CITATION: Fifield v. Cochrane, 2015 ONSC 5363
COURT FILE NO.: 15-0112
DATE: August 26, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jennifer-Lee Fifield
Applicant
– and –
Matthew MacDonald Cochrane
Respondent
Kate Anderson, for the Applicant
Jill Addison, for the Respondent
RULING ON MOTION
PHILLIPS, J
[1] This is a mobility motion. The Applicant asks to be allowed to move with the children to Perth, about an hour away, in order to move in with her mother.
[2] The parties began to cohabit in December, 2000 and separated on April 30, 2013. There are three children of the relationship: Liam born in 2007, Savannah, born in 2008 and Rhys, born in 2011.
[3] Despite the fact that their relationship is over, the parties remain living under the same roof in the family home in Oxford Station. Not surprisingly, this state of affairs is causing stress.
[4] For all intents and purposes, the children have lived in that home for all of their lives. Now that they are of school age, they are enrolled at the local elementary school. They attend a private daycare both before and after school. I am told they enjoy sports in the community like soccer and hockey. Also, they are described as typically social in the way children are, with friends up and down the neighbourhood and open invitations to enter their friends’ homes to play.
[5] The parties are both employed fulltime in Ottawa. He works Tuesday to Saturday with Sunday and Monday off, while she works a standard Monday to Friday with the usual weekend off. If their combined income is totalled, his contribution is about 55% of the total.
[6] The Applicant does not have much good to say about the Respondent’s ability to put the best interests of the children ahead of his own. Her affidavit speaks of regular drug use on his part and a somewhat indifferent or distant relationship to his kids. Affidavits filed by her extended family and others in the community say similar things.
[7] The Respondent father takes great exception with the way he is characterized by the Applicant. He points out that he has stopped using marijuana for years now, a fact confirmed by drug tests he chose to voluntarily take. Also, he has filed affidavits from the daycare workers and neighbours, which characterize him as a loving and involved parent.
[8] Obviously, there is considerable conflict in the record as to what sort of father the Respondent is and who indeed is the primary caregiver at present. A determination of those issues involves credibility assessment of a degree which can only be performed by a trial judge possessed of full evidentiary record.
[9] Suffice it to say, for many months now, the parties have been dividing the parenting responsibilities on a more or less equal basis, with arrangements tailored around their respective work schedules, and the children’s educational, daycare, sports and social activities.
[10] I should note that there has not yet been any sort of agreement or court order with respect to exclusive possession, custody, access or support.
[11] The Respondent father resists the proposed move on the basis that it is unduly disruptive of the status quo and would have the effect of relegating him to second class status as a mere access parent. He argues that such an impactful change is simply not in the best interests of the children at this time.
[12] The law with respect to mobility in this context makes clear that a court should be very reluctant to upset a custodial status quo on an interim basis when there is a genuine issue for trial. Here, I find there is genuine issue with respect to the appropriate custody and access scheme to be imposed going forward. At present, what appears to be working is a form of parallel parenting, with both parties spending essentially equal time with the children and advancing their best interests in a bifurcated but equally appropriate way.
[13] The bottom line is that this sort of application is to be resolved in consideration of the best interests of the children. While other factors are to be considered, they are considered to the extent they bear on the children’s best interests. I am guided by the Supreme Court of Canada decision in Gordon v. Goertz 1996 191 (SCC), [1996] 2 S.C.R. 27 which at paragraphs 49 and 50 states as follows:
[49] The law can be summarized as follows:
(a) The inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
(b) 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.
(c) Each case turns on its own unique circumstances. The only issue is the best interests of the child in the particular circumstances of the case.
(d) The focus is on the best interests of the child, not the interests and rights of the parents.
(e) More particularly, the judge should consider, inter alia:
i. the existing custody arrangement and relationship between the child and the custodial parent;
ii. the existing access arrangement and the relationship between the child and the access parent;
iii. the desirability of maximizing contact between the child and both parents;
iv. the views of the child;
v. 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;
vii. disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
[50] 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 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.
[14] I can readily understand why the Applicant sees advantage in moving to be with her mother in Perth. Such a move would save money. It would expose the children more to their maternal grandparents. Also, it would alleviate the tension building as a result of the current living together while separated status quo. Clearly, on that front, something has to give.
[15] Nonetheless, I find that the move to Perth would involve significant disruption to the lives of the children. In my view, children of those ages are very attached to their schools. Their familiar teachers are probably the adults most involved in their lives, aside from their parents. As well, I would expect all of them to have a network of friends both at school, on the bus, at the daycare and in the other familiar environments in which they spend their time.
[16] Given the considerable disruption going on in their lives as a result of their parents’ breakup, familiarity and stability are very important for these children at this time. A move to a new town an hour away would be a significant uprooting.
[17] While I can see some ways in which their best interests are served by relocating them to be primarily with their mother and grandparents in Perth, I find on balance that their best interests are better served by staying in the only community and among the only environment they have come to know.
[18] I am not persuaded that the best interests of the children would be best advanced by a move to Perth. The downside of such a move outweighs the upside in my opinion. This conclusion is especially so given the risk that the move could be re-assessed by a trial court since the issues of custody and access could unfold at trial differently than as argued on this motion solely on the basis of affidavit evidence. That risk of a different outcome after trial is a risk of further disruption which is again contrary to the best interests of the children.
[19] The Application’s motion to move with the children to Perth is denied.
[20] I do not fault the Applicant for bringing this motion. Clearly, while I have found that maintenance of the status quo in terms of residing in the area of Oxford Station and going to the same school and daycare and recreational spaces is in the best interests of the children, it remains that the status quo in terms of the couple living together under the same roof has to change. This was a good faith effort to effect that change. The Applicant should not be punished for making the first move in that regard. There will be no order as to costs.
The Honourable Mr. Justice Kevin Phillips
Released: August 26, 2015
CITATION: Fifield v. Cochrane, 2015 ONSC 5363
COURT FILE NO.: 15-0112
DATE: August 26, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jennifer-Lee Fifield
Applicant
– and –
Matthew MacDonald Cochrane
Respondent
RULING ON MOTION
Phillips, J.
Released: August 26, 2015