SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-983-13
DATE: 2015/07/27

RE: KEN CHAPPELL et al, Applicants

AND:

MATTHEW HILLOCK et al, Respondent

BEFORE: The Honourable Justice D.A. Broad

COUNSEL:
M. Rady, for the Applicants

R. M. Van Buskirk, for the Respondents

HEARD: July 23, 2015

ENDORSEMENT

Background

[1] The respondent, Matthew Hillock, is the father of the child Sasha born September 4, 2010 (age 4 years 10 months). The mother of the child, Wendy Chappell, died August 26, 2013. Matthew and Wendy had been separated for approximately two years at the time of Wendy’s death.

[2] The applicants, Ken Chappell and Jane Chappell, are the parents of the late Wendy Chappell and are therefore the maternal grandparents of the child Sasha. Upon Wendy entering hospital in July, 2013 Matthew assumed a full caregiving role for the child and has continued as such to date. Matthew has established a relationship with a new partner Emily Benko and they have been cohabiting since September, 2014. They are now engaged to be married.

[3] By order dated June 26, 2014 Justice Campbell ordered that Jane Chappell shall have access to the child for four hours on each Monday and Thursday and that Matthew be prohibited from relocating the child’s residence from the Region of Waterloo.

[4] In a settlement conference January 9, 2015, Justice Campbell set the matter for trial in the June 2015 trial sittings. On March 25, 2014 Justice Nightingale made an order requesting the Office of the Children’s Lawyer (OCL) to do an immediate investigation on an urgent basis regarding the issues of Matthew’s mobility rights for the child and his request to take the child to the United States and the access rights of the applicant of Jane Chappell and Ken Chappell. Justice Nightingale provided that the order was without prejudice to the rights of the parties to request that the matter proceed to trial at the June 2015 sittings without the report of the OCL being completed.

[5] In a trial management conference June 2, 2015, Justice Campbell ordered that, in light of the OCL report not being available, the matter should be removed from the June trial list and he directed that the administration shall make concerted efforts to schedule a trial judge to hear the matter in the summer after July 20, 2015. It became apparent that a trial judge would not be made available over the summer and, on consent, I ordered on July 16, 2015 that the trial be adjourned to the September 2015 sittings, not to commence before September 21.

[6] It now appears that the report of the OCL is not expected to be made available until late August 2015 at the earliest.

Issues for Determination

[7] There are two issues now before me as follows:

(a) the motion of the respondent Matthew father to vary the interim order of Justice Campbell dated June 26, 2014 to remove the restriction on him relocating the residence of the child outside the Regional Municipality of Waterloo in order to facilitate his move with the child and his partner Ms. Benko to Tahoe California;

(b) the motion of the applicants Ken Chappell and Jane Chappell for increased summer access to the child.

[8] In anticipation that the trial would be heard in June 2015, he and his fiancée Ms. Benko made plans to move to Tahoe, California where they intend to live. The respondent is a dual citizen, having been born in the United States. The child is also a dual citizen.

[9] The child is of age to enter kindergarten in September 2015 and, in anticipation of being able to move to Tahoe, the respondent enrolled her in a high quality private school which granted financial assistance for the child to cover half of the tuition.

[10] The respondent and Ms. Benko have signed an undertaking to the American government that they would be married within 90 days of Ms. Benko entering into the USA on a limited visa to reside with the respondent and the child.

[11] In anticipation of the matter being reached for trial in June 2015 and of his move with the child and Ms. Benko to California, the respondent listed for sale the residence which he and Wendy owned as joint tenants as to a 99% interest, along with his aunt as to a 1% interest, and entered into an agreement of purchase and sale. On July 16, 2015 I ordered, on consent, that the certificate of pending litigation which had been registered against that property by the applicant, the estate of Wendy Chappell, be vacated in order to facilitate that sale which will close at the end of August 2015.

[12] The respondent proposes that arrangements for summer access for the applicants Ken Chappell and Jane Chappell can be easily accommodated when he and his family are back in southern Ontario visiting relatives such as his mother and grandmother and aunt and uncles, as well as Ms. Benko’s parents.

Analysis

[13] The respondent argues that there has been material changes in circumstances subsequent to the order of Justice Campbell of June 26, 2014 restricting his ability to relocate the child’s residence outside of the Region of Waterloo, by reason of the sale of the home, the enrollment of the child in a school in Tahoe California, the securing of permission from the United States government to Ms. Benko entering the United States and their plans to marry.

[14] The respondent relies upon the case of MacGyver v Richards, [1995] O.J. No. 481 (C.A.) for the proposition that the child’s best interests must be assessed, not from the perspective of the parent (or in this case a grandparent) seeking to preserve access, but from that of the child entitled to the best environment possible, and that a parent with custody, acting responsibly, should not be prevented from leaving a jurisdiction because the move would interfere with access by the other parent, or by a grandparent. The test is not whether the trial judge feels subjectively that a move is “necessary”, but whether there is any reason to conclude that the move would not be in the child’s best interests.

[15] At para. 36 of MacGyver Abella, J.A. made the following observation:

We cannot design a system which shields the non-custodial parent from any change in the custodial parent's life which may affect the exercise of access. The emphasis should be, rather, on deferring to the decision-making responsibilities of the custodial parent, unless there is substantial evidence that those decisions impair the child's, not the access parent's, long-term well-being.

[16] Although the matter is now scheduled to be tried within approximately two months, the respondent argues that the chances of a trial judge prohibiting him from relocating with the child to California due to the access rights of the maternal grandparents are virtually nonexistent and, due to the fact that the child is enrolled in a school in California to commence in early September, it would be disruptive to enroll the child in a kindergarten in the Region of Waterloo only to have to withdraw her from that school and have her start in the California school after the virtually inevitable decision of the trial judge.

[17] It must be remembered that the respondent’s mobility motion seeks to vary an existing interim order, and seeks to do so almost on the eve of trial and prior to receipt of the report of the Office of the Children’s Lawyer, which was requested, by order of Justice Nightingale, to report on the very subject matter of the motion, being the father’s mobility rights vis-à-vis the maternal grandparents’ access rights.

[18] There is a well-established principle that generally an interim order will be maintained until trial in the absence of compelling reasons indicative of the necessity of change to meet the child’s best interest (see Hunt v. Hunt, 2001 CarswellOnt 4549 (Ont. S.C.J.) at para. 20).

[19] In the case of Prasad v. Lee, (2008) 2008 24545 (ON SC), 53 R.F.L. (6th) 194 (S.C.J.) Murray, J. offered the following comments flowing from the Hunt case at paras. 41-42:

In his annotation to Hunt v. Hunt, 2001 CarswellOnt 4549 (Ont. S.C.J.), the late Professor James MacLeod commented on the problems inherent in deciding relocation issues on an interim basis where there is conflicting affidavit evidence. Professor McLeod's annotation is as follows:

In deciding whether to approve an interim move, courts must balance two competing points of view. On the one hand, if a parent will be allowed to move at trial, why delay the inevitable? On the other hand, courts tend to maintain the status quo on interim motions to avoid making a temporary order that renders the trial meaningless. Although the mother was confident that she would succeed at trial, MacKinnon J. was not so sure. The parties disagreed on all major issues. If the father's version of reality was accepted, a court could deny the mother permission to move at trial. In any event, justice must not only be done but must seem to be done. The father may well be unsuccessful at trial but he was entitled to a full hearing on the merits, not a superficial review based on limited and conflicting affidavit evidence.

In the case at bar, it is not possible to say at this time that the applicant will likely succeed at trial. This Court is not prepared to make an order that will render the trial meaningless by allowing the applicant to remove the infant son from this jurisdiction to Wales and create a new status quo which at trial could only operate to prejudice the respondent. I am in agreement with Professor McLeod that the respondent is entitled to a full hearing on the merits and not a superficial review based on limited and conflicting affidavit evidence.

[20] Although the respondent’s case for mobility to relocate with the child in the United States may be considered to be strong or even very strong, I am not in a position to conclude, based only on competing affidavit material, that it is inevitable that he will prevail at trial on that issue. Importantly, Justice Nightingale made the determination that it would be desirable to obtain the input of the Office of the Children’s Lawyer on the mobility issue and Justice Campbell concurred, such that he vacated the trial date in June 2015 pending the receipt of the OCL report. For me to make the order sought by the respondent now would represent a reversal of the determinations made by Justice’s Nightingale and Campbell in that respect.

[21] To allow the respondent to remove the child to California would create a new status quo which would usurp the role of the trial judge and render meaningless the input of the OCL, all to the prejudice of the applicants Ken Chappell and Jane Chappell to have the mobility issue tried by a full hearing on the merits.

[22] In Gordon v. Goertz, (1996) 1996 191 (SCC), 2 S.C.R. 27 (S.C.C.) the Supreme Court of Canada held, at para. 49, that a parent applying for a change in a custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child. At para. 12, Justice McLachlin, speaking for the majority, held that change alone is not enough to establish a material change in the circumstances of the child. The change must have altered the child’s needs or the ability of the parents to meet those needs in a fundamental way.

[23] The fact that the respondent sold the home and enrolled at the child in a school in California prior to a determination of his mobility rights in respect of the child at trial does not, in my view, alter the child’s needs or the respondent’s ability, as her custodial parent, to meet those needs in a fundamental way. Although it may be considered to be advantageous to have the child start kindergarten at the beginning of the school year at the school selected by the respondent in California, assuming that the respondent’s claim for mobility will prevail at trial, it is not something that affects the ability of the respondent to meet the child’s needs in a fundamental way. There is no evidence that the child will be significantly disadvantaged by entering school in California one or two months into the school year following the determination of the issues at trial. There is similarly no evidence on the record that the child’s enrollment at the school and the tuition subsidy will not be held open for her pending the determination of the issue at trial in September.

Disposition

[24] The motion of the respondent Matthew Hillock to vary the interim order of Justice Campbell dated June 26, 2014 to remove the restriction on him relocating the residence of the child outside the Regional Municipality of Waterloo is therefore dismissed.

[25] In keeping with the principle in Hunt discouraging motions to vary interim orders, I would also dismiss the motion of the applicants Ken Chappell and Jane Chappell for increased summer access. No compelling reason for such a change has been demonstrated.

Costs

[26] If the parties are unable to agree on costs, they may file written submissions of no more than three pages, double-spaced, in addition to any pertinent offers and draft bills of costs, within 14 days. Such written submissions are to be forwarded to me at my chambers at 85 Frederick Street, 7th Floor, Kitchener, Ontario N2H 0A7. If no submissions are received within 14 days, the parties will be deemed to have settled the issue of costs as between themselves.

Next Step

[27] As set forth above, the matter is scheduled for trial at the September sittings, not to commence prior to September 21, 2015. The matter is to be spoken to at the “speak-to” court on September 8, 2015 at 10:00 a.m.

D.A. Broad

Date: July 27, 2015