Court File and Parties
Ontario Court of Justice
Date: August 19, 2019
Court File No.: Toronto DFO 16 14268
Between:
Alexia Bell Applicant
— AND —
Bryan Palma Respondent
Before: Justice E. B. Murray
Heard on: August 16, 2019
Reasons for Decision released on: August 19, 2019
Counsel
Mr. Ed Rice — counsel for the applicant
Mr. Leo Monaco — counsel for the respondent
Reasons for Decision
Introduction
[1] Alexia Bell ("Alexia") and Bryan Palma ("Bryan") are the parents of a daughter, Ayla, born in 2015. They separated before Ayla was born.
[2] Since Ayla's birth she and Alexia have lived in Toronto with the maternal grandparents, Graham and Sophie Bell.
[3] Bryan has until quite recently been in the armed forces. His work periodically required him to reside outside Ontario, and, as a result, there were lengthy periods during which he did not have access to Ayla. Bryan has lived in Toronto since April 2018 and has enjoyed regular access since that time.
[4] Alexia and Bryan agreed to the terms of a court order on July 6, 2017 that provided as follows:
- Ayla shall be in the joint custody of the parents.
- Ayla is to reside primarily with Alexia, and with Bryan:
- One day each weekend, from 8:30-4:30, to become alternating weekends from Saturday morning until Sunday evening following the child's third birthday;
- Each Wednesday for 1 ½ hours;
- An additional weekday on alternate weeks, for 1 ½ hours.
- 10 vacation days each year, as arranged by the parties;
- ½ statutory holidays.
In their consent, the parties acknowledged that appropriate access would change as Ayla got older.
- "Ayla's ordinary residence shall continue to be the Greater Toronto Area (up to a maximum of 40 km from the City of Toronto) subject to written agreement between the parties otherwise or court order".
The Motions
[5] In December 2018, in order to join her fiancé, Alexia commenced a Motion to Change seeking permission to change the child's residence to Barrie. Bryan opposed the order sought, and responded with a claim for increased access.
[6] On the motions before me, the parties essentially ask for final orders that mirror the final relief each seeks.
[7] Alexia asks for an order permitting Ayla to reside in Barrie. Bryan opposes the order.
[8] Bryan asks for an order for expanded access, specifying holiday, vacation and special access throughout the year in detail, and a police enforcement clause.
[9] The "regular" access requested by Bryan is essentially what was proposed by Alexia in her December 2018 Motion to Change:
- Alternate weekends, from Friday evening to Sunday evening, to be expanded to Monday evening return if Monday is a statutory holiday;
- One evening each week from after school to 7 p.m., provided that Bryan's to-be established work schedule would accommodate mid-week access.
[10] I advised counsel that I was unable to make the final orders sought pursuant to a Rule 14 motion. Rule 14 allows the court to make orders for temporary relief only.
The Facts
[11] There is little disagreement about the facts relevant to the issues on these motions.
[12] Ayla is a healthy, happy child who has a good relationship with each of her parents. Alexia has been primarily responsible for her care, and Bryan has no criticism of the care she provides. Unlike the case in many disputes about a proposed move, Bryan does not suggest that Ayla should be placed primarily in his care if Alexia moves to Barrie.
[13] Alexia has been in a serious relationship since April 2018 with Wayne Lajoie (Wayne). Wayne is a widower and has two small children in his care, Ottlie (5) and Ellis (2 ½). He works in Midland on different shifts, two weeks of days (10 a.m. to 4 p.m.) and two weeks of afternoons (3:45 p.m. to 12 a.m.). He and Alexia became engaged in late 2018 and began taking steps to blend their families.
[14] They planned that Alexia would be the primary caregiver for all three children and that Wayne would be the primary financial supporter. Alexia has gradually assumed a parenting role with Ottlie and Ellis. Alexia and Wayne aimed in their plans to ensure that Ayla's regular access to her father could continue. To that end, Wayne sold his home in the Midland area, planning to relocate to Barrie, to accommodate Bryan's regular access and still allow Wayne a reasonable drive to work.
[15] Bryan was, because of work, absent from Toronto for much of the first 2 ½ years of Ayla's life.
- He lived in Saskatchewan from prior to her birth to December 2016 when he returned to Toronto.
- In September 2017 he was deployed to Egypt, where he stayed for 8 months. During that period Alexia facilitated his contact with Ayla by Skype.
[16] Bryan returned to Toronto in April 2018. He currently lives temporarily with his parents, and they are included in the visits he has with Ayla. He has exercised access regularly since that time and says that his relationship with the child is positive and "growing".
[17] Alexia agrees that it is important to maintain Ayla's relationship with Bryan. Alexia offers no criticism of Bryan's care of Ayla except to say that when she brought the motion asking to move in December 2018 that Bryan began to "badmouth" Wayne to the child. Bryan says that he "fully supports" Alexia's relationship with Wayne, and that he wants "the home environment of my daughter while in the care of the Applicant to be stable and happy".
[18] Bryan left the forces shortly before the hearing of this motion and is looking for employment in the Toronto area.
[19] After the July 2017 order Alexia and Bryan were able to agree on some access in addition to that set out in the court order on an ad hoc basis. Bryan complains however, that, up until now, Alexia has not agreed to make that extended time a permanent arrangement. Bryan says that he does not trust Alexia to support his relationship with Ayla. He alleges that Alexia has arbitrarily denied or changed visiting times; however, he offers no particulars as to any breaches of the court order, and Alexia denies any violation.
[20] Prior to commencing this action Alexia attempted to negotiate an agreement allowing a move to Barrie without success. She proposed the terms contained in her Motion to Change—expanded access and shared responsibility for Ayla's transportation between Barrie and Toronto. She and Wayne had hoped to buy a home in Barrie, but when the issue was not resolved they decided to rent a home in the area, effective July 1, 2019. Wayne took the month off work to help Ottlie and Ellis settle in to their new home. Alexia and Ayla have commuted between Barrie and Toronto to maintain Ayla's time with Bryan and to allow Alexia to share in the parenting of Ottlie and Ellis.
[21] While the current court order remains in place, Alexia has maintained Toronto as Ayla's primary residence. Alexia has enrolled Ayla in junior kindergarten in Barrie for September, hoping that the move is permitted. If it is not, Alexia will try to enroll the child in Toronto and will continue to shuttle with the child back and forth to Barrie.
The Law — Mobility
[22] The leading authority on the issue of mobility is the decision of the Supreme Court of Canada in Gordon v. Goertz, (1996) S.C.R. 27, in which the Court stated:
[49] The law can be summarized as follows:
This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
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.
Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
The focus is on the best interests of the child, not the interests and rights of the parents.
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 view of the child;
(e) the custodial parent's reason 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?
[23] The factors that should be considered when a court is asked to decide a request to relocate on a temporary basis were discussed in the often-cited case of Plumley v. Plumley:
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.
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.
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.
[24] In Cox v. Darling, 2008 ONCJ 91, Justice Stanley Sherr observed as follows:
Courts need to be very cautious in permitting temporary moves in mobility cases because the child-focused inquiry required under Gordon v. Goertz, supra, is very difficult, if not impossible, to accomplish on the conflicting affidavits that one receives in these cases. See Kennedy v. Hull, 2005 ONCJ 275. Further, courts do not like to create disruptions in the lives of children by making an order that, if later reversed, will result in further disruption. See Goodship v. McMaster.
[25] Courts have also expressed concern that an interim order permitting a move will make the trial "meaningless", because restoration of the status quo will be difficult or impossible by trial.
[26] Other principles guiding decisions on mobility issues emerge in the caselaw.
The fact that parents have joint custody is not a bar to an order authorizing a move by one parent, although contested by the other parent.
If one parent in a joint custody arrangement is clearly the primary caregiver (the parent who provides the large majority of a child's day-to-day care) then the views of that parent should be accorded the same respect which Gordon v. Goertz states should be given to the views of the custodial parent. One court explained this approach: "although in this case there is joint custody, a primary caregiver's relationship with the children is generally the same as that of custodial parent when viewed through the eyes of the child."
The Ontario Court of Appeal has observed that there is a relationship between a primary caregiver's "emotional, psychological, social and economic well-being and the quality of a child's primary care-giving environment". It is important to appreciate the potential negative effects on a child if the child's primary caregiver is prevented from relocating and the potential positive effects for her if her primary caregiver is permitted to relocate.
Discussion — Mobility
[27] As a preliminary matter, I find that there has been a material change in circumstances since the order of July 6, 2017 relevant to the issue of the geographic location of Ayla's primary residence. Alexia is Ayla's primary caregiver. Since the date of the order, Alexia has formed a committed relationship with Wayne. Alexia and Wayne plan to marry and have gradually integrated their two families. Alexia wishes to live with Wayne in Barrie, more than the 40 kilometers from Toronto, thus requiring a court order or Bryan's consent to the move.
[28] Gordon v. Goertz states that when a material change in circumstances is established, the court should undertake a fresh inquiry into the child's best interests. The parent requesting the move does not bear the onus of establishing that the move is in the child's best interests. Rather, each party must present evidence to establish where the child's best interests lie.
[29] In my view there is a very strong probability that if the matter goes to trial that Alexia will succeed in obtaining a final order allowing Ayla's move to Barrie. In coming to this view, I have considered the following factors.
Ayla is flourishing in her mother's care. There is no presumption in favour of Alexia's views as to the child's best interests, but the court does give "great respect" to those views.
Ayla's relationship with her father is positive and, in his words, "growing" under the current access arrangement. The proposed move will not negatively impact the existing access arrangement. The current access – one day overnight on alternate weekends – can be easily maintained and in fact, on consent, will be extended to full weekends, which will be even longer when statutory holidays or P.D. days about the weekend.
As for the brief mid-week visit currently scheduled, Bryan acknowledges that his future employment may very well make such visits impractical even if Ayla continues to reside in Toronto. In any event, Alexia is in agreement that, if Bryan can accommodate such visits, they can occur, as he requests, in the Barrie area once a week from after school until 7 p.m. on a day of his choice.
Permission to relocate will give Ayla a more stable residential situation with a primary home in one place, rather than a continuation of the back-and-forth between Toronto and Barrie while Alexia struggles to maintain her relationship with Wayne, care for Ayla, and share the care of Ottlie and Ellis. That balancing act is undoubtedly stressful for all involved.
Further, in assessing Ayla's best interests, it is important to take into account the effect on Alexia of refusal to relocate or permission to relocate. A denial of permission to relocate would mean that Alexia's relationship with Wayne must continue to be a long-distance one. Alexia's emotional and psychological health would be negatively affected. This would adversely affect Ayla's environment with her mother.
Conversely, permission to relocate will contribute to Alexia's emotional and psychological health and the environment she can provide for Ayla. Ayla will benefit from "the happiness that her mother would feel in being able to live with her partner".
Alexia's plan to move to Barrie is not motivated by a desire to minimize Bryan's relationship with Ayla. In pursuing her desire to move Alexia has consistently proposed an expanded access arrangement and a sharing of the additional transportation time involved. Alexia's partner Wayne has made significant changes in his living arrangements to support this approach.
The proposed relocation would not cause significant disruption to Ayla. Given her young age, her world consists of her relationships with family members. Ayla presently lives with her mother and maternal grandparents. The child will continue her relationship with her grandparents in visits to their home in Toronto and at their cottage in Bala, which is 40 minutes away from Barrie. There is no issue as to disruption of ties to a school, as the child is not yet in school.
Bryan offers no reason for disagreement with the proposed move related to Ayla's best interests, other than to say that it might interfere with access he hoped to have in the future as Ayla grows older, to attend at extra-curricular activities during the week. This concern must be assessed in the context of Bryan's inability to commit currently to fixed mid-week access given the uncertainty of his employment situation.
It is not clear what Bryan's current plan for Ayla is. He says he wants to support Alexia to create a stable home with her partner but does not consent to a move.
[30] I acknowledge that in most mobility cases it is unwise to make a temporary order, allowing a move on an interim basis. In my view, this is a case in which the dangers of such an approach are minimal for two reasons.
There is agreement on the most important facts material to a decision on the issue of mobility. This is not a case in which there is disagreement about the time which the child has spent with each parent or about the positive quality of the child's relationship with either parent.
If a trial court does not permit a final order approving the move, the residential status quo can easily be restored. This is not a case in which a parent is making a long move and giving up an apartment or employment to do so. The maternal grandparents will remain in their home in Toronto and Alexia can return to live primarily in that home with Ayla, if required.
[31] I do not go so far as to say that there is no genuine issue for trial. Bryan claims that Alexia does not support his relationship with Ayla. However, it appears that this concern is not supported by the evidence, evidence with respect to Alexia's efforts to facilitate the relationship during the lengthy periods that Bryan was away from Toronto, Alexia's admitted agreement to allow residential time outside of that required by the court order, and Alexia's careful plan to maximize Bryan's contact with the child if a move is permitted.
[32] Alexia has a strong chance of success on the issue of mobility at trial. A trial has not yet been scheduled and is unlikely to be scheduled before December or perhaps January. The stress that Alexia will suffer from a delay of months during which she commutes between Barrie and Toronto to parent not only Ayla but Ottlie and Ellis will negatively affect Ayla's environment. If a temporary move is denied and Ayla starts school in Toronto, then if the move is approved at trial—which is likely—Ayla will have to change schools mid-year.
[33] I order, on a temporary basis, that Alexia be permitted to change Ayla's primary residence to Barrie, Ontario.
Ayla's Access to Bryan
[34] The temporary order I make will deal with "regular" access and holiday/vacation access up to and including Christmas 2019.
[35] Bryan and Alexia are in agreement about almost every significant term in a new access order, except for some minor differences noted and resolved below.
Transfer point for visits (other than possible mid-week visits). The parties agree that the transfer point should be mid-way between Toronto and Barrie at a place near Highway 400. They each propose different spots, without evidence that would allow the court to determine if the spot proposed is midway. If they are unable to resolve this issue, then each party shall submit evidence (such as a Google map) by way of fax, addressed to the judicial secretary, Silvana Dodaro or Sotiria Stilos, by August 30, 2019.
Return time on alternate weekend visits. Bryan asks for 7 p.m. Sunday. He wants to be able to enjoy an early supper with the child. Alexia asks for 5 p.m. Sunday. She says that Ayla's bedtime is between 7-7:30 p.m., and that a 5 p.m. return will allow her to "settle in" with the family before bedtime. In my view, a slightly later bedtime is warranted to allow Ayla to have a Sunday dinner with her father. Return time will be 6:30 p.m.
Possible mid-week access. Alexia asks that if Bryan asks for a visit on a weekday on which Alexia has a prior commitment (e.g., a doctor's appointment, an extra-curricular program), that Bryan choose a different weekday. Bryan does not oppose this modification.
[36] Bryan asked in his notice of motion for a clause permitting police to enforce access on an ongoing basis. Alexia strongly opposes this request, saying that there has been no violation of the court order for access and in any event, it would be harmful for Ayla to be transported to see her father by "armed men in uniform". Bryan's counsel did not pursue the request in argument. I decline to make this order. There is no reliable evidence that there has been a denial of the access set out in the July 6, 2017 order.
[37] In any event, I agree with Justice Alex Pazaratz, who strongly disapproved of the attempt to use such clauses to deal with anticipated future contempt of access orders. Justice Pazaratz doubted that there is jurisdiction under the Children's Law Reform Act to make such orders. He discussed at length the psychological harm that could be caused to children if such orders were used, and counselled the use of more creative and child-focused strategies if there was non-compliance with an order.
[38] I make a temporary order as follows:
1. Ayla shall reside with the Respondent as follows:
a. Alternate weekends from Friday at 5 p.m. until Sunday at 6:30 p.m., extended to the Monday at 6:30 p.m. if Monday is a statutory holiday. In November 2019 the Respondent will have an extra weekend from Friday at 5 p.m. to Sunday at 6:30 p.m., to be taken on the first weekend of November that would otherwise have been the Applicant's weekend.
b. If the Respondent can accommodate weekday visits, then, on providing adequate notice (no less than 7 days), he may have a floating mid-week visit every week on any day from Monday to Thursday from after school until 7 p.m. when the child shall be dropped off at the Applicant's home, provided however that if Ayla has a previous commitment for the day selected, the Respondent shall select another day. The notice shall be required for the first visit when the weekday regime shall commence, and then at least 7 days prior to each proposed visit.
2. The regular access schedule shall be suspended for the Thanksgiving weekend and the Christmas school vacation, and Ayla shall spend equal periods of time with each party during these vacations.
a) On Thanksgiving weekend in 2019, Ayla shall reside with the Respondent from Friday at 5 p.m. to Sunday at noon, and with the Applicant from Sunday at noon to Monday at 5 p.m.
b) During Christmas school vacation 2019, Ayla shall reside with the Respondent from December 23 at 1 p.m. to December 25 at 1 p.m. and with the Applicant from December 25 at 1 p.m. to December 27 at 1 p.m. The parties shall calculate and agree upon the allocation of the remaining days in the Christmas school vacation by November 1, 2019 and, failing agreement, the Respondent shall select his additional days and notify the Applicant of same by November 2, 2019.
Costs
[39] If costs are sought, written submissions of no more than 5 pages shall be served and filed by August 29, 2019. Any reply of no more than 5 pages shall be served and filed by September 9, 2019.
Released: August 19, 2019
Signed: Justice E. B. Murray
