COURT FILE NO.: FS-12-34543-0000
DATE: 20121212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JENNIFER JUNE DURHAM
Applicant
– and –
JAMES EDWARD DURHAM
Respondent
R. Sleightholm, for the Applicant
G. Carpenter, for the Respondent
HEARD: November 1,2,13, and December 7, 2012
MILLER, J.
[1] The parties began living together in October 2003. Their child James Ray Durham was born August 24, 2004. The parties married May 21, 2005 and separated May 7, 2009.
[2] The parties entered into a Partial Separation Agreement June 14, 2010 that provided that the parties would share parenting of James, and that James would reside with each party on a schedule to be mutually agreed upon between the parents. The Partial Separation Agreement also provided that “James and Jennifer will live near each other so that James can have frequent contact with both parents. Neither parent will move James’ permanent residence from the Halton Region without the other’s consent or a court order.”
[3] Mrs. Durham wishes to move, with James, to London, Ontario, to live with her fiancé, Greg Murray. Mr. Durham does not consent. Mrs. Durham seeks a court order permitting her to do so.
[4] Mr. Durham takes the position that Mrs. Durham is required to prove a material change in circumstances and has failed to do so, as she was already involved with Mr. Murray at the time she signed the partial separation agreement and therefore should clearly have foreseen that she might wish to move out of Halton Region. In the alternative, he argues that it is clear that both parents entered into the partial separation agreement in contemplation of James’ best interests and it should have significant weight in determining James’ present best interests.
[5] Mr. Durham argues that while the proposed move may be in Mrs. Durham’s best interests it is without regard to the impact the move would have on James’ relationship with his father and brothers as well as his ties to the community he has resided in since birth. Mr. Durham posits that it is in James’ best interests to retain the current arrangement of shared time with both parents in Halton Region. In the alternative, should Mrs. Durham decide to move to London in any event, Mr. Durham offers to have James primarily reside with him.
[6] Mrs. Durham takes the position that she is not required to prove a material change in circumstances but in any event has done so. She argues that there has been a material change in her ability to provide for James, as the proposed plan would provide her with greater disposable income to pay for James’ activities as well as giving James greater opportunity to spend quality time with her. This, she argues, is in James’ best interests, together with the assistance Mr. Murray could provide, assisting in James’s care and education.
[7] Mrs. Durham argues that the proposed plan would not substantially impact on the time James spends with his father and ensures that he would continue to spend significant time with his brothers. Mrs. Durham feels that a move to London would provide James with greater contact with children of his own culture and religious beliefs.
The Law
[8] Both parties rely on the principles governing mobility cases outlined in the Supreme Court of Canada case of Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52. This was an application to vary a final order granting custody to the mother with generous access to the father. The father applied for custody when he learned of the mother’s plan to relocate with the child from Saskatchewan to Australia; in the alternative he sought an order restraining the mother from moving the child from Saskatoon. The mother cross-applied for an order permitting her to move the child’s residence to Australia. The Court held that in those circumstances the threshold condition of a material change had to be met; if it was, the governing principle was the best interests of the child.
[9] As the Ontario Court of Appeal noted in Woodhouse v. Woodhouse 1996 CanLII 902 (ON CA), [1996] O.J. No. 1975, the Gordon v. Goertz decision dealt with an application to vary a final order whereas in Woodhouse (as here) the prior arrangement was based on a separation agreement, which the Court held, at paragraph 32, was not binding on the court because it is the interests of the children rather than those of the parents which are at issue.
[10] A similar decision was made by the British Columbia Court of Appeal in C.R.H. v. B.A.H. 2005 BCCA 277, [2005] B.C.J. No. 1121 at paragraphs 36 and 39, following that Court’s decision in A.L. v. D.K. 2000 BCCA 455.
[11] In Young v. Young 2003 CanLII 3320 (ON CA), [2003] O.J. No. 67 at paragraph 18, however, the Ontario Court of Appeal held that where the parents have joint custody and one seeks to move with the child the two-stage Gordon v. Goertz test should apply whether the provision sought to be varied is a court order or minutes of settlement.
[12] It is clear in this case that there is no order to be varied. I accept, however, that the Partial Separation Agreement addressing where James is to be resident is an important factor, particularly as both parties indicated they reached that agreement with James’ best interests in mind.
[13] It is also clear, however, that the Partial Separation Agreement was made in contemplation of and provided for the potential that one or both parties might wish to reside with James outside of Halton Region. In the absence of consent, the Partial Separation Agreement provided that the party seeking to relocate would seek a court order. This is in accord with s.16(7) of the Divorce Act which requires a custodial parent to give notice to an access parent before relocating the primary residence of the child .
[14] Many of the cases cited deal with a situation in which there was an existing custody and access arrangement with one parent in each role. It is clear that this is a situation of shared parenting, with James spending significant amounts of time with each parent.
[15] Mrs. Durham argues that she has assumed the role of the parent with whom James is primarily resident and is therefore akin to the custodial parent in the precedent cases.
[16] Mr. Durham asserts strongly that he has an equal role in parenting James and should not be treated as an “access parent” despite the fact that that the majority of time he spends with James is on weekends.
[17] I find that the relationship James has with his mother is akin to being primarily resident with her, as she assumes, as articulated in Gordon v. Goertz at paragraph 48, the making of decisions in his interest on a day-to-day basis, including, particularly, her involvement and decisions in respect of James’ educational needs. While not entitled to a legal presumption, Mrs. Durham’s views are therefore entitled to great respect and serious consideration. This is not to take away from the respect and consideration to be given the views of Mr. Durham.
[18] I find that due to the absence of a court order restricting James’ residence to Halton Region and the fact that the Partial Separation Agreement provided for the circumstance in which the parties might wish to reside with James outside of Halton Region that it is not necessary that the Applicant meet the threshold of a material change in circumstances.
[19] If I am incorrect, I have also considered whether there has been a material change in circumstances since the Partial Separation Agreement was signed, and I find that there has. The test, as articulated in Gordon v. Goertz is whether there has been a material change in the circumstances affecting the child.
[20] I find that the material change has occurred as a result of Mrs. Durham’s financial circumstances which necessitate that she sell the residence she currently occupies with James during the week; and require her to work hours that restrict the time she actually is able to spend with James. These are circumstances affecting the child.
[21] In addition, I find that a material change has occurred in respect of Mrs. Durham’s ability to better provide for James as a result of the solidification of her relationship with Mr. Murray. Mrs. Durham’s proposed plan would provide a stable home for James without the burdens, in financial terms as well as time, of Mrs. Durham maintaining a household on her own. There has also been, since the separation agreement was signed, a further identification of James’ educational needs, which can be met with Mr. Murray’s assistance.
[22] While it is clear that the time the agreement was signed Mrs. Durham knew and was dating Mr. Murray, there has been a change in seriousness of their relationship over two and a half years which I find was not reasonably foreseeable some three months after they had met.
[23] I also find that there has been a material change occasioned by Mr. Durham’s unilateral decision to keep James regularly overnight on Sundays, over Mrs. Durham’s objections, and in clear violation of their agreement that time with James is to be mutually agreed upon by the parties.
[24] The test to be applied, therefore, is solely whether it is in James’ best interests that he reside with his mother in London, Ontario.
[25] Gordon v. Goertz at paragraph 49 sets out the factors to be considered:
• 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] Mrs. Durham has referred me to the decision of the Nova Scotia Supreme Court in Skipton v. Skipton [2004] N.S.J. No. 500 approving a move of 130km, and the British Columbia Court of Appeal decision in Falvai v. Falvai 2008 BCCA 503, [2008] B.C.J. No. 2365 approving a move from Vancouver Island to the Lower Mainland of British Columbia involving a significant ferry voyage for the child to spend time with either parent.
[27] Mr. Durham has referred me to the Ontario Superior Court of Justice decision in Taylor v. Jenkins [2000] O.J. No. 2492 where the application to move was not permitted although the only change to the access schedule would have been the loss of a mid-week visit. In that case the necessary material change threshold was also found not to have been met.
[28] In the Ontario Superior Court of Justice decision in Meijers v. Hasse [2007] O.J. No. 2506 the mother’s move with the children from Toronto to the Netherlands was not permitted although she had married a resident of the Netherlands. In Elliott v. Elliott 2009 ONCA 240, [2009] O.J. No. 1112 the Ontario Court of Appeal upheld a decision not to permit a move of 250km with the children where the other parent had frequent weekday access and was regularly involved in the school day routine. The Court also found that the move contemplated by the applicant was the same as at the time of the order sought to be varied. There had been no change.
[29] In Cameron v. Cameron 2006 NSCA 76, [2006] N.S.J. No. 247 the Nova Scotia Court of Appeal upheld a decision prohibiting a move some five hours distant from the children’s current residence which would have effectively precluded weekend access. In Sloss v. Forget [2004] O.J. No. 3960 the court at paragraph 71 explicitly granted great respect to the views of both parties who parented the children on an equal basis. In C.T. v. S.N. [2011] N.J. No. 371, Goodridge, J. did not permit a move with the children from Newfoundland to Alberta despite compelling financial reasons.
The Present Arrangement
[30] Mrs. Durham has a 14 year old son, Jordan, from a previous relationship. Jordan’s primary residence has been with his father since February 2012. Jordan resides in Burlington. Mrs. Durham also has a 21 year old son Joel who also resides in Burlington. Joel resided with the Durhams during their marriage until 2006.
[31] Mr. Durham has two children from a previous relationship, Thomas, age 15 and Nick, age 13. Their primary residence is with Mr. Durham. They spend alternate weekends with their mother.
[32] Since the parties’ separation James has resided with Mrs. Durham Monday to Friday, spending time each Tuesday evening with Mr. Durham, and each weekend. Initially James would spend Friday after school to Sunday evenings with his father. Since Mrs. Durham brought her application in March 2013 James has been spending from Friday after school until Monday morning with his father.
[33] Approximately three weeks before the trial Mr. Durham enrolled James in soccer in Burlington. Because James has soccer practice Monday nights Mr. Durham has switched his weekday evening from Tuesdays to Mondays.
[34] Since separation Mrs. Durham has resided in Milton and Mr. Durham in Burlington. Mr. Durham does all the transport for exchanges of James.
The Proposed Plan
[35] Mrs. Durham has plans to marry Greg Murray who she met in March 2010. Mr. Murray is an elementary school teacher who lives and works in London, Ontario. Mr. Murray explored a transfer from London to Halton Region but would have to change school boards and begin again as a supply teacher before acquiring full-time position. Mr. Murray testified that he believes his prospects for employment as a teacher in Halton are “slim to none”.
[36] Mr. Murray has three children from a previous relationship, two of whom reside with him and his former spouse on a week about basis. For these reasons it is not practical for Mr. Murray to move to Milton.
[37] Mrs. Durham wishes to move to London with James. She proposes that James spend time with his father three of four weekends and she has offered to provide transportation to and from London. She is willing to facilitate access on other occasions, for example if Mr. Durham is in London for other reasons.
[38] Mrs. Durham’s son Jordan resides in Burlington and Mrs. Durham proposes to use her trips to Burlington to spend time with Jordan and ensure that James and Jordan also spend some time together. Mrs. Durham would like to make sure that James has at least one weekend a month with Mr. Durham’s children Thomas and Nicholas.
[39] Mrs. Durham proposes that she will, at least initially, be at home in London and not working, to assist in James’ transition to his new home and school and for the transition for Mr. Murray’s children as well. Mrs. Durham proposes to spend her free time volunteering with James’ new school and church.
[40] Mrs. Durham testified she has checked out the neighbourhood they would be living in and the church they would be attending. She is satisfied it is a nice neighbourhood and that the church offers programs for James similar to the ones he attends in Milton.
[41] Mrs. Durham is of the view that James moving with her to London is in James best interests because it would give him the stability of living in a two parent home; she would not have the financial burden of maintaining a household on her own and would therefore be able to pay for more activities for James; James would be able to receive healthcare benefits through Mr. Murray’s employment; while not working Mrs. Durham could address her own health issues including some impending surgery for glaucoma and would be available to take James to and from school as well as volunteering in school activities.
[42] Mrs. Durham feels that James would benefit from extra educational attention Mr. Murray would be able to provide to James on a daily basis. James currently struggles with reading and is on an individual educational plan which gives him extra help with reading. Mr. Murray will have both the time and experience to assist James in this area.
[43] Mrs. Durham has found that she is having financial difficulties in Halton where living accommodation is more expensive. She now has her house for sale because she has found that she is unable to afford it. While she expects some equity from the sale of the home she would use it to pay off accumulated debt and expects that it would not last long going to pay for rental accommodation for herself and James. She also finds that as a single mother work interferes with some of her time with James and the rest of the time is spent on mundane household activities. Her work schedule also requires that James attend daycare in the mornings before school. Mrs. Durham expects a two-parent household would alleviate some of that pressure and allow her to spend more quality time with James.
Mr. Durham’s Objection to the Move
[44] Mr. Durham argues that if James moves to London he will be devastated and it will materially change the relationship he has with James.
[45] Mr. Durham testified that on deciding to separate, Mrs. Durham took James and Jordan to Niagara Falls. She then put herself into hospital and he was called to take the two boys. Jordan he took to his father’s and James he took home.
[46] Mr. Durham testified that shortly after Mrs. Durham’s release from hospital he assisted her financially and they quickly came to an arrangement whereby James resided with his mother during the week and with his father each weekend from 5:50 p.m. Friday to 8:30 p.m. Sunday.
[47] Mr. Durham insisted that he never cancelled a weekend, then allowed that there had been “once or twice a year” he had taken a weekend “for himself”.
[48] Mr. Durham testified that because James was falling asleep at the drop-off and on occasion Mrs. Durham would call to ask him to take James to school on Mondays he determined that it was better for James to stay over on Sunday nights. Mr. Durham testified that as a result James is now well-rested on Monday mornings and Mr. Durham has the opportunity to go over James’ homework with him on the drive to school.
[49] It was not clear from the evidence precisely when Mr. Durham changed James’ return day to Mondays except that it clearly occurred after Mrs. Durham advised Mr. Durham of her wish to move to London with James.
[50] It is clear this decision was taken without consultation with Mrs. Durham as Mr. Durham testified that Mrs. Durham had protested. His response was to tell her that if she wanted James on Sunday nights she could come and get him. He testified that despite this offer she had never done so.
[51] Mr. Durham recently enrolled James in soccer in Burlington, and, at Mrs. Durham’s suggestion, has been taking James to soccer practice on Monday nights rather than spending Tuesday dinners with him.
[52] Mr. Durham’s principal objection to James moving to London is that James is likely to make friends and “have a life” there that does not involve Mr. Durham. Mr. Durham feels that it is inevitable that James will come to prefer spending time in London and will want to spend less time with his father and brothers in Burlington.
[53] Mr. Durham testified that he will be “devastated” by this, as he does not view himself as a part-time father to James and feels that he will be forced to become one. Mr. Durham acknowledged that he himself has family in London but visits with them infrequently. He testified that although he grew up in the London area most of his friends have moved away or he has lost touch with them.
[54] Mr. Durham testified that James has a very close relationship with his brothers who he sees every weekend at his father’s house. He testified that even when James’ brothers are spending the weekend with their mother they will see James on Sunday evenings.
[55] Mr. Durham testified that he has maintained contact with James’ teachers although not through formal meetings but more on a drop-in basis. He testified that he is aware of James’ learning challenges as he and his other sons have all struggled with them. He testified that he is confident that James will overcome his learning challenges in time, as he and his other sons did. He agreed that he had suggested that Mr. Murray could tutor James rather than paying for James to attend KUMON, although he recently provided Mrs. Durham with the funds to enroll James in KUMON.
[56] Mr. Durham takes the position that Mrs. Durham’s desire to move James to a community with more families whose cultural and religious practices are the same as James’ is blatantly racist and contrary to public policy in Canada which is supportive of multiculturalism.
Analysis
[57] I have considered that both parties agreed, in June 2010 when the Partial Separation Agreement was signed, that it was in James best interests that they reside near to one another in Halton Region. I have also considered the changes in circumstances that have occurred since then.
[58] It is clear that this issue has been divisive in the relationship between these parents. During the trial Mrs. Durham gave evidence that Mr. Durham has made inappropriate sexual advances to her and offered her money to abandon her application. Mr. Durham denies this, suggesting Mrs. Durham has by her behaviour destroyed her relationship with both her older sons and is likely, eventually, to do the same to James. He suggests that Mrs. Durham has offered to abandon her application in exchange for money.
[59] While there is some support for their respective positions in documents that were exhibited at trial, I found both Mr. and Mrs. Durham to be extreme in their testimony, rendering the evidence of each of them less than credible in several respects.
[60] Mrs. Durham, over the course of her testimony, obviously tried to minimize the time James spends with his father, describing Tuesday evening access variously as 2 hours, then one hour and a half “at most”. An e-mail sent by her November 3, 2012 to Jordan – mid-trial – is an obvious attempt to coach Jordan with respect to the circumstances of Jordan’s move to live with his father so that it would accord with Mrs. Durham’s testimony.
[61] Jordan’s father, Shawn Marshall, gave evidence which completely contradicted Mrs. Durham’s testimony on the circumstances of Jordan’s move. I found Mr. Marshall to be a straightforward and credible witness.
[62] Mr. Durham’s testimony with respect to the role of his ex-wife, Lori Durham, in the dissolution of his relationship with Mrs. Durham, in which he portrayed Lori Durham as a victim of Mrs. Durham, is radically at odds with information Mr. Durham presented to CAS at the time. Mr. Durham’s explanation for the inconsistency was that he was being supportive of Mrs. Durham at the time. This suggests that he would say whatever he perceives to support his interests at the given time.
[63] Mr. Durham clearly exaggerated the extent of his involvement with James’ school. He was unable to name James’ teachers despite his insistence that he often visited the school and the teachers on an informal basis.
[64] While James spends a significant part of each weekend with his father engaged in various family activities, it is clear that it is “fun” time. It is apparent, on all of the evidence that it is Mrs. Durham who deals with the day to day duties of caring for James in and around school and her own work schedule.
[65] It is clear that it is Mrs. Durham who is intricately involved with James’ educational challenges and works hand in hand with James’ educators to address those issues. Mr. Durham’s view, in contrast, appears to be that James will outgrow his educational challenges as he and his other sons did.
[66] Despite my reservations in respect of the integrity of the testimony of both parties I am prepared to find that Mrs. Durham is in fact motivated by James’ best interests rather than being focused on her own. I find she has a genuine desire to do what is best for James. At the same time I am persuaded that Mr. Durham genuinely cares for James and his well-being despite being less involved in James’ day to day care and educational needs.
[67] I am satisfied that James would benefit from a move to London with his mother and that it is in his best interests to do so. It is likely that James will benefit from the additional educational assistance and care-giving Mr. Murray can provide. It is also apparent that under the proposed plan James would spend more time actually with his mother. This addresses the principle of maximum contact with both parents.
[68] While the move would result in a reduction of the time James spends with his father, I do not find that it would affect James’ relationship with his father in any significant way. Under the proposed plan James would spend one less weekend with his father out of every four. He would spend as much time with his brothers (barring some limited contact on Sunday evenings and Monday mornings) as he does currently. I am impressed that Mrs. Durham has considered this in her proposed plan.
[69] I find it significant that Mrs. Durham – with the assistance of Mr. Murray – is prepared to provide all transport for James between London and Burlington on weekends he will be spending with his father. This will involve some cost, but I do not find that the distance between James’ two residences is so great as to impact in a determinative way on the time he spends with his father. It would not be unreasonable, for example, for Mr. Durham to travel to London on a weekday evening if he wished to spend some additional time with James in the community in which James will be spending his weekdays. I note that Mrs. Durham expressed herself open to and flexible in respect of such an arrangement.
[70] I have considered the disruption to James of a change in the frequency and duration of time he spends with his father. As indicated above, I do not find that this will materially change the nature of the relationship he has with his father. I have considered the reduction of contact James will have with his brothers Nick and Thomas and I find that this will be minimal and unlikely to be disruptive to James.
[71] A move will of necessity mean a change for James of his school and the community in which he currently resides. I note that James has already, since separation, moved from Burlington to Milton. While not at great distances, these communities are distinct. I note the evidence that James is a social child and it would appear likely that he will make friends at his new school and home. While there was significant evidence of James’ close attachment to his various family members there was no evidence of a close attachment to any friends that James would no longer see if he moves.
[72] The Supreme Court of Canada indicated in Van de Perre v. Edwards 2001 SCC 60, [2001] S.C.J. No. 60 that the best interests of the child can be connected to the culture, identity and ergo the emotional well-being of a child. While I considered Mrs. Durham’s view that James would have greater contact with children of his own culture and religion in London, and Mr. Durham’s view that this was a motivation contrary to public policy, this issue was not a material factor in my determination of James’ best interests in all of the circumstances.
[73] There will be an order permitting Mrs. Durham to reside with James in London, Ontario commencing no earlier than the beginning of the summer school holiday for James in 2013. This will reduce the disruption to James’ school year and should facilitate his introduction into his new school in London in September 2013.
[74] There will be an order that James will spend three weekends of every four with his father. Mrs. Durham will provide or arrange for transport of James from London to Burlington after school Fridays and from Burlington to London from 6:00 p.m. Sundays unless the parties agree on a different time schedule. If Monday or Friday of Mr. Durham’s weekend with James is a school holiday or a PA Day, James’ time with his father shall commence Thursday evening and end Monday evening in accordance with the school holiday. James’s weekends with his father shall correspond with the alternate weekends his brothers Nick and Thomas also spend with Mr. Durham unless the parties agree otherwise.
[75] In addition, Mrs. Durham shall facilitate at least one evening per week for James to spend time with his father should Mr. Durham choose to travel to London to spend time with James. Mrs. Durham shall facilitate unrestricted telephone access on any occasion James is not with Mr. Durham.
[76] The parties shall continue to share in the parenting of James in accordance with their Partial Separation Agreement and arrange for James to spend equal time with each parent during school breaks.
[77] Mrs. Durham shall ensure that school officials are informed that Mr. Durham is to have access to James’ educational information and that Mr. Durham is advised in advance of any school functions or parent/teacher meetings he may wish to attend.
[78] The parties may exchange and file written submissions as to costs no later than January 31, 2013.
MILLER, J.
Durham v. Durham, 2012 ONSC 7023
COURT FILE NO.: FS-12-34543-0000
DATE: 20121212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JENNIFER JUNE DURHAM
Applicant
– and –
JAMES EDWARD DURHAM
Respondent
REASONS FOR JUDGMENT
MILLER, J.
Released: December 12, 2012