Smith v. Pozzo, 2015 ONSC 1284
COURT FILE NO.: F71/15
DATE: 2015-02-27
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Alexander Damien Smith, Applicant
AND:
Samantha Christina Pozzo, Respondent
BEFORE: Heeney R.S.J.
COUNSEL: The Applicant self-represented
Leonard G. Reich, for the Respondent
HEARD: February 25, 2015 at London
ENDORSEMENT
[1] The parties are the parents of Easton Alexander Smith, born September 19, 2013. The Applicant has brought a motion seeking an interim order that the Respondent return the child from Alberta to Ontario. The Respondent has brought a cross-motion seeking an interim order that she be permitted to move the residence of the child to Alberta pending final resolution of these proceedings.
[2] The Respondent concedes that this court has jurisdiction to deal with custody and access of the child, even though the child is presently in Alberta. Both parties agree that the matters before the court are urgent and should be dealt with in advance of a case conference being held. Leave is granted to do so.
[3] By way of background, the parties began dating in June of 2012. In January, 2013, the Respondent discovered that she was pregnant. The parties resided together in May and June, 2013, but separated at that time and the Respondent moved in with her mother, Tammy Lamming, in Brantford.
[4] The child was born on September 19, 2013. The Applicant exercised access to the child every weekend for many months thereafter.
[5] In the summer of 2014 the Applicant proposed that the parties move in together in London. However, for reasons that are in dispute, that never happened.
[6] In the meantime, Tammy Lamming had moved in April, 2014 to Fort Saskatchewan, Alberta, to live with her boyfriend. The Respondent took over her geared-to-income residence, but gave notice that she was vacating after she made plans to move in with the Applicant. When that did not happen, she moved in with her father in Hamilton.
[7] The Respondent went to Alberta to visit her mother in October, 2014 for about three weeks, with the consent of the Applicant.
[8] When she returned, however, she found that her father was in arrears of rent, and was in the process of being evicted. He apparently has a problem with drug addiction.
[9] Since she had nowhere to go, the Respondent contacted her mother and was invited to go out there. According to the Respondent’s affidavit, her plan was to make enough money to move back to Ontario to get a place for herself and Easton.
[10] At or about this time, the parties signed an agreement, whereby the Applicant agreed to pay child support in the amount of $200 per month commencing October 2014, at the insistence of Ontario Works. The agreement was executed by the Applicant on October 6, 2014 and by the Respondent on November 9, 2014. It provided that the Applicant would have access to Easton on every other weekend, half of all holidays and at other times as agreed. Paragraph 5 of the agreement provided as follows:
Both the Petitioner and the Respondent must receive consent from the other party before removing the child outside of the province of Ontario.
[11] According to the Applicant, he did not consent to the Respondent going out to Alberta once again. He wanted the Respondent to go alone, and to leave the child with him. According to the Respondent, the Applicant was not happy about her returning to Alberta, but did not disagree. In any event, her plan was to be in Alberta only for the short term, and to return soon to Ontario.
[12] That is not how things played out. The Respondent got a part-time job at a restaurant, working 25 hours per week. She arranged for daycare for Easton at a cost of $220 per month. She now wants to stay in Alberta with her mother and “make a better life” for herself and the child.
[13] The Applicant is adamantly opposed to his son living in Alberta, and wants him to return to Ontario.
[14] The leading case on mobility is Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27. At paras. 49 and 50, McLachlin J. (as she then was) summarized the law that applies when a parent wishes to change the residence of a child:
The law can be summarized as follows:
The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.
This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.
Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
The focus is on the best interests of the child, not the interests and rights of the parents.
More particularly the judge should consider, inter alia:
(a) the existing custody arrangement and relationship between the child and the custodial parent;
(b) the existing access arrangement and the relationship between the child and the access parent;
(c) the desirability of maximizing contact between the child and both parents;
(d) the views of the child;
(e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;
(f) disruption to the child of a change in custody;
(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?
[15] Gordon v. Goertz was dealing with a final order. Where the court is being asked to make an interim order permitting a move pending a trial, the considerations are somewhat different. In the often-cited case of Plumley v. Plumley, 1999 CanLII 13990 (ON SC), [1999] O.J. No. 3234 (S.C.J. Fam. Ct.), Marshman J. said the following, at para. 7:
It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis:
A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.
There can be compelling circumstances which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.
Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent's position will prevail at a trial.
[16] A consideration of the relevant factors all point to the conclusion that it would be in the best interests of the child that he be returned to Ontario. The status quo before the Respondent’s unilateral move was that the child resided in Ontario, which is where he has resided since birth. He was enjoying frequent and regular access to his father. Returning him to Ontario would permit maximum contact with both parents, since I am operating under the assumption that the Respondent will return to Ontario with Easton if he is ordered to be returned.
[17] It is a significant fact that the parties agreed in writing that the child would not be relocated outside Ontario without the consent of both parties. The Respondent did so in clear breach of that agreement.
[18] Easton has a large extended family that resides in Ontario, including grandparents, great-grandparents, aunts, uncles, great-aunts, great-uncles and cousins. By contrast, the only extended family in Alberta is the Respondent’s mother.
[19] The Applicant is employed on a full-time basis and earns approximately $32,000 per year. This would provide a stable source of income for the benefit of the child.
[20] This is not a case where the Respondent has a well-paying job in Alberta that will be lost if she is forced to return to Ontario. Part-time jobs such as she now has are readily available here.
[21] While the Respondent’s mother is able to provide the Respondent with a place to live in Alberta, accommodation is available here in Ontario. Being a young mother, she would qualify for social assistance and subsidized housing.
[22] Considering all of the above, I am satisfied that there is a genuine issue for trial as to whether the child should be relocated to Alberta. It cannot be said that there is a strong probability that the Respondent’s position will prevail at trial. In fact, the opposite is the more likely outcome.
[23] Accordingly, the Respondent’s motion for an interim order permitting the child to be relocated to Alberta is dismissed. The Applicant’s motion for an order that the child be returned to Ontario is allowed. I will, however, give the Respondent a grace period of 60 days in order to give her time to secure suitable accommodation.
[24] With the Applicant’s right to access comes his responsibility to pay child support. According to him, he has been paying support as asked for by the Respondent. The Respondent denies that he paid as much as he claims. Be that as it may, the Applicant consents to a child support order being made at this time, even though one was not sought in the Respondent’s Notice of Motion. It is also appropriate to make an access order.
[25] To summarize, an interim order will go as follows:
The Respondent shall, within 60 days, return the child Easton to Ontario, and thereafter maintain the child’s residence in this province, in the Respondent’s primary care and control, at a location where access by the Applicant will be readily facilitated;
Following the child’s return, the Applicant shall have access to the child on alternate weekends from Friday until Sunday, and such further and other access as the parties agree upon. Pending the child’s return, the Applicant may, if he wishes, exercise reasonable access to the child in Alberta, at his own expense, at times to be agreed upon between the parties;
The Applicant shall pay retroactive child support in the amount of $200 per month, pursuant to the written agreement between the parties, commencing October 1, 2014 up to and including February 1, 2015. The Applicant shall receive credit for all payments made on account pursuant to the written agreement. Any dispute as to the amount paid shall be resolved at the Case Conference, upon evidence as to amounts paid and received;
The Applicant shall pay ongoing child support in the amount of $269 per month, commencing March 1, 2015. This is the table amount for one child based on the Applicant’s income of $32,000 per year;
The matter is otherwise adjourned to a Case Conference, on a date to be arranged with the Trial Coordinator. Failing such arrangements, the matter shall be spoken to at motions court on Wednesday, March 25, 2015 at 10 a.m. The Trial Coordinator shall provide the Applicant with the usual information package regarding Case Conferences.
“T. A. Heeney R.S.J.”
Regional Senior Justice T. A. Heeney
Date: February 27, 2015