COURT FILE NO.: Walkerton 04948/14

DATE: 20140721

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jeffrey Crewson and Isabel Cornelia Crewson

BEFORE: Justice Jamie Trimble

COUNSEL: William Humphrey, for the Applicant Kevin G. Caspersz, for the Respondent

ENDORSEMENT

INTRODUCTION

[1] In this matter, there is only one issue to be decided: with which parent should the children of the marriage live pending final disposition of the issues of custody and access?

[2] For the reasons expressed below, it is in the best interests of the children, at this stage, that the parents have joint custody of the children, and that they live with the Husband. Ordering that the children live with the Wife would mean relocating them from the school, friends, familiar surroundings, social and extracurricular activities, and familiar routines they have in Port Elgin. I make further orders regarding access to the Wife, in the “Disposition” section, below.

MOTIONS

[3] Each parent brings a motion concerning interim custody and residence of the children of the marriage: Morgan David Crewson, D.O.B. June 22, 2004, and Tesna Cornelia Crewson, D.O.B May 15, 2007. They are ten and seven respectively.

[4] The Husband/Applicant, Jeffrey Crewson moves for interim joint custody, and an order that primary residence of the children be with him, with liberal access to the Wife/Respondent, Isabel Crewson. The Wife seeks interim order sole custody or, in the alternative, joint custody, and an order that primary residence of the children be with her, with liberal access to the Husband.

BACKGROUND

[5] These motions were made necessary when, either by email on March 28, 2014 or at the April 30, 2014 early case conference in this matter, the Wife first advised the Husband that she was relocating because she got a job in Stoney Creek, Ontario, starting April 22, 2014. Initially, her plan was to live somewhere in the Halton Region (as her mother and sister lived in Milton). It was not until the opening of the argument of the motions that I was given a copy of an affidavit sworn by the Wife saying that she had signed a lease on a house and would move in on July 18, 2014.

[6] After the separation, and up to April 22, the children lived with the Wife in the matrimonial home in Port Elgin. The Husband lived nearby. The Wife provided generous access, although there is a dispute as to how much access the Husband actually used.

[7] Since April 22 when the Wife began working in Stoney Creek, she has lived with her family in Milton. On her days off, she has returned to the matrimonial home in Port Elgin to live with the children. When the Wife is living in Milton, the children continue to live in the matrimonial home in Port Elgin, but are cared for by the Wife’s mother, sister and other friends and relatives who travel to Port Elgin for this purpose. The Wife did not give the Husband the option of becoming the residential parent for the children, given her changed circumstances.

[8] The Wife has leased a home in Milton near her mother and sister, and near schools for the children. The Husband has purchased a home in Port Elgin (with the assistance of his father), near the matrimonial home, and near his parents. The matrimonial home is now for sale.

[9] At an emergency or urgent hearing on June 11, 2014, Justice Donohue made an interim order pending a fuller argument on the issues in this motion. At its heart, Donohue J.’s order placed the children in the Husband’s care, with overnight visits to the Wife when she came to Port Elgin. Certain conditions were imposed.

THE LAW

[10] In making the above interim custody, residence and access order, I am guided by the following principles:

(a) this is not a situation, as Husband suggests, of the Wife having to vary a custody/access order as contemplated by Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), section 29. Donohue, J.’s order is clearly an interim order, brought on an urgent basis, and made without prejudice to the outcome of this motion. Section 29 of the CLRA does not apply.

(b) in determining whether to grant primary care of the children to either parent, I must be guided by the best interests of the children, following the factors set out in CLRA, section 24(2) and the case law interpreting that section.

(c) in determining whether one parent may move the children away (on an interim basis), the following principles, set out in Plumley v. Plumley 1999 CanLII 13990 (ON SC), apply:

• the courts should be reluctant to upset the status quo where there is a genuine issue for trial as to custody and access;

• there may be compelling reasons to allow the move, but those reasons must reflect the best interest of the child, not the parent; and

• the move can be allowed on an interim basis if the court is satisfied that the move would likely be ordered after trial.

(d) the onus is on the parent seeking to move the children to establish that it is in the child’s best interests (MacKenzie v. Newby 2013 ONCJ 541).

(e) the move should not be granted unless it is clearly in the best interests of the child. The court does not like to disrupt the children’s lives, especially where it may have to be undone after the trial (Goodship v. Creighton (2002) 2002 CanLII 45125 (ON CA), 62 O.R. (3d) 236 (C. A.)).

THE OCL

[11] This divorce is one of high conflict. While the Husband and Wife are making extreme allegations about one another, conflict is not an absolute bar to a joint custody order (see Ursic v. Ursic (2006), 2006 CanLII 18349 (ON CA), 32 R.F.L. (6th) 23 (Ont. C.A.), paras. 25-27.) On the evidence produced so far, the only evidence is that the husband and wife cooperate with respect to the best interests of the children, and there is no reason, on an interim basis, to alter the joint custody arrangement (see Roy v. Roy (2006), 2006 CanLII 15619 (ON CA), 27 R.F.L. (6th) 44 (Ont. C.A.), para. 4). The exception to this statement is in respect of the issues now before the Court: with which parent ought the children to reside given the Wife’s move away from Port Elgin for work. Therefore, I request that the Office of the Children’s Lawyer’s involvement on behalf of children. There is no one involved in this litigation or mentioned in the motion materials who is neutral, or disinterested enough in the outcome, to speak for the children’s’ interests. Accordingly, I direct that the OCL be provided with a copy of this endorsement and such other file contents as it may request.

ANALYSIS

[12] I have no doubt that both parents are loving and caring parents, who operate on their own views as to the best interests of the children. Until the separation, they created a stable a home environment for the children as they could. From April 22, 2014, the parents did the best they could to provide a stable environment for the children given the Wife’s new job.

[13] In each parent’s written motion material, each has failed to focus clearly on the best interests of the children. Rather, each focused on his or her view of the other’s inability to be a good parent. The Wife concentrates on evidence, over the course of 12 years, that she says lead to the conclusion that the Husband is an uncontrollable alcoholic. At paragraph 22 of the factum and in at least one paragraph of one of the affidavits the Wife filed, there is reference to the Husband having a drug problem. This reference is gratuitous. There is no evidence to support it. The allegation, as gratuitous as it is, is evidence of the acrimony in this marital breakdown.

[14] The Husband, while admitting to heavy drinking at times, says it has never happened in front of the children, nor did it affect them. He also says that heavy drinking was something that both spouses did during their marriage, and the Wife continues to do from time to time.

[15] The diversion of evidence on this point, alone, indicates the issue of custody and access cannot be determined summarily, notwithstanding both parties’ assertions that it can.

[16] In coming to my disposition, I am struck by the deficiencies in the evidence addressing the best interests of the children. The parents’ evidence overwhelmingly sets out each parent’s view of the inadequacies of the other to provide a stable, caring, attentive and safe home for the children. Each alleges that the other’s work demands and extracurricular activities will mean that the other parent will not provide the best environment in which to raise the children.

[17] I am also struck by the fact that there was almost no evidence in the written material, other than an oblique reference to the daughter attending soccer, concerning the best interests of the children in terms of school, friends, ties to Port Elgin or extracurricular activities in the community. On consent, I was advised that this summer, both children are enrolled in Port Elgin YMCA summer programs, done on a week to week basis, which provide activities for the children. The Husband says that this was necessary given Donohue J.’s original order and in order to permit him to work. In the summer of 2011, both children were at summer camps and both played in a T ball league. In 2013, the son was in a baseball league and the daughter in a tennis camp. From May to June 2014, the son was taking guitar lessons. All these were done in Port Elgin.

[18] With respect to education, report cards show that the children, since separation, have done well at school, achieving, for the most part, A’s and B’s in the post April 22 living arrangements.

[19] The parents submit that, given the children’s ages (seven and ten), their views are not relevant to this motion. In any event, neither parent has solicited the children’s views. This is surprising. From the evidence, it is clear that the children are aware of the Wife’s move and her wish to move the children to Milton. The Wife proffers evidence through her sister (albeit hearsay) about the concerns expressed by the children about the Husband’s drinking. This suggests that the Wife is prepared to report on the children’s views and preferences when it suits her, but not otherwise. This is why I have requested the OCL to be involved.

[20] There is no information from any trained professional as to the possible effect on the children of moving them to Milton.

[21] The relative lack of evidence with respect to the impact of the Wife’s move and proposed custody and access on the children, creates a hole in the evidentiary record; a hole on a vital issue I must address.

[22] Both parents provided evidence that they have good support networks in their communities; the Husband in Port Elgin where his father and mother reside, and the Wife in Milton where her mother and sister reside.

[23] I do not doubt that the Wife needs to find work that will benefit her and the children, which she will find rewarding and challenging. I do not doubt her evidence that the move to Milton was reasonable for her to find work. I am left with concerns, however, that the move is in the best interests of the children.

[24] Among the concerns I have are some of those as set out in the Gordon v. Goertz (1996), 1996 CanLII 191 (SCC), 19 R.F.L. (4th) 177 (S.C.C.) and Plumley cases, referred to above:

• To what extent does the mother’s taking a job away from Port Elgin meet the needs of the children?

• How will moving away from Port Elgin affect the children in terms of removal from family, friends, school, activities and the community that the children now enjoy?

• How, from the view of a trained assessor, does the Wife’s proposed move affect the children, or might it affect the children?

[25] In short, I do not find that the Wife has met her burden, and has not shown, as set out in the Plumley, and in M.B. v. D.A.C. 2014 ONCJ 273 that (a) the move is clearly in the best interests of the child so as to justify uprooting them from all that is familiar, and (b) there is a strong possibility that she will win at trial on this issue, and that, therefore, I should grant the change of residence of the children. There is a presumption that children not be moved, especially at an interim order stage. The Wife has to show a “compelling reason” to move the children (see Marcuzzi v. Lindo 2010 CarswellOnt 6362). She has not done so.

[26] Both parties say that their proposed living arrangements provide for “status quo” to which the children were accustomed before April 22. Both, however, define the “status quo” from the perspective of the parents. The Wife says that her proposed living arrangements keep the status quo as it keeps her as the de facto custodial and residential parent. The Husband says that his proposed living arrangements keep his involvement in his children’s lives, yet preserving as much of the children’s access to their mother as possible.

[27] In my view, the “status quo” should be addressed from the best interests of the children, at the point immediately before April 22.

[28] In this case, because of the Wife’s move to the new job (and, frankly to be nearer her family) results in the reality that either of the parties’ proposed living arrangements will restrict the other parent’s ability to spend time with the children.

[29] While the mother has a house in Milton and the support of her mother and sister, moving the children to Milton would disrupt all of their daily routines and deprive them of their friends and school. It is in their best interests, based on the evidence in this motion, that the children remain, on an interim basis, in Port Elgin. The Husband has purchased a new home, with the help of his parents, which will accommodate the needs of the children. This new home will not require them to change school, friends, or deprive them of their connections with Port Elgin. The children appear to be doing well at school in their current arrangement. They will be going to the school they went to before the separation. The children’s lives, centered in Port Elgin since 2010, can continue to be centered in Port Elgin. While this imposes some inconvenience to the Wife and her family, they have shown remarkable resiliency in accommodating the children in Port Elgin to date.

DISPOSITION

[30] The living, custody and access arrangements, on an interim basis, is as follows:

(a) The parents shall have joint custody of the children.

(b) The children shall reside, ordinarily, with the Husband in his home in Port Elgin.

(c) The Wife shall have overnight access to the children during her days off. If the children are in school, then the Wife’s access shall be at the matrimonial home so long as it is not sold. When the Wife’s time with the children is on a school day, her time with them will commence at the close of the school day, and she will pick them up from school. If the Wife’s access time spans two school days, she shall drop the children at the Husband’s home by 8:00 p.m. each evening. The Wife may have overnight access times when the children are not in school. Where the Wife’s access ends on a non-school day, drop off shall be at the Husband’s home by 8:00 p.m.

(d) Long weekends and spring breaks shall alternate between the parents, with the Wife having the children for the August 1, 2014 long weekend, and the 2015 school break.

(e) Christmas holidays shall be split equally between the parents. For greater certainty, commencing Christmas break 2014, the father shall have the children from the end of the last school day before the break, to 8:00 p.m. on the day at the midpoint of the Christmas break. The Wife shall have the children from 8:00 p.m. on the day at the midpoint of the Christmas break to the last day of the holiday and either return the children to the Husband at 8:00 p.m. the night before the first school day following the Christmas break or, return them to school by 8:00 a.m. by the start of the school day on the first school day following the Christmas break, whichever is convenient to her.

(f) Parents shall have equal time with the children on summer holidays, with neither having more than two consecutive weeks with the children. The summer holiday schedule will begin on July 18, 2004 with the Wife having the first two weeks.

(g) During the time with the children, and for the 24 hours preceding that time, the parent having care of the children shall not consume any alcohol, drugs, or other intoxicants, except as prescribed by a medical doctor.

(h) If the access arrangements above do not fit the parties’ schedules, the dates may be altered on written agreement of the parties or further order of the Court.

[31] Having made the above disposition, on an interim basis, with respect to the residence of the child, I must address the issue of the support. At this stage, neither party seeks spousal support. The Wife makes $45,500, and the Husband makes approximately $41,000. At $45,500, table support is $672.20 per month for two children. The mother will pay this amount in child support to the father until the custody and living arrangements are finally determined. I order that the payments be made through the Family Responsibility Office. An SDO should issue. Each party will share equally in section 7 expenses.

COSTS

[32] If the parties cannot resolve the issue of costs, they may, within 30 days of the release of these reasons, provide cost submissions not exceeding two single spaced pages, plus any offers to settle and bills of cost they wish me to consider. If I do not hear from both parties within 30 days, I will fix costs.

Trimble J.

DATE: July 21, 2014

COURT FILE NO.: Walkerton 04948/14 DATE: 20140721

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jeffrey Crewson and Isabel Cornelia Crewson

BEFORE: Justice Jamie Trimble

COUNSEL: William Humphrey, for the Applicant Kevin G. Caspersz, for the Respondent

ENDORSEMENT

Trimble J.

DATE: July 21, 2014