CITATION: Trudell v Burnett 2015 ONSC 3800

OTTAWA COURT FILE NO.: FC-13-1087-1

DATE: 2015/06/11

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Erika Theresa Ellen Trudell

Applicant

– and –

Gregory William Burnett

Respondent

Jane O’Neill, for the Applicant

Wayne D. Young, for the Defendant

HEARD AT OTTAWA: June 2, 2015

ENDORSEMENT

PELLETIER J.

[1] Motion presented by the Respondent father seeking equal shared parenting of the parties’ child Heather (D.O.B. 31 October, 2008), an order that the child’s residence remain in Ottawa, order that Heather’s school not be changed unless by agreement on order, equal access by the parents to all school and health records and the appointment by the OCL, with social worker assist. (Tab 8, C.R. vol. 1, filed April 17, 2015) Cross motion presented by the Applicant mother seeking sole custody, primary residence of the child with the Applicant mother, permission for the Applicant mother to relocate with the child from Ottawa to Cornwall, access by the Respondent father on alternate weekends and one week during the summer recess, order that transportation of the child for the purposes of the father’s access be shared equally. Order for child support according to Federal C.S.G., and an order for sharing of 5.7 expenses. (Tab 15 C.R. Vol. 1, filed May 25, 2015)

[2] For the reasons that follow, I have determined that he child’s best interests are served on an interim basis by having her remain in Ottawa. Child support will also be ordered on an interim basis.

[3] The parties began living together in January 2007, were married on September 25, 2008 and separated January 2, 2012. Heather was born October 31, 2008. From all indications, she is a healthy and well cared for child. Following the separation, the parents have lived near one another in Nepean and have both been involved in the care and upbringing of their child.

[4] While certain criticisms of each other’s parenting abilities are made in the affidavit materials, the parents at this juncture do not appear to seriously question each other’s commitment or abilities to care for the child. There have been suggestions that the Respondent has had to deal with anger issues and alcohol abuse. This is categorically denied by the Applicant father. His assertion that he is a gentle and caring parent is supported by the affidavits of a number of family members who have had frequent extended visits with the Respondent father and Heather.

[5] There is further a suggestion that the Applicant mother is unstable and at times shows a lack of judgment and parenting abilities, partially in relation to routine and hygiene. This is also categorically denied by the Applicant mother and her circle of family and acquaintances support her position.

[6] It is neither possible nor desirable to attempt to reconcile the competing affidavits or the issue of parenting abilities and commitment. I am quite persuaded that both parents care for this child and have, by and large, committed themselves to her wellbeing.

[7] The more perplexing issue is that of the Applicant mother’s desire to leave Ottawa and live with her fiancé, Joey Bissonnette, in Cornwall. In the Applicant mother’s view, this move would be to Heather’s advantage as she could continue in her mother’s principal care, she could become intimately acquainted with her new sibling, as the Applicant mother is due to deliver her son in August, she could attend school in Cornwall near the proposed residence, participate in activities there and still see her father on a schedule that is not vastly different than the present parenting regime.

[8] Presently, the Respondent father sees Heather every other weekend and has mid-week access as well. The evidence also tends to show that for the past several months, the Respondent father has brought Heather to school most, if not all, mornings. Heather had been attending a school near the mother’s home, however was enrolled by the mother in a school 15 kilometres away two years ago to take advantage of subsidized daycare. The evidence available at this motion also tends to establish that Heather is frequently with extended family on her father’s side, indicating aunts, uncles, cousins, great aunts and a paternal great grandfather. The paternal grandfather died not long ago and the paternal grandmother, suffering from dementia, has her affairs managed by the Respondent father.

[9] Heather is described as having friends in her neighbourhood and participates in dance classes on weekends.

[10] The Applicant mother is presently studying with a view to obtaining a diploma in medical office management. She expects to be on a one year maternity leave when her son is born.

[11] The Respondent father works in a blood testing laboratory and has made arrangements to vary his night shift schedule to accommodate any changes in Heather’s living arrangements. He also suggests that he has a circle of support in relation to Heather’s daily care if required.

[12] Custody and access, even on a temporary basis, is determined in accordance with s. 24 of the Children’s Law Reform Act.

Merits of application for custody or access

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child. 2006, c. 1, s. 3 (1).

Same

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1).

[13] In cases involving a proposed change in the child’s living arrangements and the location of the child’s principal residency, Gordon v Goertz (1996) 1996 CanLII 191 (SCC), 19 R.F.L.(4th)177(S.C.C.) provides a legal framework within which the best interests of the child are to be examined and determined, at para. 49:

1. 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.

2. 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.

3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

4. 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.

5. 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.

6. The focus is on the best interests of the child, not the interests and rights of the parents.

7. 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.

[14] The conclusion that Heather’s best interests are served by having her remain in Ottawa is based on the following considerations:

1. The parents presently enjoy joint custody of their child. Heather has lived primarly with her mother, however her father, I have been persuaded, has daily contacts with his daughter with the exception of those weekends when she is primarily in the mother’s care.

2. Both parents are capable of caring for the child.

3. Heather is doing well. She is healthy and is progressing well at school.

4. Heather has a large circle of family, friends, activities and medical and dental services in this area.

5. There is, rather remarkably, an absence of detail concerning Heather’s proposed move to Cornwall. Mr. Bissonnette is engaged to be wed to Heather’s mother. He is the father of the couple’s unborn child. He works for the City of Cornwall and occupies a unit adjacent to his mother’s home in a duplex owned by his mother, which he intends someday to purchase. There is, however, no affidavit from Mr. Bissonnette. The Court is unaware of the duration of the relationship or whether it can safely be categorized as a relationship of name permanency. It is difficult for the Court to assess the merits of the proposed move when the responding parent is not presented in a timely fashion with details concerning the individual who will play an almost equal role in the upbringing of his child. The Applicant mother’s personal choices are not being questioned. The adversarial system of dispute resolution however, requires full disclosure in order to ensure that both points of view are properly advanced. The Respondent father states that he discovered the existence of the relationship between the Applicant mother and Mr. Bissonnette and the Applicant mother’s pregnancy as a result of comments made to him by Heather. An interim change in a young child’s living arrangements can only be made on clear and compelling evidence. The risk of disruption to a child’s routine if the proposed change becomes only temporary must be carefully considered at this stage.

6. The Applicant mother’s move to Cornwall is a matter of choice. The Applicant mother is not proposing to work, at least in the short term, given her very understandable decision to devote herself to her children following the birth of her son. While it is not the place of the Court to make decisions concerning the relationships which the parties are pursuing, Heather’s entire existence could remain stable and consistent if the Applicant mother remained in Ottawa and the effort and obligation to cope with the distance between Ottawa and Cornwall befell Mr. Bissonnette.

7. The present motions have been presented, understandably with some haste. Certain affidavits and the materials were exchanged and filed moments before the motions proceeded. A decision of the magnitude proposed cannot be made hastily. In any event, a decision to maintain Heather’s present surrounding and routine does not prejudice the Applicant mother in presenting a fully developed evidentiary basis, usually in the context of a trial in which viva voce evidence is given.

[15] I have carefully examined and considered the decision of this Court in McArton v Young 2010 ONSC 3962 presented by the Applicant mother’s counsel during submissions. In McArton v Young, the Applicant mother sought and obtained an interim order, at an emergency motion, allowing her to move with a 5 year old child to the West Island of Montreal, considered to be 2 hours distance by car. The Court in McArton v Young concluded that the move was necessary in order to permit the Applicant mother to find work in the field of university sports administration. Her work would enable her to spend more time with her children, one of whom from a prior union was not strictly speaking the subject of the motion. The motions judge considered there to be a lack of evidence concerning the connection between the subject child and the City of Ottawa in terms of extended family or other connection. Significantly, the motions judge found that there existed a strong and long standing bond between the subject child and the Applicant mother’s partner. Moreover, the Court concluded that the Respondent father took a “passive role” in the child’s upbringing and presented no plan if the child was ordered to remain in Ottawa. With the greatest of respect, the decision in McArton v Young compels a finding that a change in Heather’s life, family, and school routine is counter indicated in the present case.

[16] I have therefore concluded that there will be an order that until further order or agreement, Heather’s residence will not change. On the issue of custody, this is best left to be decided on a final basis by eventual order or agreement. The parents are not at this time fond of each other. There are however, no orders preventing communications, nor is there an imbalance which places either parent at a disadvantage. The parents have the responsibility of raising this child together despite their separation. To their enormous credit, they have done so quite well for the past 3 years. Their duty is to continue.

[17] On the issue of child support, by his own evidence, the Respondent father is obligated to provide guideline support for his daughter. In submissions, it was suggested that the Respondent father has made some payments, covered the costs of some clothing and has had to provide daily transportation to school at some cost to himself. These amounts were not quantified, nor was the present motion concerned primarily with support. There will be an order for child support on an interim without prejudice basis commencing June 1, 2015 in accordance with the table amount based on the respondent father’s 2014 income. There will be the usual disclosure obligations concerning income on an annual basis.

[18] The present determinations are by no means intended to establish a permanent regime for the parties, their children, and their partners. The present dispositions take into account Heather’s best interests pending a final determination on a more fulsome record. If the parties agree, the Court will seek the involvement of the Office of the Children’s Lawyer with a social work assist. The observations and finding of the OCL may well prove very instructive in the eventual determination of the mobility issue confronting the parents presently.

[19] Accordingly, the following interim orders are made:

1. The present parenting schedule shall remain in effect until further order or agreement;

2. The child’s primary residence shall remain in Ottawa until further order or agreement;

3. The Respondent father shall pay child support, effective June 1, 2015 according to the Federal Child Support Guidelines at a rate determined by his 2014 income and shall provide no later than June 1 of each year copies of his Notices of Assessment and income tax returns for the previous calendar year;

4. The parents shall communicate in a cordial and productive manner in relation to issues concerning their child and shall inform each other promptly of any proposed changes in the existing parenting schedule.

5. If the parties agree, OCL with social work assist shall be sought;

6. Unless they are able to agree otherwise, cost submissions for the present motions may be exchanged and filed within 30 days of the release of the present endorsement, such submissions not to exceed 2 pages in addition to accompanying materials.

PELLETIER J.

Released: June 11, 2015

CITATION: Trudell v Burnett 2015 ONSC 3800

OTTAWA COURT FILE NO.: FC-13-1087-1

DATE: 2015/06/11

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Erika Theresa Ellen Trudell

Applicant

– and –

Gregory William Burnett

Respondent

ENDORSEMENT

PELLETIER J.

Released: June 11, 2015