BARRIE COURT FILE NO.: FC-15-0946-00

DATE: 20150806

CORRIGENDA: 20150807

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Leeanne Mitchell, Applicant

and

David Joy, Respondent

BEFORE: The Honourable Mr. Justice R.E. Charney

COUNSEL:
Leeanne Mitchell, Self-Represented
Michael Sirdevan, for the Respondent

HEARD: July 30, 2015

REVISED ENDORSEMENT

The text of the original endorsement has been corrected with the text of the corrigendum (released today’s date)

Introduction

[1] This motion is brought by the applicant, Leanne Mitchell, on an urgent basis pursuant to rule 14(4.2) of the Family Law Rules. The applicant seeks a temporary order to allow her to move with her nine year old daughter to Calgary, Alberta, where her husband is being relocated for two years. The matter, she argues, is urgent because she wants to move before the commencement of the new school year, which begins on September 2 in Calgary. Although she proposes to move to Calgary, she also proposes that the respondent’s lost access days during the school year can be made up for by extending his access days during the summer and school vacation periods. The respondent’s position is that if the applicant moves to Alberta the daughter should come to live with him.

Background

[2] The applicant and respondent separated on February 1, 2010 after an eighteen year common-law relationship. They are both school teachers. They have two children, a son age twenty and a daughter age nine. Pursuant to the final order of Justice Wood, dated April 24, 2013 (confirming an interim Order dated April 11, 2012), the son resides with the father and the daughter with the mother. The parties were given joint custody of the children.

[3] Pursuant to those orders, the respondent has access to the daughter on alternative weekends, half of the summer school vacation, half of the school Christmas vacation, alternating March break and Easter weekends as well as any other agreed time. The applicant’s proposed move to Alberta would obviously interfere with his alternative weekend access.

[4] The daughter attends school in Elmvale where the applicant has a job as a teacher (although the applicant is currently on a disability leave). This school is about a thirty minute drive from where the applicant lives.

[5] The applicant’s affidavit states that her “husband is being relocated to Calgary for 2 years”. She has filed a letter from his employer, Tremco Canada, dated July 14, 2015, offering her husband a “temporary assignment as Plant Manager” in Calgary. The anticipated start date was August 1, 2015, and the anticipated end date is June 30, 2017 (subject to review in January 2017). Her husband was given until July 20, 2015 to accept this offer, and he accepted it on July 13, 2015. The move is currently scheduled for August 26, 2015.

[6] The acceptance on July 13 appears to be a formality because the applicant advised the respondent of the contemplated move in May, 2015. The respondent did not agree to the move and the parties participated in a mediation session as required by para. 8 of the April 24, 2013 order. The mediation was held on June 26, 2015 and was not successful.

Urgency

[7] The first issue is whether this motion meets the test for urgency set out in rule 14(4.2), which provides that motions may not be brought before a case conference unless “the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice.” For the reasons set out below, I conclude that this case is not one of urgency within the meaning of rule 14(4.2).

[8] The applicant claims that the matter is one of urgency because the parties intend to move on August 26, 2015, in order to move before the first day of school in Calgary on September 2, 2015. She could not bring the motion earlier because the job offer was not confirmed until sometime in May and the parties attended a mediation session on June 26, as required by their previous court order.

[9] While I agree that it would have been premature to bring this motion prior to the completion of the mediation on June 26, if she had acted promptly thereafter there may have been time to schedule both a case conference and a motion in time for the August 26 deadline. In Rosen v. Rosen, 2005 480 (ON SC), [2005] O.J. No. 62, the court held that counsel must at least canvas the availability of case conference dates before bringing a motion under rule 14(4.2). I am advised that there are, even now, case conference dates available for urgent matters in the middle of August.

[10] On the other hand, the purpose of a case conference in this context is to try to obtain a negotiated resolution of the dispute. Arguably the mediation session fulfilled the same objective as a case conference, making a case conference prior to this motion redundant.

[11] The respondent points out that the urgency is of the applicant’s own making. She could have commenced this proceeding immediately after the mediation on June 29. On July 10 the applicant wrote to the respondent and took the position that she had a unilateral right to move her daughter to Calgary if she gave the respondent sixty days’ notice (August 26 is sixty days after the June 26 mediation). On July 13, 2015, she received a letter from the respondent’s counsel putting her on notice that such a move would be inconsistent with the final order of April 24, 2013, which granted the parties joint custody and she would therefore require a court order to take her daughter to Alberta.

[12] Accordingly, the applicant served her notice of motion on July 21, 2015, returnable on July 30. This first delay (from June 26 to July 21) appears to be the result of the applicant’s misapprehension regarding her rights under the April 24, 2013 order. When served with the notice of motion, the respondent’s counsel asked her to adjourn her motion to August 13, 2015, which, while tight, might still have offered the parties an opportunity to schedule a case conference before the motion was heard. The applicant’s reason for rejecting this proposed adjournment is significant. She states: “Your alternative date of August 13th is too late. Our belongings need to move by that week.”

[13] The cases have defined “urgency” in the context of rule 14(4.2) to refer to circumstances such as abduction, threats of harm and dire financial circumstances, and have held that dispensing with a case conference is an exception to the procedural requirements that should be made infrequently (Rosen v. Rosen, supra; Kobow v. Kobow [2007] O.J. No.4137; Gonzales v. Trobarovic [2014] O.J. No. 4384, at para. 24). The applicant’s express reasons for refusing the adjournment – that her belongings must be in Alberta by the week of August 13 – does not qualify as urgency or hardship as those terms are defined by the cases. Having her belongings arrive in Alberta by a certain date was a matter of her convenience. While mobility is an important issue, it does not, in the circumstances of this case, fall into the category of “urgency” or “hardship” as those terms have been defined in prior cases. Parties cannot manufacture urgency by their own delay in commencing proceedings or their refusal to agree to reasonable adjournments, even though I accept that the applicant’s delay was based on a misapprehension of her legal rights rather than an intention to undermine the process.

[14] There is no evidence that the daughter will be “harmed” if the applicant’s move to Alberta is briefly delayed. While commencing the school year on September 2, 2015 might have been the optimum situation, children can and frequently do commence a new school after the first day.

[15] In making this decision, I am also mindful of the fact that although this motion is brought as a “temporary order”, we do not know with certainty whether the applicant’s husband will be asked to extend his new position and there is always a possibility that the move may become permanent. Once the move to Alberta occurs it becomes the new status quo, and the respondent must have a full and fair opportunity to respond to the applicant’s motion. His right to fully respond overrides the applicant’s interest in moving her belongings by a certain date.

[16] Having stated my view with regard to the applicant’s request to proceed with this motion on an urgent basis under rule 14(4.2), I do not want my comments in this regard to be taken as a criticism of her position on the merits. She may well be acting in the best interest of her daughter in trying to keep her family together, since this is the stable family environment in which her daughter has resided for three years. Her proposal to make up the respondent’s lost alternative weekend access days during the school year by extending his access during summer and other school vacations may well be the most appropriate resolution in this difficult case where no perfect solution presents itself. Finally, while her misunderstanding of the Family Law Rules may result in her motion being heard somewhat later than it would have if she had acted more expeditiously, this delay should not prejudice her position on the merits, which ultimately must be resolved on the basis of the daughter’s best interest.

Conclusion

[17] For the foregoing reasons the applicant’s motion to proceed without a case conference is dismissed. In my opinion, this is not a case of urgency or hardship. That being said, I agree that it would be in the daughter’s best interest to have this motion heard as expeditiously as possible. I direct the trial coordinator’s office to schedule a case conference on the earliest available date, and a motion on the merits as soon as possible thereafter.

[18] Costs for the day are reserved to the judge hearing the motion on its merits.

Charney J.

Released: August 7, 2015

CORRIGENDA

1. Paragraph 18 has been added, which reads as follows: “Costs for the day are reserved to the judge hearing the motion on its merits.”