Court File and Parties

Ontario Court of Justice

Date: 2019-01-11

Court File No.: Toronto DFO-13-10184-00

Between:

Cecilia Jessica Canning Applicant

— And —

Anastasios Jonathan Davies-Hall Respondent

Before: Justice Maria N. Sirivar

Heard on: December 3, 2018 and December 17, 2018

Reasons for Judgment released on: January 11, 2019

Counsel:

• Coulson Mills, for the Applicant
• Paul Cooper, for the Respondent

SIRIVAR J.:

INTRODUCTION

[1] Mr. Davies-Hall brings this motion in the context of Ms. Canning's Motion to Change the final order of Madam Justice Jones dated October 20, 2014 (the "Order").

[2] The Motion to Change was issued on August 10, 2018 and seeks a variation of the shared parenting schedule to accommodate Ms. Canning's move from Scarborough, Ontario to Markham, Ontario and her registration of the child in a new school in Markham.

[3] Mr. Davies-Hall relies on his affidavits sworn November 8, 2018, November 26, 2018, and December 6, 2018, his Affidavits in Support of Custody and Access sworn October 8, 2018 and November 26, 2018 as well as his factum and authorities.

[4] Ms. Canning relies on her affidavits sworn November 22, 2018 and December 12, 2018 as well as her Affidavit in Support of Custody and Access sworn August 10, 2018.

BACKGROUND

[5] Ms. Canning and Mr. Davies-Hall were in a relationship until December 2012. They have one (1) child together, Ethan Alexander Davies-Hall, born […], 2012.

[6] The Order provides for joint custody and a shared parenting schedule whereby Ethan spends Monday to Thursday with Ms. Canning and Thursday to Monday with Mr. Davies-Hall, except for the first and third Sunday of each month which are spent with Ms. Canning.

[7] The Order was made on consent after the parties received the recommendations of the Office of the Children's Lawyer ("OCL").

[8] In or about August of 2018, Ms. Canning moved from Scarborough, Ontario, where the parties and Ethan's extended family lived, to Markham, Ontario.

[9] The shared parenting schedule has been adhered to following Ms. Canning's move to Markham and has resulted in a one (1) hour commute to school for Ethan when he is in Mr. Davies-Hall's care.

PARTIES' POSITIONS

Mr. Davies-Hall's Position

[10] Mr. Davies-Hall takes the position that Ms. Canning cannot impose a change, in breach of the Order, then rely on the breach as the material change justifying the variation she seeks.

[11] He argues that Ms. Canning breached the Order by enrolling Ethan in a new school and removing him from his daycare without his consent. He deposes that he first learned of the move in August when Ms. Canning had already enrolled Ethan in a new school.

[12] Mr. Davies-Hall insists that it is significant that on August 22, 2018, counsel for Ms. Canning wrote to Ethan's daycare to advise that Ethan would be moving to Markham and acknowledging that Mr. Davies-Hall was opposed to the move.

[13] Ms. Canning, he argues, moved unilaterally, cancelled the daycare and enrolled Ethan in a new school despite there being a joint custody order and a shared parenting schedule.

[14] At that time the Order was made, Ms. Canning had sought to have Ethan in her care during the week when he started school. The OCL, however, disagreed and concluded that Mr. Davies-Hall was best positioned to assist Ethan with his school work because he had enjoyed some academic success and Ms. Canning struggled with issues related to school anxiety and was working to complete high school.

[15] Mr. Davies-Hall acknowledges that Ethan cannot return to Birchcliff Public School ("Birchcliff") because he is now living with his father, outside of the catchment area, although in the same community.

[16] Mr. Davies-Hall submits that it is in Ethan's best interest to be returned to his previous community where he engages socially and spends time with his paternal and maternal extended family. He argues that there is a long-standing status quo that has worked well. Ethan has done well, he meets or exceeds his milestones, and has many friends.

[17] He seeks an order restoring the status quo with Ethan attending school in his previous community; or an order that Ethan reside primarily with him and Ms. Canning have access on weekends and as may be agreed between the parties.

Ms. Canning's Position

[18] Ms. Canning is not seeking a change in custody nor is she seeking an order permitting her move with Ethan and to change his school. Rather, she seeks only to vary the shared parenting schedule such that Ethan would be in her care during the week during the academic years except three weekends a month (with the parties sharing the driving). During the months of July and August, she proposed that there be a week-about schedule.

[19] She explains that she moved from Scarborough to Markham because she was expecting her second child with her new partner and they required more room to accommodate the growing family.

[20] She deposes that she was "unsuccessful in finding a home within the Birchcliff catchment area" and that in August she learned of a home in Markham that had a backyard and would allow Ethan to have his own room.

[21] Ms. Canning further deposes that she "did a quick and detailed search of the neighborhood and Beckett and satisfied myself that it was a desirable area to raise Ethan and my expected child".

[22] She argues that Beckett Farms "Beckett" is a better school than Birchcliff and Victoria Park Elementary School. She came to this conclusion after consulting other parents in the neighbourhood and "parenting blogs". She also relies on a report by the Fraser Institute, attached to her affidavit, in which Beckett scored higher than the other schools in Scarborough.

[23] Ms. Canning submits that the change she proposes is in Ethan's best interest because he will:

a. attend what she believes is a better school;

b. have his own room;

c. be able to spend time with his new sibling;

d. live within walking distance of three (3) parks and a community center; and

e. not have to commute for one (1) hour to get to school.

[24] On the issue of the OCL recommendations, she deposes that she has addressed her anxiety and academic issues through a combination of "self-help", seeing a psychiatrist twice and getting a prescription from a psychiatrist for anxiety medication. Ms. Canning submits that if she has issues with anxiety, she will seek help, as she has in the past.

[25] Ms. Canning submits that she no longer has issues with reading and writing caused by her dyslexia. Although she is no longer in school, she is investigating tattoo training.

APPLICABLE LAW AND LEGAL PRINCIPLES

[26] The Supreme Court of Canada decision in Gordon v. Goertz sets out a two-stage process for deciding cases involving mobility. The parent applying for a change in a custody or access order must demonstrate that there has been a material change in the circumstances affecting the child. If this threshold is met, the court must embark on a fresh inquiry into what is in the best interest of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

[27] The principles in Gordon v. Goertz apply to cases brought under the Children's Law Reform Act ("CLRA").

[28] In deciding whether there has been a material change in circumstance, the question is whether the previous order might have been different had the circumstances that now exist prevailed earlier. If the material change cannot be established, the claim is to be dismissed.

[29] If there has been a material change, the court should have regard to the best interest considerations set out in subsection 24(2) of CLRA.

[30] The focus is on the best interest of the child, not the interests and rights of the parents. The following factors should be considered:

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 views of the child;

e. the custodial parent's reason for moving, only in exceptional cases 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; and

g. disruption to the child consequent on removal from family, schools, and the community he or she knows.

[31] On an interim motion, the courts are generally reluctant to effect fundamental changes in a child's lifestyle. The court in Plumley v. Plumley, dealing with an interim mobility motion explained:

"It appears to me that the following factors are or ought to be important in deciding the mobility issue 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 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; and

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 trial."

[32] Courts have been clear about the inadvisability of employing self-help remedies to create a new status quo. In Raifi v. Raifi, for instance, the court stated:

"The parent who engages in self-help tactics despite the best interest of the child will generally raise serious questions about their own parenting skills and judgment. In many cases, courts conclude manipulative, selfish or spiteful parents simply can't be trusted with custodial authority they would likely abuse."

[33] Similarly, in Kennedy v. Hull, the court noted:

"Were only a short amount of time has elapsed between the deliberate creation of a new status quo in the hearing of the temporary motion, the court will be more inclined to presume that restoration of a previous successful status quo is appropriate."

[34] The court will be reluctant to allow disruption of the status quo, particularly where it is long-standing, beneficial to the child and viable. In Fallis v. Decker the court warned:

"It is inappropriate for a parent to make secret plans which will have significant impact on children and parenting arrangements, and then announce those plans after decisions have been implemented."

[35] A parent unilaterally changing a child's school and moving out of the school catchment area is a failure to respect both the spirit and the letter of a joint custody order. In Guertin v. Dumas the court stated:

"The court order specifically states that the parties are to make joint decisions on the child's education. Court orders are not suggestions. Court orders are to be followed. The mother did not follow the existing court order as she did not obtain the father's consent to change schools and vary his access with his daughter."

CONCLUSION

[36] Ms. Canning employed a self-help remedy by unilaterally changing Ethan's school, removing him from daycare and moving him to Markham. In so doing, I find that she failed to respect both the letter and spirit of the Order.

[37] Her actions have resulted in a material change in Ethan's circumstances such that Ethan has been living in two (2) communities for the past few months and has had to commute for one (1) hour to get to school when he is with Mr. Davies-Hall.

[38] Ms. Canning's conduct in engaging in the self-help tactics, in breach of the Order, despite Ethan's best interest, raises questions about her parenting skills and judgment.

[39] Ms. Canning's evidence regarding how she addressed the OCL concerns about her school related anxiety is not sufficient to displace the OCL's conclusion that Mr. Davies-Hall is best positioned to help Ethan with homework. There are no details about the self-help remedies she employed and no evidence about her ability to be primarily responsible for Ethan's school work.

[40] She has not adduced any evidence regarding the necessity of her move to Markham. Specifically, there is no evidence of factors necessitating a move that affect her ability to meet Ethan's needs such as financial consideration, safety or work. She simply deposes that she required more space to accommodate her growing family and that she was unable to find housing in the school catchment area.

[41] I accept Mr. Davies-Hall's evidence, which was unchallenged, that the status quo has been in place for 4 years, has worked well for Ethan and that he has met or exceeded his milestones. Ethan has friends, activities, parks, family and friends that make up his community in Scarborough. I further accept Mr. Davies-Hall's unchallenged evidence that the parents were previously able to make joint decisions in Ethan's best interest.

[42] I cannot conclude on the evidence before me that there is a strong probability that Ms. Canning will be successful at trial.

[43] I find that it is in Ethan's best interest to restore the status quo which had been in place for four (4) years and was working well. In so concluding, I rely on the following facts relevant to Ethan's best interest:

a. the parties have been making decisions jointly in Ethan's best interest;

b. it is important that Ethan have maximum contact with both his parents;

c. there is no evidence of Ethan's views and preferences;

d. there is no evidence of a compelling reason for the move that is relevant to Ms. Canning's ability to meet Ethan's needs;

e. Ms. Canning's conduct calls her parenting skills and judgment into question;

f. Mr. Davies-Hall is best positioned to assist Ethan with his school work;

g. there was a disruption to Ethan occasioned by being forced to leave the community he has lived in, gone to school and daycare in, made friends, spent time with extended family on both sides, and that he knows well;

h. Ethan has spent half his time in Markham for the past four (4) months; and

i. Ethan has to spend an hour (1) commuting to school when he is with his father.

ORDERS

[44] For the foregoing reasons, the court orders on a temporary basis:

a. Ethan Alexander Davies-Hall, born […], 2012, shall reside primarily with Anastasios Jonathan Davies-Hall;

b. Mr. Davies-Hall may enroll Ethan in school in Scarborough;

c. Cecilia Canning shall have access to Ethan three (3) out of four (4) weekends a month and as agreed between the parties;

d. If Mr. Davies-Hall seeks costs, he shall serve and file submissions (four (4) page maximum) including a cost outline by January 25, 2019; and

e. Ms. Canning may serve and file a response (four (4) page maximum) by February 8, 2019.

Released: January 11, 2019

Signed: Madam Justice Maria N. Sirivar