ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-09-0327-01
DATE: 2013-02-01
B E T W E E N:
Lee-Ann Winnifred Pearson-Falden,
S. Joy Marr, for the Applicant
Applicant
- and -
David Erick Joseph Peterson,
No one representing the Respondent and the Respondent not appearing
Respondent
HEARD: January 15, 2013,
at Thunder Bay, Ontario
Mr. Justice D. C. Shaw
Decision On Motion
[1] This motion to change proceeded as an uncontested hearing. The respondent did not file any responding material although served with the motion to change and the change information form. On the hearing of the motion, I was advised by the solicitor for the applicant that, as a courtesy, she had forwarded copies of the motion material to the respondent’s former solicitors but had received no response.
[2] The applicant seeks to vary the order of Fregeau J., dated February 14, 2012, made in accordance with Minutes of Settlement filed. Pursuant to that order, the applicant was granted custody of the two daughters of the relationship, presently 6 years and 5 years of age, respectively, and the respondent was granted “generous access”, including, but not limited to, two consecutive weekends out of every three weekends, to coincide with the respondent’s work schedule attached to the order. The order also provided for holiday access. Each party was granted reasonable telephone access. neither party was to make any disparaging or negative comments about the other in the presence of the children or to each other. The order provided for a Communications Book. The respondent was to ensure that the children’s overnight access with him was in a residence that was “safe, suitable and satisfies all conditions to be a residence as per the Ontario Building Code.”
[3] The order also provided that neither party was to change his or her permanent residence outside a 30 kilometre radius of the centre of Thunder Bay, unless on consent or by court order.
[4] The respondent was required to pay child support of $370.00 per month, based on his income in 2010 of $24,918.00, plus payment on any arrears at the rate of an additional $100.00 per month.
[5] The applicant seeks an order that:
(a) the respondent’s access be supervised;
(b) the respondent’s access pick-up and drop-offs be done by a third party;
(c) if the respondent is 15 minutes late in his scheduled pick-up of the children, his access for that occasion be forfeited, and if the respondent is late in bringing back the children, his next scheduled access be forfeited;
(d) the applicant be allowed to relocate with the children beyond a 30 kilometre radius of the centre of Thunder Bay;
(e) the police enforce the return of the children if the respondent does not return the children on schedule;
(f) the respondent supply the children with their own cell phone through which he exercise his telephone access; and
(g) child support be increased.
[6] In support of her motion to change, the applicant relies on her affidavit, filed with her motion to change, supplemented by her testimony at the hearing.
[7] Dealing firstly with the claim for an increase in child support, there is no evidence that the respondent’s income has increased since the February 14, 2012, order of Fregeau J. The only evidence that the applicant proffered as to the respondent’s present income was inadmissible hearsay that during a criminal proceeding involving a charge against the respondent for assaulting the applicant’s mother, the applicant’s mother heard the respondent say that he was on stress leave from work and that he was clearing $500.00 per week. The respondent’s present support payments of $370.00 per month are based on income of $24,918.00. Because there is no admissible evidence as to an increase in the respondent’s income, there will be no order varying child support at this time. An order will go, however, that by June 1st of each year, commencing June 1, 2013, the respondent shall provide the applicant with copies of his income tax return, notices of assessment and re-assessment and T-4 and T-5 slips for the previous year.
[8] I turn next to the claims related to access.
[9] The applicant’s evidence is that the respondent verbally abuses her in front of the children, that he threatened to kill her in front of the children, that he was convicted of assaulting the applicant’s mother, that during telephone calls he verbally abuses the applicant and that he telephones repeatedly to harass her and the children. The applicant’s evidence also is that the respondent has threatened to take the children and vowed that the applicant would not see them again. Her evidence is that the respondent draws out the exchanges of the children for no good reason and that he flagrantly disregards the scheduled transition times. The applicant states that although the children love the respondent and enjoy spending time with him, they have become afraid of him because of his behaviour. The applicant stated that she has called the police on a number of occasions because of the respondent’s behaviour and his refusal to return the children as scheduled. The applicant testified that the respondent lives in a one bedroom house. A relative of the respondent and a young child also live there. They sleep in the bedroom. The applicant states that the respondent and the children sleep on a couch in the living room. She stated that the respondent bathes the children together as a result of which one has communicated an illness to the other.
[10] The applicant’s evidence is somewhat limited and there is no third party confirmatory evidence. However, the respondent has not contested these allegations, most of which are contained in the applicant’s affidavit which was served on the respondent. I have no reason to disbelieve the applicant’s evidence as to the conflict initiated by the respondent during his pick-up and return of the children, his failure to follow agreed upon pick-up and return times and his abusive telephone calls. This conduct is harmful to the children’s best interests and reflects on the ability of the respondent to put the children’s interests ahead of his own agenda. His failure to take part in these proceedings, in the face of the applicant’s allegations and the relief she is seeking, is concerning.
[11] In light of the applicant’s uncontested evidence, there will be an order that when the respondent exercises access, all pick-ups and returns of the children shall be done by a mutually agreed upon third party, to be arranged by the respondent and at his expense. The respondent shall not attend at the pick-ups and returns of the children. In addition, all arrangements as to when the pick-ups and returns are to occur shall be made between the applicant, on the one hand, and a mutually agreed upon third party, on behalf of the respondent, on the other hand, unless the applicant, herself, chooses to have contact with the respondent. The respondent shall not, himself, contact the applicant except through a third party. If the respondent wishes to call the children by telephone, the call shall be placed by a third party to the applicant, unless the applicant chooses to speak to the respondent.
[12] Because there are no precise dates and times for the scheduled access, I am not prepared to make the requested open ended order for police assistance. However, if the third party picking up the children for the respondent’s access is later than 30 minutes past the agreed upon pick-up time, the respondent’s access for that occasion shall be forfeited. Upon the third party picking up the children, the respondent shall provide to the applicant, through the third party, written acknowledgement, signed by the respondent, of the agreed time at which the children shall be returned. If the children are returned later than 30 minutes past the agreed upon return time, the respondent’s next scheduled access shall be forfeited.
[13] There is insufficient evidence before me to make an order for supervised access, beyond the above requirements for third party involvement in arranging access and attending on the pick-up and return of the children. The applicant’s information as to the living arrangements at the respondent’s home and what happens there is, on its face, hearsay, and prima facie not admissible.
[14] There is also insufficient evidence before me with respect to the applicant’s request to relocate with the children to a location beyond a 30 kilometre radius of Thunder Bay. In deciding whether to change the order in this regard, it is necessary to have sufficient evidence to balance the advantages and disadvantages of the proposed relocation and to decide what is in the best interests of the children in accordance with the principles set out by the Supreme Court of Canada in Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.). Further, it does not appear that the applicant has, at this time, concrete plans to move. She testified that she is “happy where she is” although, she stated, if she decides to move, she would like the right to do so. She testified as to employment opportunities in Upsala as a personal services worker. The court should not make a hypothetical advance ruling on whether to permit or deny relocation of the children. See Hanis v. Hanis, 2009 BCSC 1428 (S.C.) and McLeod and Mamo, Annual Review of Family Law 2011 (Toronto: Carswell 2011), at p. 147.
[15] An order shall go in accordance with these reasons.
The Hon. Mr. Justice D. C. Shaw
Released: February 1, 2013
COURT FILE NO.: FS-09-0327-01
DATE: 2013-02-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Lee-Ann Winnifred Pearson-Falden
Applicant
- and –
David Erick Joseph Peterson,
Respondent
DECISION ON MOTION
Shaw J.
Released: February 1, 2013
/mls