Court File and Parties

Court File No.: 10/3321 Date: 2013-06-12 Ontario Court of Justice

Between: Mark Lewis Jones, Applicant

— And —

Mandy Lee Jones, Respondent

Before: Justice P.A. Hardman

Heard on: June 5, 2013

Reasons for Judgment released on: June 12, 2013

Counsel:

• Ms. Anna Towlson, for the applicant
• Mr. Raymond Wrubel, for the respondent

Reasons for Judgment

Hardman, J.:

[1] Introduction

[1] There are two matters before the court, a motion by the applicant father asking the court to find the respondent mother in contempt of an order dated October 7, 2011 and a motion to change that same order brought by the respondent mother.

Background

[2] During their six year marriage, the mother and the father had two children, a daughter M born May 2006 and a son E born March 2009. In November 2010 the father brought an application seeking custody as the mother had taken the two children and moved to Lindsay without his consent. He noted that M had been enrolled in and enjoying activities in Cambridge at the time. The mother answered the application by seeking custody for herself. She stated that she was suffering from fibromyalgia and post partum depression that was aggravated by the negative and stressful environment with the father. She appeared to have had the support of counselling as well as subsidized housing while in Lindsay.

[3] During the course of those proceedings, involvement of the Office of the Children's Lawyer (OCL) was requested on April 1, 2011. The OCL conducted a Courts of Justice Act (R.S.O. 1990, c.C.43 as am.) section 112 investigation and a report dated September 2, 2011 was filed with the court. In the report, the investigator noted that the mother had moved to Lindsay "principally because that was where she had the necessary supports".

[4] Although the mother had already graduated once from college in general arts and sciences, by the time the report was available to the court, the mother had again enrolled in college, this time to become a personal support worker.

[5] Despite that report recommending sole custody to the mother, the parties entered into a consent order of joint custody on October 7th, 2011. It is clear from the agreement that the mother's ongoing attendance at college was one of the considerations in the resolution reached.

[6] On October 7th, 2011, the mother and father both represented by counsel filed a written consent that contained the following clause:

"12. The respondent shall attempt to secure employment within the vicinity of the jurisdiction of the Region of Waterloo or surrounding area upon completion of her current schooling. The order shall be reviewable within three months of the Respondent's completion of her schooling."

Recent Court Proceedings

[7] When it appeared to the father that the mother was not honouring her commitment to find a job in or around the Region of Waterloo after graduation, he brought a Notice of Motion in July 2012 seeking a finding that the mother was in contempt of the order as she had failed to establish that she had even looked for work as she had undertaken to do. It appeared that the mother had completed her schooling in April 2012 but had taken a job in the Lindsay area. He noted in that motion that the mother told him that she had no intention of returning to the Region. He stated in his affidavit that the only reason that he had agreed to her keeping the children in Lindsay was because she had said that she would look for work in Cambridge after her schooling was complete.

[8] On August 10, 2012, the return date of the motion, the mother was given until August 24, 2012 to file responding material with the father having the right of reply September 7, 2012 and the contempt was set to be heard on September 28, 2012 for an hour and a half. However, the mother did not file any materials until the hearing of the contempt on September 28, 2012. In the affidavit that she eventually filed, she does not appear to really refer to her contempt of the order but addresses instead why she wants to stay in Lindsay.

[9] On September 28, 2012, Justice McSorley found the mother in contempt of the order for not making adequate attempts to seek employment in the Region of Waterloo. Costs were ordered by that court in the amount of $3500 to be paid at the rate of $300/month. At the same time on consent the child support paid by the father was adjusted to $1191/month to reflect his 2011 earnings of $81,600.

[10] That court endorsed that the mother should commence a motion to change (MTC), presumably because she did not intend to comply with the existing order. That motion was to be served and filed by October 22, 2012. Then the matter, presumably the motion for contempt, was adjourned to November 14, 2012. The mother however did not bring her MTC as directed by the court order but brought it to court on the return date, necessitating an adjournment for the father's reply.

[11] On November 14, 2012, Justice Lynch ordered that the mother serve and file an affidavit before January 14, 2013 setting out her employment search efforts in the Waterloo Region area since May 2012 together with the specific outcomes of those searches. The matter was put over to January 23, 2013 for a settlement conference.

[12] On that date, Justice Caspers noted in the endorsement that the mother had not paid the costs ordered September 28, 2012, had not complied with the order of Justice Lynch and further had not filed a settlement conference brief in preparation for the settlement conference. Justice Caspers made an interim order that the residence of the children was to be returned to the jurisdiction of Kitchener-Waterloo by April 1, 2013, failing which the mother's pleadings were to be struck and the primary residence of the children changed to the father's home. The matter was adjourned to April 10, 2013.

[13] During the adjournment, the mother late filed an appeal of the interim order and the order was stayed by the Superior Court pending the appeal.

[14] On April 10, 2013, the matter was set for argument June 5, 2013 with the mother to file by May 10, the father by May 27 and the mother's reply by May 31, 2013. Once again the mother failed to meet her filing deadline but ultimately filed an affidavit.

At the commencement of the hearing on June 5, 2013, it was clarified that the mother was acknowledging the jurisdiction of the court and not seeking a transfer to Lindsay. Further, both parties agreed that they were not seeking a Family Rule 15(26) direction for a trial.

[15] Prior to the commencement of the hearing, counsel acknowledged that proceeding with the MTC meant that any appeal of the interim order was moot as this court would make a final determination. It appeared to be the consensus of the parties and their counsel that the motion regarding the contempt also remained outstanding for final resolution.

Material Change in Circumstances

[16] Counsel made a number of different submissions regarding whether there was a material change of circumstances that would warrant a change in the original order. The mother is asking the court to simply delete her obligation to look for work in Waterloo Region. The father, however, is seeking to have an order returning the children to the Region with a change of primary residence if the mother chooses not to come. He also wants the mother's continuing contempt to be acknowledged.

[17] Section 29 of the Children's Law Reform Act (R.S.O. 1990, c.C.12, as am.) (CLRA) directs that a court must be satisfied that there has been "a material change of circumstances that affects or is likely to affect the best interests of the child". As this court noted in Pittman v. Cunning released May 17, 2013, it is well established that the last order is presumed to be correct and there must be a material change of circumstances requiring the existing order to change (Bubis v. Jones [2000] O.J. No.2299 (Ont.CA) ; Crawford v. Dixon , [2001] O.J. No. 466 (Ont. S.C.J.)). Further the onus on the moving party is an onerous one as that party must demonstrate that the past order cannot continue (Forrest v, Saliba ). In Gordon v. Goertz , the Supreme Court of Canada directed that the moving party must establish on a balance of probabilities that there has been a material change of circumstances warranting a change in the order prior to the court dealing with the merits of a matter.

[18] In this matter, I am satisfied that the merits of the motion to change should be considered. There has been a material change in circumstances affecting the best interests of the children.

[19] There are a few reasons to reach this conclusion.

[20] First of all, the mother has been found by a court to have failed to comply with a term of the original order, a term considered the foundation according to the father for his original agreement to the order. Given the evidence of the work available in the Region provided to the court by the father, the mother if she had sought employment would have found it and the children would have moved closer to their father who shared joint custody. The fact that the mother has been found to have failed to follow through has created a material change in a circumstance affecting the best interests of the children.

[21] Another consideration is that it appears that an opportunity for review was included in the order. In term 12, it states that the order is reviewable: "This order shall be reviewable within three months of the respondent's completion of her schooling."

[22] Clearly the mother would have no need of review if she had made a genuine attempt to find work in the Region and was unable to do so. She would have satisfied that term and could not be held in contempt. If she followed through and found work, once again no change would be necessary regarding access and primary residence. Other terms such as access transportation would no longer be relevant.

[23] The real need for review would appear to be if the mother failed to follow through and refused to return the children to the jurisdiction. It must be remembered that the mother had removed the children from the jurisdiction without the father's consent and, given the case law on mobility, the father would have had a strong argument for their return at the time of the first proceeding. It appears that he decided to let the children stay in Lindsay on the condition that she try to find a job and return to the Region after graduation.

[24] Therefore I am satisfied that there has been a change material to the best interests of the children and that the merits of the MTC should be considered.

Issues

[25] It is concerning to review the mother's apparent attitude to the proceedings and the court order. It seems clear that she has made little attempt to try to find work in Waterloo Region. What little evidence she has provided is not dated, not particularized and woefully late. In her evidence she focuses on the children's school, ballet, friends, her parents and their subsidized home as being arguments for the children to stay in Lindsay. She complains about the father being angry at the same time that she is forcing him to go to court to enforce their original agreement. She does not identify any benefit to the children in being close to both parents.

[26] In her material, the mother tries to portray the father as a person with huge anger management problems and control issues. However, she agreed to share custody with him contrary to the recommendations of the OCL. Also, the order in 2011 did not direct the father to counselling. And the mother did agree to try to find work so that she could come back to the Region with the children.

[27] While no doubt there needs to be work between the parents to make the joint custody successful, some of the complaints are no doubt related to the father's frustration at having to be in court in 2012 and 2013 regarding an agreement they made in 2011. Unfortunately an active matter at court often appears to heighten acrimony between the parents.

[28] I think that it is helpful to examine the investigator's view of the parties at the time of the consent order. There appeared to be a real reluctance in the OCL report in the consideration of leaving the children with the mother so far away (page 10-11):

"Given the conflict between the parties this is not a case where a shared access arrangement would be in the best interest of the children. Nonetheless, the move means that the children will see their father less than they would if they lived in the Cambridge area."

[29] The report identifies the distance between the children and the father as a problem for the children. The investigator goes on to state (page 11):

"The other problem with the distance between the parties is the lengthy car ride for access (according to Google Maps the parties residences are 221 km apart-2 hr 52 min drive). This car ride is undoubtedly particularly difficult for young children."

[30] Having identified that the lack of contact with their father and the long car rides are not in the best interest of the children, the investigator goes on to state what would be the preferred solution (page11):

"Ms. Jones could reside in the Cambridge area and have in place measures that ensure that she and Mr. Jones have no direct contact. There could be supervised transfers or stipulations preventing him from coming near her home or place of employment."

[31] It is clear that from the investigator's perspective the mother's decision to continue to live in Lindsay is not a choice that is in the best interests of the children. The fact that the report recommends that the mother do all the driving emphasizes the investigator's view that the mother is making the choice to live so far away for herself, not because of safety concerns caused by the father's behaviour and certainly not for the best interests of the children.

Relationship with the Children

[32] During the investigation, the children were observed interacting with each parent separately. The investigator concluded that both children appeared to have a solid relationship with each of the parents and that both parents appeared capable of caring for the children. It was noted that the father attended all of his access visits.

[33] While the investigator noted that he had "little in the way of evidence of Mr. Jones' ability to look after the children, on his own, on an ongoing basis" (page10), it must be kept in mind that the children were removed from his care so there would be no opportunity for the father to show what kind of a single parent he would be.

[34] The mother's view is that the stability of the children outweighs the addition of a mid-week access to the father. However, the father has asked that he be a bigger part of the children's lives, including their schooling, activities and care. His position is that it is not an issue of two extra hours on one school night but the opportunity to play a larger role as a joint custodial parent.

Stability

[35] The mother's primary position is that she has made a life for herself and the children in Lindsay and that is where she wants to stay. She points out that the children are happy with their home, their activities, their friends and their school. She notes that she has good daycare providers and the support of her parents. She states that the stability of the children should be the primary consideration.

[36] While it is true that it is generally in the best interests of children to maintain stability in their lives, it must be noted that it was their mother who removed the children from their home in Cambridge causing M to change schools, friends and her dance involvement. Further, the children have changed homes since being in the Lindsay area and M has changed schools yet again.

[37] While the court is not taking issue with the mother's decisions, it is clear that sometimes it is in the best interests of children to change their existing circumstances.

[38] It should be noted that the biggest change for these children was caused by the mother's unilateral action to move and that move interfered with the relationship between the children and their father. It is of interest to note that the OCL investigation stated that despite the number of collaterals contacted, no confirmation of any domestic violence was found.

[39] Both these parents are able to provide a stable home for these children. Both parents have family support. The father has identified the ability of his mother to assist with the children should they return to the area as she will move in with him if the children are primarily with him. While the mother is critical of her help in the past, she appears to have made a commitment to assist in caring for the children.

Employment and Housing

[40] As has been noted, the mother has not provided a full employment search as was court-ordered. Neither does she state that she cannot find employment in her field in the Region. Indeed, she is currently working for ParaMed, an agency with its head office in this Region. That agency appears to employ people throughout this Region as well. It may very well be that the mother need only apply for a transfer! The mother has not addressed the issue.

[41] At one point the mother complained about the higher cost of living in this area. However, it must be noted that there are a number of smaller communities within the Region that presumably would provide lower cost housing. Once again the mother has provided little by way of evidence about her efforts to obtain housing and any difficulties she has encountered.

Application of the Law

[42] While the mother's response to the court order and the proceedings is concerning, any decision affecting the children must be made in their best interests. Part III of the CLRA regarding custody and access sets out the purposes of this part of the Act. Subsection 19(a) identifies the first purpose as being to "ensure that applications to the court in respect of custody of, incidents of custody of, access to and guardianship for children will be determined on the basis of the best interests of the children".

[43] Section 24 directs the court to determine the "merits of any application under this Part in respect of custody of or access to a child" to be determined "on the basis of the best interests of the child".

[44] The father has asked the court to make a determination of where the children are to live, a clear incident of custody. As well, he has sought an order that the children be in his primary care if the mother does not return to the jurisdiction.

What Decision is in the Best Interests of These Children?

[45] In examining the merits of a case and determining whether an order might be in the best interests of a child, the court is directed to consider the needs and circumstances identified in subsection 24(2).

[46] In this case:

• There is "love, affection and emotional ties" between the children and each parent and their respective families;
• Both parents appear "willing and able to provide the children with guidance and education, (and) the necessaries of life";
• Both plans proposed provide permanence and stability for the family unit; and
• Both the parents appear to have the ability to act as a parent.

[47] The court must also consider the "relationship by blood" of each person involved in the application. As this court noted in Pittman v. Cunning (above), there is an "emphasis on family and biological connection but it is also coupled with the importance of examining what a parent is `bringing to the table' that will address the child's best interests" (page 14).

[48] The fact that the issue before the court involves the relationship between the children and their parents is important as parents have special status in the act.

[49] Section 20 identifies that the mother and the father start out equally entitled by law to have custody. Further, courts have recognized how important it is for children to have as much contact as possible in the circumstances with each parent.

[50] Many of the cases dealing with one parent's desire to relocate and thus interfere with the contact between the other parent and the children emphasize how important it is for children to have as much contact as possible with both of their parents.

[51] The Supreme Court of Canada in Gordon v. Goertz emphasized a child-centred perspective that took into consideration the relationship of the child and the parents and the importance of maximizing contact between the child and both parents. That court also noted that the move was only relevant to the parent's ability to meet the child's needs.

[52] It is unfortunate that so much time has passed. Certainly the father reacted immediately to the mother's decision not to consider returning to the area. Further, it is concerning that the father may have been misled by the mother about her intentions, regardless of the spin she now tries to put on the interpretation of the term 12. But the court's consideration must be based on the best interests of the children at this time, not what may have caused the separation of the father from the children or what he assumed would be the outcome of the consent order.

[53] Certainly in this matter the children were already disrupted once by the mother taking the children away from the father. The consent order was made eleven months after the mother left, made in anticipation that the delay would only be to the following spring 2012. At this point, however, the children have been in Lindsay in the mother's care two and a half years. Do concerns about a further disruption at this time outweigh the loss of more extensive contact with their other parent?

[54] In examining the particular circumstances of these children, a number of considerations should be noted.

[55] The children are still very young, M being now just seven and E age three. The younger child E has yet to start school. There are a number of years ahead for the children to develop and enjoy their relationship as children with their parents. It is unlikely that a change in school or community at this young age will impact the children long term given the supportive approach of both the parents. A move at this time would provide the opportunity for them to develop a more extensive relationship with their father. The greater involvement of their father has the potential of affecting every aspect of their lives as they move forward.

[56] While it is true that the children are thriving in the mother's care, there is no evidence to suggest that a move for the children is likely to disturb their wellbeing. It seems clear that the children have a good relationship with both parents. It should be kept in mind that families often move, causing their children to change schools, friends and homes. As long as they have supportive parents, children are generally able to cope successfully with the move.

[57] Further, the mother has made it clear by affidavit and submission that she is prepared if the court finds in the father's favour to move to the Cambridge area and remain as the children's primary residence. This of course was the solution contemplated by the OCL in their report in September 2011 but resisted by the mother.

[58] While the mother has significant family and friend support in the Lindsay area, the issue here is what is in the best interests of the children, not what the mother may prefer. While the distance to Lindsay is far for regular access, sometimes up to four hours in bad traffic and weather according to the evidence, it is not too far for extended family visiting, especially when those members can drive to the children as well.

[59] The emphasis in this matter can and should be on the benefits for the children to have both parents more involved in their lives.

[60] It is of interest to note that the parents seem to be able for the most part to work out the practical details of access between them, despite the OCL's concern about an order of joint custody. This cooperation will hopefully continue in the future.

[61] Given all these considerations, the court is prepared to order that the residence of the children is to be returned to the Regional Municipality of Waterloo.

[62] As the father is content with the mother maintaining the primary residence for the children if she returns to the area, and given the advent of school summer holidays, I am prepared to note that the residence must be established by September 1, 2013 to allow the mother to relocate. Should the mother experience a delay in obtaining suitable accommodation, then the children can commence the school year in the father's care. Hopefully this will not happen as the sooner the mother knows her residence and hence school district, the less chance of another change for the children.

[63] Should for any reason the mother not move to the area, then the children will reside in the father's care and that will become their primary residence.

[64] I am hopeful that these two parents will be able to move forward in the future to cooperatively parent these children, recognizing that it is important for the children to have a good relationship with both of them. Further, it is expected that they will remain cooperative with and respectful toward each other and that they will seek out individual counselling or joint counselling when it is necessary to ensure conflict free interaction.

Contempt

[65] In dealing with the ongoing issue of the Notice of Motion regarding the contempt, it seems to me that that matter is complete. The mother was already found in contempt and in my view that should have been the end of it. Further, the mother has agreed to return the children to the area if ordered and that was what the contempt was all about. Should the mother fail to obey this order, a new motion should be brought for the court to consider what remedy is appropriate.

[66] As the mother was found in contempt, it cannot be said to be dismissed. The term requiring the mother to seek employment in this jurisdiction will be deleted and replaced with the requirement of returning the children's residence to the jurisdiction.

Order

The Final Order of Justice Caspers made October 7, 2011 is amended as follows:

1. Term 12 regarding the obligation to seek employment is terminated.

2. The primary residence of the children is to be returned to the Region of Waterloo or as otherwise agreed by the parties in writing on or before September 1, 2013.

3. Should the mother relocate to the Region, then she shall maintain the primary residence of the children subject to the access by the father. Should she fail to relocate by September 1, 2013, then the children shall reside in the father's primary care subject to access by the mother as agreed by the parties.

4. When the children have returned to the Region to live, and if they remain in the mother's care, the father shall also have midweek access as arranged by the parties together with any other access by consent. Such access is in addition to the access already set out in the order.

5. The balance of the order is to remain in force except for term 7 child support which was amended by order of Justice McSorley on September 28, 2012.

6. The issue of the contempt is complete with the finding that the mother was in contempt by Justice McSorley on September 28, 2012.

7. Should either party seek costs, that party shall serve and file his or her submissions including the particulars of the claim on or before September 6, 2013. Any response to the submissions for costs shall be served and filed within 30 days of the receipt of the claim for costs. The party seeking the costs shall serve and file reply within 14 days of the receipt of the responding submission.

Released: June 12, 2013

Signed: "P.A. Hardman"