ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: K.M.J. v. K.A.J., 2015 ONSC 3065
COURT FILE NO.: 4129/15
DATE: 2015-05-13
BETWEEN:
K.M.J.
Thomas Pratt, for the Applicant
Applicant
- and -
K.A.J.
Self-Represented, for the Respondent
Respondent
HEARD: April 21, 2015
The Honourable Mr. Justice Mazza
[1] This is a motion to change brought by the Applicant, K.M.J., firstly to rescind the order of Justice Pazaratz dated November 17, 2014, whereby the children, J.J., born […], 2006, and S.J., born […], 2009, were to continue to reside in the City of Hamilton until further order.
[2] Secondly, Ms. K.M.J. is requesting an order permitting her to change the residence of the children to the Municipality of Wasaga Beach in the County of Simcoe in the Province of Ontario on the same terms of custody and access provided in the temporary Minutes of Settlement between the parties dated July 12, 2013, out of which was issued the temporary order of Justice Chappel of December 13, 2013. Mr. K.A.J. has brought a motion that the matter be set down for trial for final determination of custody and access.
Submissions by Mr. Pratt
[3] Mr. Pratt on behalf of Ms. K.M.J. provided this court with a detailed factum submitting that Ms. K.M.J. wishes to move to Wasaga where she has been able to obtain full-time employment as a certified general accountant at a higher rate of pay than what she is currently receiving at her full-time employment in this jurisdiction. This move would enable Ms. K.M.J. and her children to live in what she referred to as a less stressful environment.
[4] Mr. Pratt went on to elaborate that Ms. K.M.J. has been the primary caregiver of the children; the principal decision maker in their lives; and a single, reliable source of comfort and guidance for them.
[5] He further submitted that Mr. K.A.J. suffers from serious mental health disabilities, having been admitted into hospital on no less than six occasions during the history of their marriage.
[6] Mr. Pratt further submitted that the disability itself appeared to be the catalyst for an application brought by Mr. K.A.J. and his parents under Section 40(4) of the Child and Family Services Act seeking a finding of protection against Ms. K.M.J.. It was a trial that was heard before Justice Chappel over an eight-day period, after which Justice Chappel made a finding that there was no evidence of finding of protection, and dismissed the application.
[7] Justice Chappel, Mr. Pratt submitted, addressed all allegations made by Mr. K.A.J., allegations which Mr. Pratt described in his factum as “scandalous, hurtful, vicious and baseless allegations of misconduct, mental illness, which Mr. K.A.J. said was displayed by or exhibited by Ms. K.M.J..”
[8] Justice Chappel addressed and dismissed each and every issue based on the conclusion that none of the allegations were supported by the evidence.
[9] According to Ms. K.M.J.’ affidavit of January 12, 2015, at Paragraph 12, Mr. Pratt submitted that during the summer of 2014 Mr. K.A.J. had failed to exercise his access to the children. He had even been unaware that they had been taken on a vacation for a few days by their paternal grandparents. And on another occasion he in fact returned them on the same day he picked them up rather than keep them for his scheduled weekend.
[10] Mr. Pratt also submitted as set out in Paragraph 14 of Ms. K.M.J.’ affidavit that Mr. K.A.J. had been admitted to the psychiatric facility of St. Joseph’s Hospital on or about July 18, 2014:
“(14)…on Friday July 18, 2014, at about 4:00 p.m. the Respondent’s mother sent me a text advising that the Respondent was in hospital. On the basis of my extensive past experience with his hospitalizations I was able to confirm by telephone that same afternoon that the Respondent had been admitted to the psychiatric facility at St. Joseph’s Hospital in Hamilton.”
[11] It has been this inconsistent and concerning behaviour exhibited by Mr. K.A.J. which persuaded Ms. K.M.J. to purchase a home in Wasaga Beach and devote more time to her children in a more stable environment.
[12] Mr. Pratt submitted in order to facilitate access to Mr. K.A.J., Ms. K.M.J. suggested two alternative drop-off points which represent a distance half-way between Wasaga and Hamilton and therefore minimally disruptive of Mr. K.A.J.’ access visits with the children. Mr. K.A.J., however, did not respond to either recommended alternative.
Submissions by Mr. K.A.J.
[13] Mr. K.A.J. provided this court with a factum, which I find was largely unsupported by any affidavit evidence. It contained a history of the parties’ relationship, and included throughout some references to incidents that took place and were addressed at the trial before Justice Chappel. I do not intend to address those incidents that had been dealt with thoroughly and cogently by Justice Chappel, nor do I intend to challenge her findings, which are based on Justice Chappel’s first-hand assessment of testimony given at trial.
[14] However, Mr. K.A.J. did, in fact, file two affidavits. The first was dated January 23, 2015, in which he alleged that orders with respect to the property issues had not been followed by Ms. K.M.J.. He made reference to what he considered to be her incompleted obligations required by the Minutes of Settlement.
[15] More specifically he referred to what he alleged to be Ms. K.M.J.’ uneven distribution of what he referred to as marital chattels; failure to transfer possession ownership of a motor vehicle. However, I find none of these allegations were supported by any real evidence.
[16] As well, he again made reference to incidents that took place shortly after dissolution of the marriage leading up to the involvement of the CAS of Hamilton.
[17] Also included in his affidavit was a reference to a vision problem exhibited by his son S., a condition which he called strabismus, and which he alleged had been neglected by Ms. K.M.J.. However, this incident was addressed by Justice Chappel in her decision, and the allegation was dismissed.
[18] In his second affidavit dated February 6, 2015, Mr. K.A.J. alleges that Ms. K.M.J. suffers from a dissociative identity disorder.
[19] Again, that was addressed by Justice Chappel in her decision where she stated in Paragraph 81: “the mother’s medical history likewise does not reveal any significant mental health issues.”
[20] Although Justice Chappel was aware that Ms. K.M.J. had been taking anti-depressant medication, Justice Chappel also made the finding that there was “no evidence suggesting that the mother’s issues with depression in early 2014 had impact on her parenting of JRJ or SJJ.”
[21] In his same affidavit, Mr. K.A.J. alluded to a fresh allegation, namely that Ms. K.M.J. suffers from what he referred to as Alexandria’s disease, also known as Purple Eye disease, which appears to be a rare genetic eye condition.
[22] He went on to say the following:
“(7)… the most disturbing thing is that she hid this from me every day for the seven years we were married, and I never knew she wore or even had coloured contact lenses, which she wore 24/7. We spoke of her beautiful blue eyes when we were dating and she was proud of them as though they were her own. While the real purple eyes she has are at first shocking, they are also known to be attractive once one gets used to them.”
[23] Further, in Paragraph 8 of that same affidavit, Mr. K.A.J. states as follows:
“…mother hid many of her personalities’ natures from me, for obvious reasons. I learned that some are boyish, some are lesbian, some are violent, some are actually child-like and some are sexually deviant. The ones I spent most of the time with are in fact kind, gentle, personable, fun, meek and sometimes quite submissive in their natures.”
[24] Mr. K.A.J. had no expert evidence to support these allegations.
[25] Mr. K.A.J. further submitted that he has paid no child support since the parties’ separation, but alleges that over the period of time he has paid approximately $50,000.00 by way of financial assistance for the children. However, he presented no cogent evidence in support of that position.
Analysis and Conclusion
[26] Section 29 of the Children’s Law Reform Act authorizes the court to vary any order regarding custody or access. Section 29 reads as follows:
“29. ORDER VARYING AN ORDER – A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.”
[27] The leading case on the issue of mobility is Gordon v Goertz, [1996] 2 SCR, Page 27.
[28] In that case the court established a two-step test. The first step requires that the party requesting permission to move with the children must establish a material change in circumstances. More specifically the court stated it must be “(1) a change in a condition, means, needs or circumstances of the child or an ability of the parents to meet the needs of the child, (2) which materially affects the child, and, (3) which is either not foreseen or cannot have reasonably been contemplated by the judge who made the initial order.”
[29] If the court finds that in fact a material change in circumstances has been established, then secondly, the court must then embark on a fresh enquiry into the best interests of the child “having regard to all the relevant circumstances related to the child’s needs and the ability in respect of the parents to satisfy them.”
[30] In the case before me I’m satisfied that there has been a material change in circumstances affecting these children in that Ms. K.M.J., who has always been the custodial parent, has been presented with a full-time employment opportunity in Wasaga Beach.
[31] I’m further satisfied that Ms. K.M.J., who is the sole supporter of the children financially, was presented with this opportunity some two years after the temporary order was made by Justice Chappel, and therefore such an opportunity could not be reasonably foreseen at the time the order was made.
[32] With respect to whether such a move is in the best interests of the children, I have considered the factums filed by Mr. Pratt and Mr. K.A.J.; I have reviewed the affidavit evidence; and I have considered the respective submissions.
[33] In my opinion, I find that Mr. K.A.J. has not presented the court with any compelling evidence in support of dismissing Ms. K.M.J.’ application to move with the children to a new geographical location because such a move would be detrimental to the best interests of the children.
[34] Instead, in support of his position that the children not be permitted to move, he has relied on allegations which Justice Chappel thoroughly considered in her very detailed and cogent decision and dismissed as being unfounded.
[35] Moreover, his fresh allegation about Ms. K.M.J. having what he referred to as Alexandria’s disease is completely unfounded, as well as his allegations that she demonstrates multiple personalities.
[36] I find these allegations strongly suggest Mr. K.A.J. is preoccupied with an attempt to discredit Ms. K.M.J. as a mother, which I find not to be in the best interests of the children.
[37] These unfounded allegations suggest to me an unpredictability of Mr. K.A.J.’ behaviour, which I find could impact on the stability of the children.
[38] On the other hand, Ms. K.M.J. has presented this court with cogent reasons for her request to move the children to Wasaga Beach. She has secured full-time employment, the cost of living appears to be lower, and in view of the fact that Mr. K.A.J. is not paying any child support at the present time, the financial circumstances were also an important consideration.
[39] Moreover, the children may also establish a relationship with the maternal grandparents, who reside in Manitoulin Island, and therefore would be closer to her new home base.
[40] Accordingly, I find that Ms. K.M.J. has in fact met the two-step test set out by the case of Gordon v Goertz [supra], and therefore, she will be permitted to move to Wasaga Beach.
[41] With respect to the issue of access, in Ms. K.M.J.’ affidavit of January 12, 2015, she made the following proposal. She proposed two routes, which were set out in Paragraph 33 of her affidavit, which reads in part as follows:
“…the first of these utilized the Highway 410 - Airport Road combination, a distance one way of 215 kilometres and a convenient mid-point drop-off point of the Tim Horton’s restaurant at Bovaird Drive and Highway 410 in Brampton. The drop-off point is 1 hour and 15 minutes and 115 kilometres from the Respondent’s current residence and 100 kilometres and also 1 hour and 15 minutes from my new home. The second route is via Highway 400 to a drop-off point at Tim Horton’s at Weston Road off Finch Avenue, a distance of 110 kilometres and 1 hour 20 minutes from Cayuga and 112 kilometres and 1 hour 25 minutes from Wasaga Beach.
[42] I find neither of these routes was addressed by Mr. K.A.J. in his affidavit.
[43] Accordingly, pick-up and drop-off will be in accordance with the second recommendation made by Ms. K.M.J.. Specifically she will drop the children off at the half-way point; Mr. K.A.J. will pick the children up at that point. At the end of access Mr. K.A.J. will return the children to the half-way point; Ms. K.M.J. will pick the children up at that point.
[44] The only change to the temporary order will be that there will be no visits on Tuesday evening from 4:00 p.m. till 8:00 p.m.
[45] As well, given the fact that Mr. K.A.J. must pick the children up at a half-way point, Ms. K.M.J. is to have the children available for pick up no later than 6:00 p.m. on Friday evening. There will be no change to Mr. K.A.J.’ access, which means the children must be available for pick up on Sunday or Monday evening by 8:00 p.m.
[46] Two other issues must be addressed. The first issue is status of this order.
[47] I find in view of the fact that the order of Justice Chappel was based on temporary Minutes of Settlement, I’m only in a position to alter the temporary order. And therefore this new order is also temporary.
[48] The second issue deals with Mr. K.A.J.’ motion that this matter be set down for trial.
[49] In view of the fact that Mr. Pratt has agreed to a trial of an issue, the Trial Coordinator is to set a Settlement Conference before me on a date that will accommodate Mr. Pratt and the parties.
[50] With respect to costs, Mr. Pratt and Mr. K.A.J. are to prepare their written submissions of no more than 3 pages in length to be submitted before me within 60 days of this order.
MAZZA, J.
Released: May 13, 2015
CITATION: K.M.J. v. K.A.J., 2015 ONSC 3065
COURT FILE NO.: 4129/15
DATE: 2015-05-13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
K.M.J.
Applicant
- and -
K.A.J.
Respondent
REASONS FOR JUDGMENT
Mazza, J.
Released: May 13, 2015