COURT FILE NO.: FS-14-0368-00

DATE: 2014/12/12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Chantel Madill, Applicant/Mother

AND

Carl Madill, Respondent/Father

BEFORE: Mr. Justice Stanley Kershman

COUNSEL: B. Gratl, for the Applicant

C. Deyarmond, for the Respondent

HEARD: November 27, 2014

ENDORSEMENT

Introduction

1The Respondent (“Father”) is seeking to change interim custody from the Applicant (“Mother”) to himself. He asks the court to grant the Mother access to the children on alternate weekends, from Friday at 4:00 p.m. to Sunday at 6:00 p.m., with pick-up and drop-off at the GO Transit station in Ajax, Ontario. The Father submits that access may also be exercised on further dates and times, as agreed between the parties. The Father also asks the court to grant the Mother telephone access, as agreed upon by the parties. Finally, the Father is seeking termination of a temporary order that requires him to pay child support to the Mother.

2There is a cross-motion by the Mother seeking to dismiss the Father’s motion. The Mother requests that the matter proceed to an early settlement conference. All other relief sought by the Mother in her Notice of Cross-Motion was withdrawn at the hearing.

Facts

3The parties began living together in October 2003. They married on September 28, 2007.

4There are three children of the marriage: Grace, who is nine years old; Caynen, who is six years old; and, Walker, who is five years old.

5The children are presently living with their Mother in St. Marys, Ontario. All of the children are attending school there.

6There was an incident on August 10, 2013, where the parties got into an altercation. The parties separated on August 11, 2013. At that time, the Mother unilaterally took the children from their home in Madoc, Ontario, without the consent of the Father.

7The Mother and children moved in with the Mother’s step-father in Woodstock, Ontario. It took the Father a period of time to locate the Mother and the children. He did not have any access to the children for approximately three months during this time.

8About two weeks after the Mother arrived in Woodstock, she brought an application on an urgent basis in the Ontario Court of Justice in Woodstock, seeking custody, child support, spousal support and access to the children by the Father at her sole discretion.

9On August 23, 2013, the presiding judge stated that the Courts in Woodstock had no jurisdiction; the ordinary residence of the children was in Madoc, Ontario, which is serviced by Courts located in Belleville, Ontario.

10The matter was transferred to the Ontario Court of Justice in Belleville, Ontario.

11On November 15, 2013, a contested motion was heard in the Ontario Court of Justice on the issue of interim custody and access to the children. In an oral decision, Justice DeLuzio made an interim order for the children to remain in the custody of the Mother with access for the Father to take place on the first, third and fourth weekends of every month. Access on the first and third weekends was to occur in the matrimonial home in Madoc, Ontario. On the fourth weekend, the Father was to travel to Woodstock and stay in a hotel with the children.

12The Father was ordered to pay child support in the amount of $1,212.00 per month based on his gross annual income of $112,496. This amount of child support was less than the table amount; the order took into account: (1) the Father’s extra expenses incurred to exercise his access to the children; and, (2) vehicle payments made by the Father for the car driven by the Mother.

13The matter was adjourned to a case conference on January 13, 2014.

14An order was made that the Office of the Children’s Lawyer be appointed. The matter was adjourned to March 5, 2014, to determine the status of the request to the OCL and set a new Court date.

15On March 5, 2014, the Mother’s lawyer advised the Court that she had been in contact with the OCL and there was a delay with the paperwork.

16On March 7, 2014, the OCL advised that it would not conduct an investigation, but might reconsider their position if the Mother would agree to attend the jurisdiction where the Court matter was being held, namely, Belleville, Ontario.

17On March 14, 2014, the OCL was asked to reconsider their position. As a result, the OCL advised by letter dated March 17, 2014, that they would conduct an investigation and tender a report.

18The Mother brought an application returnable in Woodstock, Ontario, on May 30, 2014, where she sought various relief, including: custody, access, child support, and spousal support. This relief was claimed in Woodstock, Ontario notwithstanding the fact that the Ontario Court of Justice in Woodstock specifically stated, on October 23, 2013, that the ordinary residence of the children was in Madoc, Ontario, and that the matter had been transferred to Belleville, Ontario.

19The Father objected to the matter being heard in Woodstock, Ontario, but was required to provide responding materials. At the case conference on May 30, 2014, the presiding judge questioned why the matter was not being dealt with in Belleville. After hearing submissions from the lawyers, the judge ordered that the matter be transferred back to Belleville, where the children ordinarily reside.

20On October 1, 2014, a copy of the children’s lawyer’s report, authored by Mr. Robert Pittman (M.S.W., R.S.W.), a clinical investigator with the OCL, was served.

21The OCL report made various recommendations in relation to the custody and access of the children.

22The report also indicated that the Mother planned to move with the children to St. Marys, Ontario, from Woodstock, Ontario, so that she could live with her boyfriend, Scott Cookson, and his two children.

23The Mother has filed an objection to the OCL report.

24At the time the report was prepared, the Mother had not moved from Woodstock. Following the report, she did in fact move to St. Marys, Ontario, to live with Mr. Cookson and his two children, on or about October 2, 2014.

25The matter was before the courts in Belleville on October 28, 2014. At that time, the Mother’s counsel sought an adjournment of the matter. The Court ordered that the matter proceed as soon as possible. The matter was reset for November 27, 2014, and was heard at that time. The decision was reserved to December 12, 2014.

26The children are currently in school in St. Marys, Ontario. They live with the Mother, Mr. Cookson, and his two children.

Father’s Position

27The Father seeks interim custody of the children with access to the Mother as set out herein. He argues that the best interest of the children requires the status quo to change so that the children can have some stability in their lives—based on the recommendations in the OCL report.

28He is prepared to provide the Mother with access on alternate weekends, as well as phone access at times agreed upon between the parties.

29The Father seeks to have the payment of child support by him to the Mother terminated in the event that he obtains interim custody of the children.

Mother’s Position:

30The Mother argues that the children should remain in her custody and that the Father's motion be dismissed. She also seeks an early settlement conference date.

The Law:

31In interim custody and access cases, the status quo is ordinarily maintained until trial unless there is material evidence that the best interests of the children require a change: see Grant v. Turgeon (2000), 2000 22565 (ON SC), 5 R.F.L. (5th) 326 (Ont. S.C.); Kimpton v. Kimpton, 2002 CarswellOnt 5030; and Easton v. McAvoy, 2005 ONCJ 319.

32The Court must consider the best interests of the children, including their needs and circumstances—with regard to the applicable factors listed in s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended.

Analysis:

33The Court is satisfied that the two principal legal issues involved in this case are the following:

1. Should the status quo be maintained?

2. Is there a compelling reason to change the interim custody arrangement?

34In the case of Grant v. Turgeon (2000), 2000 22565 (ON SC), 5 R.F.L. (5th) 326, the Court set out the following at paragraph 26:

The question remains as to what order should be made at this point in time. Here I must address the first principle, namely that absent compelling reasons the status quo should be maintained until trial. One difficulty here is in describing a status quo. The mother argues that a status quo has developed since 1998 that favours her. I do not agree. In 1998, the children were with her while the father was overseas and were with him, largely, while he was in Canada. This gave some preponderance of time to the mother. In 1999, it may be that this arrangement was to continue. Plans may have gone awry, and litigation was commenced, resulting in the October 12th order and this motion. Given this record, and the factual controversy as to when the children were with each parent, it is difficult to identify a status quo that should continue until trial. In these circumstances, I find the direction of Zuber J.A. in Sypher v. Sypher (1986), 1986 6337 (ON CA), 2 R.F.L. (3d) 413 (Ont. C.A.) particularly useful where he states, at p. 414:

... the purpose of the interim order is simply to provide a reasonably acceptable solution to a difficult problem until trial.

35The Court has reviewed the affidavits of the parties and the OCL report. The Court will not base this decision on the recommendations of the OCL report because the Mother has filed an objection to that report. The Court does, however, have the ability to review the background information contained in the report.

36The Court is aware that there must be a compelling reason to change the status quo.

37Prior to August 2013, the status quo was in Madoc, Ontario, with both parents living in the matrimonial home. This changed in August 2013, when the Mother unilaterally moved to Woodstock to live with her step-father. At this time, the children started at a new school, where they stayed for the full school year and presumably went back to for one month in September of 2014. By September 2014, the youngest child, Walker, was attending school as well.

38The evidence is that the Mother was not going to continue to live with her step-father, but was looking for subsidized housing in Oxford County, where Woodstock is located.

39The Mother met her current boyfriend, Mr. Cookson, in March 2014. In October 2014, the Mother moved herself and the children to Perth County, to live with Mr. Cookson in his St. Marys based home. She did not consult with the children’s Father concerning the initial move to Woodstock, nor the subsequent move to St. Marys.

40By October 2014, the children moved to a new home, a new school, and a new County. They moved in with new people: Scott Cookson and his two children. (Scott Cookson had his children on a week-on/week-off basis.) Ms. Madill now had a new common-law relationship; there were new friends for the children, new surroundings, and new medical professionals to deal with the children’s health care needs—particularly Walker, who has breathing difficulties.

41In the span of approximately 14 months, the children experienced a change of residence three times, a change of schools three times, a change of surroundings three times, and a change of friends three times.

42The Court finds that the Mother should not have moved from Woodstock to St. Marys without either the consent of the parties or an order of the Court. Furthermore, the Court does not think that it was wise for the Mother to have moved the children in the middle of the school year to a home 50 kilometres away from where they were previously living. According to local area maps, St. Marys is approximately 50 kilometres away from Woodstock and not 25 kilometres as argued by the Wife. The Court finds that the Mother has placed her own needs ahead of the needs of the children with the aforesaid choices.

43The Mother argues that when she was given interim custody of the children by Justice DeLuzio, she had the right to move wherever she wanted to—including St. Marys. Upon review of DeLuzio J.’s court order, the Court does not agree with this position. The order clearly lists the Mother’s address as being in Woodstock, Ontario. Based on the Mother’s argument she could have moved to anywhere, including Sudbury as an example, and that would have been appropriate, according to her. This would have made the Husband’s access to the children impossible and impractical. The Court finds that the move to St. Marys was not appropriate.

44The Mother has made allegations of domestic violence by the Father. This has been disputed by the Father. The Court does not take the issue of domestic violence lightly. Notwithstanding the allegations by the Mother of domestic violence, the Court does not have any domestic violence concerns at this time as they relate to the children.

45The Court does not usually contemplate that a party will move out of the location that they had moved to (which was already out of the Belleville Court’s jurisdiction). The Court notes that the Mother tried to bring an urgent motion in Woodstock, which was then returned to Belleville. On a second occasion she tried to start an application in Woodstock, which was again returned to Belleville.

46The Mother cannot unilaterally decide where and when to commence court matters. That is not acceptable. The Family Law Rules and other family law legislation must be followed by all, including the Mother.

47The Court has reviewed the Father’s plan of care. The Mother argues that the plan of care is weak and without many specifics. The Court has considered the Mother’s concerns. Notwithstanding those concerns, the Court is satisfied that the Father’s plan of care is adequate.

48As part of the plan, the Father's parents, who live within ten kilometres of his residence will assist with before and after school care.

49In addition, Ms. Phillipe, the Father’s girlfriend, will assist with before and after school care. As to the issue of the lack of information about Ms. Phillipe, the Court is satisfied, based on the evidence that she is suitable to provide care for the children before and after school.

50The Court is aware that the Father leaves for work early in the morning. His evidence is that he returns in time for supper at 6:00 p.m. The Mother disputes this evidence and says that he returns home at 10:00 p.m. That matter will be determined by the trial judge.

51Many families, whether composed of single parents or two-parents, face the same challenges relating to before and after school care. Those families manage. This case is no different.

52The Court is satisfied that the evidence clearly and unequivocally establishes that the present arrangement is not in the children’s best interest.

53The Father’s home and surroundings are what the children are familiar with and what they are comfortable with. The Father continues to reside in the former matrimonial home. The two eldest children would be attending a school in Madoc that they have attended in the past. Moreover, Walker, who has just started school, would be in the same school as his two older siblings.

54The Mother’s assertion that the children’s friends are no longer at that school may or may not be true. Furthermore, children make new friends—particularly children of this age.

55As to the issue of medical care for the children, the Court is satisfied, based on the evidence, that the children will be able to return to their former doctor, Dr. M. Holowaty, for medical care.

56Certain factors under the Children’s Law Reform Act have been taken into account when reaching the decision in this case. In particular, they are as follows:

1. The length of time that the children have lived in a stable home environment; and

2. The permanent stability of the family unit wherein it is proposed that the children will live.

57The Court finds that there has been little stability of the family unit while living with the Mother. Living with the Mother has remained the same, however the status quo in relation to the children’s home, school, and surroundings have changed greatly in a very short period of time. Three moves since August 2013 is far too many. The Court finds that the more stable environment is with the Father in the former matrimonial home in Madoc, Ontario, even though this will now result in a change of the status quo.

58Based on the aforesaid findings, this Court orders that custody pending the Court’s decisions shall be changed from the Mother to the Father, commencing December 20, 2014.

59There will be interim access to allow the Mother such access as was granted to the Father when she had custody. Therefore access to the Mother will be as follows:

a) Access to the Mother will be on the first, third, and fourth weekends on every month, with those on the first and third weekends occurring in St. Marys, Ontario. On the fourth weekend the Mother will travel to Madoc and stay in the Madoc/Belleville area to exercise access. She will provide a name, address and phone number of where she will be staying to the Father when she picks the children up.

b) Telephone access shall occur as agreed upon by the parties. This access will commence starting January 2, 2015.

Christmas Access:

60The holidays are difficult for all families that are no longer together. This is made more difficult in situations where the parents do not live near each other.

61The Court was advised of the holiday access schedule in 2013. Based on the new custody arrangements, the order for access during the Christmas holidays time will be as follows: the Father will have the children from December 20 to 24 at 4:00 p.m.; The Mother will have the children December 24 after 4:00 p.m. to December 28 at 4:00 p.m. The balance of the terms and conditions are as set below.

62Therefore, this Court orders the following:

1. Interim custody shall change from the Mother to the Father on December 20, 2014.

2. All future access exchanges shall occur at the Ajax GO Transit station in the front of the building on the parking lot side.

3. On December 28, 2014 at 4:00 p.m. the children shall return to the Father and the access schedule shall revert to the regular schedule.

4. The Mother shall have access to the children every first and third weekend, commencing Friday January 2, 2015. The access during these weekends shall occur in St. Marys from Friday at 4:00 p.m. to Sunday at 4:00 p.m. The parents will meet at the Ajax GO Transit station, as set out above, to exchange the children. The Mother shall have the fourth weekend’s access in the Madoc/Belleville area from Friday at 4:00 p.m. to Sunday at 4:00 p.m. The access exchange point for this access visit will be at Tim Horton’s in Marmora, Ontario.

5. Telephone access to the children shall be at such times as agreed upon by the parties.

6. Neither parent shall consume alcohol or take drugs while the children are in their care.

7. The child support ordered to be paid by the Father pursuant to the order of Justice DeLuzio shall be terminated after the December 1, 2014, payment is made.

8. A settlement conference is set for February 11, 2015 at 2:00 p.m. The OCL shall be in attendance at all settlement conferences.

9. The matter shall proceed to an expedited trial which is to be held during the trial sittings commencing April 7, 2015. In the event that the matter is not reached on that trial sittings, it will be held during the trial sittings commencing May 11, 2015.

10. The Father shall maintain the Mother and the children as beneficiaries of his extended health and dental benefits, and shall pay his share of the deductible in proportion to the respective incomes of the parties.

11. The Father shall continue to pay the Mother’s car payment and insurance pending further of order of this Court or the completion of this matter.

12. The Father, while he has interim custody of the children, shall not move from the matrimonial home without a court order.

13. The Father will be entitled to claim the child tax credits for the children from January 1, 2015, while the children are living with him.

14. All further court matters in relation to this court file are to be dealt with in the Belleville, Superior Court.

15. The police of the appropriate jurisdiction are authorized to enforce this order wherever the children may be found.

Costs

63Based on the submissions of the Father that there be no order as to costs, this Court orders no costs payable by either party.

64Order accordingly.

The Honourable Mr. Justice Stanley Kershman