in Masonville Mall, London Ontario. It is a lateral move in that she will maintain the same position and salary as her present employment in Mississauga. Ms. Girard would like to accept the offer and move with Malik to London. She will not accept the offer unless Malik moves with her. Mr. Blunt opposes Malik's move to London.

[14] At a case conference before Justice D. Paulseth on March 19, 2012, a one day hearing was scheduled for April 3, 2012 on the issue of mobility only. The parties agreed to a format that allowed that Ms. Girard, as moving party, could file her affidavit and, should she wish, an affidavit from her mother, Ms. Diane Shives. Mr. Blunt could respond with his affidavit and, should he wish, an affidavit from Ms. Cooper. The parties declined the opportunity of a referral to the Office of the Children's Lawyer to obtain counsel for Malik to provide the court with Malik's views and preferences on this issue. Justice Paulseth, with the agreement of the parties, directed that at the hearing on April 3, 2012, each parent would have a maximum of only one hour for examination in-chief and one hour for cross-examination.

[15] Ms. Girard filed her affidavit on March 28, 2012. She chose not to file an affidavit from her mother. Mr. Blunt filed his affidavit on April 2, 2012. He chose not to file an affidavit from Ms. Cooper. At the hearing, Ms. Girard was represented by Mr. Siegel. Mr. Blunt represented himself.

II. The Position of the Parties

A. Ms. Carrie Ann Girard

[16] Ms. Girard proposes to relocate to London with Malik at the end of June when Malik has finished his school year. She argues that such a move would be in Malik's best interests for a number of reasons.

[17] A major focus of Ms. Girard's evidence was on the time that she presently expends each work day commuting to and from work. She testified that in normal traffic it takes her approximately forty-five minutes to travel from her home in the Beaches to the Apple Store in Mississauga. On occasion when traffic is congested it could take her up to an additional one half hour. The neighbourhood in which she proposes to live in London would require a commute of only fifteen minutes to the new store. She noted that less time commuting would allow her more time with Malik. In her affidavit she stated, "I cannot emphasize enough how much of a HUGE difference this will make in our lives". The commute is so onerous for her that should I not accede to her request to move to London with Malik she will move within the Greater Toronto Area (G.T.A.) to Oakville, Burlington or Mississauga to be closer to her present store.

[18] Attached to Ms. Girard's affidavit was a letter from Mr. Douglas Cassan, a real estate agent with Royal LePage Triland Realty in the London area. Mr. Cassan notes that the cost of purchasing a home in London is approximately one half the cost of purchasing a home in a comparable neighbourhood in Toronto. A number of real estate listings were also attached to Ms. Girard's affidavit noting townhouses in the London area at a cost of approximately $200,000 and larger houses for approximately $240,000.

[19] Ms. Girard presently pays rent of $1300 per month for the two bedroom apartment in which she and Malik reside. She believes that it would be in Malik's best interests if she could purchase a house as opposed to continuing to rent as this would provide them with more stability. She testified that she would not be able to afford to purchase a home in the Beaches area on her income of $90,000 per annum. However, she would be able to afford to buy a townhouse or house in London. Should she not be allowed to relocate to London with Malik she would consider moving to Oakville, Burlington or Mississauga where housing is considerably less expensive than in Toronto. The monthly saving on the cost of housing and commuting would allow Ms. Girard more money to expend on extra-curricular activities and tutoring for Malik. He was at one point attending the Oxford Learning Centre for tutoring and Ms. Girard believes that it would be beneficial for him to be enrolled in tutoring again.

[20] Ms. Girard believes that relocation to London would benefit Malik educationally. The Thames Valley School Board, where Malik would attend, attempts to provide special education support to students with an Individual Education Plan within the regular class setting. Should it prove necessary to provide a student with further assistance outside of the regular classroom such additional help can be accommodated. Ms. Girard believes that Malik's self-esteem would be improved if his special needs were addressed in the context of his regular classroom setting.

[21] The schools that would be available to Malik in London all have before and after care programs from 7:30 a.m. to 6:00 p.m. staffed by certified trained early childhood educators. While Ms. Girard is satisfied with the home daycare that Malik has enjoyed with Ms. Craine for the past seven years, she believes the in-school programs available in London will allow for better structure and education for Malik.

[22] Relocation to London will allow Malik to be closer to his extended family, including his grandparents, both paternal and maternal, with whom he has a positive relationship. Ms. Girard's mother, Ms. Shives, resides in Blenheim, Ontario, approximately an hour from London. She is an occasional teacher with the Lambton-Kent District School Board and her schedule will allow her to be more available to assist Ms. Girard with care-giving on weekends and holidays than at present.

[23] Recognizing the value of the relationship between Malik and his father, Ms. Girard proposes to provide more holiday time for Mr. Blunt to partially off-set the loss of the weekly Monday and Thursday access. She is also prepared to set up Skype immediately upon the move to allow for regular face to face contact between father and son. Specifically Ms. Girard is prepared to expand Mr. Blunt's summer access for up to five weeks on the condition that said access would not be for consecutive weeks. Ms. Girard testified that she would not be willing to experience four or five weeks without seeing Malik. Further, she would be willing to alternate Thanksgiving, March Break and Easter holidays with Mr. Blunt and provide Mr. Blunt with every school professional development day occurring before or after his regularly scheduled alternative weekend access. She further offers to meet Mr. Blunt on Fridays and Sundays of his access weekends at the McDonald's Restaurant in Milton Ontario. This would involve an hour and forty minutes drive each way, given normal traffic and weather, for Ms. Girard and a drive of approximately forty minutes for Mr. Blunt. She proposes to drop Malik off at 7:00 p.m. on Friday and pick him up at 7:00 p.m. on Sunday.

[24] Following their separation, direct communication at access exchanges was the norm. However, from the time that Mr. Blunt began to reside with Ms. Cooper in 2010, a pattern developed whereby each parent drops Malik off in front of the other's address and waits until Malik is met by the other parent. Mr. Blunt does not advise Ms. Girard as to his plans for access nor does he normally tell her what he, Ms. Cooper and Malik did during the course of their access. Ms. Girard regrets this lack of direct communication and testified that it was Mr. Blunt's reticence that had caused the change. That said, she acknowledged that she did not want to communicate or have a relationship with Ms. Cooper "for obvious reasons".

[25] Relocation to London would afford Ms. Girard the opportunity to build a new Apple Store from scratch, a prospect that she finds, while challenging, very exciting. As the store in London is not in a tourist venue, she anticipates not having to work on as many statutory holidays.

B. Jason Christopher Blunt

[26] Mr. Blunt's position is that while relocation to London might address Ms. Girard's lifestyle and convenience in that she likely could afford to purchase a home and have less of a daily commute, the move would not be in Malik's best interest. In his view the material and logistic benefits that would accrue to Ms. Girard pale in comparison with the loss of the regular minimum weekly access that Malik enjoys with his father as well as the extra time that Malik has with his father when Ms. Girard's employment responsibilities require assistance from Mr. Blunt.

[27] Malik's favourite extra-curricular activities are fishing and swimming. Malik does both of these activities with his father, swimming each Monday and fishing throughout the year, including ice fishing, often during his weekday access with his father.

[28] Both parents have worked closely with the teachers at Norway Junior Public School to implement and support the Individual Education Plan that was formulated by the Toronto District School Board for Malik. During his weekday access each Monday and Thursday, Mr. Blunt focuses on mathematics with Malik. With this extra support from his father, Malik has advanced a full grade this year and is on track to catch up to his peers. As noted, Ms. Girard would like to enrol Malik in the Oxford Learning Centre when she moves to London. While Mr. Blunt is open to enrolling Malik in the Oxford Centre in Toronto, he notes that Malik's teacher is not persuaded that the Oxford Centre is what Malik requires to progress. Noting that the present parent-teacher-school regime is resulting in progress and success for Malik, Mr. Blunt is very concerned that changing the program and putting Malik in a regular class room in a new school in London without the support of his father, as proposed by Ms. Girard, will have a serious negative impact on Malik and his academic progress.

[29] Mr. Blunt welcomes Ms. Girard's offer to expand his access to Malik. To date Ms. Girard has refused Mr. Blunt's request to share holiday weekends on an alternating basis. She has insisted that time on these weekends be shared equally causing considerable acrimony and friction between the parents. Since last summer, Mr. Blunt has been requesting increased holiday and overnight access to Malik. Mr. Blunt does not feel that this expanded access ought to be contingent on Malik being relocated to London.

[30] Relocation to London would, in Mr. Blunt's view, expose Malik to an unnecessary risk and vulnerability on occasions when, particularly on short notice, Ms. Girard would be required to work extra hours at the store. In Toronto when this has occurred, most frequently last fall in the months of September through December, Mr. Blunt was able to take over the evening care of Malik. When Mr. Blunt is not available, Ms. Craine can provide extended care in her home or Ms. Girard's brother, Brian, can make himself available to care for Malik. In London, the day-care contemplated by Ms. Girard is available only to 6:00 p.m. Ms. Girard's mother, Ms. Shives lives in Blenheim, an hour from London.

III. THE LAW

[31] In determining whether to accede to Ms. Girard's request to relocate with Malik to London, I am obliged to consider the factors set out in subsection 24(2) of the Children's Law Reform Act R.S.O. 1990, c C. 12, as amended ("the C.L.R.A"). I am obliged to consider all of the child's needs and circumstances including:

BEST INTERESTS OF CHILD — The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[32] In making a determination on a request to alter a child's residential location, I am further bound to apply the guiding principles set out in Gordon v. Goertz (1996), 134 D.L.R. (4th) 321, 2 S.C.R. 27. In rendering her decision and ordering a new trial of the matter, Justice Goodman set out those principles in Paragraph 52, as follows:

1. The judge must embark on a fresh enquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

2. 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 and the most serious consideration.

3. Each case turns on its own unique circumstances. The only issue is the best interests of the child in the particular circumstances of the case.

4. The focus is on the best interests of the child, not the interests and right of the parents.

5. 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 reasons for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;

(f) the disruption to the child of a change in custody; and

(g) the disruption to the child consequent on removal from family, schools and the community he has come to know.

IV. ANALYSIS

[33] By agreement between the parties, this is a trial of a specific issue, permission for Ms. Girard to relocate with Malik to London. The issues of custody, access and support remain to be determined. A Settlement Conference date has been scheduled for July 24, 2012, before Justice Paulseth to address these issues. Despite the fact that I was not to adjudicate on the issues of custody and access, Mr. Siegel argued that I should designate Ms. Girard as the primary parent. Should I so find, Mr. Siegel further notes that the caselaw would allow that I ought to give Ms. Girard's views respect and serious consideration. This argument is problematic for two reasons. First, I am specifically directed not to make findings on the issues of custody and access. Second, the evidence adduced before me by way of affidavit and limited viva voce evidence, was severely restricted, again by agreement. Indeed, as noted earlier, I have been asked to make a decision of dramatic impact on the child without the benefit of hearing Malik's views and preferences. Malik will be eleven years of age in August.

[34] On the limited evidence before me, it is clear that for the year following separation in August 2007, Ms. Girard was the primary parent. More recently, between the months of September and December 2011, the evidence would suggest that Mr. Blunt was the primary parent.

[35] Focusing on the child, as I must, I am not persuaded that relocation to London with his mother is in Malik's best interests.

[36] Ms. Girard opined that Malik's self-esteem and dignity were compromised by his removal from his regular class for special education focus in a smaller class setting each day for a period of time. I did not have the benefit of Malik's views on this subject nor was there any independent evidence adduced to support Ms. Girard's opinion.

[37] In her report, dated October 21, 2008, Dr. Greenbaum noted that Malik's parents and teachers reported that he was doing well socially and behaviourally at school. Malik's presentation of some anxiety and depression in Grade 1, were, in Dr. Greenbaum's opinion, likely stress related in response to the separation of his parents in 2007. At trial both parents described Malik as a "normal" child who is well adjusted, enjoys his friends, his extra-curricular activities and is making progress in school. Any emotional difficulties that he was presenting in Grade 1 have now clearly been resolved as a result of the parenting schedule, including twice weekly access to his father, implemented by his parents and the love and support that he receives from them. A move to London with its inherent loss of weekly access to his father may revisit the stress, anxiety and depression that Malik experienced at the separation of his parents.

[38] Dr. Greenbaum concluded in her report that as, "academic demands increase in future grades, Malik may benefit from additional supports and accommodations that include extra time on tests, separate test-taking space free from distraction, opportunities for individual instruction to review and reinforce newly learned material." The Individual Education Plan that has been implemented for Malik at Norway Junior Public School has incorporated these recommendations. For a period of each day, Malik benefits from more individualized attention in a small specialized class, free from the distractions of the larger regular class. In this environment, Malik is making progress, most markedly in mathematics on the basis of the focus on math homework that Malik receives from his father each Monday and Thursday. The schooling that is proposed for Malik in London does not include removal of a special needs child from the regular classroom. Special attention is contemplated for such a child within the context of maintaining that child in the regular class. It was unclear whether this was simply a resource issue for the Thames Valley School Board. It is an open question as to whether this method of addressing Malik's special learning needs would be beneficial for him. Certainly there was no evidence adduced that this approach to addressing special needs students is preferable and it would seem to be unsupported by Dr. Greenbaum's recommendations for Malik. Ms. Girard in her testimony acknowledged that it was impossible to know whether this proposal would be successful for Malik.

[39] Ms. Girard testified that relocation to London would allow Malik to be closer to the majority of his extended maternal and paternal family. Ms. Girard noted that it would be easier for her mother to assist her in Malik's care on weekends and holidays as she resided one hour's distance from London. Presently, it takes Ms. Shives three and half to four hours to travel to Toronto. Mr. Blunt acknowledged that Ms. Girard has been instrumental to Malik's access to extended family. However, he expressed concern that the safety net that exists for Malik in Toronto would not be available to the child in London. At present, as noted, when Ms. Girard is required to work extra hours, she can rely on Mr. Blunt or her brother Brian, Malik's favourite uncle, to assist. Moreover Ms. Craine, as she provides daycare in her home, is available in emergencies to care for Malik into the evening hours after 6:00 p.m. Ms. Girard has initiated arrangements for Malik to be cared for in certified day care centre in London from 7:30 a.m. before school to 6:00 p.m. after school. When asked what she would do if required, on short notice, to work evening hours at her store, Ms. Girard stated that she had a cousin who lived in London. Initially she could not remember the cousin's name and then acknowledged that her cousin has no relationship with Malik. From this perspective, relocation to London is most certainly not in Malik's best interests.

[40] To partially compensate Mr. Blunt for the loss of his twice weekly access, Ms. Girard proposes to provide him with alternating holiday access, five weeks in the summer and additional overnight access on professional development days. While Mr. Blunt would welcome alternating holidays, and additional summer and overnight access, all of which he has been requesting since last year, he does not think that it should be contingent on Malik moving to London. Moreover, he points out that Ms. Girard's offer to meet him in Milton for exchanges may be problematic. Ms. Girard acknowledged that at present she is on occasion late for the access exchange. Her time calculations on travel are based on a reliable work schedule, a factor that has caused difficulty in the past, and normal traffic density. No time calculations were provided for Friday and Sunday evening traffic congestion nor did she factor in the problem of winter driving. It was acknowledged that Malik does not like travel, other than for short periods of time, in a car.

[41] Mr. Blunt's core concern on the issue of access is the loss Malik will suffer when he no longer has twice weekly visits with his father. It is acknowledged that Malik's two favourite extra-curricular activities are swimming and fishing. Malik attends for swimming with his father during his Monday visits and goes fishing with his father on weekends as well as on occasion during the week. Mr. Blunt's focus on math homework with Malik on Mondays and Thursdays has allowed him to make significant progress, recently being elevated to the Grade 4 level. Loss of this twice weekly access, in my view, is not in Malik's best interests.

[42] Relocation to London would allow Ms. Girard the challenge and excitement of initiating a new Apple Store, the opportunity to purchase a house and less daily commute to work. While these factors would convenience Ms. Girard and likely enhance her life-style, it is not her interests that are the focus of this hearing. Moreover, her issues of housing and commute could be well addressed by a residential move to Oakville, Burlington or Mississauga. Relocation to one of these communities would allow Malik to continue his weekly access to his father and afford the child the security and availability of Mr. Blunt, Ms. Cooper and likely favoured uncle Brian on those occasions when Ms. Girard is required to work extra hours in fulfilling her responsibilities as Store Manager.

[43] Should Ms. Girard determine to move to one of these communities, bordering the City of Toronto, it would appear to be in Malik's best interests if such a transition could occur in the summer of 2013, prior to Malik entering Grade 7. With the love, dedication and support of his parents, the commitment of his teachers to the implementation of his I.E.P. and the support of his neighbourhood and friends, Malik has demonstrated real progress at Norway Junior Public School. Allowing him to make the transition to a new school at the same time as his classmates would be ideal.

IV. FINDINGS

[44] Ms. Girard shall not be permitted to relocate to London, Ontario with her son Malik.

[45] There shall be no order as to costs.

[46] I would like to express my appreciation to Ms. Girard, Mr. Blunt and Mr. Siegel for the integrity and courtesy with which they conducted themselves at trial.

Released: May 14, 2012

Signed: Justice B. M. Scully