Court File and Parties

Ontario Court of Justice

Date: 2020-12-16

Court File No.: Brampton 20-477

Between:

Desburn Smith Jr. Applicant

— And —

Daniella Porretta Respondent

Before: Justice Lynda J. Rogers

Motions at Tab 4 Vol 1 and Tab 5 Vol 2 of the Continuing Record heard on November 16, 2020

Reasons for Decision released on December 16, 2020

Counsel:

Mr. S. Lakhan — Counsel for the Applicant

Mr. J. Mammon — Counsel for the Respondent

Decision

L. J. Rogers J.:

1. Introduction

[1] The motions of each party found at Tab 4 Volume 1 (Motion by the Applicant father Mr. Smith) and Tab 5 Volume 2 (Motion by the Respondent mother Ms. Porretta) were heard, by teleconference, on November 16, 2020.

[2] By temporary, without prejudice order on October 5, 2020, the first case conference date, the parties' child Liam Andre Smith (Liam) born […], 2016, was not to be removed from the Region of Peel by either party. The temporary without prejudice order has continued.

[3] The motion brought by the Applicant was initially without notice. He was ordered to serve the Respondent on August 25, 2020 when his motion material was first before the court. That service was completed on August 28, 2020, and included the Application, Motion Material, a 35.1 Affidavit and a sworn Financial Statement.

[4] The Respondent filed her Answer, 35.1 Affidavit and sworn Financial Statement in October 2020. She later filed an Amended Answer on October 26, 2020.

[5] In his Application, the Applicant father seeks an order for joint custody of Liam with the child's primary residence to be with the Respondent mother and weekly weekend access with him. In the alternative, he seeks sole custody of Liam, with access to the Respondent, and child support. He also requests an order that the Respondent not remove Liam from the Region of Peel.

[6] In her Amended Answer, the Respondent mother seeks an order for sole custody and primary residence of Liam, supervised access to the Applicant, and child support.

2. Background

[7] The history of their relationship as presented by each party differs widely, as is usual in family law matters. However, in reviewing the motion materials filed, the following background information appears to be uncontested:

a) The Applicant is 29 years old and the Respondent is 26 years old.

b) The parties became involved with each other in 2010, when they were both teenagers.

c) Their child Liam was born on […], 2016.

d) The Applicant resided with his parents and siblings during the parties' relationship and continues to do so.

e) The Respondent resided with her mother until around August 2020, when she obtained full-time employment in London, Ontario, and moved in with her partner, Brandon Tonlison.

f) The parties' relationship ended in April 2018.

g) Since April 2018, the Applicant has provided a monthly support payment of $200.00 for Liam.

h) Since April 2018, Liam has essentially resided with the Applicant from Friday (late afternoon or evening) to Sunday evenings, though for a period of time he stayed with the Applicant until Monday mornings.

i) For the balance of the weeks, Liam has been in the care of Respondent, since April 2018.

j) As a result of this dispute, Liam has not attended school since September 2020, though he is eligible for junior kindergarten.

k) The Applicant's Notices of Assessment show annual income of $42,648 in 2017, $38,418 in 2018, and $19,514 in 2019. The Applicant is a partial owner of a numbered company affiliated with a "movers business" with a projected "net salary" of $15,000-$20,000 per year.

3. The Applicant Father's Position

[8] In his Notice of Motion dated August 24, 2020 the Applicant claims the following, in addition to the initial procedural requests:

1. An order that the Respondent-Mother, Daniella Porretta, be prevented from removing the child, Liam Andre Smith from the City of Brampton, in the Regional Municipality of Peel without the express written consent of the Applicant-Father, Desburn Smith Jr.;

2. An interim order that the Applicant-Father, Desburn Smith Jr. have interim sole custody of the child, Liam Andre Smith and the Respondent-Mother, Daniella Porretta shall have access to the child, Liam Andre Smith at the discretion of the Applicant-Father, Desburn Smith Jr. as to place, duration and need for supervision, pending further court order;

3. An interim order, if necessary, and in the alternative, that the parties shall share joint custody of the child, Liam Desburn Smith, and the Applicant-Father shall have extended overnight access to the child Liam Andre Smith pending a full hearing on the merits of this motion and at the expense of the Respondent-Mother, Daniella Porretta;

4. Costs of this motion.

[9] The Applicant maintains that he and the Respondent made all decisions with respect to Liam jointly prior to their separation in 2018. After separation, the parties agreed that Liam would spend each weekend with the Respondent, and be with the Applicant Friday evening to Monday morning. In September 2018, the Respondent changed the Monday morning return time to Sunday evening.

[10] The Applicant resides with his family, and works an afternoon shift from 3:00 pm to 10:30 pm Monday to Friday. He states that if Liam resided with him, he could adjust his work hours to be home with Liam after school.

[11] Since separation in 2018, the Applicant has paid monthly support to the Respondent of $200.00.

[12] According to the Applicant, Liam's entire life has been in Peel Region, where his grandparents, and extended family reside. He has never resided anywhere else. The Applicant does not accept that the Respondent's ability to seek and obtain employment in London, Ontario provides a "rational basis" for her proposed move there with Liam.

[13] In his reply Affidavit sworn November 9, 2020, the Applicant denies that he was ever physically violent towards the Respondent, or used abusive language (besides swearing) in their interactions. He states that he does not have a criminal record, but he has concerns about the Respondent's partner's Facebook account which references 'guns, revenge and his dead friends'.

[14] The Applicant maintains that the proposed relocation of Liam to London with the Applicant is contrary to Liam's best interests. He claims that an existing joint parenting arrangement has existed from the time of Liam's birth that should not be disrupted.

4. The Respondent Mother's Position

[15] In her Cross-Motion, the Respondent mother seeks the following order:

1. A temporary Order that the Respondent, Daniella Porretta ("Respondent") shall have sole custody of the child of the relationship namely Liam Andre Smith ("Liam") born on February 8, 2016;

2. A temporary Order that Liam's primary residence shall be with the Respondent mother;

3. A temporary Order permitting the Respondent mother to relocate to London, Ontario with the child, Liam;

4. An Order that the Respondent mother shall register the child, Liam Andre Smith ("Liam") born on […], 2016, in St. Paul Catholic School, London, Ontario;

5. A temporary Order that the Applicant father pay the Respondent mother child support based on an imputed income to the Applicant father of $30,000 and the table amount for one child, Liam Andre Smith ("Liam") born on February 8, 2016 in accordance with the Child Support Guidelines in the amount of $256.00 with payment to commence November 1, 2020 and monthly thereafter.

6. A temporary Order that the Respondent father shall have parenting time to Liam as follows:

a) During the school year, for two consecutive weekends from Friday at 6pm to Sunday at 6pm (to be extended to Monday at 6pm when there is a statutory holiday or professional development day after the weekend in question);

b) On the third weekend, Liam shall remain with the Applicant mother in her care in London, Ontario;

c) Christmas vacations shall be divided equally between two homes. The first half of Christmas vacation in odd years Liam will be with Respondent father and in even years the schedule will be reversed and Applicant mother will have the first half of the Christmas.

d) During the summer vacation when Liam is not enrolled in school, Respondent father shall have two weeks (consecutive) with Liam in the month of July and two weeks (consecutive) in the month of August. For the balance of the summer, Liam will live with each parent according to the school year schedule.

e) March Break: the parties will each have one half of the March Break with the Wednesday being the mid-point and exchange of Liam at 9:00 am. The parties will alternate on an "even/odd" rotation with Respondent father having the first half of the March Break in even years.

f) In addition, any other additional dates and times that the parties both agree on.

g) Pick up and drop off of Liam shall take place in Brampton at the maternal grandmother's home located at […], Brampton, ON.

7. An Order that neither party shall remove the child, Liam Andre Smith ("Liam") born on […], 2016 from the Province of Ontario;

8. An Order that the Applicant pay the Respondent's costs on a substantial indemnity basis plus applicable HST;

[16] It appears that in paragraph 6, the Applicant and Respondent were reversed, but the intention is understood.

[17] The Respondent maintains that she has been Liam's primary caregiver since his birth. She states that the Applicant has exaggerated his involvement in decision-making for Liam, and that she was solely responsible for booking and taking Liam to his medical appointments and registering him for day care and extra-curricular activities.

[18] According to the Respondent, she advised the Applicant on or about May 21, 2020 of her plan to move with Liam to London, Ontario. She has accepted a position as a personal support worker at a long-term care facility in London. She states that her work in Brampton involved travelling to client's homes, and that she tried to obtain a position in a long-term care facility in Brampton, for about a year, without success.

[19] Her current position pays $18 per hour, with a potential increase to $25 per hour. This position offers a pension, and medical and dental benefits, which was previously not available to her.

[20] The Respondent plans to reside with Liam and her partner Brandon Tonlison, who is employed as a plumber in London, Ontario. They have rented a 3-bedroom condominium in London. Liam would be enrolled at St. Paul's Catholic School, which is close to their home, and which offers a before and after school program.

[21] It is part of the Respondent's plan to enroll in Fanshawe College's nursing program.

[22] The Respondent proposes that she will facilitate the access between Liam and the Applicant by transporting Liam to and from Brampton 2 out of every 3 weekends. She wishes to have some weekend access with Liam as well. She proposes sharing the Christmas school break and the March Break, equally, and having Liam spend 2 consecutive weeks in July and August with the Applicant.

[23] With respect to child support, the Respondent seeks to impute annual income of $30,000.00 to the Applicant, as he has deliberately left employment where he earned income of $42,648 in 2017, and $38,418 in 2018, for a 'net employment income' at present of $15,000 to $20,000 per year. The Respondent therefore seeks monthly child support of $256.00 based on the Applicant's income of $30,000 per year.

5. The Law

[24] The leading case for determining if a relocation should be permitted on a temporary motion is Plumley v. Plumley [1999] O.J. No. (S.C.J.), where the court set out the following Principles:

a) 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.

b) 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.

c) 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.

[25] The Following are additional principles regarding temporary relocation cases (See: Boudreault v. Charles, 2014 ONCJ 273):

a) The burden is on the parent seeking the change to prove compelling circumstances exist that are sufficient to justify the move. See: Mackenzie v. Newby, [2013] O.J. No. 4613 (OCJ).

b) Courts are generally reluctant to permit relocation on a temporary basis. The decision will often have a strong influence on the final outcome of the case, particularly if the order permits relocation. The reality is that courts do not like to create disruptions in the lives of children by making an order that may have to cause further disruption later if the order has to be reversed. See: Goodship v. McMaster, [2003] O.J. No.4255 (OCJ).

c) Courts will be more cautious about permitting a temporary relocation where there are material facts in dispute that would likely impact on the final outcome. See: Fair v. Rutherford-Fair 2004 CarswellOnt 1705 (Ont. S.C.J.). In such cases, the court requires a full testing of the evidence. See: Kennedy v. Hull, [2005] ONCJ 275.

d) Courts will be even more cautious in permitting a temporary relocation when the proposed move involves a long distance. It is unlikely that the move will be permitted unless the court is certain that it will be the final result. See Downey v. Sterling 2006 ONCJ 490, [2006] O.J. No. 5043 (OCJ) and Costa v. Funes [2012] O.J. No. 3317 (OCJ).

e) Courts will be more cautious in permitting a temporary relocation in the absence of a custody order. See: Mackenzie v. Newby, supra.

f) Courts will permit temporary relocation where there is no genuine issue for trial (see: Yousuf v. Shoaib, [2007] O.J. No. 747 (OCJ)), or where the result would be inevitable after a trial (see: Mackenzie v. Newby, supra, where the court observed that the importance of the father's contact with the child could not override the benefits that the move would have on the child).

g) In assessing the three considerations in Plumley, the court must consider the best interest factors set out in subsection 24 (2) of the Children's Law Reform Act (the Act) and any violence and abuse in assessing a parent's ability to act as a parent as set out in subsections 24 (3) and (4) of the Act as well as the leading authority on mobility cases, Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.).

[26] Under circumstances where an interim move will not interfere materially with the ability of a party to exercise access, then a court will be more likely to accept an interim move, (Schlegal v. Schlegal 2016 ONSC 4590 at para 25); M.M v. J.K., 2020 ONSJ 387.

[27] In Konkin v. Aguilera, 2010 ONSC 4808, at para. 27, Justice Corbett addressed the concerns courts have in allowing an interim relocation as follows:

Finally, I acknowledge some of the cases consider that it is unwise to make interim orders on mobility issues, when the matter may remain contested at trial. That is a fine ideal, but the court process does not follow the same rhythm as real life. The goal of an interim order here, as in other contexts, is to preserve a reasonable state of affairs that accords with the best interests of the child pending trial. As I indicated to the parties orally, I would have preferred to have heard this issue as a trial, to have listened to the various family members testify, and to have more time to reflect on the matter. But a decision must be made now, rather than months or years from now, and a legitimate and timely request to move should not be thwarted by the inevitable effluxion of time inherent in the litigation process.

[28] In the Konkin case, Justice Corbett permitted the mother to move, on an interim basis, from Toronto to Saskatoon, Saskatchewan.

[29] In Bell v. Palma 2019 ONCJ 582, Justice Murray ordered on a temporary basis, that the mother could move with the parties' 4-year-old child from Toronto, to Barrie, Ontario. Her Honour stated at paragraph 26 of that decision:

• 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. The financial security of the parent who wishes to move is a relevant factor.

6. Analysis

[30] I find that the Respondent mother has been the child Liam's primary caregiver since his birth, as evidenced by the following:

a) Since the parties' separation, Liam has resided with the Respondent mother from Monday to Friday, and with the Applicant on weekends.

b) The Respondent was the parent that made decisions for Liam, such as enrolling him in daycare, and making and attending Liam's medical appointments.

c) The Applicant acknowledges in his Application on page 7, that "From April 1, 2018 to present, the child resided primarily with Daniella from Monday morning until Friday evening. Every weekend was spent with Desburn."

d) The Applicant has paid the Respondent $200.00 per month for Liam's support since April 2018, indicating that Liam's day to day financial needs are met by the Respondent, with a monthly contribution by the Applicant.

[31] In considering the factors to be addressed in a request to relocate on a temporary basis, found in Plumley v. Plumley, I find that the proposed move by the Respondent will not upset the status quo of weekend access, as the Respondent proposes to continue to facilitate access on 2 out of 3 weekends and provide extended access on school holidays and in the summer to make up for the weekend stays with her. She is also open to the Applicant having additional time with Liam. The Applicant works a regular afternoon shift Monday to Friday, but stated that he was able to adjust his schedule, so he could have mid-week access with Liam as well, in London.

[32] The Respondent has indicated that she is prepared to transport Liam to Brampton and pick him up for weekend access visits.

[33] The move to London, where the Respondent has a full-time job with benefits, permits her to leave her parents' home and live independently with her partner, and Liam. The move will result in a financial benefit to the Respondent's family unit, with a commensurate benefit to Liam.

[34] The Applicant's proposal that Liam will live with him and his extended family will disrupt the status quo of Liam living with his primary parent, who is the Respondent mother. The factors set out in subsections 24(2) (c) and (f) of the Children's Law Reform Act require the Court to consider the stability and continuity of a child's care.

[35] The Respondent's evidence is that she has stayed with Liam in Brampton whenever her work schedule has permitted it. This has, however, been very challenging for her, and disruptive to Liam, who was used to spending Monday to Friday with the Respondent.

[36] The evidence of the parties is contentious regarding their relationship history, the allegations of abuse, which are denied by the Applicant, and each party's pre-separation involvement with Liam. These factors were not considered in determining the issue of temporary mobility. It is not necessary to determine custody at this time, even on a temporary basis, to resolve the temporary mobility issue. It appears to the Court that there is a strong possibility that the Respondent mother's position regarding Liam's primary residence will prevail at trial, given the evidence on which the Court relies.

[37] For all these reasons, I find that it is in Liam's best interests to reside primarily with the Respondent mother in London, Ontario.

7. Child Support

[38] The Applicant did not respond to the Respondent's request that income of $30,000 be imputed to him for child support purposes. He states that "I am prepared to pay the requisite amount of child support, pursuant to my income, in accordance with the Child Support Guidelines." The Applicant has not provided any evidence of current income except the letter from the corporation (which appears to be signed by him) that he is projected to make a "net salary of $15,000.00 - $20,000". The determination of how "net salary" is arrived at is not explained. Section 19 of the Child Support Guidelines permits the Court to impute income in certain non-exhaustive circumstances such as when a payor has failed to provide income information, or unreasonably deducts expenses from income. Since the Respondent seeks only to impute annual income of $30,000.00 to the Applicant, which is only slightly more than annual minimum wage income, that order will be made, on a temporary, without prejudice basis, until more detailed financial disclosure is provided.

[39] Therefore, the following temporary order shall issue:

8. Order

1. The Respondent mother Daniella Porretta may relocate to London, Ontario with the child, Liam Andre Smith, born […], 2016.

2. The primary residence of the child Liam Andre Smith will be with the Respondent, Daniella Porretta.

3. The Respondent, Daniella Porretta, may register child Liam Andre Smith in St. Paul Catholic School, in London, Ontario.

4. The Applicant father, Desburn Smith Jr., shall have parenting time with the child Liam as follows:

a. On December 25, 2020 at 1:00 pm to January 3, 2021 at 1:00 pm;

b. Commencing Friday, January 15, 2021, for two consecutive weekends from Friday at 6:00 pm to Sunday at 6:00 pm (to be extended to Monday at 6:00 pm when there is a statutory holiday or a P.D. day after the weekend in question);

c. On the third weekend after, Liam shall remain with the Respondent mother in London, Ontario;

d. One half the 2021 March Break from Wednesday, March 17, 2021 at 9:00 am to Sunday, March 21, 2021 at 6:00 pm;

e. One mid-week visit per week from 4:00 pm to 8:00 pm on a day to be agreed upon by the parties 72 hours in advance; and

f. Such further and other dates and times as the parties agree.

5. Pick-up and drop-off of Liam shall take place in Brampton at the maternal grandmother's home at […], Brampton, Ontario.

6. Neither parent shall remove the child Liam from the Province of Ontario.

7. On a temporary, without prejudice basis, the Applicant Desburn Smith Jr. shall pay support to the Respondent Daniella Porretta for the child Liam Andre Smith born […], 2016 in the amount of $256.00 per month, commencing December 1, 2020, and on the first day of each month thereafter, based on the Applicant's imputed annual income of $30,000.00.

8. Given the issues decided, and the somewhat divided success of the parties, this is not an appropriate case for costs.

9. Support Deduction order to issue.

Released: December 16, 2020

Justice L. J. Rogers