COURT FILE NO.: 539/11
DATE: 2012/10/18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHRISTOPHER ALLAN HORTON WINTERBOTTOM
Marc DiGirolamo, for the Applicant
Applicant
- and -
BRIANNE ALEXANDRA LIS
Luigi De Lisio, for the Respondents
Respondent
HEARD: September 11, 12 & 13, 2012
THE HONOURABLE MADAM JUSTICE L.M. WALTERS
OVERVIEW
[1] Both parents seek sole custody of their son, Gage Alexander Winterbottom, born […], 2010.
[2] The respondent, Brianne Lis, also asks that she be permitted to move with Gage to Kingston, Ontario.
BACKGROUND FACTS
[3] For the most part, the facts are not disputed. However, where the evidence of Mr. Winterbottom has conflicted with that of Ms. Lis, I have preferred the evidence of Mr. Winterbottom.
[4] I found that Mr. Winterbottom gave his evidence in a straightforward manner and was unshaken on cross-examination. His version of events is consistent with the documentation before the court. For example, when he commenced his application on August 11, 2011, he disclosed that the respondent was leaving the relationship for an ex-boyfriend and was planning to move to Kingston, Ontario.
[5] Ms. Lis, for her part, in her responding materials to that application, denied that she was in any relationship whatsoever and denied that she wished to move to Kingston, Ontario. Exhibit 1, Tab 3, an exchange of emails between the applicant and the respondent’s then boyfriend/current husband would tend to confirm Mr. Winterbottom’s evidence. I found both Ms. Lis’ and Mr. Rive’s evidence regarding the commencement of the relationship and their intention to be together incredible and inconsistent with the documentary evidence before the court.
[6] Further, it is of concern to the court that when the respondent brought an interim motion to change the current access regime, she did not advise the court that in fact, she was not working at the time and was on a leave of absence.
[7] In these circumstances, when there is a conflict in the evidence, I have preferred and accepted that of Mr. Winterbottom.
[8] The background facts, as I find them, are set out in the paragraphs below.
[9] The parties started dating in September 2009. The respondent became pregnant in February 2010 and the parties were engaged in September 2010. In October of that same year, they moved into the respondent mother’s basement and Gage was born on […], 2010.
[10] The parties purchased a house on 30 Eastchester Street and moved there with their son in February 2011.
[11] While residing together, although the parties shared the parenting of Gage, his primary care was undertaken by the respondent.
[12] The applicant was and is employed full time as an estimator at Horton Automotive in Burlington. He works steady days. He leaves the home at approximately 5:45 a.m. and returns by 4:00 or 4:30 p.m. He has weekends off.
[13] The respondent is employed as a Youth Services Worker at the Roy McMurtry Youth Centre in Brampton, Ontario. She is an on-call employee and works a minimum guaranteed 24 hours per week. She has only one weekend off each month. After Gage was born, Ms. Lis took a one-year maternity leave and so was at home with the child full time. The applicant assisted in Gage’s care when he returned from work and on weekends.
[14] On August 7, 2011, the day after a vacation to Myrtle Beach, the respondent informed the applicant that she had reconnected with a former boyfriend, Ben Rive, and that she no longer loved the applicant. A few days later, she advised the applicant that Ben was in the Army and was stationed in Alberta. She later told him that Ben was stationed in Kingston and that she planned to move to Kingston to be with him.
[15] At this news, the applicant attended at the Family Court and filed an application and emergency motion dated August 11, 2011, seeking joint custody of Gage and an order preventing the applicant from moving out of the Niagara Region with Gage. The applicant responded denying any relationship or intention to move to Kingston. The parties were able to agree on a parenting plan for Gage and, accordingly, the motion was averted.
[16] The parties continued to live separate and apart in the family home.
[17] When things became too stressful in the home, they agreed to a parenting arrangement whereby Gage would continue to be cared for by the respondent during the day and would be with his father each evening from 4:30 to 8:30 p.m. The parties also agreed that they would spend alternating overnights with their son.
[18] On September 28, 2011, the respondent left the family home to stay with her mother while she recovered from surgery. At this point, the parties agreed that Mr. Winterbottom would care for Gage each weeknight from 4:30 to 8:30 p.m. and every weekend. Gage would be with his mother the rest of the time as she continued on her maternity leave.
[19] Tabs 4 and 5 of Exhibit 1 set out the parenting arrangement agreed to by the parties at that time.
[20] On October 26, 2011, MacPherson J. on the consent of the parties ordered that Gage would be with his father as follows:
(a) Every Monday, Tuesday, Wednesday and Thursday, from 4:30 p.m. to 8:30 p.m.;
(b) Every Friday from 4:30 p.m. until Saturday at 9:00 a.m.;
(c) Every Saturday from 2:30 p.m. until Sunday at 2:30 p.m.;
(d) Holidays and special occasions to be share as agreed upon;
(e) Such further and other alternate times as agreed between the parties.
[21] The parties agreed that, other than those above referenced times, Gage would be with his mother. This access schedule was to be reviewed on or before November 6, 2011 when the respondent was scheduled to return to work.
[22] The parties further agreed that neither one of them would move their residence to a place outside of the Niagara Region without the written consent of the other party or a court order.
[23] Mr. Winterbottom agreed that he would pay child support for Gage in the amount of $370.00 a month based on his income at that time, which was $40,306.00.
[24] Ms. Lis purchased Mr. Winterbottom’s interest in the matrimonial home for $2,000.00.
[25] Although attempts were made to vary the parenting schedule, once Ms. Lis returned to work, in fact nothing happened.
[26] In June 2012, Ms. Lis brought a motion to have the access varied and the motion was ultimately heard by Scott J. on August 9, 2012. Scott J. decided not to interfere with the current order as the matter was set for trial on September 10, 2012. As indicated earlier, the respondent did not advise the applicant or the court that at the time this motion was heard, she was in fact on a leave of absence and was not working.
[27] Once the parties physically separated at the end of September 2011, the respondent remained in the family home and the applicant began to reside with his parents and exercised his parenting time with Gage at his parent’s home. The applicant continues to reside with his parents in St. Catharines.
[28] The respondent continued her relationship with Ben Rive and by the time of Gage’s first birthday on […], 2011, they presented as a couple. By December 17, 2011, they were engaged and married on January 28, 2012.
[29] Ms. Lis continued her employment in Brampton and when necessary both her mother and her new mother-in-law, Kathy Rive, assisted in the care of Gage. If Ms. Lis had to start work early in the morning, she would bring Gage to her mother’s home the night before and put Gage to sleep there before she would return home. In addition, she used the services of a daycare provider, Debbie, an individual that both she and Mr. Winterbottom approved of.
[30] Since the date of her marriage, the parenting schedule as set out in the order of Justice MacPherson has continued. Mr. Rive travels to St. Catharines each weekend in order to be with his wife and Gage when he is present.
[31] Although there have been some difficulties between the parents in terms of adjusting the parenting schedule, for the most part, the parties have been able to parent Gage without major incident.
[32] That is not to say that there have not been problems. For example, Mr. Winterbottom felt compelled to bring a motion to ensure that he would have a vacation period with Gage. However, before the motion was heard, the requested order was agreed to. The parties have at times also been able to rearrange overnight visits with Gage.
[33] There appears to be no issue between the parties with respect to religion. Gage was baptized Anglican, although neither parent is particularly devout.
[34] There is no issue with the childcare providers selected by Ms. Lis, including Debbie, her mother, and Kathy Rive.
[35] Mr. Winterbottom has no difficulty in access exchanges with either Ms. Lis’ mother, Kathy Rive or Ben Rive, for that matter.
[36] Mr. Winterbottom has indicated that if he were granted custody of Gage, he would have no difficulty continuing to use these three caregivers and both Kim Lis and Kathy Rive have testified that they are prepared to assist in Gage’s care if Mr. Winterbottom were granted custody.
[37] The uncontradicted evidence from every witness at trial who knew or was involved with Gage is that he is a very bright, happy, curious and well-adjusted child. There is no doubt that Gage is loved by his entire family.
POSITION OF THE PARTIES
Position of Ms. Lis
[38] Now that they are married, Ms. Lis would like to move to Kingston, Ontario to be with her husband. She asserts that, as Gage’s primary caretaker, Gage should be with her and she is requesting permission to take Gage to Kingston. Gage will continue to see his father on alternate weekends or even three weekends each month. As her family and her husband’s family continue to remain in the Niagara Peninsula, there will be trips to Niagara frequently during which time Gage will also be able to see his father. Ms. Lis is hopeful that she would be able to transfer her employment from the Youth Centre in Brampton to one of the adult correctional facilities in Kingston, Ontario. She has also made inquiries into daycare for Gage. Mr. Rive currently has a two-bedroom apartment and although he does not yet have furniture, there is more than enough room for Gage if he were permitted to relocate to Kingston, Ontario.
Position of Mr. Winterbottom
[39] Mr. Winterbottom resists any attempt to move Gage from the Niagara Region. Since his birth, Gage has had the benefit of seeing both of his parents every day. He is surrounded by three different sets of grandparents who love him very much and who are all willing to participate in his care. Mr. Winterbottom has eight other siblings and 15 nieces and nephews. Gage is thriving in this community and it would not be in his best interests to uproot him at this stage in his life to take him to Kingston where there are no other family supports and where contact with his father will be restricted to weekends. Those visits will also subject Gage to unnecessary lengthy car rides. Mr. Winterbottom is prepared to have Gage live with him and his parents on a full time basis. Mr. Winterbottom’s father testified that he and his wife would support such a plan.
THE LAW
[40] As always, when determining custody of a child, the only consideration is the best interests of the child. Section 24 (1) of the Children’s Law Reform Act reads as follows:
- (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).
[41] The best interests of a child defined in s. 24 (2) of the Act.
- (2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.
[42] The Ontario Court of Appeal recently had the opportunity to consider the issue of custody and mobility applications in Berry and Berry 2011 ONCA 705. Juriansz J.A., on behalf of the court, reiterated that the principles in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 134 D.L.R. (4th) 321 (S.C.C.) apply in a mobility case whether or not there is a previous custody order to vary. At paras. 9 and 10 of the Berry decision, he stated the following:
The Test
[9] The sole issue that remained at trial was the mother’s motion to relocate to Kingston with the child. The parties agreed that the legal test set out in the Supreme Court’s decision in Goertz, the leading authority on mobility applications, applied. In Goertz, the mother had sole permanent custody of the child and the father had generous access. The father applied for an order restraining the mother from taking the child out of the jurisdiction, and the mother cross-applied for an order allowing the move. This case differs from Goertz in that here both parties are custodial parents and there is no previous custody order to vary. Here, there is no threshold issue of whether there has been a change of circumstances since a previous custody order, and there is no relationship between the child and an access parent to consider. With the necessary adjustments, then, the principles from Goertz apply to this case.
[10] In Goertz, the Supreme Court emphasized that the superordinate consideration in a mobility case is the best interests of the child determined from a child-centered perspective. The court set out, at para. 14, a number of factors to be considered. Taking into account that this case involves two custodial parents, those factors can be stated as follows:
• the existing custody arrangement and relationship between the child and each of the custodial parents;
• the desirability of maximizing contact between the child and both parents;
• the views of the child (when applicable);
• the 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;
• disruption to the child of a change in custody; and
• disruption to the child consequent on removal from family, schools, and the community the child has come to know. [Emphasis in original.]
[43] As McLachlin J. (as she then was) stated at para. 50 of Gordon v. Goertz:
In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?
ANALYSIS
[44] I will now consider each of those factors set out in Berry v. Berry.
The existing custody arrangement and relationship between the child and each of the custodial parents
[45] As was set out earlier, Gage has been cared for by both of his parents since his birth and that arrangement has continued since the separation of the parties. Certainly, while the parties resided together, the parties assumed a more traditional role in that Ms. Lis was at home during the day and Mr. Winterbottom helped care for Gage when he returned from work and on weekends. When the parties separated, their clear intent as evidenced by the handwritten agreement, which was later reduced to writing, was an intention that they would share parenting of Gage and that every effort would be made to maximize the amount of time Gage was with each parent when that parent was available. Once again, the order of MacPherson J. on October 26, 2011 continued this arrangement and permitted both parents to see the child daily.
[46] The uncontradicted evidence is that Gage has flourished in this environment and there is no question that both parents love this little boy and that he is equally comfortable and happy with both of his parents and extended family.
The desirability of maximizing contact between the child and both parents
[47] Again, to date, Gage has been jointly parented by both the applicant and the respondent. Although at trial, both parents sought sole custody of the child, during submissions in response to questions from the court, both acknowledged that a shared parenting arrangement might very well be appropriate and workable with this family. The history of these two parents’ ability to jointly parent Gage, despite some problems, gives the court every confidence that they will continue to put the best interests of their child first and will be able to parent jointly. Now, Gage sees both parents every day. If Ms. Lis is permitted to move to Kingston, that situation will drastically change. Gage would be in a position where, at best, he will see his father three out of four weekends a month from Friday afternoon to Sunday evening. This type of arrangement will clearly not maximize the contact between Gage and both of his parents.
The views of the child (when applicable)
[48] Given Gage’s age, the court is unable to determine his views and preferences.
The 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
[49] Ms. Lis’ wish to move to Kingston has nothing to do with her ability to meet the needs of the child. The home on 30 Edmund Street, St. Catharines, is more than appropriate for Gage’s care. Ms. Lis’ employment is in Brampton, Ontario and there is no suggestion or evidence that she needs to move in order to accommodate that employment. In fact, the evidence is that the distance between Brampton and Kingston is further than the current distance she travels for employment. Ms. Lis testified that if she were permitted to move, she would request a transfer to an adult facility in Kingston. However, there is no evidence before the court that in fact she has made such a request or that such a request has been approved.
[50] In fact, Ms. Lis and Mr. Rive were frank and indicated the sole reason for the move is Ms. Lis’ decision that she wishes to reside with her husband.
[51] It is clear to me that there was very little thought given to the effect of any disruption on Gage by such a move. Both Ms. Lis and Mr. Rive testified that they did not give the idea of this move much thought. Mr. Rive was very candid with the court when he indicated that he didn’t think it was going to be as difficult as it has turned out to be. Despite the parenting plan in place, the respondent chose to marry in haste, fully aware that Mr. Rive was stationed in Kingston, Ontario.
Disruption to the child of a change in custody
[52] As indicated earlier, the parties are prepared to continue with a shared custody arrangement. The major change will be that, instead of seeing each of his parents on a daily basis, there will be days at a time where he will not see one parent or the other.
Disruption to the child consequent on removal from family, schools, and the community the child has come to know
[53] Gage’s home is St. Catharines. He is surrounded by several sets of loving and caring grandparents, aunts, uncles and numerous cousins. In Kingston, his only connection or family will be his mother and Mr. Rive. A move to Kingston will necessitate Gage having to travel the four hour distance between St. Catharines and Kingston each weekend so that he will be able to see his father.
[54] In my view, Gage has thrived and benefitted from having two loving, caring and involved parents and extended family in his life. Since separation, Gage has lived more or less equally with each parent. Gage has the benefit of close bonds and relationships with both the paternal and maternal extended family. Daycare is going very well between Debbie, Kim Lis and Kathy Rive. Mr. Winterbottom’s father is more than willing and able to assist in his grandson’s care.
[55] In these circumstances, reducing the frequency and the amount of time that Gage spends with his father cannot be in his best interests. A move to Kingston will require a change in daycare and the loss of flexibility currently enjoyed when family members take on this task. A four hour drive and the necessary shuttling back and forth between two cities clearly will be disruptive to Gage’s normal routine and not in his best interests.
[56] Further, the court would be remiss if I did not mention my concern regarding the stability of the Lis and Rive relationship. The court heard evidence that this couple has been together and broken up several times since they first started seeing each other when Ms. Lis was 13 years of age. They reconnected in the fall of 2011, almost immediately became engaged and by January 2012 were married. To date, they have not had an opportunity to live with each other on a full time basis. Mr. Rive commutes home to St. Catharines on the weekends. Mr. Rive is employed with the Armed Forces and his contract in Kingston is for another two years. Certainly, Mr. Rive is hopeful that he will be able to remain in Kingston, however, being a member of the Armed Forces means that he can very easily be stationed somewhere else. There are no roots in the community of Kingston. There is no extended family. This is hardly a stable situation into which Gage should be placed, particularly when this disruption is balanced against the stability he currently enjoys here in St. Catharines with both his parents. The respondent made it very clear that she will not move to Kingston without Gage and will remain in St. Catharines if that is the order of the court.
[57] Mr. Rive also testified that he will consider other options if his wife is not permitted to relocate.
[58] In all of the circumstances, I am not prepared to permit the relocation to Kingston.
[59] At the same time, it is clear that now that Ms. Lis is back to work, the current parenting schedule must be adjusted with a view to maximizing the time Gage has with each parent and recognizing when each parent is available to care for Gage.
[60] The current schedule also involves a lot of “bouncing” back and forth between the parents and will be more problematic as Gage gets older.
[61] The court had the benefit of hearing from Ms. Lis’ supervisor at the Roy McMurtry Youth Centre. He testified that Ms. Lis receives her schedule on the Friday before the next week. The agreement with the union provides Ms. Lis with eight NA days per month which do not impact on her guaranteed 24 hours per week. Those days may be requested in advance. Ms. Lis is only permitted one weekend off each month. In addition, shift exchanges between employees are encouraged. As a provincial institution, there are childcare accommodations which can be applied for. An example would be a later shift so that a parent can drop a child off at school. According to Mr. McGucken, Ms. Lis has not taken advantage of these provisions to date. Ms. Lis testified that she was not aware of them, however, now that she is, she will make the necessary application and inquiries.
[62] It is hoped that the respondent will use this flexibility in her schedule to request NA days which will coincide with the days that Gage is in her care.
[63] Order to go as follows:
The applicant and respondent shall be granted joint custody of Gage Alexander Winterbottom, born […], 2010;
The applicant and respondent shall share in all major decisions affecting Gage and, in the event of an inability to reach a consensus, the respondent shall have the ultimate decision-making authority.
Gage shall be with the applicant three out of every four weekends from Thursday at 7:00 p.m. until Sunday at 7:00 p.m. Those weekends are to be determined taking into account the weekend the respondent is not working. Prior to the respondent’s one weekend each month, Gage shall be with the applicant on Wednesday at 7:00 p.m. until Thursday at 7:00 p.m.
Each parent shall be entitled to telephone contact with Gage on the days the child is with the other parent.
Irrespective of the above schedule, Gage will be with the applicant on Father’s Day from 10:00 a.m. until 7:00 p.m. and with the respondent on Mother’s Day from 10:00 a.m. until 7:00 p.m. each year.
Christmas vacation and March School Break will be shared between the parties as agreed upon between them taking into account their own availability.
Each parent will be entitled two weeks uninterrupted vacation period each summer with Gage during which time the weekly schedule set out in paragraph 3 above will be suspended. The weeks may be taken in one block or two. The parties will advise each other by May 1 each year of the respective weeks they wish to take each summer.
Neither party shall move the child’s residence from the Regional Municipality of Niagara without the consent of the other party or prior order of the court.
If the parties require any clarification with respect to the parenting schedule set out above, they can arrange to see me by contacting the trial coordinator.
The parties did not make submissions regarding ongoing support or s. 7 expenses. If these matters are not agreed to, arrangements can be made to speak with me by contacting the trial coordinator.
[64] If the parties are unable to agree on costs, they are to provide me with written submissions, not to exceed five pages in length including any offers to settle, within 30 days of today’s date.
Walters J.
Released: October 18, 2012
COURT FILE NO.: 539/11
DATE: 2012/10/18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHRISTOPHER ALLAN HORTON WINTERBOTTOM
Applicant
- and -
BRIANNE ALEXANDRA LIS
Respondent
REASONS FOR JUDGMENT
Walters J.
Released: October 18, 2012