BARRIE COURT FILE NO.: FC-15-724-00

DATE: 20150831

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Dominic Alexander Binette, Applicant

and

Rebecca Ann Miller, Respondent

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

COUNSEL: Domenic Alexander Binette, in person with Duty Counsel
Kateryna Yanovsky, for the Respondent

HEARD: August 20, 2015

ENDORSEMENT

[1] This is a motion and countermotion brought by the parties to determine whether their five year old daughter, Cadence Elizabeth Binette, will live with the father in Barrie or the mother in Pembroke, a distance of approximately 350 kilometres, or four hours by car. The resolution of this motion is complicated by the fact that Cadence has lived with each parent at some point in her life and, by all accounts, they are both loving and caring parents. Since residence will determine which school she attends, both parents have requested that this motion proceed on an urgent basis.

[2] For the reasons given below I conclude that the proper resolution of this dispute is to return to the status quo established by the September 9, 2013 court order which gave the mother sole custody and the father access, until the father’s motion to change can be heard.

Background

[3] The parties started living together in January 2008 and their daughter was born in February, 2010. They separated in May 2010, when their daughter was only three months old. On December 12, 2012, Justice Selkirk issued a final order granting the mother sole custody of Cadence, who has resided with her mother from birth. The father was granted access every second weekend. The mother resided in Petawawa, Ontario for a brief period in 2012. At the time of the 2012 court order, the mother lived in Petawawa and the father lived in Barrie (like Pembroke, a distance of approximately 350 kilometres, or four hours by car).

[4] Due to the distance the father frequently missed his access. The parties consented to an amendment of the December 12, 2012 order, reducing the father’s access to every third week. This order, dated September 9, 2013, affirmed that the mother would have sole custody.

[5] The mother has lived most of her life in Pembroke, Ontario. Cadence has resided with her mother in Pembroke for most of her life. She has many friends and family in Pembroke, including her maternal grandparents. For the majority of her life she resided with her mother, her aunt and her grandmother at her mother’s childhood home.

[6] In the late summer of 2014, the mother decided to temporarily relocate to Alberta in order to obtain full-time employment. Her plan was to move there to establish herself and eventually have Cadence come to live with her. On September 4, 2014, the parties signed an agreement that would have Cadence live with the father and attend junior kindergarten in Barrie until Cadence could move to Alberta to join her mother. The relevant terms of the agreement are as follows:

This contract is stating that Cadence Elizabeth Binette will reside full time with her father Dominic Alexander Binette as of September 4, 2014 in Barrie, ON, while her mother Rebecca Ann Miller moves to Alberta to pursue employment. Cadence will live with her father until at least December 2014 and will be attending junior kindergarten there. The two parties will discuss the details and exact dates of when Cadence will move back with her mother in Alberta, which will be contingent upon her mother’s employment at the time. If her mother can obtain rotation employment where she will be able to travel back to Ontario once a month to see Cadence, then Cadence will reside with her father until she is finished junior kindergarten in June 2015. At that time, further custody arrangements will be made, and Rebecca and Dominic will make immediate arrangements to have custody of Cadence changed to joint custody prior to her moving back to Alberta with her mother. During the period in which Cadence is living with Dominic, he will have joint custody and will be making the final decisions in Cadence’s life, after consultation with Rebecca.

[7] In addition, the agreement stated that the father’s child support was terminated “while Cadence is living with Dominic” and, if the mother could not afford to pay child support to the father while Cadence was living with him, “each month she is not able to pay him child support will be added up and subtracted from the months in which Cadence returns to reside with her mother”.

[8] The clear intent of this agreement, which was signed by both parties, was that Cadence’s residence with the father would be temporary, and she would move to Alberta to reside with her mother as early as January 2015, but possibly as late as the end of June 2015, when she was finished junior kindergarten.

[9] The mother did visit with Cadence in Pembroke in December, 2014 and from May 30 to June 1, 2015. On June 1, she texted the father stating, “I need to know when Cadence will be coming to Alberta because I need to book her flight while I have the money. I was thinking the 27th or 28th, it’s a Saturday/Sunday after she’s done school.” This proposal was in keeping with their agreement.

[10] On June 4, 2015, the father commenced a motion to change the September 9, 2013 court order to give him sole custody of Cadence. He also commenced an urgent, without notice motion asking the court to allow him to keep Cadence in his primary care “until all unresolved disagreements are finalized in a court of law”. His motion material did not disclose the existence of the September 4, 2014 agreement. He also alleged that the mother wanted to remove Cadence from Ontario before the end of the school year.

[11] On June 5, 2015, Justice Eberhard issued an order prohibiting the child from being removed from Ontario without further court order. She also ordered that “issues of Custody and Child Support should proceed through the Court process on notice.”

[12] On June 7, 2015, the father texted the mother to tell her that Cadence is “not moving to Alberta”. The application, notice of motion and affidavits were served on the mother on June 8, 2015.

[13] On June 29, 2015, the father brought a second urgent, without notice motion. He sought an order that he be given primary care and be given authority to make all final decisions regarding Cadence “until all unresolved disagreements be finalized in court”. Once again his motion material did not disclose the existence of the September 4, 2014 agreement.

[14] On June 29, 2015, Justice Wildman issued an endorsement questioning why the mother had not been served with the motion, but, “out of an abundance of caution” issued a “short order to ensure the child is not unilaterally removed from school or daycare by the mother.” The order states: “Temporary without prejudice Order To Go that the order of Selkirk J. dated September 9/13 is temporarily changed to provide that the child Cadence…is to remain in her F’s care and control until further Court order. Her mother is not to have any access to her without the father’s written, signed and witnessed agreement.” The motion was adjourned to a first appearance on July 6, 2015 and, failing agreement, to a motions court on July 9, 2015. The temporary order expired on July 9, if not extended.

[15] Justice Wildman’s order does not make any reference to the September 4, 2014 agreement between the parties. This is hardly surprising because, although the agreement was attached as an exhibit to the “Change Information Form”, the father’s motion material did not refer to, or attach as an exhibit, the September 4, 2014 agreement with the mother.

[16] That agreement is obviously a material fact in this dispute. Parties bringing “without notice” motions have an obligation to make full and fair disclosure of all material facts to the court. Failure to do so is in itself sufficient ground for setting aside any order obtained on such a motion. (Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 39.01(6) and Family Law Rules, O Reg 114/99, rule 1(7)).

[17] The mother was not served with the court’s order until the evening of July 6, 2015, and accordingly did not attend the first appearance. On July 7, 2015, she brought a cross-motion on an urgent basis, also returnable on July 9, for an order that Cadence be returned to her care until the final resolution of this matter and a return to the status quo established by Justice Selkirk’s order of September 9, 2013. By this time the mother had given up on Alberta and moved back to Pembroke, Ontario, with her new partner, where they both have full time jobs.

[18] The July 9, 2015 motions came before Justice McDermot, who was the first judge to consider the September 4, 2014 agreement. Justice McDermot reviewed the agreement and concluded, “It is clear from the agreement that the child would eventually move ‘back to Alberta with her mother’”. After discussions with the parties, Justice McDermot converted the motion to a case conference to see if a resolution could be found. In the absence of a resolution, the motion was scheduled for August 20, 2015.

Analysis

[19] Both parties have filed affidavits that challenge the other party’s parenting ability. Having reviewed the affidavits, there is nothing in either affidavit that would disqualify either parent from assuming custody of Cadence. Neither is perfect, but both are loving and caring parents.

[20] The mother points out that she was Cadence’s primary care giver for four years, and that Cadence spent the first four years of her life living with her and her family in Pembroke. It was the father who initially moved away to Barrie after their separation and he saw his daughter every third weekend. The mother is returning to Pembroke, and to the status quo established by the September 9, 2013 final order. It is clear from the September 4, 2014 agreement between the parties, that she never intended to relinquish her role as primary care giver to Cadence, and the father agreed that Cadence could move back with her mother as early as January, 2015, or as late as the end of June, 2015.

[21] The father points out that Cadence has been living with him and his partner in Barrie for nearly a year, and she has now attended junior kindergarten in his neighbourhood school. He has full time employment in Barrie and he has moved into a larger house to accommodate Cadence. While he signed the September 4, 2014 agreement, he did not obtain legal advice and felt under pressure to sign because mother stated that Cadence would stay with her maternal grandmother in Pembroke if he did not sign it.

[22] The father suggests that the best resolution would be for the mother to move to Barrie, so that they could share parenting. While she has lived in Pembroke almost all her life, he points out that she was ready to move to Alberta, but that did not work out. If she has to move back to Ontario, she could as easily move to Barrie as Pembroke.

[23] In arriving at my decision, I must consider the best interests of the child as required by section 24 of the Children’s Law Reform Act, RSO 1990 c. C- 12, and, in particular, the criteria set out in section 24(2). Taking these considerations into account I conclude that it is in Cadence’s best interest to return to her mother in Pembroke.

[24] While Cadence has lived in stable home environments with both parents, she has lived longer with her mother and her mother’s family in Pembroke. This is a significant factor that outweighs her shorter residence with the father. She has only attended one year (junior kindergarten) of school and I do not think that attending a different school for senior kindergarten will be disruptive. Children at this age often attend different schools or daycares as they get older and I do not consider that to be a significant factor in this case.

[25] I am also guided by the fact that both final orders made in this case granted the mother sole custody when the mother lived in either Petawawa or Pembroke. There was never a final order establishing Cadence’s residence in Barrie. The June 5 and 29, 2015 orders were both temporary, without prejudice orders, and were made without full and fair disclosure by the father. The September 9, 2013 final order does represent the legal status quo. It is that order that the father is asking to change.

[26] Finally, the parties’ agreement of September 4, 2014, clearly contemplated that Cadence’s residence with the father would be temporary and that she would move back with her mother by the end of June, 2015. While the father now challenges that agreement, it is another factor that demonstrates that Cadence’s residence should return to the mother until the father’s motion to change has been determined on the merits.

[27] The fact that the mother agreed to Cadence’s temporary residence with the father while she tried to improve her employment situation and personal life should not be held against her in this analysis. The parties had developed a level of trust and cooperation, which the mother relied upon when she left Cadence with the father. Perhaps her trust was misplaced.

[28] Nor will I make the mother’s custody conditional upon her moving to Barrie. As indicated above, the mother has always lived in Pembroke or Petawawa, and the original sole custody orders were made on that basis. It is the father who moved to Barrie. The mother should not be compelled to follow her former partner.

Conclusion

[29] This court orders that:

(a) The father’s motion for primary care of, the child, Cadence Elizabeth Binette, born February, 24, 2010 is dismissed.

(b) The mother’s motion that Cadence be returned to her care until the final resolution of this matter is granted.

(c) Cadence shall be returned to the mother within forty-eight (48) hours after the release of this order.

(d) The father shall be granted access with Cadence every third weekend in accordance with the terms of the final order of Justice Selkirk, dated September 9, 2013, or any such additional access as may be otherwise agreed upon by the parties.

[30] If the parties cannot agree on costs, the mother may file a costs outline (maximum three pages plus bill of costs) within thirty days, and the father fifteen days thereafter.

Charney J.

Released: August 31, 2015