Llewellyn v. Llewellyn, 2015 ONSC 5427

SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 700/11 (Guelph)
DATE: 2015-08-31

RE: JENNIFER MAY LLEWELLYN AND DAVID JAMES LLEWELLYN

BEFORE: LEMON J.

COUNSEL:
Jennifer May Llewellyn, appeared in person
David James Llewellyn, appeared in person

HEARD: August 25, 2015

ENDORSEMENT

The Issue

1Mr. Llewellyn has brought a motion to change the order of Justice Herold, dated June 10, 2014. He seeks to maintain his daughter, J.’s, primary residence within the attendance boundaries of her current school in Guelph. If Ms. Llewellyn is unwilling or unable to maintain that primary residence, he seeks to have custody changed to him. That would then change the access and support provisions of the present order.

2Ms. Llewellyn responded to that motion by asking that it be dismissed. A case conference was held August 4, 2015.

3In view of the impending school term, Mr. Llewellyn has brought this interim motion. He seeks an interim order that the child continue to attend the present school during the 2015/2016 school year pending the resolution of his motion to change. If Ms. Llewellyn is not able to maintain her residence within the boundaries of the school, he seeks an interim change of custody. He also seeks an order that a representative of the Office of the Children’s Lawyer be appointed to hear and speak for the best interests of the child.

4The motion was argued on August 25 and I reserved my decision for further thought. Because of the urgency of the matter and my workload, on August 26, 2015, I advised the parties “For written reasons to follow, Ms. Llewellyn shall maintain the parties’ daughter’s residence within the attendance boundaries of her current school”. These are those reasons.

Background

5Mr. and Ms. Llewellyn’s daughter, J., is 11 years of age.

6On June 10, 2014, the parties resolved their issues on the morning of trial by Minutes of Settlement. Ms. Llewellyn had counsel at the time but Mr. Llewellyn did not. The relevant terms of that consent Judgment are:

Custody

1. The Applicant, Jennifer May Llewellyn and the Respondent, David James Llewellyn shall have joint custody of the child of the marriage, J., born November 27, 2013;

2. In the event of a disagreement, the Applicant, Jennifer May Llewellyn, shall have final decision-making authority with respect to health care and education.

Schedule of Residence (Regular Parenting Schedule)

3. The child, J., born November 27, 2003, shall reside primarily with the Applicant, Jennifer May Llewellyn.

4. The child, J., born November 27, 2003, shall reside with the Respondent, David James Llewellyn as follows:

(a) Alternating weekends from Friday at 4:00 p.m. to Sunday at 7:30 p.m., to be extended by 24 hours in event of a long weekend;

(b) Every Tuesday from after school until the commencement of school on Wednesday morning; and

(c) Any other time as agreed between the parties.

Transportation

5. Unless previously agreed upon by both parties in writing, all access exchanges shall take place at the McDonald’s Restaurant at Gordon St. and Wellington St. in the city of Guelph. Neither party shall attend the other’s home uninvited.

Mobility

6. The Applicant, Jennifer May Llewellyn and the Respondent, David James Llewellyn shall provide the other party with at least sixty (60) days written notice of a planned change of residence. If the change of residence exceeds seventy-five (75) kilometres from the city of Guelph, the moving party shall require the other’s written consent or a court order.

General Provisions Regarding Parenting

7. Both the Applicant, Jennifer May Llewellyn and the Respondent, David James Llewellyn shall respect each other’s time with the child, J., born November 27, 2003, and shall not schedule activities on the other parent’s time without first obtaining the other parent’s consent in writing.

8. The Applicant, Jennifer May Llewellyn and the Respondent, David James Llewellyn shall canvas proposed and/or potential changes to the access schedule first with the other parent, prior to mentioning anything to the child, J., born November 27, 2003, about a suggested change.

9. Both the Applicant, Jennifer May Llewellyn and the Respondent, David James Llewellyn, shall keep each other informed as to their residential address and telephone number, and notify the other parent via e-mail should this information change.

7It is not disputed that Ms. Llewellyn advised Mr. Llewellyn that she intended to move to Bolton, in writing, within the 60 day notice requirement.

8Bolton is either 66 kilometres away or 93 kilometres away, depending on what route one takes. In any event, the Google Map suggests that the proposed change in location is approximately one hour away.

9Mr. Llewellyn submits that such a change is not in J.’s best interest. He also sets out a variety of hearsay statements from J. suggesting that she does not wish to move from her present location.

10Ms. Llewellyn acknowledges that J. has expressed misgivings about the move but suggests that they are in relation to her change in school, which will occur in any event. Her new residence with J.’s grandparents, Ms. Llewellyn’s new husband and stepsiblings would also offset those misgivings. She says that J. is closely bonded to all of them.

11Ms. Llewellyn has, apparently, already sold her home in Guelph although that is not in the materials. Her plan is to move to a spacious home in Bolton until she and her new husband can find a residence near the grandparent’s residence. Ms. Llewellyn will continue with her employment in Guelph regardless of the move.

12J. has resided primarily with Ms. Llewellyn since 2011.

Analysis

13With only conflicting affidavits, I do not have sufficient reliable evidence to be sure of the best interests of the child. I am mindful that I ought not change the child’s situation on an interim basis before a complete record can be provided.

14The parties recently agreed to a joint custody arrangement; that should not be ignored and easily changed. Given the length of time that J. has resided with Ms. Llewellyn, I am not prepared to change custody on an interim basis. The record is simply too sparse to make such a dramatic move on an interim basis.

15It is clear that although Ms. Llewellyn may have complied strictly with the terms of the present order, she has failed to live up to the spirit of the general provisions regarding parenting. She has arguably moved within the 75 km limit. She has given the appropriate notice. She has authority to make the final decisions on education, which would, no doubt, include the school that the child attends.

16However, she does not deny that Mr. Llewellyn first found out about the proposed move when he saw a for sale sign on her home. She has not respected Mr. Llewellyn’s time with his daughter; she has effectively scheduled activities that will affect his time with J. Ms. Llewellyn has not brought an application to vary the present order. Accordingly, as it stands, she must ensure that J. is available for pick up and drop off in Guelph shortly after school. If J. is living and attending school an hour away, that will be impossible.

17Although Ms. Llewellyn has put forward a number of proposals to make up for lost access time, all of them, of course, require a great deal of driving with the parties splitting the driving, but J. enduring all of it.

18While I am satisfied that an order should go appointing the Office of the Children’s Lawyer to represent J.’s interests, that will take weeks, if not months, to be provided. The parties agree that J. does not want to move but do not agree on why she does not want to move. I cannot make the determination on these materials.

19It is unknown as to when and where Ms. Llewellyn will move from the Bolton residence. Indeed, despite Ms. Llewellyn’s wish to remain close to her parents, a further change in school may follow. That would not, of course, be of benefit to J.

20Although I should consider the wishes of the child, I cannot do so on these materials. Mr. Llewellyn proffered a sealed letter addressed to “Dear Judge” from J. I declined to read that letter; it is no more reliable than the hearsay statements by Mr. Llewellyn. It may be that the Office of the Children’s Lawyer may be able to provide reliable information but I ought not accept such a letter on an interim basis.

21Ms. Llewellyn appears to have decided to proceed without regard to the present order. While it may be inconvenient to her, she will have to make arrangements to continue to abide by its terms so that J. will remain in her current stable circumstances rather than be put to a shifting future that affects J.s contact with her father.

Result

22I therefore decline to make any order varying the terms of the present Judgment. On an interim basis, in order for Ms. Llewellyn to comply with the terms of the order, she must therefore maintain J’s residence within the attendance boundaries of Ken Danby Public School in Guelph.

23An order shall issue requesting the assistance of the Office of the Children’s Lawyer in the usual form. Both parties shall forward a copy of these reasons to the OCL.

24If either party seeks costs of this motion, those submissions shall be made in writing within the next 15 days. Each submission shall be no more than three pages not including any offers to settle or bills of costs.

Lemon J