ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC 13-127

DATE: 20140725

BETWEEN:

SUSAN PATRICIA WOOD
Applicant

– and –

GEOFFREY WOOD
Respondent

Mark Reid for the applicant

Bryan Leggett, Q.C., for the respondent

HEARD: May 22, 23 and 26, 2014

Bale J.

Overview

[1] This case involves the difficult issue of whether it is in the best interests of children to relocate with one parent where the move will make it more difficult for the other parent to spend time with the children.

[2] Susan Wood and Geoff Wood began living together in 2002, were married in 2004, and separated in 2013. There are two children of the marriage: Morgan, age 7, and Brianna, age 6.

[3] In June of 2013, the parties obtained a “final” order on consent. At the time, Mr. Wood was the manager of the LaFarge ready-mix concrete plant in Bracebridge and Ms Wood was an obstetrical nurse at Soldiers’ Hospital in Orillia. The order provided the following in relation to parenting:

• that the parents would have joint custody of Morgan and Brianna;

• that Morgan and Brianna would be in their father’s care from Friday morning or after work, until Monday morning, three weeks out of four;

• that in the fourth week, the girls would be in their father’s care on Monday or Tuesday from after school or after work, until their bed-time; and

• that each year, the girls would spend two one-week holiday periods with each of their parents.

[4] In August of 2013, Ms Wood was suspended from her job with pay and in mid-October, her employment was terminated. In late November, she obtained a conditional offer of employment at The Ottawa Hospital. She began work at the hospital in early January of this year and moved to Stittsville in February.

[5] The question that I have been asked to decide is whether Ms Wood may remove the girls from Bracebridge to reside with her in Stittsville.

Analysis

[6] In deciding whether Ms Wood may remove the girls from Bracebridge to reside with her in Stittsville, I am guided by the decision of the Supreme Court of Canada in Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27. A parent requesting a change in a final custody order must first establish that there has been a material change in circumstances. If this threshold is met, the court must conduct an enquiry into what is in the best interests of the children. Where the change involves relocating the children, the factors to be considered are the existing custody and access arrangements, the relationship between the children and each of the parents, the desirability of maximizing contact between the children and both parents, the views of the children and the disruption to the children of a removal from their present community. The parent’s reason for moving may be a factor but only where it is relevant to that parent’s ability to meet the needs of the children.

Material change in circumstances

[7] The loss of Ms Wood’s job in Orillia, her new employment in Ottawa and her move to Stittsville represent a material change in circumstances affecting the children.

Existing custody and access arrangements Desirability of maximizing contact with both parents

[8] The existing custody and access arrangements reflect an effort on the part of the parents to equalize their time with the girls, taking into consideration their work schedules and the girls’ ages and stages in life. As a result of the decision that I am asked to make, the time that one or other of the parents will be able to spend with the girls will decrease, an undesirable outcome.

Relationship between the children and each of the parents

[9] Each of the parents considers the other to have been an excellent parent. The bulk of the evidence, however, establishes that Ms Wood was the primary caregiver and that, as a result, although the children love their parents equally, they have a greater attachment to their mother. This came out most forcefully in the emotional evidence of the children’s maternal grandmother, with whom the children are residing pending the disposition of this motion. She described how the girls love having their mother dress them up in pretty dresses and do their hair, and how they cling to her when they are ill. She said that since moving to Stittsville in February, Ms Wood had called and spoken to the girls every day and that, by contrast, over the same period, Mr. Wood had called them only three times.

[10] Mr. Wood rejects the suggestion that he has been any less involved with the girls than their mother. He describes how the girls enjoy being out in the shop with him and helping him sweep the floor. While the girls no doubt do enjoy spending time with their father, I do not accept his suggestion that he has had the same level of involvement as their mother.

[11] Mr. Wood has a valid and genuine concern about the impact that a move to Stittsville would have on his relationship with the girls. Unfortunately, however, he chose to deal with that concern by disagreeing with virtually everything that any other witness said, denying any facts that he thought might be contrary to his personal interest and generally being guarded and somewhat unhelpful in giving his evidence.

[12] An example of this was his refusal to admit that he had had a falling out with his parents and that there had been a period during which there had been no communication between his parents on the one hand and Ms Wood, himself and the girls on the other. Even his parents who otherwise gave evidence in support of their son confirmed that they had had no contact with their son and his family for a period of four years.

[13] Ms Wood has always worked two or three twelve-hour shifts per week. Mr. Wood works five days per week and often has to work into the evenings. As a result, while he is a devoted father and has performed his role in the family admirably, he has had less time to spend with the girls than their mother and has been less available to take them to their activities.

[14] Mr. Wood says that because he is now the plant manager, he has more time to spend with the girls. However, he was the plant manager in the summer of 2013 but was unable to make arrangements that would allow him to exercise either of the one-week summer access periods to which he was entitled.

The views of the children

[15] In her evidence, the girls’ maternal grandmother said that the girls want to live in Ottawa with their mother. On cross-examination, in answer to the question of how she knows the girls’ wishes, she said that, every day, the girls cry to be with their mother. While I must consider this evidence in the context in which it was given, it remains the only evidence that I have of the views of the children.

Disruption to the children of a change in custody or removal from their present community

[16] A removal of the girls from their present community will, of course, be a disruption. However, given the greater attachment of the girls to their mother and the fact that she has more time to be with them than does Mr. Wood, the disruption will be greater, if the move to Stittsville is disallowed. Because of the demands of his job, the children would end up spending a great deal of time in the custody of their grandparents or in daycare. If the move to Stittsville is allowed, although the girls will spend somewhat less time with their father than they now do, the total of the time spent with one parent or the other will be greater than if the move is disallowed.

[17] The school that the girls would attend in Stittsville is about five minutes from Ms Wood’s home. An after school program is available for days when she is at work and there are daycare providers on her street. There are many young families on the street and the girls should have no problem making new friends.

[18] If given permission to relocate the girls, Ms Wood suggests that they be with their father on alternate weekends and offers to drive them half way. She also suggests that the girls be with him each summer for two weeks in July and two weeks in August.

[19] In his evidence, Mr. Wood failed to present a plan as an alternative to the move to Stittsville. His position appeared to be that Ms Wood should not have taken the job in Ottawa or, if she did take it, she should have been prepared to somehow commute to Ottawa.

[20] When Mr. Wood’s failure to present an alternate plan was raised with his counsel during final argument, the answer given was simply that he intended to follow his original plan of saving for a home in Bracebridge, with the help of his parents; and, in the meantime, continue to live with them. However, this plan is on hold because his savings have been depleted by this trial. Details of how this would work for the children and how and when they would see their mother were absent. Presumably the girls would live with him and his parents. No evidence was given as to how long it would be before he would be able to provide a new home for the girls.

Reasons for moving

[21] Barring an improper motive reflecting adversely on the parenting ability of the parent proposing the move, that parent’s reasons for moving are not a consideration in determining the best interests of the children: Goertz at para. 48.

[22] In this case Mr. Wood asks that the court consider Ms Wood’s reasons for moving.

[23] He says that the move is part of an attempt by her to alienate him from his children. He says that she has a history of doing this sort of thing and cites, as evidence, the alienation that occurred between her son from a previous marriage, Dalton, and his natural father.

[24] He doesn’t accept that Ms Wood was unable to obtain employment in the local area and says that she moved to Ottawa to be with her new partner, Ian Pickard.

[25] For the following reasons, I don’t accept Mr. Woods’s theories concerning Ms Woods’ reasons for moving.

[26] First, Dalton made it clear in his evidence that it was his own choice to stop seeing his father and that the reason for that choice was that his father showed more interest in his step-children than in him. He said that he was open to re-establishing a relationship with his father but that his father would have to make the first move.

[27] Second, it was only after making numerous unsuccessful job applications covering a wide area of Ontario that Ms Wood accepted the job in Ottawa. It was the first and only job that was offered to her.

[28] Third, Ms Wood, by training and experience, is a specialist in obstetrics. Although there was evidence that there are jobs available for registered nurses in the local area, those jobs are lower paying ones in doctors’ offices and long-term care facilities. The job in Ottawa allows Ms Wood to have more time off to be with the girls, pays substantially more and is in her area of specialty. If Ms Wood is able to pursue a more fulfilling career in Ottawa than would be available to her in Bracebridge, the girls are likely to benefit.

[29] Fourth, Ms Wood didn’t begin dating Mr. Pickard until September of 2013. Even after her employment was finally terminated in October, the plan was for Mr. Pickard to move to Bracebridge and by December, he had already moved many of his belongings. It was only after Ms Wood obtained employment in Ottawa that the plan changed. It may be that this chain of events was particularly lucky for Ms Wood and unlucky for Mr. Wood but that’s what, in fact, happened.

Other considerations

[30] Mr. Wood says that by buying a house that she cannot afford and committing to a high ratio mortgage, Ms Wood has put the financial future of their children at risk. He says that she would have been better off accepting a lower paying job in Muskoka and buying a less-expensive home in Bracebridge. However, the financial evidence was not sufficient to allow me to give any weight to this argument.

[31] Mr. Wood accuses Ms Wood of bad-faith bargaining. The consent order provided that Ms Wood would pay $10,000 to Mr. Wood, that Mr. Wood would transfer his interest in the matrimonial home to her and that she would assume sole responsibility for payment of their mortgage and Royal Bank Visa card. He says that in negotiating this settlement, he agreed to take less than the amount to which he was entitled in order that Ms Wood and the children could continue to live in the matrimonial home.

[32] While I accept that part of Mr. Wood’s motivation in the negotiation of the property settlement was to maintain the matrimonial home as a home for the children, I don’t accept that Ms Wood negotiated in bad faith. At the time of the settlement in June of 2013, Ms Wood’s intention was to continue to live at the matrimonial home and work in Orillia. In October of 2013 when this motion to change was first made, her sole claim was for child support. It was only after landing the job in Ottawa that she sold the home and amended her notice of motion to include a request that she be allowed to relocate the girls to Stittsville.

[33] Mr. Wood complains that Ms Wood made the decision to move to Stittsville without any discussion with him as to the impact that the move would have on the girls. While I understand and concur with his disapproval of her unilateral action, Ms Wood was in a difficult position and it would be unfair for me to second guess her decision. In any event, if the matter had been before the court at the time when Ms Wood was required to make her decision, I would have come to the same conclusion.

Disposition

[34] Having considered the factors set out in Goertz, I have come to the conclusion that it is in the best interests of the children that Ms Wood be allowed to remove the girls from Bracebridge to reside with her in Stittsville. The order of June 27, 2013 will be varied to allow this to happen.

[35] Joint custody will continue. Morgan and Brianna will be in their father’s care from Friday evening until Sunday evening, every other week, and for two weeks each year in each of July and August. Christmas vacations and March Break will be shared equally. Transportation will be shared.

[36] Based upon his 2013 income of $63,281, Mr. Wood will pay $940 per month to Ms Wood for the support of Morgan and Brianna. Counsel for Ms Wood suggested that the increased costs to Mr. Wood of exercising access could be set off against his share of special or extraordinary expenses. However, I was not given sufficient information to allow me to make such a determination.

[37] If the parties are unable to work out the details necessary to carry this order into force, either may arrange a settlement conference before any judge presiding in Bracebridge.

[38] There will be no order as to costs. Ms Wood, although successful, is denied costs because of her failure to include Mr. Wood in a decision which would have such a profound impact upon the children and upon him. Mr. Wood is denied costs because of the unsubstantiated allegations made in relation to Ms Woods’ reasons for moving and because he was ultimately unsuccessful.

Released: July 25, 2014