ENDORSEMENT

Introduction

[1] On the morning of June 11, 2012, the Applicant in this proceeding, Peter Walsh, took the parties’ two young children to school. When he did so, he knew that his marriage had broken down and that his wife, the Respondent Isabelle Walsh, wished to move with the children to New Brunswick. What he did not know is that she was well into the process of that move and that she had purchased a van and was moving her things from the home that day. At noon, Isabelle Walsh picked up the children at school and began the long drive to New Brunswick. She drove through the night, and arrived there the next day.

[2] The next day, Mr. Walsh discovered that his wife was gone. He obtained from me an order without notice ordering the return of the children to Ontario, and that he receive primary residence of the children. Ms. Walsh returned to Ontario and eventually moved back into the family residence in Everett, Ontario. Since then, by agreement between the parties, she has resided there with the children. She refuses overnight access, and Mr. Walsh has agreed to day access on two weekdays and one weekend day each week.

[3] Mr. Walsh requests custody of the children and an order that the children not be removed from Ontario. Ms. Walsh states that Mr. Walsh is abusive and an unacknowledged alcoholic, and asks that my order be set aside and for an order permitting her to move to New Brunswick and granting her custody of the children. She states that Mr. Walsh should not have access other than day access even were she to move to New Brunswick, and she did not waiver from this position during argument. Both parties agreed to the appointment of the Office of the Children’s Lawyer and that this court would retain jurisdiction over the matter even if the children were move to New Brunswick; Ms. Walsh stated that she would make the children available in Ontario to meet with the appointed representative of the Office of the Children’s Lawyer. There are, naturally enough, financial issues between the parties; because this matter was placed on the open motions list, there was insufficient time to argue those issues and they were adjourned to a case conference.

[4] For the reasons set out below, a temporary order shall go on the following terms:

a. My order of June 12, 2012 will be set aside;

b. The children will remain in the matrimonial home located at […]^th Sideroad, R.R. #[…], Everett, Ontario and the Respondent’s motion to permit her to move with the children is dismissed;

c. The parties shall equally share custody of the children on a temporary basis according to the Applicant’s travel schedule and as arranged between the parties. If the parties cannot agree on a schedule, I may be spoken to on that issue or written submissions may be provided.

d. This arrangement shall only commence upon financial support being agreed to or ordered which will enable the Respondent to obtain a reasonable residence for herself elsewhere from the matrimonial home; in the meantime, the Applicant shall immediately have overnight access to the children outside the matrimonial home three weekends out of four commencing September 7, 2012 as well as one evening per week.

e. On consent, the Office of the Children’s Lawyer shall be requested to become involved to provide representation to the children and to investigate custody and access issues in this matter.

f. The financial issues adjourned to a case conference on September 18, 2012 at 9:30 a.m. after which the motion respecting financial issues may be scheduled if no settlement can be arrived at.

Background Facts

[5] The Applicant in this matter is, as far as I can determine, from Ontario; his parents and extended family reside in London, Ontario. He works as a business line manager for Atlas Copco Mining and Rock Excavation Technique Canada, and he has worked for that employer for 30 years. He travels extensively for his employment.

[6] The Respondent is from Quebec. She lived there until age 19, after which she went to university in Ottawa and later finished her degree in British Columbia. She obtained a position as a pharmaceutical representative and moved to Cocagne, New Brunswick in 1998. In 1999, she purchased a home at McGee’s Mills, New Brunswick.

[7] The parties met in 2000 in New Brunswick when the Applicant was there on business; they began dating in April, 2000, and when the Applicant was able to obtain a lateral move to a position in Sudbury, the parties moved there in August, 2000. They purchased a home there in December, 2001. The parties were married on June 1, 2002 at their home in Sudbury.

[8] The parties have two daughters, namely Danika, born […], 2003 and Christina, born […], 2006. Both of those daughters were born in Sudbury and Danika began her schooling there. The Respondent states that the relationship had become difficult by the time Christina was born; she states that the parties lived separate and apart under the same roof for a period of time from December, 2006 on, although she does not make it clear as to when the parties actually reconciled. However, it is apparent that the Respondent wished to maintain her connection with New Brunswick and she says that she was always unhappy in Ontario. This is borne out by the fact that when the Respondent’s father died in 2007, she used her inheritance to purchase a waterfront lot in New Brunswick, which she still owns.

[9] In any event, in November, 2007, the Respondent lost her job with 3M Pharmaceuticals in Sudbury. She obtained another job with Novartis in January, 2008, but because of restructuring, that job came to an end in November, 2009. The Applicant was also aware that his position in Sudbury was at risk. The parties decided to move to New Brunswick; they moved into a home that they purchased in Notre Dame on July 7, 2010. Ms. Walsh obtained employment as a pharmaceutical representative in New Brunswick after the move.

[10] The marriage became more unstable after the move to New Brunswick. The Respondent complains that the Applicant has always consumed alcohol to excess, and did so in Sudbury. However, she says that the alcohol consumption worsened in New Brunswick and after coming home from a business trip to P.E.I. on December 21, 2010, she discovered the Applicant “terribly drunk.” They fought and decided to separate.

[11] The Respondent’s affidavit sworn June 19, 2012 cites a number of events of excess drinking by the Applicant in New Brunswick. She states that she would come home to find the Applicant passed out with the girls still in their school clothes. She states that he was drinking at least 6 beers in the evening and an unknown amount during the day, and that the Applicant on one occasion kicked and injured the family pet. She states that she was, throughout, the primary caregiver of the children. Notwithstanding these concerns about the Applicant’s alcohol consumption, Ms. Walsh appears to have agreed that the parties would share custody of the children on an equal basis after separating; when the Respondent was travelling for her job, the Applicant would live in the home and when Mr. Walsh was travelling, the reverse would apply. It is common ground that during this separation, which the Respondent states to be seven months in duration, the parties equally shared custody of Danika and Christina.

[12] The parties appear to have reconciled by July, 2011, when the Respondent quit her job and the parties agreed to return to Ontario. The reason for quitting this job was unclear, but it may have been because of a relationship that the Respondent had with a co-worker during the separation. In any event, the parties sold their home in New Brunswick, and after some consideration decided to obtain a home in Everett, Ontario. The reasons for purchasing there appear to be because the Applicant’s employer had moved its headquarters to Toronto, and there was French schooling available nearby at Base Borden. In any event, the parties moved into the home that they purchased in Everett at […]^th Sideroad on November 28, 2011. When they moved, the parties had lived in New Brunswick for about 17 months. After moving to Ontario, the Respondent obtained employment to fill in for a maternity leave in February, 2012.

[13] The Respondent states that she had elected to reconcile due to the Applicant’s undertaking to stop drinking, but that he broke this promise. She states that Mr. Walsh began hiding beer in the garage, and was certainly drinking by March break in 2012. She says that on April 14, 2012, the Applicant assaulted both Danika and her when she heard an altercation between Danika and Mr. Walsh and came to the bedroom and discovered Mr. Walsh holding Danika by the throat after losing his temper. When confronted by the Respondent after this occurred, the Applicant then grabbed the Respondent by the arms and shook her aggressively, and then left the room. Danika confirmed the incident in an interview with Ruth Wagner, who is a social worker with the Women & Children’s Shelter in Barrie. The Respondent states that, as a result, she and the children are afraid of the Applicant. Mr. Walsh denies that the assault took place and says that this was a manufactured incident designed to deprive him of custody of the children.

[14] As a result, the parties separated on April 20, 2012. Notwithstanding the assault and the alcohol use, the Applicant and the Respondent continued to live under the same roof, and there were a number of incidents documented where the children were left alone with the Applicant, including overnights where the Respondent was out of town on business or pleasure. Neither the police nor the child protection authorities were contacted by the Respondent until she was forced to return to Ontario. This was probably because of the Respondent’s views of the incident as set out in the notes of the Social Worker, Michael Carr, seen by Ms. Walsh several days after the incident; he noted that the “[a]uthorities not contacted due to relatively minor nature [of the assault]”.

[15] The Respondent says that when she told the Applicant that she wished to separate, she also told him that she wished to move with the children to New Brunswick. She acknowledges that the Applicant disagreed with this proposal and that the parties fought about this issue. Relatively soon after the separation, the Respondent confirmed with the Applicant in an e-mail dated May 9, 2012 that she was intent upon moving back to New Brunswick. She stated that she had arranged to lease the home that the parties had formerly lived in prior to their move to Ontario at 32 Falconer Road, Notre Dame, New Brunswick. She stated that she would provide the Applicant flexible time sharing with the children and that the Applicant could stay in the home when he came to visit and that she would leave the home to facilitate those visits. She stated that she would probably obtain a job in her field, but that she needed support for six months. She suggested a division of assets. Her reason for the move is set out in the e-mail; she stated that she wanted to, “[g]o back to what felt like home with the girls!” In a later e-mail, she states that, “We have nothing keeping us here” and that:

The girls and I need to go back to what feels like home. We need stability, a positive environment where we can be happy. The military school as great as it may be doesn’t offer that.

[16] Significantly, the Respondent acknowledges that she knew of the necessity of the Applicant’s involvement in this decision; in the later e-mail dated May 17, 2012, the Respondent states, “All I am asking for is for your approval as I feel it is fair.” Although she states that the Applicant refused to respond to these overtures, she also knew that the Applicant did not approve of this plan based upon her evidence about what took place on April 20, 2012 and his lack of response to the e-mails.

[17] The Applicant retained counsel. His material makes it clear that he knew that the Respondent was intent upon moving to New Brunswick, and that he needed to bring that issue before the courts. His counsel prepared material and, because he did not want to be in the home when the material was served, he told his wife that he was going on business to the Yukon. In fact, he went to stay at a friend’s home in Mississauga. The e-mails from the Respondent had made it apparent that she intended to move once school was out after June 22, 2012[^1] so presumably the Applicant thought that the service of the material was timely.

[18] The Respondent’s employment had ended on June 10, 2012, as she had been covering a maternity leave. She states that, in light of the assault, and in light of the Applicant’s increasingly strange behaviour, she did not feel comfortable in leaving her departure to the end of school. As noted above, on July 11, 2012 after she thought that the Applicant was safely out of town, she packed up her new van and picked up the children from their school. She deposes that her lawyer approved of this plan and the plan to deal with this matter through counsel in New Brunswick. This is notwithstanding the fact that the children clearly had their habitual residence in Ontario as provided for in s. 22 of the Children’s Law Reform Act.[^2]

[19] Ms. Walsh drove through the night and arrived in New Brunswick the next day. By that time, Mr. Walsh had obtained the order without notice in this matter, and Ms. Walsh returned to Ontario. Notwithstanding the provisions in the order requiring the children to be delivered up to the Applicant, Ms. Walsh did not do so, and refused to disclose her whereabouts until the return of this matter to court on June 21, 2012. At that time, the certain portions of my order were stayed; on June 28, 2012, the parties consented to an order permitting Ms. Walsh to return the matrimonial home and Mr. Walsh agreed to day access only as set out in the interim order of Wildman J. made that date.

[20] Since then, the Applicant has exercised access to the children pursuant to the temporary order of Wildman J. dated June 28, 2012. The major issue is whether Ms. Walsh will be permitted to move with the children as set out in her Notice of Motion or whether the children should continue to reside in Ontario pending the outcome of the trial of this matter. Arising from these issues, I must also determine the time sharing issues concerning the children.

Analysis

[21] There are a number of specific issues to be decided concerning mobility issues and the time sharing of the children in this fact situation. Those issues are as follows:

a. Should my temporary order of June 12, 2012 be set aside?

b. If so, should the Respondent be permitted to move to Notre Dame, New Brunswick with the children?

c. What will be the ongoing time sharing arrangements concerning the children?

[22] I will consider each of those issues in turn.

(a) Should my temporary order of June 12, 2012 be set aside?

[23] The Applicant obtained his temporary order on June 12, 2012; he relied upon his affidavit sworn June 12, 2012, the process server’s affidavit sworn the same day, as well as his affidavit sworn June 8, 2012. In these affidavits, the Applicant recites the fact that he was suspicious of the Respondent’s intent to move to New Brunswick and counsel had already prepared a Notice of Motion returnable June 14, 2012 to prevent that move from taking place. When the matter was brought before the court, a new Motion Without Notice was prepared based upon the fact that the process server found the Respondent to be gone.

[24] The Respondent’s counsel states that the order should be set aside because of the Applicant’s failure to disclose a material fact within his knowledge; although there is no specific rule in the Family Law Rules[^3] covering this issue, the Respondent relies upon Rule 39.01(6) of the Rules of Civil Procedure[^4] and the cases decided under that Rule. That rule states as follows:

Where a motion or application is made without notice, the moving party or applicant shall make full and fair disclosure of all material facts, and failure to do so is in itself sufficient ground for setting aside any order obtained on the motion or application.

[25] Presumably, as there is no specific Family Law Rule covering this issue, the Respondent requests that I decide this matter by reference to the Rules of Civil Procedure as provided for in Rule 1(7) of the Family Law Rules.

[26] I note that it has always been acknowledged, on a motion without notice, whether in the family or the civil context, that full disclosure of all material facts within the knowledge of the moving party is an essential element of the material filed in support of such a motion. If a moving party fails to make such disclosure, this puts the order made without notice at risk as the responding party is not present to make their own case, and the presiding justice is forced to rely upon the material presented by the moving party based upon one party’s materials only. Accordingly, the moving party has a positive duty to disclose all material facts relevant to the order being requested whether or not those facts are favourable to the order requested or not. The fact that the material would have changed the decision of the of the justice deciding the matter is not necessarily relevant; the duty of full disclosure is an absolute one and the failure to do so entitles the responding party to set aside the order.

[27] If the material is deficient and fails to disclose a fact that the presiding justice should have seen, and which is within the knowledge of the moving party, the order should be set aside and the matter decided de novo without reference to the Order made without notice. This is especially so in the family context, where the matters being dealt often involve care and control of children or mobility issues as in the present case. The fact that the omission is inadvertent, as alleged in the present case, is not relevant. The Family Law Rules do not adequately address this issue. Accordingly, I have no difficulty in adopting the provisions of Rule 30.01(6) to the family law context as requested.

[28] In the present case, the Applicant failed to disclose the e-mails of May 9 and 17, 2012, which disclose the proposed date of the move, and the location where the Respondent proposed to move with the children. The impression that any justice reviewing the material provided was that the Applicant did not know where the Respondent intended to go in New Brunswick; otherwise what other reason would there be to obtain the school records to provide the Respondent’s address? The Applicant certainly knew that he could find the Respondent in Notre Dame, New Brunswick; that is where he immediately went to obtain a return of the children once he obtained the order.

[29] I find that the Applicant failed to disclose a material fact in issue when applying for the without notice order, and counsel’s argument that he was rushed under the circumstances does not save the order in question. This is especially so where material was already prepared and the motion without notice and affidavits sworn June 12, 2012 were intended to supplement the documentation intended to be served on the Respondent.

[30] Accordingly, my order of June 12, 2012 is set aside in its entirety.

(b) If so, should the Respondent be permitted to move to Notre Dame, New Brunswick with the children?

[31] As noted above, this motion was precipitated by the Respondent’s strong desire to move with the children to New Brunswick and her subsequent actions in doing so without the consent of the Applicant. Ms. Walsh strongly maintains that it is in the best interests of the children to do so, and that it is conversely not best for the children to remain in Ontario. The real issue is whether it is appropriate to make this determination on an interim basis based upon the affidavit and transcript evidence presented at the argument of this motion rather than after a trial of the issue.

[32] Both parties have presented conflicting parenting plans. The Applicant states that the children are best off in Ontario, and that they should remain in the matrimonial home purchased by the parties in November, 2011. He suggests that the children remain in the home, and that they be placed in his primary residence; although he does not speak to the access that he is willing to provide, he apparently is not intent upon restricting access to the Respondent as he is willing to also entertain a nesting arrangement with the children in the matrimonial home and the parties rotating in and out on a relatively equal basis. He states that the Respondent is clinically depressed, and it is not in the children’s best interests that she continue to have primary care of the children.

[33] The Respondent submits that the Applicant is an alcoholic and abusive. She states that it is in the children’s best interests that the Applicant receive no overnight access to the children even were she to move to New Brunswick. She states that she is the primary caregiver of the children and has been throughout and that it is in their best interests that this continue. She notes that the children wish to move to New Brunswick and wish only limited contact with their father. She finally notes that both children, and especially Danika, were unhappy with their school in Ontario, and that the 2010-2011 schooling experience in New Brunswick was much more positive for the children.

[34] It is needless to say that each party’s allegations are hotly disputed by the other. This is precisely the difficulty in making a temporary order, where the parties’ respective allegations have been untested by cross-examination in a trial context, or without the information from collateral sources such as the Office of the Children’s Lawyer, the appointment of which the parties have consented to. Once a decision is made allowing a party to move to another jurisdiction, it is difficult to reverse that decision without causing even more instability to the children than that occasioned by the separation, and it is obviously a decision to be reluctantly taken on the limited materials available to a motions judge.

[35] This is reflected in the leading Ontario case on temporary orders for mobility, Plumley v. Plumley, 1999 13990 (ON SC), [1999] O.J. No. 3234 (S.C.J.), a decision of Marshman J. which was relied upon by both counsel in argument. In that case, Marshman J. made it clear that an interim order permitting a move is concerning “because most of these decisions are of an urgent nature and seldom does the judge have the luxury of time to research and formulate a reasoned decision” [para. 6]. Indeed in that, case, as in the present case, the motion was being argued several weeks prior to the beginning of school and a decision was necessary on an expedited basis.

[36] Marshman J. stated that there were three factors in determining on an interim basis whether a move ought to be permitted on a temporary basis prior to trial [at para. 7]:

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 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 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.

[37] There was some argument at the motion as to whether Marshman J. intended that all of these factors be present prior to allowing a move, a position advocated by Mr. Goddard. I do not believe this to be the case. Firstly, in the report of the case, Marshman J. noted that there was a “triable issue” regarding the question of whether there was a change in circumstances under Gordon v. Goetz, [1996] S.C.R. 27; yet she permitted the move. Moreover, a plain reading of the three factors makes it apparent that the third factor may permit a move even where a justice may make a finding of a triable issue under the first factor. In my view, a positive finding under any of the three factors may result in a temporary order permitting the children to move on a temporary basis.

[38] As well as Marshman J., several other justices have commented that a temporary order permitting a party to move with the children should be only granted in limited circumstances. Although conflicting affidavits alone do not prevent such an order from being made (Luckhurst v. Luckhurst, 1996 737 (ON CA), [1996] O.J. No. 1972 (C.A.)), a number of judges have commented that a court must exercise caution in permitting a party to move on an interim basis where the available evidence is limited or conflicting, or where a trial may be necessary to determine the final custodial arrangements for the children: see Cox v. Darling, 2008 ONCJ 91, [2008] O.J. No. 824 (C.J.) at para. 13 and Datars v. Graham (2007), 41 R.F.L. (6^th) 41 (Ont. S.C.J.) at para. 15-16. The cases also confirm that even on an interim motion, the factors under Gordon v. Goetz, supra must be considered and, as stated by Quigley J. in Datars [at para. 16] “it is difficult if not impossible in most cases to complete the extensive child-focused inquiry required under Gordon v. Goetz on the typically conflicting and incomplete affidavit evidence that is often available to the court on interim motions.”

[39] I find that to be the situation in the present case. I have a number of difficulties with the Respondent’s position regarding custody and access, and indeed in respect of her evidence on the whole, and those concerns lead me to the conclusion that none of the factors set out in Plumley dictate a move to New Brunswick in the present case. I do not find that the material filed by the Respondent proves on the balance of probabilities that custody of the children is a foregone conclusion and the material also does not make it clear that a move to New Brunswick is in the children’s best interests.

[40] The Respondent rests much of her case on the views and preferences of the children. She states in her material that Danika was bullied in the school at Base Borden, and that Danika wished to return to her old school in New Brunswick where she was much happier. She states that the children were overjoyed with the proposed move to New Brunswick and that Danika was “counting the days” to the return to New Brunswick. She stated that the children do not wish to see their father for overnight visits; indeed, she stated that this was a major reason for her not agreeing to overnight visits even were Mr. Walsh to agree not to consume alcohol before or during visits with the children: see Questions 940 et sequent. of the Cross-examination of the Respondent.

[41] The material filed by the Respondent and her answers on cross-examination indicate to me that there is some issue to be taken in relying upon the views and preferences of the children, and specifically Danika, at this point in time. There is evidence of parentification of these children and that the views of these children are being influenced by the Respondent. I am firstly concerned that the children knew about the proposed move to New Brunswick well before the move took place. The fact that the children were overjoyed with the fact that they were leaving means that the Respondent was not neutral with the children about this issue when it had not yet been decided. The evidence seems to indicate that Danika knew that they she was not to tell her father about the move; this was implied when Ms. Walsh states that Danika had been “counting the days” before they were to go to New Brunswick and that when she came to pick up the children at the school at noon on June 11, 2012, the children came out of the school “yelling yippie we’re going to New Brunswick.” If it is true that the Respondent told Danika the details of the move, and to cover this up from the Applicant, this is entirely inappropriate.

[42] The children also appear to have been overly involved regarding access to their father; as noted above, during examinations, the Respondent stated that she would not permit overnight visits to the Applicant partly because of the wishes of the children that this not take place. Later in the examinations, the Respondent states that she was to convey to the Applicant a message from Danika that the answer to whether she would go to Great Wolf Lodge with her father was “no”; that implies that Danika was aware that there were examinations taking place, and that this was an issue to be decided between the parties. It is my impression that the Respondent has involved the children to a great degree in this litigation and in issues that are effectively adult court decisions, and that she has used this against the Applicant in this litigation. Furthermore, I have some difficulty in Danika being put in the position of “deciding” the issue of access to their father; were the children to state that they did not wish to go to school, that would not govern the issue; there is no reason why these views alone should govern the issue of access by the children to the Applicant.

[43] Finally, I note that the Respondent’s evidence about the views and preferences of the children needs to be tested in the context of a trial and, hopefully, through the Office of the Children’s Lawyer. The pictures of the children at the air show do not show children who appear to be afraid of the Applicant as alleged by the Respondent. If Danika did not want overnights with the Applicant and feared him, why did the Respondent leave the children with Mr. Walsh on numerous occasions after separation? The fact that Danika disliked her school at Base Borden is also not borne out by the Respondent’s statement in her May 17, 2012 e-mail which describes that school as being “as great as it may be”; she appears to be asserting only that the school in New Brunswick is a better school and does not mention any issue as to bullying of Danika.

[44] The Respondent also claims that the Applicant is an alcoholic and accordingly his time with the children should be limited. She states that the alcoholism of the Applicant has been an ongoing issue, and that this should disentitle him from any substantial time sharing with the children; accordingly there is no demonstrable reason why the move to New Brunswick should not take place.

[45] However, as noted above, until the Respondent’s return to Ontario in June, 2012, this apparently did not disentitle the Applicant from overnight and meaningful time with the children. Firstly, when the parties separated in December, 2010, they agreed to an extensive time sharing arrangement which involved equal time sharing for the children. Both parties were working at the time, and travelling extensively; when one party was travelling the other would have the children. This was notwithstanding serious allegations of alcohol abuse made by the Respondent about the Applicant; she states in her affidavit that she discovered the Applicant “extremely drunk” on December 21, 2010; she later says that she found him passed out with the children in the home, and alleges later that the Respondent abused the family pet.

[46] The Respondent alleged, however, that the Applicant’s alcoholism progressed as demonstrated by the assault on Danika and herself in April, 2012. Specifics of this progression were, however, not apparent from the material filed by the Respondent. Moreover, notwithstanding the allegation of Mr. Walsh’s increasing difficulties with alcoholism, Ms. Walsh permitted overnight visits to continue both for business trips and for a “girl’s night out” occasion.

[47] It was only after being ordered back to Ontario that the Respondent took the position that overnight access was not appropriate. This I find to be both self-serving and a result of the Respondent being forced to return to Ontario. Accordingly, I find that the Respondent’s position regarding the safety of the children during access to Mr. Walsh to be inconsistent with the previous arrangements made between the parties, both when they separated in December, 2010, and subsequent to the present separation in April, 2012.

[48] The Respondent has, however, alleged that the Applicant is a violent and abusive man, and as such should be disentitled to extensive access to the children. She states that the children are afraid of the Applicant and should not be forced to have extensive contact with him.

[49] This, however, is belied by the reality of the occurrence alleged to have taken place on April 14, 2012. The Respondent acknowledges in examinations that this was an isolated occurrence, and that the Applicant has assaulted neither Ms. Walsh nor Danika before or since, even though the parties resided under the same roof for a period of seven weeks after separation. Moreover, on April 16, 2012, when the Respondent attended at an EAP counsellor obtained through the Applicant’s employment, that counsellor noted that the Respondent was returning to the home due to the fact that there was no injury and the event was apparently described by the Respondent as being of a “minor nature.” Again, it was only after being ordered back to Ontario that the Respondent contacted the C.A.S. and the police about the incident; the police have elected not to lay charges and the C.A.S. has taken no position, as far as I am advised, in this proceeding. Again, the incident appears to be exaggerated in order to obtain an advantage in this litigation.

[50] Finally, the Respondent argues that she is the primary caregiver of the children and as such she is able to provide a more stable plan for custody and access in New Brunswick. She states that she has always been largely responsible for the children. She cites the school in New Brunswick as being the school largely enjoyed by the children and particularly Danika. She notes that she has supports in New Brunswick which would make it in the children’s best interests that they be moved there. She points out that the Applicant has the financial wherewithal to attend in New Brunswick for access and that she is presently unemployed and available for the children.

[51] It is without a doubt that the Respondent has the best interests of the children at heart. However, it is also, in my view, without a doubt that so does the Applicant. Both parties have vastly different viewpoints as to what those best interests are. For every argument of the Respondent, there is a counter-argument raised by the Applicant; he notes that both of these children have spent the majority of their short lives in Ontario, and that the stay in New Brunswick was only 17 months of the parties’ 12 year cohabitation. He states that it is a myth that the children had stability in New Brunswick, noting that the children had moved several times and changed schools once. He notes that he also has family support in Ontario, and that he is presently able to shift his schedule so that he can devote a primary amount of his own time to the children. I note that part of the Respondent’s plan as set out in her e-mail of May 9, 2012 was to work full time for a pharmaceutical company in New Brunswick, in which case she would have had to make care arrangements for the children as would the Applicant in Ontario. Finally, I note that the parties carefully chose their residence in New Lowell in light of the needs of the children for a bilingual education and their activities. There is no possible way that I could determine whether custody with the Applicant or the Respondent is in the best interests of the children on the basis of the materials filed for this motion.

[52] Finally, it is trite that it is the duty of any proposed custodial parent that they maximize contact between the children and the visiting parent: see s. 16(10) of the Divorce Act[^5] and the cases decided under that section including Somerville v. Somerville (2007), 2007 ONCA 210, 36 R.F.L. (6^th) 7 (Ont. C.A.) and V.S.G. v. L.J.G., 2004 17126 (Ont. S.C.J.). Considering the position of the Respondent that the Applicant receive only day access if she were to move to New Brunswick and that the views and preferences of the children will be strictly adhered to in respect of the issue of access, I am also not satisfied that were the Respondent to move to New Brunswick with the children, that she would maximize contact between the Applicant and the children. I find that, for the purposes of this motion that he plan put forward by the Respondent regarding contact between the Applicant and the children to be inadequate under the circumstances.

[53] I am accordingly not convinced that custody of the children and that primary residence with the Respondent is a foregone conclusion as argued by Mr. Hilbing in this matter. Generally, unless there is no case to go to trial, or it is otherwise clear that custody will be awarded to the Respondent, the relocation issue should be deferred to trial: see Terris v. Terris (2003), 2003 2040 (ON SC), 41 R.F.L. (5^th) 433 (Ont. S.C.J.). This is not a situation such as that in Plumley where the custody of the children had recently been determined and that custodial parent wished to move. There are no other compelling reasons as to why mobility must be determined at this time as was the case in Cox v. Darling, supra (where the mother’s home was in Chicago and the father was restricted from having any contact with the child because of criminal charges) or Alcaniz v. Willoughby, [2010] O.J. No. 4009 (S.C.J.) (where the father had supervised access only due to child protection proceedings and the mother’s home was in Florida).

[54] Accordingly I do not find it to be in the best interests of the children that they leave Ontario to reside with the Respondent in New Brunswick. There shall be an order that the children reside within the province of Ontario. The Respondent’s motion for leave to move to New Brunswick is dismissed.

[55] Until June 11, 2012, the parties lived with the children separate and apart under the same roof. Both parties claim an active role with the children; until June 10, 2012, both parties were working at their respective professions. The parties have agreed to the appointment of the Office of the Children’s Lawyer in order to assist in the determination of custody and access in this proceeding.

[56] Each party urges vastly different solutions to the issue of custody and access. The Applicant requests primary residence, or as an alternative shared custody. He states that he is in a better position to assume custody as he can make arrangements through his job and he states that the Respondent is clinically depressed and not fit to care for the children.

[57] The Respondent urges the opposite. She says that if she is forced to live here, it is in the children’s best interests that she be granted exclusive possession of the home, and that the Applicant have day access only on the terms set out in the consent order issued in this matter. She requests temporary custody of the children and a restraining order.

[58] When parties join issue in court proceedings, their positions respecting their children and the custodial relations respecting the children inevitably harden. The most accurate determination of what parties together may have thought to be in the best interests of their children usually can be determined by the arrangements between them previously made in prior separations or during the present separation.

[59] In the present case, there are differing versions by each party as to who primarily cared for the children up to the events which took place on June 11, 2012. Both parties state that they took an active role with the children. Both parties state that it is in the best interests of the children that they reside with him or her.

[60] I note the overnights that the Applicant had with the children since the separation which took place on April 20, 2012. This is evidence, to me, that the Respondent trusted the Applicant to care for the children during those overnights. It is not evidence of the respective caregiving roles, and I suspect that when the Applicant was away on business, the Respondent was left caring for the children overnights on numerous occasions, both prior to or after separation. The Applicant states, however, that he is able to adjust his work schedule to remain home and work from home for substantial blocks of time in order to care for the children.

[61] I am left with the arrangement that the parties made during their recent separation between December, 2010 and July, 2011. During that period of time, the parties agreed that the children would remain in the matrimonial home and that the parties would rotate in and out during their periods of time when they cared for the children. Both parties apparently trusted the other when caring for the children. Although the Respondent states that the Applicant’s alcoholism has progressed, she has provided no specific evidence of that progression; she does not allege the assault to be an alcohol related incident.

[62] I specifically discount the views and preferences of the children as expressed by the Respondent. As noted above, I am extremely concerned about the extent to which the Respondent has involved the children in these proceedings. She is taking the position that if the children did not wish to have overnight access, they do not have to have it. She gave no evidence of her attempts to encourage time sharing between the Applicant and the children and when asked about what efforts she had made to encourage access between the Applicant and the children, she had no real answer to that question. I am sure that the representative of the Office of the Children’s Lawyer will do all that they can do to determine the views and preferences of the children. Until then, I must bear in mind the maximization of contact between the parties and the children as I am enjoined to do under s. 16(10) of the Divorce Act.

[63] Accordingly, it is my determination that a temporary order to go that the children remain in the matrimonial home. The parties will rotate in and out on a weekly basis and interim care and control of the children will be shared. I will leave it to the parties to discuss and agree to the terms of this arrangement, which will be largely dictated by the Applicant’s travel schedule; if the parties cannot agree on the specifics of the equal time sharing arrangement, this issue may be spoken to before me.

[64] This will only go into effect when financial arrangements have been made between the parties which will enable the Respondent to obtain her own residence. Until then, the Applicant shall have extensive access to the children. He shall see the children three weekends out of four from Friday evening to Sunday evening commencing September 7, 2012 to be exercised in the matrimonial home; I am specifically not commencing this on Labour Day weekend as the children need as little disturbance as possible during the weekend prior to school. As well, the children shall have time with their father every Wednesday evening from after school to 8:00 p.m. That latter access will take place outside the matrimonial home.

Order

[65] There will accordingly be a temporary order to go on the following terms:

a. My order of June 12, 2012 will be set aside;

b. The Respondent’s motion to permit her to move with the children is dismissed;

c. The children shall reside in the matrimonial home located at […]^th Sideroad, R.R. #[…], Everett, Ontario;

d. The parties shall equally share custody of the children on a temporary basis according to the Applicant’s travel schedule. The Applicant shall adjust his travel schedule in order to obtain blocks of time when he can care for the children on a weekly basis and when the Applicant is not travelling, he shall reside at the matrimonial home with the children; when he is travelling, the children shall be in the care of the Respondent;

e. If the parties are unable to agree on the specifics of the time sharing arrangement, that may be spoken to before me, or, on consent, written submissions may be provided.

f. This arrangement shall only commence upon financial support being agreed to or arranged which will enable the Respondent to obtain a reasonable residence for herself elsewhere from the matrimonial home; in the meantime, the Applicant shall immediately have overnight access to the children outside the matrimonial home three weekends out of four commencing September 7, 2012 as well as every Wednesday evening from after school to 8:00 p.m. with the latter access to take place outside the matrimonial home;

g. On consent, the Office of the Children’s Lawyer shall be requested to become involved to provide representation to the children and to investigate custody and access issues in this matter.

h. The financial issues adjourned to a case conference on September 18, 2012 at 9:30 a.m. after which the motion respecting financial issues may be scheduled if no settlement can be arrived at.

[66] The parties agreed during argument that I am not necessarily seized of the financial issues raised in the motion; those issues were not argued before me due to time constraints. They are, however, connected with the ultimate success on the motion, any offers to settle made on the motion, and argument of the matter as a whole. Therefore, if the temporary financial issues are settled at the case conference, I will entertain arguments as to the costs of the motion as a whole, with the Applicant and then the Respondent to provide written submissions of no more than three pages in length (not including costs outlines or offers to settle) on one week turnaround. If the financial issues go to argument before another justice (or for that matter, before myself), then the costs the argument of the mobility and time sharing issues shall be determined by the justice hearing the motion on the financial issues between the parties.

McDERMOT J.

Date: August 30, 2012

[^1]: In her e-mail dated May 17, 2012, the Respondent states that, “the girls and I will be moving back to NB after school on June 22."

[^2]: R.S.O. 1990, c. C.12

[^3]: O. Reg. 114/99

[^4]: R.R.O. 1990, Reg. 194

[^5]: R.S.C. 1985, c. 3 (2nd Supp.)

Peter Steffan Walsh v. Isabelle Walsh, 2012 ONSC 4965

Case Summary

ENDORSEMENT

Introduction

Background Facts

Analysis

(a) Should my temporary order of June 12, 2012 be set aside?

(b) If so, should the Respondent be permitted to move to Notre Dame, New Brunswick with the children?

Order

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 2

Legislation 4

ENDORSEMENT

Introduction

Background Facts

Analysis

(a) Should my temporary order of June 12, 2012 be set aside?

(b) If so, should the Respondent be permitted to move to Notre Dame, New Brunswick with the children?

(c) What will be the ongoing time sharing arrangements concerning the children?

Order

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 2

Legislation 4