Court File and Parties
Date: April 11, 2019 Court File Number: 49/14 Ontario Court of Justice at Orangeville
Between: Jessica Emily Eddy Applicant
and
Christopher Lee Curtis Erb Respondent
Before: Justice B.E. Pugsley
Heard: April 10th, 2019 Released: April 11th, 2019
Appearances
Applicant and counsel: Julia Bradley Respondent and duty counsel: Jennifer Brown
Endorsement
Background and Procedural History
[1] The parties are the parents of the child C. (M)(DOB: […], 2012).
[2] They lived together for two and a half years and separated when C. was 9 months old. In 2014 the Applicant (mother) commenced an application. After a year and a half of litigation they settled the case by a consent final order made by Justice D.B. Maund on November 25th, 2015.
[3] The consent order provided for joint custody with primary residence being in the care of the Applicant and defined access to the Respondent (father). The Respondent paid child support and the parties shared section 7 Child Support Guidelines (Ontario) extraordinary expenses.
[4] The order provided as well that unless the parties agreed otherwise the child would reside in the Town of Shelburne and go to school there until he finished high school.
[5] On March 22nd, 2017, the Respondent commenced a Motion to Change Justice Maund's order. He asked for sole custody of the child and defined access to the Applicant. He sought an order changing the child's school to Orangeville. The sole basis for the change set out in his Change Information Form was that the change was needed because his lifestyle was more stable.
[6] The Applicant's Response sought sole custody to her and that access remain the same as decided in 2015. She did not set out in her pleading why sole custody was an appropriate change.
[7] Although only just entering into the school system C. was presenting with significant behavioural issues.
[8] At the time of the Motion to Change the child resided in the primary care of the Applicant (Mother) in Shelburne and the Defendant resided in Orangeville.
Office of the Children's Lawyer Involvement
[9] The Office of the Children's Lawyer ("OCL") agreed to assist the court and appointed a social worker here. Upon the receipt of the interim OCL report in December, 2017, the parties agreed to a period of shared residence wherein C. shuttled between the parents homes. In January of 2018 the Applicant moved to Orangeville and C. changed schools. No one was upset with this move.
[10] C. was assisted by counselling available to the parties through the school board and the local children's mental health authorities.
[11] The final OCL report was delivered in July of 2018. The report recommended that the shared residence regime continue and observed a continuing degree of tension between the parties with regard to their decision making and communication. The reports both recommended that C. continue to go to his present school in Orangeville.
[12] After a number of adjournments the parties agreed to have a settlement conference held on April 10th, 2019.
The Mobility Issue
[13] On February 28th, 2019, the Respondent moved without notice to prevent a move by the Applicant to Milton, Ontario. The motion was dismissed.
[14] The parties then both moved by motion and cross-motion returnable on March 13th, 2019, for temporary relief. Those motions were adjourned to April 10th, 2019 for argument.
[15] The Respondent's motion (Tab 28) was to prevent the move to Milton or, in the alternative, to have the child reside with him in Orangeville during the week.
[16] The Applicant's cross-motion (Tab 29) was for sole custody and to have the Respondent's residential time changed from shared residency to supervised access at the Family Visit Centre in Orangeville, with drug testing.
[17] The Applicant told the Respondent in January that she and the child intended to move to Milton, and that they were forced to do so by a number of circumstances beyond their control having to do with accommodation. In short the rental home she shared with her fiancé in Orangeville was not going to be available and a home her fiancé owned in Milton was going to be without a tenant at the same time, so the move was inevitable.
[18] The Applicant has for the time being driven the child back and forth to school while in her residential care under the current temporary order.
Allegations and Positions
[19] The Applicant believes that the Respondent is violent, has turned the child against her and is using drugs such that his care of the child is compromised. Her affidavit includes a text message from the recent girlfriend of the Respondent. She hopes to change C.'s school to Milton in the future.
[20] The Respondent agrees that at some point the Applicant spoke about moving to Milton, but without saying when that might happen. He then learned from his son that the move was coming in only a couple of days. He notes that the final order restricted any move out of Shelburne. He notes considerable instability in the Applicant's past accommodation and relationship issues and states that the OCL report strongly recommended that C. not be moved from his school. He denies any misuse of non-prescription drugs and states that his former girlfriend is not unbiased in this matter but has stated her intention to gain revenge on him after the end of their relationship. The Respondent accepts that he has been emotional here in the past but denies that he has no control over his temper.
[21] Each party notes that C. has been late to school on days when he has resided in the care of the other party.
[22] Both seek to overturn the consent temporary order in their favour by having sole custody of the child. The Respondent would ask the court to make the Applicant move back to Orangeville if his request for custody is not granted.
[23] Regardless of the result of these motions the parties agree that the OCL ought to be asked to become re-involved here. I will make that request.
Judicial Analysis
[24] The motion and cross-motion here are framed as engaging custody and safety issues, but the real and only present issue is mobility and how that will affect C.
[25] While the final order here did provide for C.'s continued residency in Shelburne, that order has been long overtaken by events: first by the Applicant's move with him to Orangeville, and then by the parties acceptance of the interim recommendation of the OCL social worker to have them share residency of C. For a while that arrangement has worked but the tensions around the Applicant's unilateral decision to move to Milton and the geographical consequences of that move have thrown a wrench into that plan.
[26] The Applicant portrays the move to Milton as being an unavoidable result of her landlord's decision to require vacant possession in Orangeville, but up until that time the Applicant and her fiancé had been happy to live in Orangeville and rent out her fiancé's house in Milton. While the move to Milton was a practical solution to their need to move out, it was by no means the only nor inevitable solution. The Applicant chose to move on little if any notice and risk the consequences of a move in mid-application while she knew that there were unsettled issues to be discussed at the Settlement Conference which had been scheduled for April 10th, 2019.
[27] The Respondent immediately sought to stop that move by court order. He framed the order as one needed to protect C., but the real motivation was to mess with the Applicant and her fiancé.
[28] The Applicant's tit-for-tat response immediately attacked the Respondent's ability to safely care for C., escalating this issue by allegations of drug abuse and seeking to change the shared residency to supervised access.
[29] The Applicant's safety issues and fear of the Respondent were only formally raised after the Respondent moved to block her move to Milton. Before then she raised no such issue, and indeed agreed to shared custody which she has continued to facilitate since her move in March of this year.
[30] If there are child protection concerns then Dufferin Child and Family Services, and/or the police have a public and legislative duty to act. They have not done so.
[31] The status quo that each party seeks to change has been a relatively recent status quo engineered by the parties on consent with the careful help of the OCL that has indeed brought welcome stability to C.
[32] I conclude on this record that I should look behind the express motivations of the parties to determine whether that status quo may be continued in the interim and I conclude that it should be continued. The Applicant's ill-advised move to Milton should not now be reversed, but neither should the need to share C.'s residency and his stable school routine. The Applicant will bear the burden of continuing to transport C. to school while this matter continues its short term path through the courts. Whether that pattern can be continued in the longer term is not my issue for today. Perhaps the OCL will assist here, or perhaps the parties will be able to work together for C.'s sake.
[33] There is no basis on this evidence to restrict the Respondent's care of C. I am not convinced that anything has changed since the parties agreed that the shared residency should be established and C. appears to be thriving in his current school.
[34] It is appropriate to restrict how both parties portray the other side to their child, and to restrict the consumption of illicit drugs and excess alcohol while in their care. Showing respect to the mother and father of their child is essential to raise him to be a responsible adult in the future and to avoid him learning to gain the illusion of favour from a parent by playing one parent off against the other.
Costs
[35] Neither party referenced costs at the hearing of these motions. As success has been divided, I will only consider the question of costs if an offer to settle these motions can be referenced by the party seeking costs. If such offers have been made then the Applicant may make submissions for costs within ten days of the release of this order, and the Respondent within five days thereafter. Submissions must be no longer than two double spaced A2 size pages, exclusive of offers and bill of costs.
Order
[36] I therefore resolve these motions as follows on a temporary basis, not on consent:
The Applicant's move to Milton is permitted.
The parties shall continue to share residency on the basis of the existing order dated November 15th, 2017, whereby the child spends time with each party during the week and on weekends.
The Applicant shall transport the child to and from […] School in Orangeville on those school days when he is in her residential care.
Neither party is permitted to discuss the conduct or character of the other party with the child, or in his presence, nor allow anyone else to do so save in the context of any future OCL investigation.
Neither party shall consume any drugs prohibited by law while the child is in that person's residential care.
Neither party shall consume alcohol to excess while the child is in that person's residential care.
Unless a further costs endorsement is made here in accordance with this endorsement, there shall be no order as to costs.
Adjourned to May 29th, 2019 at 10 am to be spoken to pending OCL response, as already endorsed.
Justice B.E. Pugsley OCJ at Orangeville