Court File and Parties

Court File No.: FO334-12 Date: 2012-10-23 Ontario Court of Justice

Between: Justin Cory Doucette Applicant

— And —

Megan Doucette (nee Belanger) Respondent

Before: Justice Lawrence J. Klein

Heard on: October 18, 2012

Reasons for Judgment released on: October 23, 2012

Counsel:

• Steven Turner for the applicant(s)
• Louis-Marc Hurtubise (Duty Counsel) for the respondent(s)

KLEIN, J.:

Background

[1] This matter was brought before this Court by the Applicant father, Justin Cory Doucette, on October 18, 2012 by way of motion dated October 11, 2012 prior to the first date for the return of the Application on November 15, 2012.

[2] The motion asked for the following relief:

a) An order that the Respondent, Megan Doucette, not be allowed to move with the children, Gavin Emile Marcel Doucette, born 30 September, 2006 and Makaela Elizabeth Doucette, born 13 September, 2009, from the Mattawa area until further order of the Court;

b) An order that the Applicant, Justin Cory Doucette, have temporary custody of the children until a Final Order can be made;

c) An order for short service of this motion.

[3] The Respondent mother, Megan Belanger (formerly Doucette), responded with an Affidavit dated October 18, 2012 and filed in court. In that affidavit she disputed much of the claims made by the Applicant and asked that she be permitted to move to the Ottawa area with the children as it was in their best interests to do so. The Respondent also made proposals for access every second weekend together with daily access through Skype. More fulsome access proposals involving holiday time were also made but do not figure into the determination that I am required to make at this point.

[4] From the rather scant record that was before me I can conclude that the parties separated in May 2010 and the children have resided with the Respondent mother as their primary residence while the Applicant father enjoyed reasonable and generous access. Support was paid by the Applicant father but it appears to have been not in a fixed amount and somewhat sporadic in nature. There has been no formal agreement or arrangement arrived at by the parties with regards to custody, access or child support. However, I can conclude that the above situation amounts to the status quo that was in effect when this matter came before the court.

The Proposed Relocation

[5] The Respondent mother advised the Applicant father of her intention to relocate with the children to Limoges, Ontario which is 20 minutes east of Ottawa about three weeks prior to this matter coming before the Court. She and the children will reside with her partner of about one year's duration, Jamie Brazeau. She has made plans to enrol Gavin in a French Catholic Elementary School and in his beloved hockey. Makaela has a daycare space available at Gavin's school. Further, she has obtained employment at the Russell Foodland which is similar employment to that which she presently has in Mattawa.

[6] According to the Respondent, the move is necessary due to the sporadic and unpredictable nature and quality of the child support that she presently receives from the Applicant. This support arrangement, or lack thereof, has existed on an informal basis since separation in May 2010 and has never been the subject of court proceedings or of a court order, temporary or otherwise. The Respondent further asserts that financially, the move would be better for herself and the children as she would have a better paying job and would not have the financial burden of paying rent. She advised the court that in anticipation of this move she had given up the rental accommodation presently enjoyed by she and the children effective the end of this month.

Applicant's Concerns

[7] The Applicant father contended that the Respondent's primary motive for moving to Limoges is to be with her new partner, Jamie Brazeau, a man who is well-known to the Applicant. He revealed a number of allegations against Mr. Brazeau including his past substance abuse issues which led to a criminal record. The Applicant does not want his children being in the company of Mr. Brazeau. The Respondent was aware of Mr. Brazeau's drinking and driving type offences but contended that such is not an issue and that Mr. Brazeau had obtained a pardon.

[8] The Respondent has raised issues as to the quality of the access that the Respondent presently enjoys with the children. She alleged that all too often the Applicant spent the majority of his time with Gavin while leaving the care of Makaela to his parents. This is a legitimate concern of the Respondent as she feels that their daughter is being "left behind".

The Law

[9] The relevant factors for the Court to consider in a so-called mobility case such as is before this Court have been laid out in the leading case Gordon v. Goertz, [1996] 2 S.C.R. 27. This was a matter that was not an originating application but a variation of an existing custody/access arrangement. It has been extensively reviewed and considered by courts at all levels.

[10] In the case before this Court the motion is to prevent, at an interim stage, the move of the children by the de facto custodial parent, the Respondent mother. By its very nature, a motion for a temporary order whether to prevent or allow a move, is based on only a very superficial review of the facts presented by both sides. Having said that, there is nothing at law to prevent the making of a temporary order. The Court should be reluctant to upset the status quo if there is a genuine issue for trial. There may be compelling circumstances that permit the move. The best interests of the children demand some level of stability unless there are compelling circumstances. Such temporary orders permitting a move may be allowed if there is a strong probability that the de facto custodial parent will be successful at trial.

Analysis

[11] The proposed move will impact the Applicant father's regular and frequent access to the children and they to him. The present arrangement is flexible and requires little effort to facilitate. The proposed access arrangements, even on a temporary basis, are much more complicated and require a significant expenditure of time and effort on the part of both parents (and the children). Even with optimal travel conditions, the round-trip to the proposed transfer point in Pembroke would be at least 3.5 hours if not more.

[12] This Court is acutely aware that the Respondent mother made the unfortunate decision to give up the rental accommodations that she and the children presently occupy in Mattawa. This could be seen by some as an attempt to, in effect, tie the hands of this Court or to pre-judge the result. I do not perceive that as being the motivation. I am convinced that it was done so on a misinformed belief that such a move would go unchallenged by the Applicant. That decision remains a problem but is not determinative of anything.

[13] A more compelling reason to permit the move might be the loss of a financial benefit to the Respondent and the children if the move is prevented by the Court. This would be a relevant factor if the Respondent were moving to undertake new and more lucrative employment such as a promotion within her present field. I am not convinced that the move to a rent-free situation is contemplated as being a compelling reason to permit the move by the legal authorities perused by this Court. A proper temporary child support order with the usual enforcement mechanisms might very well address all or most of the financial needs of the Respondent and the children.

[14] This Court should be reluctant to not allow the move if the practical result of such an order on a temporary basis would result in a change in the status quo. If the move were made at the request of the Respondent's employer or as a result of the Respondent facing unemployment due to the closure of her present workplace, this Court would be much more reluctant to refuse permission to move. Such is not the case in the material before me. Although a denial of this move might possibly upset the de facto custodial arrangement, this Court is not convinced that that is necessarily the result that would follow.

[15] The granting of a temporary order to allow the move to Limoges might be appropriate if the genuine issue for trial, i.e. the custody/access continuum were such that there is a strong probability that the de facto custodial parent, the Respondent mother, would be the successful party after a trial. From the scant material before me, I cannot say that such a strong probability exists. There are simply too many unanswered questions as to what is in the best interests of these two children.

Decision

[16] A temporary order shall be issued as follows:

1. The children, Gavin Emile Marcel Doucette, born 30 September, 2006 and Makaela Elizabeth Doucette, born 13 September, 2009, shall remain in the care and custody of their mother, the Respondent, Megan Belanger (formerly Doucette).

2. The Applicant father, Justin Cory Doucette, shall enjoy reasonable access with the children upon reasonable notice to the Respondent.

3. The Respondent, Megan Belanger (formerly Doucette) shall not move the residence of the children from the Mattawa area without first obtaining permission from this Court.

4. There shall be the usual police assistance clause included in this order.

5. The parties shall serve and file sworn Financial Statements together with copies of recent pay stubs in order for the Court to properly adjudicate on the issue of child support.

6. This matter shall be returnable before this Court on November 15, 2012 at 9:00 a.m. for hearing on issue of temporary child support.

Released: October 23, 2012

Signed: "Justice Lawrence J. Klein"