Court File and Parties

Ontario Court of Justice

Date: 2015-07-30

Court File No.: Kitchener 445-15

Between:

Sarah Cheesman Applicant

— And —

Philip Warder Respondent

Before: Justice L. J. Rogers

Heard on: July 28, 2015

Reasons for Judgment on Motions released on: July 30, 2015

Counsel:

• Scott Sobering, counsel for the applicant
• Alex Toolsie, counsel for the respondent

ROGERS J.:

[1] The Motions

[1] Before me are two motions. The first, commenced by the Respondent Philip Warder on June 22, 2015, seeks an order that the parties' daughter Emily, born June 18, 2008 (now seven) reside with him, and continue to attend St. Agnes Catholic School in Waterloo, Ontario. He also requests the motion be deemed urgent, so it could be heard prior to a case conference, and a police enforcement clause.

[2] The second motion, brought by Sarah Cheesman on July 23, 2015, seeks an order that Emily reside with her in Manitoulin Island, that she be permitted to enrol Emily in school there, and that Mr. Warder have specified periods of access including two weeks in August, two weekends before Christmas, and access through video conversations and telephone. She also seeks the appointment of the Office of the Children's Lawyer.

Background

[3] Ms. Cheesman and Mr. Warder began to cohabit in September 2007, and were married on April 18, 2009. They separated on January 24, 2014, when Mr. Warder left the matrimonial home. The parties signed a Separation Agreement on January 24, 2014, which was witnessed by Eric-Mark Kraushaar, who appended his Notary Seal to the document. It is alleged that neither party had independent legal advice prior to signing the agreement.

[4] The agreement provided that Emily and Ms. Cheesman would "continue to reside at 54-A Ellis Crescent North, Waterloo, Ontario", "until a new residence can be acquired", that Mr. Warder would have "scheduled visitation" with Emily from Friday to Sunday on alternate weekends, he would pay $400.00 every two weeks in child support, and he would pay Ms. Cheesman $850.00 per month representing the "rent and bills" relating to the residence. Mr. Warder also paid a lump sum of $5,700.00 to Ms. Cheesman for his share of the couples' outstanding debt (which I assume she was then responsible to pay) and her share of the couples' car.

[5] In early 2015, the parties, through counsel, started to negotiate a final Separation Agreement on all issues between them. In February 2015, at a four-way meeting of counsel and the parties, it was agreed that Mr. Warder would no longer be paying the rent on Ms. Cheesman's residence. According to Ms. Cheesman, she determined in April 2015 that she could not afford to remain in the apartment on Ellis Crescent, "nor live in alternate accommodations without putting myself and Emily in financial trouble". She determined that she would need to move in with her mother to become financially self-sufficient, and so she gave notice to her landlord that she would be leaving the apartment by June 30, 2015. Ms. Cheesman's mother lives on Manitoulin Island. Ms. Cheesman was employed full-time at the restaurant "Vincenzo's" in Waterloo at $12.50 per hour, at that time.

[6] On May 1, 2015 Mr. Warder's counsel, Lisa Cherry, wrote to Ms. Cheesman's counsel, Mr. Sobering, to advise that Mr. Warder was aware that Ms. Cheesman "may choose to change the child's residence to Manitoulin Island" and that "she simply cannot do so without my client's consent". Ms. Cherry requested that Mr. Sobering provide his client's position on signing the draft Separation Agreement that had been provided.

[7] On May 15, 2015, Mr. Toolsie, new counsel for Mr. Warder, wrote to Mr. Sobering and stated "My client requires written confirmation, signed by your client, confirming she will NOT move outside of Waterloo Region by Friday, May 22, 2015." If no such confirmation was forthcoming, Mr. Warder intended to bring an emergency motion to prevent Emily's removal from the Waterloo Region.

[8] On May 22, 2015, Mr. Sobering replied to Mr. Toolsie's letter by enclosing a copy of his client's Application, being issued that day, in which Ms. Cheesman sought an order permitting her move to Manitoulin Island with Emily. In that letter, Mr. Sobering added "As my client is seeking a court order prior to moving, an emergency motion on the part of your client is not appropriate."

[9] According to Ms. Cheesman, having "decided that it would be best to wait for a court order before moving", she instructed her counsel to advise Mr. Warder's counsel of this. She then states, in the same paragraph of her Affidavit sworn July 23, 2015 that "After finding no alternative accommodations for Emily and myself in Kitchener-Waterloo, I felt that I had no choice by [sic] to move to Manitoulin Island with Emily in June 2015."

[10] Ms. Cheesman has taken a job in a restaurant called "3 Cows and a Cone" on Manitoulin Island, at $11.00 an hour. She has moved into an apartment there with Emily, the rent for which is being paid by her mother.

The Parties' Positions

[11] It is in Emily's best interests to remain in Manitoulin Island, according to Ms. Cheesman, because Ms. Cheesman has a broad support base of family there, her financial situation will improve because her mother pays for her apartment, and her 9-to-5 employment hours allow her to care for Emily in the evenings and on weekends. She states that "meaningful contact" can be maintained between Emily and Mr. Warder.

[12] Mr. Warder submits that it is in Emily's best interests to remain in Kitchener-Waterloo, because she has lived here her entire life, she has friends at school in Waterloo, her father and grandparents have a significant role in Emily's life that will be disrupted by the move, and that his ability to have meaningful contact with Emily will be severely curtailed by virtue of the seven hours of travel time (by car and ferry) between his home and Ms. Cheesman's apartment in Little Current, Manitoulin Island, not to mention the extended travel time in winter and the impact of bad weather.

[13] Ms. Cheesman does not drive, and suggests that her mother and sister would help with transportation for access.

The Law

[14] The leading authority on mobility in custody cases is outlined by the Supreme Court of Canada in Gordon v Goertz, [1996] S.C.R. 27 (S.C.C.). At paragraph 49 of that decision, the Supreme Court of Canada outlines a number of factors that must be considered in a mobility case, which are as follows:

(a) The existing custody and access arrangement and relationship between the child and each of the custodial and access parent;

(b) The desirability of maximizing contact between the child and both parents;

(c) The views of the child (when applicable);

(d) The custodial parent's reason for moving, only in exceptional cases where it is relevant to the parent's ability to meet the needs of the child;

(e) The disruption to the child of the change in custody;

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

[15] However, this test must be considered in the context of the present case, which differs from the situation in Goertz in several respects. Unlike in Goertz, this is not a review of a final order and a consideration of whether or not there has been a material change in circumstances since the final order was made as there has been no order for custody or access to the child at this stage in the present proceedings. Further, this matter comes before the court on an interim motion and the evidence has not yet been tested at a trial. Like in the cases of Kennedy v. Hull, 2005 ONCJ 275 and Datars v. Graham [2007] O.J. No. 3179, this is the first time that either party had sought an order regarding custody and it was only sought due to the move of one of the parents. However, the Ontario Court of Appeal in Bjornson v. Creighton, 62 O.R. (3rd) 236 indicates that the principles outlined in Gordon v. Goertz should also be applied to first instance custody cases.

[16] In the case of Datars v. Graham, at paragraph 16, Quigley J. articulated the challenges faced by the court when deciding issues of mobility on an interim basis:

"The problem that this court faces on this motion, however, as McSorley J. observed in Kennedy, is that it is difficult, if not impossible in most cases to complete the extensive child-focused inquiry required under Gordon v. Goertz on the typically conflicting and incomplete affidavit evidence that is often available to the court on interim motions. Consequently, the general reluctance of the court to effect fundamental changes in a child's lifestyle on interim motions has resulted in a slightly more restrictive approach to interim mobility cases, one that recognizes the short-term nature of interim orders and the summary nature of interim motions. As well, since the decision on an interim motion in a mobility case will often strongly influence the final outcome, particularly where relocation is permitted, caution is called for, especially since even more disruption may be caused in a child's life if an interim order permitting the move is later reversed at trial."

[17] Sherr, J. also supported a cautious approach to interim motions on mobility cases in Downey v. Sterling 2006 ONCJ 490, where at paragraph 12 he indicated that "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".

[18] In the case of Plumley v. Plumley, at paragraph 7, Marshman J. outlines three factors that ought to be applied in deciding mobility cases on an interim basis:

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 which might dictate that a justice 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 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 a trial.

[19] I have reviewed the cases provided by Mr. Sobering in the Applicant's case brief. Except for the Plumley case, the cases are either trial decisions, or appeals of trial decisions. The considerations are very different when the proceeding is before the court on a motion, brought hastily by reason of the circumstances, and the need for early court intervention, with the evidence provided by Affidavits, on which no cross-examinations have been conducted.

Analysis

[20] I have considered the principles outlined in Gordon v. Goertz, and in particular, the factors to be applied in interim mobility motions as set out in Plumley v. Plumley. In this case the Applicant mother has upset the status quo of Emily's residence in Kitchener-Waterloo, and her alternate weekend access with her father. Custody has not been determined, and the final decision on what is in Emily's best interest must await a trial, if the parties cannot agree. The success of Ms. Cheesman's application for sole custody of Emily and a permanent move to Manitoulin Island is not a forgone conclusion, and remains a triable issue.

[21] Ms. Cheesman alleges that her financial circumstances gave her no choice but to move with Emily to Manitoulin Island. I do not accept this premise. Ms. Cheesman agreed to the termination of Mr. Warder's obligation to pay her rent in February 2015. She had full-time employment at Vincenzo's at a higher wage than she earns at 3 Cows and a Cone. She provided no evidence that she could not find a suitable apartment for herself and Emily in Waterloo Region, only her bald allegation that that was the case. She made no attempt to seek Mr. Warder's assistance in finding a home in the area, nor did she canvass whether her mother would help pay her rent in Waterloo Region, as she now does for Ms. Cheesman in Little Current. I must conclude that once Ms. Cheesman decided to move with Emily, some seven hours away from where Emily had lived her whole life, she gave no consideration to the impact that the move would have on Emily's relationship with her father, with her paternal grandparents, and with her friends at school, and in her neighbourhood. She has acted contrary to Emily's best interests in making this move, against Mr. Warder's wishes, and flagrantly reneged on her assurance that she would seek a court order before moving.

[22] It is expected that Ms. Cheesman will find it difficult to undo the living arrangements she so hastily put in place before the motions were heard. However, I adopt the reasoning of Campbell J., in the case of Costello v. McLean [2014] O.J. No. 6082 (SCJ) when he stated, at paragraph 19, in ordering the return of a child taken by the Respondent mother to Newfoundland from Kitchener, Ontario:

"That this order will cause the Respondent 'significant hardship' (as her counsel argues) is as a direct result of her own decision to act without consultation with or input from the Applicant. Any hardship that arises is brought upon her by her own precipitous actions."

[23] Until Emily is returned to Kitchener-Waterloo, and re-settled here, it is premature to consider the involvement of the Office of the Children's Lawyer. Either party may renew that request at a future date.

[24] Therefore, the Application's Motion is dismissed. The child Emily shall be returned to her father's care in Waterloo Region, and may return to reside with her mother if she obtains a suitable residence here. If possible, the parties should re-enrol Emily at St. Agnes Catholic School in Waterloo.

Order

[25] The following temporary order shall issue:

1. The child Emily Warder, born June 18, 2008, shall be returned to her father Philip Warder's home by 7:00 p.m. on Monday, August 3, 2015. Should Mr. Warder be at work, she may be returned to his home in the care of either of her grandparents, Brenda Warder or Owen Warder.

2. In the event that the Applicant, Sarah Cheesman, obtains a residence in Waterloo Region for herself and Emily, Emily shall reside with her mother and continue spending time with her father on alternate weekends and such other times as the parties may agree.

3. Emily shall be re-enrolled, if possible, at St. Agnes Catholic School in Waterloo, for September, 2015.

4. The Waterloo Police Services, Ontario Provincial Police, Royal Canadian Mounted Police, or any other police force having jurisdiction where the said child may be, shall locate, apprehend and deliver said child to the Respondent Philip Warder, should she not be returned to the Region of Waterloo, as ordered in paragraph 1.

5. This matter is adjourned to October 2, 2015, 10:00 a.m., Court 602, for case conference. Briefs are not required.

6. If costs are not agreed on, written submissions for same are to be provided by the Respondent by August 14, 2015 and by the Applicant by August 28, 2015. Submissions are to be no more than five pages.

Released: July 30, 2015

Signed: "Justice L. J. Rogers"