BARRIE COURT FILE AND PARTIES

BARRIE COURT FILE NO.: FC-14-407-00

DATE: 20150831

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Kristopher Lee Horst Bice, Applicant

and

Rachel Boettcher, Respondent

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

COUNSEL: Kristopher Lee Horst Bice, in person with Duty Counsel

Jeremy Herron, for the Respondent

HEARD: August 27, 2015

ENDORSEMENT

[1] This is an urgent motion brought by the applicant father to prevent the respondent mother from relocating outside of Simcoe County and moving to Swan River, Manitoba with their seventeen month old daughter. Both parties agree that the matter is one of urgency and request a decision of this court.

Background

[2] The parties never lived together, but had a short relationship in 2013 and separated prior to the birth of their daughter in March 2014. On consent, the parties agreed to a final order on May 26, 2014, which gave the parties joint custody of their daughter, with the primary residence being with the mother. Access to the father has been limited to a few hours every Saturday because the mother continues to breast-feed the child. The order also provided that neither party shall take the child out of Ontario without the prior written consent of the other party, which consent cannot be unreasonably withheld.

[3] During their brief relationship, the mother lived with her parents and sister in a house owned by her parents in Victoria Harbour, Ontario. The father lives in Stouffville, Ontario, a distance of 138 kilometres or approximately one and a half hours by car. The father drives to Victoria Harbour to exercise his access. Since November 2014, he has missed fifteen of the forty-two scheduled access visits for work related reasons.

[4] The mother still lives in the house owned by her parents in Victoria Harbour, although her parents and sister moved to Swan River, Manitoba in 2014 and the Victoria Harbour house has now been sold. The closing is on August 31, 2015 and the mother must find a new place to live. Now that her parents and sister have moved to Manitoba, she has no ties to Victoria Harbour. As a single mother living on social assistance, she is financially unstable on her own. She did not grow up in Victoria Harbour, having moved there with her family in early 2013. She wants to move to Swan River, Manitoba and live in the house with her parents and sister.

[5] Her parents run a Bible College in Swan River, and they have offered her part-time work as a teaching assistant. If she moves to Manitoba, she will have a part-time job with on-site daycare and the support of her parents and sister who have strong ties with her daughter.

[6] On July 25, 2015, the mother informed the father of her intention to move to Manitoba in August, and asked for his consent. The father refused to consent. Moving to Manitoba would obviously make the father’s weekly access impossible. The mother’s parents have offered to pay for the father’s cost of two round trip flights from Toronto to Winnipeg each year, as well as a rental car and accommodations in Swan River.

[7] This motion was originally scheduled for July 30, 2015, at which time the parties agreed that mother would not move the child’s residence from Simcoe County without the written consent of the father or further court order. The motion was adjourned to August 27, 2015.

[8] The mother has indicated that in the event that she is not allowed to move to Manitoba with her daughter on an interim basis, she plans to move in with her brother and his wife in Owen Sound pending the trial. Owen Sound is not in Simcoe County, but is in the neighbouring Grey County. There is nothing in the final order of May 26, 2014 that would prevent this move, although it will add approximately fifty-five kilometres and one hour each way to the father’s commute for his access.

Analysis

[9] In this case, I have come to the conclusion that the mother should be permitted to move to Owen Sound, but not Manitoba, pending the final resolution of the father’s motion to change. While an additional hour in each direction every weekend will be an inconvenience, the May 26, 2014 order did not impose any limit on the mother’s right to move within Ontario. I do not believe that it will be in the child’s best interest to force the mother to remain isolated and financially unstable in Victoria Harbour (or some other place in Simcoe County) solely to reduce the father’s commuting time. I am satisfied that the mother’s intended move is made in good faith for the best interest of their child and is not intended to frustrate the father’s relationship and access to their child.

[10] On the other hand, the proposed move to Swan River, Manitoba would be a fundamental change to the status quo envisioned by the May 26, 2014 order and I am of the view that such a change in the status quo should not be made in this case without the benefit of a full hearing. There are no doubt many benefits for both mother and daughter to this proposed move, but it will result in a significant impediment to the father exercising his access and developing and maintaining a relationship with his daughter.

[11] In determining, on an interim basis, whether one parent may move the children away the following principles apply:

(a) The courts should be reluctant to upset the status quo where there is a genuine issue for trial as to custody and access.

(b) There may be compelling reasons to allow the move, but those reasons must reflect the best interest of the child, not the parent.

(c) The move can be allowed on an interim basis if the court is satisfied that the move would likely be ordered after the trial.

(d) The onus is on the parent seeking to move the children to establish that it is in the child’s best interest.

(e) The move should not be granted unless it is clearly in the best interests of the children.[^1]

[12] In making this decision, I have reviewed the principles relating to determinations of temporary mobility set out by the Supreme Court of Canada in Gordon v. Goertz, 1996 191 (SCC), [1996] 2S.C.R. 27, and the summary and discussions of those principles prepared by Justice Sherr in Boudreault v. Charles, [2014] ONCJ 273. I have also considered the recent decision of Justice G.A. Campbell in Kapoor v. Kapoor, [2015] ONSC 4000.

[13] In the present case, the mother must move from her residence in Victoria Harbour. There is no reason that she should be forced to remain in Victoria Harbour. The father does not live there and she now has no family or any real connection there. It is clearly in the best interest of the child if the mother can move to a place, such as Owen Sound, where she will have financial stability and the support of family members.

[14] On the other hand, the reality is that if she moves to Manitoba, even on an interim basis, this will establish a new status quo that will likely limit the father’s access to two visits a year. Such a fundamental change to the status quo should await a trial unless the evidence is clear that the move will likely be ordered at trial.

Conclusion

[15] Accordingly, this court orders that the father’s motion to prevent the mother from moving outside Simcoe County is dismissed, but the mother is prohibited from moving out of Ontario, until the father’s motion to change is decided or further order of the court.

[16] The order of July 30, 2015 is vacated.

[17] Success of this motion was mixed. The father was successful in preventing the mother from moving out of the province, but not successful in his request that she be prevented from moving from Victoria Harbour/Simcoe County. Accordingly, my inclination is to not order any costs. I recognize, however, that I have not heard costs submissions from the parties. If either party wishes to make submissions with regard to costs they may do so within thirty days, limited to three pages. The other party will have an additional fifteen days to respond.

Charney J.

Released: August 31, 2015

[^1]: Crewson v. Crewson [2014] O.J.No. 3455, para. 10 and cases cited therein.