ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Shawn Fallis
Applicant
– and –
Tiffany Decker
Respondent
Self-Represented
Frank A. Lanza –
Counsel for the Respondent
HEARD: August 9, 2013
The Honourable mr. justice pazaratz
Reasons for Judgment
[1]. This urgent motion raises the fundamental issue of the extent to which a parent should be allowed to exercise self-help to unilaterally impose changes to a long-standing status quo – changes with potential far-reaching consequences for two young children.
[2]. The Applicant father is 28. The Respondent mother is 24. They lived together on an unmarried basis between late 2006 in November 2009.
[3]. There are two children of this relationship, five-year-old Chloe and four-year-old Taylor.
[4]. The Respondent mother now has an 11-month-old child from a subsequent relationship. She says she is not living with the father of the child although they appear to be in an ongoing relationship.
[5]. The immediate issue relates to geography.
[6]. Both children were born while the parties were living in Hamilton.
[7]. Between November 2009 and the summer of 2013 the parties were able to work out timesharing on an informal basis without any intervention by lawyers or courts. Both parties agree this entailed generous timesharing between them.
[8]. The father works 12 hour shifts, with the result that he is off work approximately 7 days in a 14 day cycle. The parties agree the father’s time with the children was organized around his days off. The father says he had the children almost 50% of the time. The mother disputes that the percentage was quite that high but she certainly acknowledges that he was very regularly involved with the children.
[9]. They also agreed that the father would pay child support in the sum of $433.00 per month. The mother originally asked the father to pay the full guideline amount which would have been closer to $800.00. Their compromise [or acquiescence] with respect to child-support being reduced by almost 50% would appear to reflect an acknowledgment by the mother that the father was having the children in his care well over 40% of the time. The father appears to have consistently made his support payments without any court order or compulsion by the Family Responsibility Office.
[10]. Both parties agree there was never any formal custody determination. The Applicant father perceived they had joint custody; they were sharing time almost equally; and they were sharing decision-making as well. The Respondent mother says she perceived she was always the primary caregiver, even though this was never formally acknowledged by the Applicant – perhaps it was never even discussed. She says she registered herself as the primary contact person with the children’s school, doctors, etc. The father says if she represented to third parties that she was the primary caregiver, she acted unilaterally. He insists he was equally involved with respect to all issues in the children’s lives.
[11]. For the 2012–2013 school year both children attended Queen Mary school in Hamilton. They were scheduled to return to that school in September 2013: Chloe going into grade one and Taylor starting full-day kindergarten.
[12]. Despite differing characterizations as to whether either parent was the “primary caregiver”, it appears to be common ground between the parties that both parents have an excellent relationship with the children; both parties are good parents; the children have strong love and affection for both parents; and the almost four-year status quo (ie, the children living almost equally with each parent, in Hamilton) was successful and beneficial for the children.
[13]. In that context, sometime in July 2013 the Applicant father learned the Respondent mother had made arrangements to relocate to Hagersville, Ontario, a small community approximately a 45 minute drive from Hamilton. The Respondent mother acknowledges that she did not advise the Applicant father ahead of time. She appears to have proceeded with her plans with no discussion or consultation. She said she had intended that her mother convey the information to the Applicant father on July 1, 2013 but that her mother forgot. In any event, later in July it became evident to the Applicant father that the Respondent mother was not only planning on moving with the children to Hagersville – but she had actually proceeded with the relocation.
[14]. The Respondent mother is also now proposing that both children will attend full-time school in Hagersville rather than Hamilton where they were attending. The children’s doctors and dentist are in Hamilton. The mother proposes that she will maintain those professional contacts.
[15]. Mr. Lanza on behalf of the Respondent mother acknowledges there was no discussion or advance notice to the Applicant about the mother’s intentions for the children. He notes the parties were not communicating well with one another and in fact the Applicant father has now been charged with assault, with a trial date in December 2013. The mother’s material also identifies there were a few alleged episodes of conflict between the parties while they were living together.
[16]. I note however that the Applicant father does not appear to have a criminal record, and the Respondent mother is not alleging that there is any danger to the children in spending time with the Applicant. Indeed, she appears to be proposing that the Applicant should continue to have as much time as possible with the children. In her view the Applicant’s timesharing with the children need not be significantly reduced even if they are living in Hagersville, because she is prepared to have someone do 50% of the driving.
[17]. I find that the Respondent has not provided a satisfactory explanation as to why she proceeded and implemented her plans without any consultation or discussion – or exploration of alternatives.
[18]. The Respondent mother’s rationale for the relocation:
a. She wants to return to Hagersville because as a child she used to live there, and her father and stepmother live there. She says she has extensive support there. The Applicant father notes that she also has family in Hamilton. The mother says she is closer to her family in Hagersville that in Hamilton.
b. She says her finances are limited and for $800.00 per month in Hamilton she was only able to rent a two-bedroom duplex whereas in Hagersville for the same money she can rent a four bedroom home. Her lawyer acknowledges the Respondent never identified to the Applicant that she might have to consider relocating to another community unless he paid more child support. The Respondent provided no evidence of efforts to find affordable (or subsidized) rental accommodation other than in Hagersville. In any event, the father says the children are used to being with him virtually 50% of the time and they each have their own bedroom in his home.
c. She is enrolled to commence an early childhood education program at the Brantford campus of Mohawk College in September 2013. The father says she could have taken the same course at the Mohawk campus in Hamilton. The mother says the same course wasn’t offered at the Hamilton campus. The father says even if she will be attending school in Brantford, she could just as easily have driven from Hamilton to Brantford rather than from Hagersville to Brantford. The mother says travel between Hagersville and Brantford would be better for her because the roads are less busy. However the distance the Respondent would have to travel attending school in Brantford would appear to be similar whether she was based in Hamilton or in Hagersville.
d. The mother denies the father’s allegation she is living with her boyfriend and that this played a role in her decision to move to Hagersville. The mother says her boyfriend has his own accommodation in Caledonia. Caledonia is not far from Hagersville.
e. The mother says she can arrange better daycare in Hagersville and in fact her stepmother will quit her job to be available for daycare in Hagersville. The father says that with all of his days off work the need for daycare is reduced and the mother would also have the option of pursuing subsidized day care in Hamilton.
f. The mother says she hopes to continue with some employment at Tim Horton’s while attending school. There is no evidence that the opportunities for such employment are better in Hagersville than in Hamilton.
[19]. It is premature to predict how overall parenting arrangements are going to turn out, but I am troubled by the mother’s unilateral action in taking steps to effectively create a new status quo favorable to her position.
[20]. As stated, neither party had custody. Both parties are presumed to have equal rights as parents, and both parties were exercising equal involvement – beneficially for the children – for almost 4 years.
[21]. The status quo was stable and the children were thriving.
[22]. The mother has not established a compelling case that relocating with the children to Hagersville was a necessary or appropriate option.
[23]. The mother’s unilateral action will entail a great deal of disruption for the children. They will have to change schools and neighborhoods. Inevitably they will spend significantly less time with the Applicant father, and the quality of their lives will be diminished by the Respondent’s proposal of extensive travel back and forth between Hamilton and Hagersville. Those travel arrangements would likely be quite cumbersome, having to juggle the Applicant’s employment schedule; the children’s school schedule; the Respondent’s school schedule in Brantford; and the availability of the Respondent’s designate to do half of the driving.
[24]. The parties used to live much closer to one another, within Hamilton. This proximity worked well for the children, facilitating regular contact with both parents, with brief and manageable transportation arrangements. A fundamental issue arises as to whether the Respondent had the unilateral right to create a significant distance between the respective residences – 45 minutes in good weather -- and then simply presume that the Applicant will have to do half the driving.
[25]. I am mindful of the significant relationship the Respondent mother has with the children. I commend her efforts to upgrade her education. I realize she has additional obligations with respect to her third child from her new relationship. But she also appears to have her own agenda which is not entirely child-focussed.
[26]. I am also mindful of the fact that the Respondent says she has already relocated, with the obvious inference that the status quo is already a thing of the past. But of all the considerations, the suggestion that “it’s too late to change things now” has to be given the least weight. Parents take unilateral action at their own peril. The court simply cannot sanction self-help in circumstances where the best interests of children may potentially have been jeopardized.
[27]. Particularly at an early stage of litigation, the court should be reluctant to allow any disruption of the status quo. In this case the status quo was long-standing, beneficial to the children, and viable. The Respondent had plenty of time to address the changes she had in mind, either with the Applicant or through the court system. She must have known long ago that she was applying to attend school in Brantford. She must have been looking for rental accommodation in Hagersville for a while. It is inappropriate for a parent to make secret plans which will have significant impact on children and parenting arrangements, and then announce those plans after the decisions have been implemented.
[28]. Mr. Lanza submits the Applicant is only an “access parent” and that an access parent should not be allowed to frustrate or control the legitimate plans of a custodial parent. I disagree with that characterization. There has never been any determination that the mother is the custodial parent or that the father is only an access parent. The Applicant father is pursuing joint custody with equal time-sharing – and to his credit he appears to continue to propose that the children have the benefit of extensive involvement with both parents. This is what they are used to.
[29]. The Respondent has engaged in brinksmanship. This is not a helpful strategy in custody litigation.
[30]. Until the facts of this case – and the circumstances of these children’s lives – have been much better considered, I believe it is in their best interests that the status quo be maintained – or reinstated. They should continue to attend school in Hamilton. They should continue to live with the Applicant father on his days off. They should continue their long-standing routines and relationships.
[31]. Temporary temporary order:
a. the Applicant and the Respondent shall have joint custody of the children Chloe and Taylor.
b. The Applicant shall have the children in his care 50% of the time, with scheduling to be based on his employment schedule.
c. The children shall continue to attend school in Hamilton. Their registration with professionals such as doctors, dentists, etc. in Hamilton shall not be changed.
d. The parties shall equally share transportation of the children to the extent that their respective residences are in Hamilton. To the extent that the Respondent’s residence is outside of Hamilton, she shall be solely responsible for any transportation to and from Hamilton.
[32]. Any issues with respect to implementing or better defining these terms may be addressed by motion, to my attention if I am sitting.
Pazaratz, J.
Released: August 9, 2013
COURT FILE NO.: F1184/13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Shawn Fallis – Applicant
And
Tiffany Decker - Respondent
REASONS FOR JUDGMENT
Pazaratz, J.
Released: August 9, 2013
