COURT FILE NO.: 515/13
DATE: 2014-07-08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jason William Earl McAllister
Anna Towlson, for the Applicant
Appellant
- and -
Amanda Crystal Norman
Amanda Crystal Norman, Self-Represented Respondent
Respondent
HEARD: January 13, May 2 and June 9, 2014
THE HONOURABLE MR. JUSTICE G.A. CAMPBELL
REASONS FOR JUDGMENT
I Process
[1] Just as the original trial hearing took four days over two months (then the decision released four months later) this Appeal hearing has taken three days over six months, mainly due to Ms. Norman’s apparent inability to grasp the need to file evidence to corroborate her in-court statements and allegations.
[2] At first day of the appeal hearing, an oral motion was brought (and granted on consent) for the court to hear and consider fresh evidence, since almost nine months had passed since Hardman, Prov. J.’s Order of March 20, 2013 and thirteen months had passed since the end of the trial.
[3] On that first day I considered the submissions, then gave brief oral reasons for granting the appeal. Rather than directing the matter back to the Ontario Court of Justice for a retrial to be presided over by another trial judge, on consent, I allowed the matter to proceed before this court on the basis that Mr. McAllister had established that a material change in Kaiden’s circumstances had occurred since Hardman, Prov. J. had allowed Kaiden’s relocation to Casselman, Ontario. That trial judge had relied upon Ms. Norman’s strong assurances to the court that she would facilitate contact between Kaiden and his father, despite that six hour distance between Kitchener and Casselman.
[4] Relying on that assurance, Hardman, Prov. J. ordered joint custody (on consent); primary residence with Ms. Norman in “the Ottawa area”; extensive regular access between father and son, including “one extended weekend each month, as agreed....”; “every March break unless otherwise agreed....”; “one-half of each Christmas school break as agreed”; and “a minimum of one week during the summer holidays as agreed....”
[5] The issue for me to determine is whether, as alleged by Mr. McAllister, Ms. Norman has obstructed that essential access/contact term/tenet of the Hardman, Prov. J. order.
[6] I set a timetable for serving the new evidence by affidavit and made and order that the status quo residence of Kaiden in Casselman as allowed by the Hardman Order was to continue, but with the specific access proviso as follows:
“one weekend per month in January and February in Kitchener, and March Break, and one weekend in April and May in Kitchener, as arranged by the parties and per paragraph 203(3)(e)” (of the Hardman Order regarding “regular telephone and/or computer access at the father’s expense”)
[7] Costs were left “in the cause”.
[8] When the Appeal hearing re-started four months later, the CAS records post October 10, 2012 (165 pages) were filed as an exhibit. But it became very clear very quickly that Ms. Norman needed “more time” since she apparently had “been confused” regarding her need to file full and complete disclosure and to offer the court actual evidence of her various assertions and counter-allegations that she persisted in making from the body of the courtroom.
[9] Ms. Towlson objected strenuously to further delay. She argued that such delay was an intentional strategy of Ms. Norman’s. Further, she pointed out that Ms. Norman had not complied with any of the access ordered at the January 13 appearance. Indeed, Ms. Towlson further alleged that Ms. Norman had as well effectively obstructed almost all of Mr. McAllister’s efforts to communicate with Kaiden by phone or computer. Ms. Norman counter-accused Mr. McAllister of “not really trying” to communicate with their son and that he was the one that was un-co-operative.
[10] Over Ms. Towlson’s objections, I allowed a further adjournment and set another timetable for up to three additional affidavits from each party (one each from each parent and two additional corroborative affidavits each) in order to provide independent confirmation of the wildly divergent evidence and statements that had been provided by each of them about events that had allegedly occurred since January 2014.
[11] At that May 2, 2014 attendance I challenged Ms. Norman why she had not brought Kaiden with her from Casselman to Kitchener so he could visit with his father while she was in town (since May 2 was a Friday and Kaiden could have spent a long weekend with his father). I pointed out to Ms. Norman that it might have been a wise decision to do so, in the face of persistent allegations that she was actively blocking Mr. McAllister from any contact with his son. I thought that this might have occurred to her, especially when she continually asserted that she wanted Kaiden to have a good and close relationship with his father (and that she was “not doing anything to block” that positive relationship). When pressed, Ms. Norman’s response was that she didn’t want Kaiden to miss a day of school. This response seemed odd to me since, when Ms. Norman was living in Hespeler and Mr. Nickerson, her common-law partner had moved to Casselman, Ms. Norman had no qualms at all removing Kaiden from school so she could spend long weekends in Casselman with Mr. Nickerson.
[12] Without yet having all of the “fresh evidence” before me, I “suggested” that actions spoke more clearly than words and that, in order to bolster her claims of non-obstruction of access, she might consider complying with my January 2014 Order and perhaps bring Kaiden with her to Kitchener when the matter next was before the court (on June 9 a Monday).
[13] At the outset of the re-start of the Appeal hearing on June 9, 2014, I was advised that Kaiden had indeed been with his father since Saturday, June 7 at 3:00 p.m. and was currently with his paternal grandfather while both parties attended the hearing. Apparently the visit went well but Ms. Norman could not restrain herself from being critical of some of the McAllister extended family for being present in court rather than visiting with Kaiden.
II Evidence and Analysis
[14] Hardman, Prov. J. provided a good review of the evidence presented at trial and made certain findings based thereon. Many of her assumptions were made based upon Ms. Norman’s assurances that she would make sure that if she were allowed to move Kaiden to Casselman, there would be frequent and regular contact between father and son. Those findings and her reliance upon those assurances arise throughout her lengthy Reasons for Judgment, dated March 20, 2013.
[15] It is clear to me that the Trial Judge, while she realized that Ms. Norman’s common-law partner, Nickerson, had no time for and a had a very negative attitude towards Mr. McAllister (see paragraph 40 of the Hardman Reasons), relied heavily on Ms. Norman’s “regular access assurance” when reaching her decision to allow Ms. Norman to move to “the Ottawa area”.
[40] Unfortunately the relationship between the father and LN has been difficult. LN appears to be frustrated with the father’s view that he has a continuing relationship with the mother when it is his view that he does not. Frustrated with the father’s attempt to communicate with the mother through his number, LN became rude with the father. The father testified that LN called him a “low life”, “loser” and “retard”. Then the father wanted LN to stop messaging him and got the police involved.
[16] The Trial Judge decided that, despite evidence of Ms. Norman’s past devious behavior (paragraph 95) and, “manipulation” of the father (Mr. McAllister) (paragraph 166), Ms. Norman could be trusted to follow through with her assurance to the court that Kaiden and his father would see each other frequently (see paragraphs 107 and 108).
[17] The following are a few excerpts of Hardman, Prov. J.’s findings that indicate her reliance upon Ms. Norman’s promises and identifies Ms. Norman’s manipulation:
[198] Given the evidence, I am satisfied that the mother’s plan best addresses the child’s best interests and therefore the primary residence of the child should be with the mother. The mother has always been prepared to support the child’s relationship with the father. However, the mother needs to ensure that the child has prompt access to all the services he needs including the counselling that she identified.
[200] Also it should be expected that the father will have the child for longer periods during school breaks. The father could perhaps have the child for a week at Christmas, March break and extended time in the summer. The amount of summer holiday should be determined based on the father’s vacation schedule and the accommodations proposed for the child.
[174] In Gordon v. Goertz, 1996 191 the Supreme Court of Canada emphasized the consideration of the best interests of the child from a “child-centred” perspective. In that case, the parent seeking to move the child out of the jurisdiction had an order for sole custody.
[175] The court set out a number of factors to consider:
Relationship of the child and the parents and the existing custody arrangement
Importance of mazimizing contact between the child and both parents
The views of the child
Only in exceptional cases the parent’s reason for moving if relevant to the parent’s ability to meet the child’s needs
Disruption to the child of a change in custody
Disruption to the child were the child to be removed from his or her community including schools and extended family
[176] The issue of maximizing contact with both parents is in part based on the premise that maximizing contact with both parents is generally in the best interest of the child (Goertz, at para. 25)
[95] The mother acknowledged going with the father and the child to Mexico in 2008 despite living with LN. She said that she arranged it as she wanted the child to feel that his parents could get along. She noted that she had not told LN and was unsure if he knew now. She said that LN thought that just the mother and child were going and that he would not have understood the father being with them. She explained that she and the father paid their own costs and split those of the child. She said that there were two queen sized beds and a pullout couch for the child at the resort.
[113] She said that the last time they stayed overnight as a family was in Mexico in 2008. Despite her name being part of the registration at the hotel, the mother told the court that she did not stay overnight [in Niagara Falls] in March 2012 but did go swimming. She said that he needed her credit card information as identification for the registration. While she seemed vague about what she did at the hotel, she denied that there was any sexual involvement. She acknowledged that an explicit picture shown to her on the father’s cellphone of her private parts showing tattoos and piercings was indeed of her, she denied sending it to him.
[105] In cross-examination, the mother acknowledged that she had told the judge on her first court appearance that she was moving to attend nursing school and did not mention her fiance’s move. She said that they were ready with the packed moving truck to leave at 5 am March 10, 2012 but that the court refused permission to move on March 9. As a result they took the child’s clothes and the toys he wanted out of truck before moving the rest. She acknowledged that they spent March break in Casselman. She said that she had to re-contact the schools to explain.
[106] As a result of the court’s temporary order not to change the child’s residence and the fact that she had already given notice, she said that she and the child were living with her sister and her spouse and their two children. She said that she intended to get part-time work in Casselman and register for nursing part-time but acknowledged that she had not completed the registration for any program.
[107] The mother said that when she told him in September 2011 about the move, the father was not very happy. However, they discussed how the father’s visits with the child could be accommodated and he appeared agreeable. She said that she would ensure that the child had lots of contact with the father using face time and other technology. Further she had identified the Professional Development Days (PD Days) for the coming school year and suggested they be used as long weekends for access.
[108] The mother said that in February [2012] she showed him pictures of her new home and he had no negative reaction. She said that once they worked out visitation through long weekends and technology the father’s negative reaction changed. She said that he was prepared to do some driving and the train was $110 return. She told the court that she was prepared to negotiate access and make up for weekends missed due to inclement weather or other reasons.
[166] There is of course a lot of evidence suggesting that the mother was manipulating the father by maintaining a relationship of sorts with him inbeknownst to her fiance. Her evidence that she sent one line of text but not another was not believable. Further the presence of extremely explicit pictures of herself on the father’s cell-phone suggest that more was going on after the separation than friendly exchanges of the child at access. Certainly the mother refused to acknowledge anything that could not be proved by a picture or documentation and even those she denied at times!
[18] Perhaps, Hardman Prov. J.’s observation at paragraph 195 of her Reasons is prescient.
[195] ...While the mother’s follow-up to deal with the child’s needs is not exemplary, she is the one who is most capable to address the child’s needs and has identified to the court how she will do so.
[19] Based upon the now proven allegations of Mr. McAllister and the irrefutable reality that he has been effectively marginalized from his son’s life (except for one week in August 2013 and one trip to Casselman that he arranged to pick up Kaiden for March Break 2014 in Kitchener and the one time Ms. Norman brought Kaiden to Kitchener in June 2014, only it would appear as a result of the fairly pointed suggestion of the Court) one need not work hard to recognize that hardly any of the intent of the provisions of Hardman, Prov. J.’s optimistic access expectations have been met.
[20] Much of the e-mail traffic between the parents that has been filed and attached to Mr. McAllister’s February 12, May 2 and March 26, 2014 affidavits establish the great difficulty he has experienced dealing with Ms. Norman and her ever-increasing demands upon him. Her responses to his e-mails, unlike her pleasant demeanor in court, are aggressive, antagonistic, demeaning and obstructive. As Mr. McAllister complains in his February 12, 2014 affidavit (and I believe him since it is clear from Ms. Norman’s e-mails, behavior and statements that he makes available) Ms. Norman “berates and belittles” him.
[21] In one such e-mail, Ms. Norman goes to far as to refer to Mr. McAllister’s counsel as “as lawyer with her head up her ass...” and invites him and Ms. Towlson to:
“...sit down together and read the Ontario Family Law Regulations, its quite amusing how many she has violated I, [sic] not to mention, yourself included, wow, what a winner. So, you keep wasting money in court and we will continue being happy here...”
[22] There is no doubt that if Mr. McAllister is to ever have any real relationship with Kaiden, the child’s continued residence six hours away from his father, his father’s extended family, his maternal grandmother and aunt (all of whom live in the Kitchener-Waterloo Region) cannot continue. Mr. McAllister does not have the finances, the transportation nor the sophistication to adequately respond to Ms. Norman’s focus and determination to replace him with Mr. Nickerson and to deprive Kaiden from having any contact at all with the McAllister family.
[23] Ms. Norman presented her plan to follow her boyfriend who had moved to Casselman for work as “wanting to move closer to family and get her nursing degree”. That reason has now been proven to be nothing more than a fiction.
[24] Justice Hardman was only able to observe the public Ms. Norman persona. That judge optimistically believed her assurances. In the face of overwhelming evidence that has accumulated over the last year and a half, this Judge does not.
[25] Ms. Norman’s true strategy is further revealed and corroborated when she gave Mr. McAllister notice that she was “considering” changing Kaiden’s surname from Kaiden Madiron McAllister to Kaiden Madiron Norman. Kaiden will turn 11 this year and has been known as Kaiden McAllister since his birth. It was only when counsel formally gave notice to Ms. Norman that Mr. McAllister objected to such a plan and that he had been granted “joint custody” of the child by the court on consent, that Ms. Norman resiled from that latest manoeurvre to gradually chip away any contact or connection that Kaiden has had with the McAllister clan.
[26] In sum, the evidence presented to the court clearly establishes that:
The extended weekend access each month has not happened at all.
The regular telephone/computer access has not worked (Ms. Norman threatened to have Mr. McAllister charged with “harassment” if he asked her “once more” for a number through which he could call Kaiden).
Half of the Christmas school break that Kaiden was to spend with his father has not been provided by Ms. Norman.
Ms. Norman has not (except under duress from the court) ever provided Kaiden to Mr. McAllister in Kitchener for any access, nor has she been willing to adjust or reduce any child support ordered payable to compensate him for his sizeable transportation and accommodation costs incurred for the two times that he attended at Casselman to effect some access with his son. See paragraph 203:
[203] Should the mother follow through in providing transportation for some or all of the access, it is appropriate that the child support be maintained. However, should the father take on the full responsibility of the access transportation, or exercise all his access in the Casselman area at his own expense, then it would be expected that there should be a reduction in the amount of support paid to the mother.
It has become evident that Ms. Norman’s agenda is to thwart Mr. McAllister’s (and his family’s) previously close relationship with Kaiden in every way possible and that one cannot rely upon her continued in-court assurances that she “will co-operate” and is “willing to facilitate access”.
The basis upon which the Hardman. Prov. J. order was granted has been breached in a real and substantial way and cannot be remediated by only adjusting some of the terms thereof.
[27] Based upon s. 24 of the Children’s Law Reform Act, I find that it is in Kaiden’s best interests that he be returned to this Region of Waterloo to be closer to his father and his father’s (and mother’s) extended family, who all live in this area.
[28] Although Ms. Norman has the ability to make child-focused decisions as those decisions relate to Kaiden’s relationship with those of her own family members, I find that Ms. Norman is entirely unwilling to comply with Hardman, Prov. J.’s clear expectation that Ms. Norman was to ensure that the father-son relationship would be encouraged and promoted.
[29] I arrive at that obvious conclusion by observing that Ms. Norman completely ignored my order of January 13, 2014 that she was to provide Kaiden to Mr. McAllister in Kitchener at least one weekend per month from that date to and including May 2014. She did not bring Kaiden to Kitchener even once during that time period. In Kaiden’s interest, that behavior is reprehensible.
[30] Accordingly, for these reasons, I set aside the second sentence of term number two of Hardman, Prov. J.’s Order of March 20, 2013. I order that Kaiden is to be returned to live fulltime in the Region of Waterloo immediately, within 10 days of the release of these Reasons and this Order. Kaiden is to be re-registered in a school in the appropriate school catchment area in which either his father or his mother will reside, should she decide to return to live with her son in this Region.
[31] Kaiden is to be delivered into his father’s care full-time for some extended summer access within 10 days of the release of this order by Ms. Norman or Mr. Nickerson (or both) delivering Kaiden to Mr. McAllister’s father’s residence, together with all of Kaiden’s clothes and his personal possessions. Kaiden shall remain in his father’s full time care (whether he lives at Mr. McAllister’s apartment or at his grandfather’s residence, or spends differing amounts of time at either place, as decided by Mr. McAllister) for the next 30 days over the summer.
[32] Ms. Norman may exercise access at her sister’s (Kaiden’s maternal aunt’s) home in Hespeler or at her mother’s home in Kitchener/Waterloo for the middle weekend during that 30 day period, from 3:00 pm on the Saturday until Ms. Norman needs to return to Casselman for work or until 4:00 on the following Monday, whichever first occurs.
[33] A usual Police Assistance Order term shall be included in this Order, directed to the OPP, the RCMP and/or the Region of Waterloo Police Service, whichever force has jurisdiction to locate, apprehend and deliver Kaiden to Mr. McAllister, should Ms. Norman not comply with this Order in a timely manner.
[34] Ms. Norman may retain “primary residence” status (as provided by paragraph 2, first sentence of Hardman, Prov. J.’s Order) should she have moved back to the Region of Waterloo on or before August 15, 2014. In that event, Kaiden shall be returned to her primary care at the expiration of the 30 day father’s summer holiday care-period, set out above. Should Ms. Norman decide by August 15, 2014, not to return to this Region to live, Kaiden shall remain in his father’s primary care henceforth and Mr. McAllister shall ensure that Kaiden spends at least one day a week with either his maternal grandmother, or aunt as he/they arrange.
[35] In the eventuality that Ms. Norman chooses to stay in Casselman with Mr. Nickerson, the child shall attend a school closest to Mr. McAllister’s apartment. The child’s O.S.R. shall be forwarded from the Cambridge School at Casselman to whichever primary school in the Region of Waterloo in which Kaiden is registered on/before September 1, 2014. If Ms. Norman does in fact move back to this Region, the O.S.R. shall be made available to the closest school in her school catchment area.
[36] A copy of this Order shall be forwarded by Mr. McAllister to the CAS previously involved with this family.
[37] If Kaiden stays in his father’s permanent care, as a result of Ms. Norman’s decision not to move back to the Region of Waterloo, she shall have access on alternate weekends, starting Friday, August 22, 2014 at 3:30 until Monday, August 24 at 9:00 am with pick up and drop off from Mr. McAllister’s father’s home. Thereafter she shall have access from and to Kaiden’s school at or about the same times when school ends and begins the following Monday from and including September 5, 2014 and each Wednesday from school until 7:30 pm and such other times as Mr. McAllister decides.
[38] Should Kaiden return to his mother’s primary care here in the Region of Waterloo in late August (as provided above) then Mr. McAllister shall have the same alternate weekend access plus one evening (Wednesdays) each week from school until 7:30 pm. Mr. McAllister or his family may pick Kaiden up from school on Wednesdays and or on Fridays and return him to school on Mondays, should Mr. McAllister’s work schedule prevent him from doing so himself.
[39] The Hardman, Prov. J. Order is varied, depending upon whether Mr. McAllister takes permanent primary care of Kaiden in August. If so, the child support ordered per paragraph 4 of the Order is terminated and Ms. Norman shall begin to pay to Mr. McAllister child support based upon her 2013 income as set out by the Child Support Guidelines (per line 150 of her Notice of Assessment, a copy of which she is hereby ordered to forthwith disclose to Mr. McAllister).
[40] In addition to the above, Ms. Norman shall also pay any s. 7 expenses, including before/after school daycare expenses. Paragraph 5 of the Hardman, Prov. J. Order is varied to replace the words “father” with “mother” and vice versa where necessary should primary care of Kaiden transfer to Mr. McAllister this August.
[41] Should Kaiden’s primary care-giver change resulting from Ms. Norman’s decision not to return to this Region, paragraphs 6 through 10 inclusive of the Hardman Order shall continue with the appropriate changes.
[42] Ms. Towlson is directed to forthwith draft and submit a Final Order for my signature, based upon these Reasons. She need not obtain Ms. Norman’s approval as to form and content thereof. Time is of the essence.
[43] Mr. McAllister’s Appeal has succeeded. Rule 24(1) presumes that he is entitled to his costs of this proceeding.
[44] If Ms. Norman and Ms. Towlson cannot resolve the costs issue, I will accept Ms. Towlson’s brief written submission of less than six pages regarding the quantum of a costs order; plus a Costs Outline; her accounts; and any case law upon which she intends to rely, within ten days of the release of these Reasons and this Order.
[45] Ms. Norman may respond, in writing, in less than six pages, within five days thereof. Ms. Towlson may reply to that response in less than three pages within five days thereof.
[46] In light of Ms. Norman’s expressed views of Ms. Towlson’s role in these proceedings, it is appropriate that I express my different view. I thank Ms. Towlson for the competent and professional manner in which she comported herself and for her dogged commitment to her client’s cause.
G. A. Campbell, J.
Released: July 8, 2014
COURT FILE NO.: 515/13
DATE: 2014-07-08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jason William Earl McAllister
Appellant
and –
Amanda Crystal Norman
Respondent
REASONS FOR JUDGMENT
G. A. Campbell, J.
Released: July 8, 2014