Court File and Parties

Court File No.: D56987/12 Date: 2012-07-17

Ontario Court of Justice

Toronto North Family Court

Between:

Natalie Costa Applicant

- and -

Samuel Funes Jr. Respondent

Counsel:

• Katherine Robinson, agent for Ron Shulman, for the Applicant
• Marie Davison, for the Respondent

Heard: July 16, 2012

Justice: S.B. Sherr

Endorsement

Part One – Introduction

[1] The parties are the parents of two children, ages 9 and 10. The applicant (the mother) has brought a motion seeking temporary custody of the children, child support and permission to immediately move with the children to Florida.

[2] The respondent (the father) has brought a motion to prevent the mother's requested move with the children to Florida and seeks temporary custody of them. In the alternative, he seeks an order for joint custody and access to the children to take place on every weekend.

Part Two – Background Facts

[3] The mother is 30 years old. The father is 32 years old.

[4] The parties were married in 2001, separated in 2006 and were divorced in 2007. The Divorce Judgment was silent about parenting and financial issues.

[5] The children have primarily resided with the mother since the separation. The parties gave differing versions of the father's historical parenting time with the children. The father deposed that until the mother started this court application, he saw the children on every weekend, at which time he said that the mother unilaterally reduced his access to every other weekend. The mother deposed that from 2006 to 2009, the father saw the children on alternate weekends. She said that from 2009 to 2011 (while she was in nursing school), the father had the children every weekend, and that since September of 2011 the father has reverted to seeing the children on alternate weekends. Neither party provided any independent evidence to support their version of the father's historical parenting time with the children.

[6] The mother deposed that she has been the primary decision-maker for the children. She said that she arranges their medical care and deals with their teachers. She also claimed that she arranges and takes them to their extra-curricular activities. The father did not seriously dispute this evidence.

[7] The father works as a construction foreman. He earned $69,122 in 2011. It was agreed that he has been paying the mother child support of $800 per month.

[8] The mother graduated from Humber College in June of 2010, following completion of a four-year nursing degree. She has had difficulty obtaining full-time employment in her field. She obtained part-time employment as a community nurse in February of 2011. In August of 2011 she obtained her current position as a part-time registered nurse in Barrie, Ontario. The difficulty with this job is that she only receives one or two shifts each week and it involves significant travel time.

[9] The mother is currently earning income at the rate of $20,000 per annum.

[10] The mother wrote and passed her United States nursing exams in July of 2011.

[11] The mother provided significant evidence of her unsuccessful efforts to obtain full-time employment in her field.

[12] The mother attended a job fair in Florida in March of 2012 and was offered a 30-month contract from the Florida Hospital in Orlando, Florida. This job would pay her between $45-50,000 per annum.

[13] The parties provided different versions of what happened next. The mother deposed that the father verbally agreed to the move, she told the children about the move, and then when it came to committing in writing to the move, the father stonewalled her. The father deposed that he never agreed to the mother moving to Florida, but was willing to discuss it. However, he said, whenever he asked the mother for specific information about the living arrangements for the children, what his contact with the children would look like and how the move might affect his support obligation, the mother would not provide the requested information. He says that the mother responded to his requests for information by reducing and obstructing his access.

[14] The parties also had very different versions about the children's response to the proposed move. The mother deposed that the children are excited and want to move to Florida (although in submissions, her counsel said that this has recently changed due to pressure by the father). The father deposed that the children do not want to move to Florida and that they are complaining to him that the mother is pressuring them to move. He also alleged that one child told him that the mother had recently hit him. He alleges that the children tell him that they are scared of the mother.

[15] When negotiations between the parties broke down, the mother issued this application (on June 26, 2012) and brought this temporary motion.

[16] The mother's original start date at Florida Hospital was to be June 4, 2012. She was able to extend this date until August 13, 2012 (with the requirement that she be in Florida 10 days before). Her counsel advised the court that she could not extend the job opportunity any further. The mother is not willing to sign her contract with the Florida Hospital unless she receives permission from this court to move to Florida with the children. She is not willing to leave Ontario without the children (as suggested by the father), and the contract with Florida Hospital contains a significant monthly penalty if she does not complete her contract. Accordingly, it is not a viable option for the mother to start the job in Florida and wait for the outcome of an expedited trial in Ontario, before deciding if she will remain there. Counsel for the mother advised the court that if this court did not grant the relief requested in the mother's motion at this time, the request to move to Florida with the children would become moot.

Part Three – Temporary Custody

[17] In making a temporary custody order, the court must determine what order is in the children's best interests. I have considered the best interest factors that are set out in subsection 24(2) of the Children's Law Reform Act, in deciding the parenting issues on this motion.

[18] I find that it is in the children's best interests to grant temporary custody of the children to the mother. She has been their primary caregiver and decision-maker since the separation. She has assumed that role responsibly. The children have thrived in her primary care. The father works out of town during the weekdays and is not always accessible for the children.

[19] The evidence precludes an order for joint custody at this time. There is not a sufficient level of cooperation and communication to establish that such an order for joint custody is in the children's best interests. See: Kaplanis v. Kaplanis, [2005] O.J. No. 275 (Ont. C.A.). The miscommunication between the parties about the proposed move to Florida, and their expressed mistrust of the other's motives is a prime example of this.

Part Four – The Law of Temporary Mobility

[20] In paragraphs 7-10 of Downey v. Sterling, 2006 ONCJ 490, [2006] O.J. No. 5043 (OCJ) I reviewed the law of temporary mobility. I rely again on that law which reads as follows:

[7] The leading authority on the issue of mobility cases is Gordon v. Goertz, [1996] 2 S.C.R. 27. The law is summarized in paragraphs [49] and [50] of that decision as follows:

Factors to Consider:

1. This inquiry is based on the finding of the judge who made the previous order and evidence of the new circumstances.

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.

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 rights 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) disruption to the child of a change in custody;
   • (g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

[50] In the end, the importance of the child's remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?

[8] The problem is that it is often difficult, if not impossible, in many cases to complete the extensive child-focused inquiry required under Gordon v. Goertz on the conflicting and incomplete affidavit evidence that is often available on interim motions. See paragraph [9] of Kennedy v. Hull, 2005 ONCJ 275, (2005), 143 A.C.W.S. (3d) 519, [2005] O.J. No. 4719, per Justice Margaret A. McSorley.

[9] The decision made on an interim motion in a mobility case will often have a strong influence on the final outcome of the case, particularly if the interim order permits relocation. The reality is that courts do not like to create disruptions in the lives of children by making an order that may have to cause further disruption later if the order has to be reversed. See Goodship v. McMaster, [2003] O.J. No. 4255, per Justice John Kukurin.

[10] Justice Mary E. Marshman in Plumley v. Plumley, [1999] O.J. No. 3234, discussed the factors that are or ought to be important in deciding the mobility issue on an interim basis as follows (at paragraph [7]):

1. A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.

2. There can be compelling circumstances that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.

3. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent's position will prevail at trial.

Part Five – Discussion of Temporary Mobility Issue

[21] There are several factors, based on the evidence presented, that would favour the mother's request to move with the children at a trial. They are as follows:

a) I have granted her temporary custody of the children for the reasons set out above.

b) The case law indicates that the views of the custodial parent are to be given great respect. See: Bjornson v. Creighton, 62 O.R. (3d) 236 (Ont. C.A.).

c) The mother will have more financial security in Florida. The evidence indicates that the mother has made good faith efforts to find full-time employment without success in Ontario. She will receive a substantial pay increase if she is permitted to move to Florida with the children and accept the job offer at Florida Hospital. This financial security would benefit the children. Financial security is a relevant factor in mobility cases. See: Greenfield v. Garside.

d) The mother provided evidence that she would be able to afford accommodation in a safer area than where the children currently live.

e) There is case law that says that if a primary caregiver is happier, this will benefit the children. See Del Net v. Benger, 2003 CarswellOnt 3898 (Ont. S.C.).

f) The mother presented a plan that would provide substantial blocks of time with the children on holidays to the father. She would facilitate telephone and computer access to the children. She has given this plan considerable thought. The level of co-operation that the moving party will provide in facilitating access is a relevant consideration in a mobility application. See Orrock v. Dinamarea, 2003 CarswellBC 2845 (B.C.S.C.).

g) The mother generously offered to reduce the father's child support if she is permitted to move with the children to Florida, recognizing that there would be increased costs to him of exercising access.

h) The mother's own mother will move to Florida to assist her with the children. The mother set out that she has other supports in Florida who will assist her with the children.

[22] Despite these factors that would support the mother's case at trial, I will not permit a change in the children's residence without a trial of this issue. When a proposed move involves a long distance, it is imperative that the court be cautious about making a temporary decision permitting the move unless the court is certain that this will be the final result. See: Downey v. Sterling, supra, par. 12. A temporary order permitting a move to Florida would likely have the effect of pre-determining the result of this case. The mobility decision will have serious long-term consequences for the children. It is in their best interests that the court has the best possible evidence available before making this important decision. See Fair v. Rutherford-Fair, 2004 CarswellOnt 1705 (Ont. S.C.). The best possible evidence requires hearing from the parties and their witnesses, having these people cross-examined and hearing the independent views and preferences of the children.

[23] The evidence, at this point, failed to satisfy me that there is a strong probability (as set out in Plumley, supra) that the mother will be successful at trial. The factors I rely upon are as follows:

a) There is considerable dispute about the extent of the father's relationship with the children. The father described an extremely close relationship with the children, and that until recently they spent every weekend with him. This needs to be explored further.

b) Even accepting the mother's evidence, the father has a close and positive relationship with the children. The reality is that if the children move to Florida, this relationship will be impaired. The mother's financial stability and happiness (and how they positively impact upon the children) are not the only factors for the court to consider. The court must balance these factors against the degree of impairment of the children's relationship with the father and how this might adversely affect them. A clear picture of this relationship is essential for the court to strike this crucial balance.

c) There is conflicting evidence about the wishes of the children. While their views and preferences are not determinative, they are a relevant factor. The weight to be given to a child's wishes will depend on the child's age, insight and level of maturity. In Pike v. Cook, 2005 CarswellOnt 297 (Ont. Fam. Ct.), a 9-year-old child's wishes were given considerable weight. This important evidence is not available to me on this temporary motion and it is preferable that the court have this information before a decision is made that will have long term ramifications for them.

d) I was provided with insufficient evidence as to the disruption, if any, that the children would experience due to their removal from their schools, friends and community in Toronto.[^1]

e) I know very little about how this move will affect these children. A major reason that the children could be thriving so well is their close and secure relationship with both of their parents. The trial court may very well wonder how it is in the children's best interests to disturb this positive situation. This is important information for the court to have before making this decision.

f) The father states that the children have an extremely close relationship with his extended family that will be adversely affected by a move to Florida. This needs to be explored.

g) I find that it is important for this matter to be referred to the Office of the Children's Lawyer in order that the court can have independent evidence about the children's views and preferences.

h) The Ontario Court of Appeal in Berry v. Berry, 2011 ONCA 705, [2011] O.J. No. 5006, emphasized the importance of trial courts conducting a proper cost-benefit analysis, from the perspective of the child, of the proposed move and assessing how the impairment of a relationship with a parent, due to a move, will impact upon the child. The court in Berry found that the trial judge gave insufficient weight to the maximum contact principle set out in Gordon v. Goertz, [1996] 2 S.C.R. 27 and the adverse affect that the proposed move would have on the child's relationship with the remaining parent. Here, it would not be in the children's best interests to conduct this cost-benefit analysis without a full evidentiary record.

[24] The record does not clearly support the mother's allegation that the father lulled her into a false belief that he was consenting to her move to Florida. The correspondence between counsel for the parties does not establish that he ever consented to the move.

[25] Despite the compelling circumstances faced by the mother, including the likely loss of her job opportunity, there are genuine issues that require a trial in this case. More investigation is required to determine what is in the children's best long-term interests. The trial judge will be in the best position to assess the evidence and make the best possible decision for the children after a full and complete hearing of all of the relevant evidence.

[26] I am cognizant that the mobility issue may become moot by the refusal to permit the mother to move with the children to Florida on a temporary basis. However, this is a crucial decision for these children and a proper analysis cannot be sacrificed for the sake of expediency. This is not a case where the final result would be a foregone conclusion. See: Yousuf v. Shoaib, [2007] O.J. No. 747 (OCJ) per Justice Robert J. Spence. Unfortunately this case came before this court too late in the day to make a proper determination on the merits before the mother's job offer expired.

[27] The children's residence is to remain in Toronto pending the trial of this matter.

Part Six – Access

[28] The mother proposed that the father have temporary access with the children for half of the summer and on alternate weekends if the children were not permitted to move to Florida. The father wants the children with him every weekend and wanted the children for the balance of the summer, since he has only been given limited time with them this month.

[29] Children should have maximum contact with both parents if it is consistent with their best interests. Gordon v. Goertz, [1996] 2 S.C.R. 27.

[30] It was not possible for this court, based on the evidence provided, to determine if the father has historically seen the children every weekend, or every other weekend, as alleged by the mother. However, the evidence is clear that the children have seen him frequently and benefit by their time with him. It is in the best interests of the children to spend frequent time with the father.

[31] The father's request for every weekend access is excessive. It would deprive the children of the opportunity of spending weekend time with the mother. Their time with her should not be restricted to the school week. Many activities take place on weekends, and the mother shouldn't be excluded from them. The father will be granted temporary access on two out of every three weekends once school starts. For the balance of the summer, the children will alternate spending one week with each parent.

Part Seven – Temporary Child Support

[32] The father will be required to pay the table amount of temporary child support for the two children based on his 2011 income of $69,122, pursuant to the Child Support Guidelines. His payments of $1,024 per month shall begin on July 1, 2012. He shall be credited for any payments made to the mother, if any, in July of 2012. This order can be adjusted once full financial disclosure is provided by the father.

Part Eight – Next Steps and Order

[33] Normally, in a case of this nature, I would have made an order for an expedited trial. The timing of this trial would be subject to the availability of the Office of the Children's Lawyer. I made this suggestion to the mother's counsel at the hearing of the motion (in the event that I did not permit the move on a temporary basis). However, the mother's counsel advised me that an expedited trial was not viable, as the mother had a hard deadline to be in Florida by August 3, 2012. She said that the mother would not sign the employment contract and start the job in Florida unless she was assured by the court that she would be permitted to stay there with the children. While it is important for the children to have this case move forward, there is no present need, in these circumstances, to order an expedited trial.

[34] In the event that the mother is able to secure a further extension of the job offer, I encourage her counsel to seek an order for an expedited trial, and every effort will be made to accommodate one. Absent such a motion, the next step will be a case conference.

[35] Although the mother's proposed move to Florida may be effectively prevented by this temporary decision, I am aware that having been qualified to become a nurse in the United States, there is a real possibility that she may find another job opportunity outside of Ontario before this case is determined. The mobility issue may quickly resurface and it will be helpful for the court to have this issue explored by the Office of the Children's Lawyer.

[36] A temporary order shall go on the following terms:

a) The mother shall have temporary custody of the children.

b) The mother's motion to move with the children to Florida at this time is dismissed.

c) The mother may not change the children's residence from the City of Toronto without the written consent of the father, or prior court order.

d) The father shall have access to the children as follows:

1. Starting on Sunday July 22, 2012, the children shall alternate spending one week with each parent for the balance of the summer. The exchanges shall take place each Sunday at 6 p.m. The first week shall be spent with the father.

2. Once the school year begins, the children shall spend two out of every three weekends with the father from Fridays at 6 p.m. until Sundays at 6 p.m., extending until Mondays at 6 p.m., if his weekend falls on a statutory holiday. The father shall have the first two weekends in the schedule, followed by one week with the mother.

3. The two-week winter school break shall be equally divided between the parents. If the parties cannot agree on the schedule they can address this issue at the next case conference.

e) A referral shall be made to the Office of the Children's Lawyer. The parents are to submit the necessary intake forms within 14 days.

f) A copy of this decision is to be sent by the court to the Office of the Children's Lawyer, which is requested to accept this case and deal with it on an expedited basis for the reasons set out in this decision.

g) The father shall pay to the mother the table amount of child support for two children based on his income of $69,122 per annum. This amount is $1,024 per month and shall start on July 1, 2012. The father is to be credited with any child support paid to the mother since July 1, 2012. The child support is subject to adjustment once full financial disclosure is obtained.

h) A support deduction order shall issue.

[37] In the event that either party seeks their costs of this motion, they are to serve and file written submissions no later than July 25, 2012. The other party will then have until August 3, 2012 to serve and file any written response. The submissions shall not exceed three pages, not including any offer to settle or bill of costs.

[38] The next appearance shall be scheduled for a case conference on September 7, 2012 at 10:00 a.m. If this date poses a difficulty for either counsel, they should arrange the closest available date with the trial coordinator's office.

[39] I thank counsel for their effective presentation of this motion.

Justice S.B. Sherr

Released: July 17, 2012

[^1]: The mother deposed that she has made arrangements for the children to remain in contact with their friends in Toronto through email and Skype communication.