ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-11-0375
DATE: 2012-10-05
B E T W E E N:
HIROMI CHESLOCK,
Michael Cupello , for the Applicant
Applicant
- and -
BLAKE CHESLOCK,
Chris Arnone , for the Respondent
Respondent
HEARD: October 4, 2012, at Thunder Bay, Ontario
Mr. Justice D. C. Shaw
Decision On Motion
[ 1 ] The respondent, Blake Cheslock, brings a motion for a temporary order allowing him to relocate with the child, Hinako Cheslock, born July 18, 2010, from Thunder Bay to Dryden, Ontario.
[ 2 ] The applicant, Hiromi Cheslock, brings a motion for a temporary order for custody of the child, specified access for the respondent, and child and spousal support. On the hearing of the motion, however, the applicant took the position that the status quo relating to the child’s care should remain in place pending trial, and she did not pursue the issue of support in view of the respondent’s present income on Ontario Works.
Background
[ 3 ] The applicant, Ms. Cheslock, was a resident of Japan when she met Mr. Cheslock in Japan. The parties married in Japan on April 28, 2008. In April 2010, while Ms. Cheslock was pregnant with Hinako, the parties came to Canada. They lived with the parents of Mr. Cheslock in Dryden.
[ 4 ] Ms. Cheslock gave birth to Hinako in July 2010. In August 2010, the parties moved with Hinako to Thunder Bay so that Mr. Cheslock could attend at Lakehead University for a year to obtain his teaching degree.
[ 5 ] The parties experienced difficulties in their marriage, to the extent that it became a high conflict relationship. The Children’s Aid Society became involved in January 2011, with a focus on the interactions between the parents. Through the auspices of the Children’s Aid Society, Mr. Cheslock’s mother temporarily moved from Dryden to Thunder Bay to become a “kinship provider”.
[ 6 ] By December 2011, the Children’s Aid Society determined that the kinship provider arrangements were no longer necessary and Mr. Cheslock’s mother returned to Dryden.
[ 7 ] With the assistance of the Children’s Aid Society, and after some significant time and effort, a care schedule was negotiated between the parties, which has been in place since approximately January 2012. The schedule has Hinako with Mr. Cheslock each week from Friday at 5:00 pm until Monday at 7:45 am and each Wednesday at 5:00 pm until Thursday at 7:45 am Hinako is with Ms. Cheslock at all other times. The parties acknowledge that each of them presently has Hinako in their respective care for approximately one-half of the time. The transitions occur in a public place. Ms. Cheslock has a third party present for the exchange.
[ 8 ] Mr. Cheslock graduated with his teaching degree in May 2012, but has been unable to find a teaching position in the Thunder Bay area, or to find any other unrelated work.
[ 9 ] Recently, Mr. Cheslock has been hired by the Keewatin-Patricia District School Board in the Dryden area as a casual/occasional teacher. He would be paid $220.00 per day, with an expectation of working three to five days per week until such time as he attained permanent status.
[ 10 ] Mr. Cheslock proposes to move with Hinako to Dryden, which is approximately 350 kilometres from Thunder Bay. He would reside in his parents’ home in Dryden. He deposes that Hinako has an extremely close relationship with his parents and that Hinako speaks with them via Skype every night that she is in his care. Hinako would have her own bedroom in the home. Mr. Cheslock proposes that Hinako reside with him for three weeks and with Ms. Cheslock for one week out of every four weeks. Because Ms. Cheslock does not drive, Mr. Cheslock proposes that he would drive Hinako to be with Ms. Cheslock in Thunder Bay.
[ 11 ] Mr. Cheslock states that if the proposed three week / one week division of time is not accepted by the court, he would agree to a two week on, two week off division of time.
[ 12 ] Mr. Cheslock states that he will not relocate to Dryden, if the court does not allow Hinako to relocate with him.
[ 13 ] Ms. Cheslock opposes Mr. Cheslock’s proposal.
[ 14 ] She states that at trial she will be seeking a final order that will allow her to move to Japan with Hinako. It is her position that the present arrangements for Hinako’s care should remain in place until after a trial.
[ 15 ] She requests that, pending trial, Mr. Cheslock should contribute one-half of the costs of having a third party attend for the exchanges of Hinako.
Submissions
[ 16 ] Mr. Cheslock submits that his proposal would have the following advantages for Hinako:
• fewer exchanges and therefore less conflict between the parties;
• exposure of Hinako to her extended paternal family;
• a stable residence for Hinako in Dryden;
• maximization of his earnings and minimization of his expenses which would allow him to support Hinako and the applicant;
• the support of his family church in Dryden; and
• regular contact between Ms. Cheslock and Hinako.
[ 17 ] Ms. Cheslock submits that the parties presently have an arrangement whereby they equally share in the care of Hinako and there is no evidence that the child’s needs are not being met. She submits that the court can conclude that Hinako’s needs are being met from the fact that the Children’s Aid Society is no longer involved.
[ 18 ] Ms. Cheslock submits that there is no pressing reason shown as to why it is in the best interests of Hinako to change an arrangement that is working, pending a trial that will likely be held within the next six months.
[ 19 ] Ms. Cheslock submits that there is no evidence what effect Mr. Cheslock’s proposal would have on Hinako who is presently two years of age.
The Law
[ 20 ] The decision of the Supreme Court of Canada in Gordon v. Goertz (1996), 1996 191 (SCC) , 19 R.F.L. (4 th ) 177 (S.C.C.) is the leading case on mobility. The ultimate question is always, what is in the best interests of the children? At page 201 the Court states as follows:
“ 1. 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 arrangements 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.”
[ 21 ] The order which is requested on this motion is an interim order, pending trial. The order in Gordon v. Goertz was a final order.
[ 22 ] In Hunt v. Hunt (2001), 2001 28149 (ON SC) , 21 R.F.L. (5 th ) 309 (Ont. S.C.J.), Mackinnon J. noted at page 317:
“Although the best interests’ is applicable at both the interim and final stages, the weight to be given to the various factors that are taken into account in determining the child’s best interests may differ at the two stages.
This is consistent with the well known principle that generally an interim order will be maintained until trial in the absence of compelling reasons indicative of the necessity of change to meet the child’s best interest. See McEachern v. McEachern (1994), 1994 7379 (ON SC) , 5 R.F.L. (4 th ) 115 (Ont. Gen. Div.); Papp v. Papp (1969), 1969 219 (ON CA) , [1970] 1 O.R. 331 (Ont. C.A.)…. It may also be that on a motion to vary a temporary order before trial, as is the case here, more weight may be given to the reason why the parent proposes to move, if relevant to that parent’s ability to meet the needs of the child. As stated in Cote v. Cote , 1996 Carswell Ont 2604 (Ont. Gen. Div.) at p. 5, the need of the parent with temporary custody to move may be great even before trial. Conversely, the court must be vigilant to the possible abuse of mobility rights at this stage of litigation.”
[ 23 ] To similar effect is the statement of Linhares de Sousa J. in Terris v. Terris , 2002 46107 (ON SC) , [2002] O.J. No. 3018 (S.C.J.) at paragraph 29 :
”The other point of distinction that must be mentioned in this case is the fact that this decision is being made on a temporary basis until the court can deal with the matter at trial with the benefit of examination and cross-examination of witnesses. This is particularly relevant where evidence is conflicting and there is a triable issue of whether a parent should be permitted to change the residence of the children. I accept the wisdom of the jurisprudence that establishes that on a temporary basis, there must be a pressing reason for an immediate move …. This does not in any way affect the overriding test of the best interests of the children in any decision, temporary or permanent.”
[ 24 ] The Ontario Court of Appeal in Rushinko v. Rushinko (2002), 2002 42032 (ON CA) , 27 R.F.L. (5 th ) 173, reviewed an interim order which had prohibited the mother, who was the custodial parent, from moving with the children. Notwithstanding that the order prohibiting the move was interim, the Court of Appeal held that it was an error in principle for the motion judge not to give sufficient consideration to the factors listed in Gordon v. Goertz .
Discussion
[ 25 ] I have determined that Mr. Cheslock’s motion should be dismissed.
[ 26 ] There is no existing custody order in this case. Nevertheless, the principles in Gordon v. Goertz should be a guide.
[ 27 ] It is acknowledged by both parties that the existing arrangement results in Hinako being in each party’s care for a roughly equal period of time. This is not a situation where one party has custody and the other party has access. Mr. Cheslock’s request for a change in the arrangements for the care of Hinako is not a request from a custodial parent. The issue of custody has yet to be decided. It will only be decided at trial. In fact, counsel for Mr. Cheslock urged me to make no award as to custody and access which he quite correctly observed requires, in the circumstances of this case and the issues raised in the pleadings, “a more fulsome hearing” than this motion can provide. Custody should be decided before mobility is decided. To do otherwise, is to put the cart before the horse.
[ 28 ] There is a genuine issue to be tried here. The proposal of Mr. Cheslock for an interim order is presumably the same proposal he will be making at trial. A full hearing on the merits is required, not a limited review based on affidavits that conflict in material ways. I cannot say, based on the evidence before me, that there is a strong probability, or even a probability, that one party’s position or the other will prevail at trial.
[ 29 ] I am not satisfied that Mr. Cheslock has demonstrated a pressing need for the move on an interim basis. I accept that in some circumstances that a move that results in a better financial situation for the moving party and the child can be a pressing reason for an order allowing the child to be relocated on an interim basis. However, where the child is in the equal care of both parties, and custody is a real issue to be determined at trial, the argument loses force. This is not a situation where the life of a primary caretaker would unnecessarily be put on hold because of his or her childcare responsibilities if a move was denied.
[ 30 ] Both counsel indicate that the trial can be held in approximately six months time. A temporary order granted today, as requested by Mr. Cheslock, may well end up being undone at trial in a relatively short period of time, with the consequent disruption to the child.
[ 31 ] Hinako is only two years of age. She is in physical contact with Ms. Cheslock five days a week, three of those being overnight. I have no evidence whatsoever as to the effect that separating this infant from her mother for two or three weeks at a time would have.
[ 32 ] For the purposes of this motion, Mr. Cheslock does not allege that Ms. Cheslock was primarily at fault for the conflict that brought in the Children’s Aid Society. There is no evidence that despite the fact that Mr. Cheslock agreed to the care arrangement and despite the fact that the Children’s Aid Society has withdrawn from an active role with these parents, that the needs of the child are not being met.
[ 33 ] In the final analysis, the onus is on Mr. Cheslock to satisfy the court that it is in Hinako’s best interest to move with him, on a temporary basis, 350 kilometres to Dryden. In my opinion, that onus has not been discharged. Mr. Cheslock’s motion is dismissed.
[ 34 ] Ms. Cheslock requests the court to order that Mr. Cheslock pay one-half of the costs of the third party she has engaged to be present at the exchanges of Hinako.
[ 35 ] For several reasons I do not grant this request. It was not requested in Ms. Cheslock’s motion. I do not regard it as an incident of the child and spousal support requested. There is no evidence of how much is paid to this third party. There is no evidence if this third party is required in view of the fact that the exchanges occur in a public place. If certain of the exchanges take place within the scheduled times of the Supervised Access Centre, the parties can use the Supervised Access Centre for those exchanges.
Costs
[ 36 ] The parties agreed at the hearing of Mr. Cheslock’s motion that neither of them would seek costs, regardless of the outcome. Therefore there will be no order as to costs of the motion.
[ 37 ] Because Mr. Cheslock did not pursue the relief requested in her motion, that motion is dismissed, also without costs.
The Hon. Mr. Justice D. C. Shaw
Released: October 5, 2012
COURT FILE NO.: FS-11-0375
DATE: 2012-10-05
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HIROMI CHESLOCK Applicant - and – BLAKE CHESLOCK Respondent DEDISION ON MOTION Shaw J.
Released: October 5, 2012
/mls