COURT FILE NO.: 18,042/12
DATE: 20120910
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHELLE HAZELWOOD
Applicant (Appellant)
– and –
RICHARD HAZELWOOD
Respondent (Respondent)
Jeffery Wilson, for the appellant.
Sharon Sabourin, for the respondent.
HEARD: September 5, 2012
gauthier, j.
Overview
[1] The Appellant, Michelle Hazelwood (“the mother”) appeals the temporary Order of the Honourable Justice R.E.W. Carr of the Ontario Court of Justice, (“the Judge”) made on May 4, 2012. In particular, she takes issue with paragraphs 1 and 4 of that Order which require the mother to return the children to Timmins, failing which the children would be in the care and control of the Respondent father, Richard Hazelwood (“the father”). The mother asks this Court to permit her to remain in Toronto with the children.
[2] The father opposes the mother’s request.
[3] The mother also moved for fresh evidence to be heard, pursuant to section 134(4)(b) of the Courts of Justice Act. Mr. Wilson and Ms. Sabourin each filed an Affidavit of his/her client, dealing with the circumstances of the children and the parents since May 4, 2012, in a sealed envelope. Counsel were in agreement that, if I granted the appeal, then I should refer to those Affidavits in determining what order I should make pursuant to section 134(1) of the Courts of Justice Act.
[4] The mother and father were married in December, 2005. They have two children: Liam, born April 15, 2005 (7 years old), and Benjamin, born January, 2007 (5 years old) (“the boys”).
[5] The parties lived in Toronto, which was the mother’s home and where her family continues to reside, until October, 2007. At that time, the parties and the boys relocated to Timmins, where the father was from and where his family continues to reside. The parties and the boys took up residence in an apartment owned by the father’s family. The boys were two years old and nine months old, respectively, at the time of the move.
[6] Throughout the period of cohabitation, the mother did not work outside the home.
[7] The parties separated in July, 2011. The mother remained in the family residence with the boys and the father moved in with his parents.
[8] On October 31, 2011, the mother initiated proceedings in the Ontario Court of Justice, seeking, among other things, sole custody of the boys, child support for them, and support for herself. She further sought an order that “the Respondent father have generous liberal access to the children”, with “an equal sharing of all holidays”. Interestingly, she also sought an Order that “the Respondent father not remove the children out of the District of Cochrane, Ontario, without prior written consent of the Applicant mother.”
[9] The father’s Answer, dated November 4, 2011, contained a claim for sole custody of the boys, or, alternatively, joint custody of the boys, and an Order that the mother not remove the boys from the District of Cochrane without the written consent of the father. The Answer further set out that following the separation, the parties had shared the care of the boys on a “one week on, one week off” basis, until September 2011, when the mother unilaterally decided that the boys would only be with the father every second weekend. The father complained about this change in arrangement.
[10] In the summer of 2011, the father’s parents served an eviction notice on the mother for non-payment of rent. Apparently, the mother was not receiving any support from the father at the time and accordingly was unable to pay rent to his parents.
[11] The father’s materials indicate that he repeatedly reassured the mother that no enforcement of the eviction notice would be taken. And none was.
[12] The mother required surgery, which she underwent in Toronto in December, 2011. The boys were in the care of the father from December 26, 2011 until February 4, 2012.
[13] The mother brought a motion, initially returnable on March 9, 2012, for an order that she be permitted to relocate to Toronto with the children. The Affidavit filed in support of that motion contained an allegation that the father had been verbally abusive to the mother in the presence of the boys on one occasion leading up to the separation. The Affidavit further detailed the mother’s concerns about the father’s infidelity, the mother’s lack of family or support system in Timmins, the lack of financial support by the father, the “bullying” of the mother by the father and his family, and perceived flaws in the father’s parenting.
[14] On March 9, 2012, the mother’s motion was adjourned to April 16, which was the date set for a settlement conference.
[15] On March 16, 2012, the father’s counsel wrote to the mother’s counsel, after having been advised of the mother’s intention to move to Toronto with the children, suggesting the possibility of a resolution of the mother’s concerns about housing. The father’s counsel indicated that the father was opposed to any relocation of the children outside of the jurisdiction.
[16] The mother left Timmins with the boys and moved them to Toronto. This occurred on April 1, 2012.
[17] Shortly thereafter, the father brought his own motion, initially returnable on April 20, 2012, seeking the return of the boys to the District of Cochrane, and temporary care and custody of the boys.
[18] In response, on May 2, 2012 the mother swore a lengthy Affidavit. In it, she included previously-undisclosed allegations about the father’s drinking, his cheating, and his treatment of her and the children.
[19] The mother’s motion (March 9, 2012) and the father’s motion (April 20, 2012) were heard together by Justice Carr on May 4, 2012. As of May 4, 2012, the only Orders were one dated November 17, 2011, dealing with specific access to the father for the period of November 11, 2012 to November 20, 2012, and another dated January 17, 2012, also dealing with specific access. No Orders had been made awarding custody or primary residence to either party.
[20] As indicated above, the Judge ordered that the children be returned to the Timmins area on or before June 1, 2012.
The Appeal
[21] The mother raises four grounds for her appeal:
(1) The Judge erred in principle in applying the wrong test to the determination of a temporary motion to relocate with the boys pending the trial;
(2) The Judge erred in principle in failing to apply the ‘best interests of the child test’ in determining the issue of temporary relocation of the boys pending the trial;
(3) The Judge erred in fact and law in giving undue weight to the mother’s conduct in deciding the issue; and
(4) The Judge erred in fact and law in failing to conduct the appropriate inquiry on a temporary motion for relocation in the face of conflicting evidence and no prior questioning.
Standard of Review
[22] A motion Judge’s decision of first instance is entitled to deference, and “should not be set aside unless the appellant can show the court that the judge erred in his appreciation of the evidence, in the inferences he drew from the evidence, or in his application of the relevant legal considerations.” Carter v. Brooks 1990 CanLII 2623 (ON CA), [1990] O.J. No. 2182, at page 9.
[23] G.P. Smith J., at paragraph 29 of Dafoe v. Dafoe, described the standard of review as follows:
This is not a new hearing nor is it a motion to vary the order below. This is an appeal and, as such, the law is quite clear that absent any error in principal[sic] or misapprehension of some material evidence it is inappropriate for an Appellate Court to interfere with a Trial Judge’s decision.
Principles Applicable on Mobility Motions
[24] Any and all applications/motions dealing with the residence, care, and control of children must be determined on the basis of the best interests of the children. Section 24(1) of the Children’s Law Reform Act.
[25] The Supreme Court of Canada decision in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 is the leading authority in mobility cases. The law was summarized at paragraph 49 of that case as follows:
The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests 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.
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 views 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.
[26] On an interim mobility motion, I suggest that #5 to #7 inclusive are particularly relevant.
[27] Justice Marshman in Plumley v. Plumley 1999 CanLII 13990 (ON SC), [1999] O.J. No. 3234 further discussed the factors that are important in deciding mobility issues on a temporary basis. At paragraph 17, she said this:
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 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 trial.
[28] Where there is incomplete and/or conflicting evidence, courts are generally reluctant to sanction fundamental changes to children’s lifestyle and circumstances on an interim basis. Kennedy v. Hull 2005 ONCJ 275, [2005] O.J. No. 4719
[29] Although both parties in a dispute concerning care and custody of children bear an evidentiary burden in connection with the best interests of the children, the burden is on the moving party (seeking to change the status quo) on an interim mobility motion to establish compelling reasons to grant the motion. Marcuzzi v. Lindo [2010] O.J. No. 3679, at paragraph 64.
Grounds of Appeal
[30] (1) The Judge applied the wrong test: If I understand Mr. Wilson’s submission correctly, the Judge asked himself only one question, being: based on the conflicting evidence, could he decide the mobility issue without a trial. The answer was no. Therefore he dismissed the mother’s motion without any further inquiry. The law is not that an interim mobility motion should be denied on the basis that a trial is required. An inquiry into the best interests of the children is required, regardless of whether or not a trial is required.
[31] In his ruling, the Judge said this:
Mobility rights cases are difficult cases to resolve, especially at this stage and in the face of competing allegations and without the benefit of hearing from witnesses, as stated by Justice Juriansz for the Ontario Court of Appeal in the case of Berry v. Berry wherein Justice Juriansz quotes from the judge who dealt initially with the matter on an interim basis. It ultimately was resolved following a trial and appealed from, to the court of Appeal. This is what the judge in the first instance said:
“Based on the evidence before me, I am unable to deice the issue of mobility on an interim basis. I am reluctant to allow the child to move from Toronto to Kingston until there has been an opportunity to determine his best interests following a complete and full hearing on all the relevant evidence.”
Kelly, J. was guided by the decision of the Ontario Superior Court of Justice (Datars v. Graham (2007) 2007 CanLII 34430 (ON SC), 41 RFL (6th) 51 (Ont. S.C.J.) where in the justice there said the following:
“the problem that this court faces on this motion, mobility, is that it is difficult, if not impossible, in most cases to complete the extensive child-focused inquiry required under Gordon v. Goertz on the typically conflicting and incomplete affidavit evidence that is often available to the court on interim motions.”
[32] The mother suggests that what this passage shows is that the Judge simply concluded that, because a trial on the issue of mobility was required, he would, for that reason alone, deny her motion for relocation of the boys.
[33] I am not persuaded that her submission is correct given that the Judge clearly stated that the issue was where the boys should reside pending trial, and the fact that the Judge went on to discuss the facts that he could find on the evidence, such as the fact that the boys had been residing in Timmins for five years, and had been moved to Toronto one month earlier. I will set out below certain relevant comments the Judge made during the submissions of counsel.
[34] During the preliminary discussions between the Judge and counsel, and dealing with the admissibility of certain evidence tendered on behalf of the mother, the Judge said this:
We’re dealing with the issue of interim placement of the children. (page 158 of the Appeal Book, line 20).
I think we’re dealing with all those issues on an interim basis which is obviously not easy because I have no opportunity to listen to the people or their witnesses, and to make any judgments based on – any factual determinations based on balance of – I can’t do that. I can just, in real life, listen to it...rather than sit here and go through them and spend all day deciding what should be admissible or what shouldn’t be, I’d rather have counsel address the matter on the merits, speak to these issues and we’ll proceed on that basis, and at the end of the day...I’ll give them whatever weight they deserve, in my respectful view, and make a determination on an interim basis in order to move this matter along, and having said already, that the court is really in a very awkward and handicapped position given that we have affidavits that fly in the face of each other, but I’ll do what I have to do. (page 159 from line 5 to page 160 to line 5).
And what we are doing here is whether or not these kids, these boys, should stay with their mother in Toronto or come back pending a trial. (page 172 from line 30).
[35] These comments suggest that the Judge conducted the proper inquiry, i.e. where the boys should reside on an interim basis, on the evidence before him. I do not conclude that he simply dismissed the mother’s motion because a trial was required.
[36] (2) The Judge failed to apply the best interests test, and failed to conduct the proper inquiry on an interim mobility motion: I will address grounds 2 and 4 above together under this heading.
[37] The mother says that the Judge did not adopt the test of the best interests of the children, nor did he apply the factors in set out in Gordon v. Goertz and Plumley v. Plumley, supra.
[38] Although the Judge did not directly refer to the best interests test, I am not persuaded that he did not consider the boys’ best interests. I am further not persuaded that he did not consider the factors set out in Gordon v. Goertz and Plumley v. Plumley, supra., to the extent that he could, given the evidence before him.
[39] Certain of the Judge’s comments, both during submissions and within his reasons suggest that he did in fact consider that there was a genuine issue for trial, that is, whether the move to Toronto was in the best interests of the boys.
[40] He considered the length of time the boys had lived in Timmins. (page 203).
[41] He considered the impact allowing the move would have on continued contact between the boys and their father. (page 180 where he refers to the number of kilometres between Timmins and Toronto and comments that “That’s not that easily bridged. It’s a very difficult situation.”).
[42] He considered the mother’s reason for the move and concluded that her housing issue could be addressed by way of a lump sum support order for arrears. (page 177). In other words, the mother’s ability to care for the boys would be met by an order for lump sum support; this suggests that her claim that he should consider her housing issue and her prior financial circumstances as good reason for the move did not find favour. The Judge understood that a parent’s reason for moving is to be considered only in exceptional cases where it is relevant to the ability of the parent to meet the needs of the child. (page 189).
[43] He considered that the mother’s Application had not requested permission to move, nor did it contain any allegations of violence on the part of the husband except for the occasion leading up to the separation when he is alleged to have yelled at the mother, in the presence of the children. (page 182).
[44] While the Judge does not say that he was making his decision based on the best interests of the boys, or that he had specifically considered the factors set out in Gordon v. Goertz (supra) and Plumley v. Plumley, he made his decision on the basis of the evidence before him. What was before him did not permit a very extensive child-focused inquiry.
[45] Essentially, the evidence was that the boys had lived in Timmins virtually their entire lives. Just two months earlier, the mother herself wrote that “they “love their life here” (paragraph 57 of the mother’s affidavit sworn March 1, 2012)
[46] The material further disclosed that the father had had extensive contact with the children (week about) from July to September, 2011, and had not consented to having his contact with the boys restricted to every second weekend between September and November, 2011.
[47] The evidence was that the boys had been in the care of the father while the mother underwent surgery, from late December, 2011 to early February, 2012.
[48] The mother’s material spoke about the boys having adjusted well to the move and about wanting to remain in Toronto. Given their ages, and the short period of time that the boys had been in Toronto, I would not have attached a great deal of weight to that evidence. I note also that the mother’s own evidence about the relationship between the father and the boys is contradictory. In her Affidavit sworn May 2, 2012, she indicated that the boys missed their father and couldn’t wait to see him in the summer, but she also stated that the boys are not comfortable with their father. This is part of what was before the Judge on May 4, 2012.
[49] On all the evidence before the Judge, it was certainly open to him to reach the conclusion he did and deny the mother’s motion for permission to have the boys remain in Toronto.
[50] The onus was on the mother to establish that the best interests of the boys would be served by them remaining in Toronto pending the trial. She did not discharge that onus. On the material before him, the Judge could not conclude that the mother’s factual assertions forming the basis of her request were true, and that the best interests of the boys would be served by them remaining in Toronto.
[51] C.A. Nelson J. discussed the onus very succinctly in Serafin v. Serafin [2010] O.J. No. 3653, when he said the following at paragraph 16:
Thus, although it is open to the court to permit the move on a temporary basis, there needs to be cogent evidence to establish that the move is in the child’s best interests; that the determination of the issue cannot wait for trial; and that Ms. Serafin would likely be successful at trial.
[52] Carr J. reached the same conclusion as Nelson J. in that he was not convinced that there was sufficient evidence to justify a decision on a temporary basis as opposed to after a full hearing on the merits.
[53] As well, the evidence did not establish that the move to Toronto had been necessary in order for her to meet the needs of the boys.
[54] (3) The Judge gave undue weight to the mother’s conduct: The mother suggests that certain comments made by the trial Judge indicate that he gave disproportionate weight to the fact that she had moved the boys without the consent of the father, without the permission of the court, and while her motion for permission was pending.
[55] He did say, in the course of his ruling that “She’s already moved; therefore, she’s really asking for forgiveness rather than permission, as stated by Ms. Sabourin earlier...” (page 203). He was reiterating a submission made by father’s counsel.
[56] The Judge did also comment that certain submissions being made on behalf of the mother were self-serving and not helpful. There is nothing inappropriate about such a comment, in the context of the evidence in this case. There was little evidence to establish that the boys’ best interests were served by relocating to Toronto two weeks before the date set for hearing of the motion.
[57] In response to the mother’s submission that the children were already established in a new routine in Toronto and that they should not be disrupted by having to return to Timmins, the Judge did say this:
That doesn’t work. It’s like a man who murders his parents and comes to court and suggests to the Judge he get clemency because he’s a poor orphan.
[58] While the above is strong and colourful language, I am not persuaded that the Judge based his decision either entirely or disproportionately on the fact of the mother’s conduct in removing the children. I have already made reference to other comments and findings of fact made by the judge which indicate that the mother’s unilateral decision to move the children was not the only factor he considered, nor did he attribute too much weight to it.
[59] It was not inappropriate for the Judge to be critical of the mother’s conduct. And he is not the first to express criticism in such circumstances. In Hernandez v. Hernandez, Harper J. described a mother as “presumptuous”, “misguided”, and “self-focused” in leasing the home she was residing in with the children on the assumption that her motion to move the children would be granted: Hernandez v. Hernandez [2009] O.J. No. 6167, at paragraph 26.
Conclusion
[60] The mother has not persuaded me that Carr J. made a material error, or misapprehended the evidence, or drew inappropriate inferences from the evidence.
[61] Therefore I am dismissing the appeal. Carr J.’s decision of May 4, 2012 is upheld. The fresh evidence motion is moot and the Affidavits remain in their sealed envelopes.
[62] The mother is to comply with the Order forthwith.
[63] If the parties are unable to agree on costs, they may communicate with the Trial Coordinator in Timmins within thirty (30) days, in order to set a date and time to argue costs failing which there will be no order as to costs. The costs hearing may be conducted by teleconference.
Madam Justice L. L. Gauthier
Released: September 10, 2012
COURT FILE NO.: 18,042/12
DATE: 20120910
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHELLE HAZELWOOD
Applicant (Appellant)
– and –
RICHARD HAZELWOOD
Respondent (Respondent)
RULING ON APPEAL
GAUTHIER, J.
Released: September 10, 2012