Superior Court of Justice
COURT FILE NO.: 3262/15
DATE: 2015-09-16
ONTARIO
BETWEEN:
JUSTIN DAVID CRISTILLO Applicant
– and –
SHANNON CAUDLE Respondent
COUNSEL: S. McCooeye, Counsel for the Applicant M. Walz, Counsel for the Respondent
HEARD: September 10, 2015
VARPIO, J.
REASONS ON MOBILITY MOTION
[1] This is a file where the Applicant father and the Respondent mother bring competing motions seeking different relief. However, the parties argued the motion on a single basis: Whether the Court would permit the mother to move the child to Sudbury. For the reasons that follow, I would allow the mother so to do but would deny her costs of the motion.
UNCONTESTED FACTS
[2] The mother and father commenced a relationship in 2005 and began living together in 2007. Their child was born October 23, 2009 and the parties married in February of 2012. They separated in the late winter / early spring of the next year.
[3] During the course of this time, the mother worked at a money exchange business and worked 9:00 to 5:00. The father worked for his family business – a bowling alley with a bar attached. It is clear that the mother’s work progressed and that she was able to forge a career for herself.
[4] Subsequent to the separation, the mother found a new boyfriend in Sudbury and transferred to the Sudbury area in the spring of 2015.
[5] The father brought a motion to prevent the mother from moving the child to Sudbury in March of 2015. The motion was adjourned to April 2, 2015 and the child was ordered to stay in Sault Ste. Marie until the hearing of the motion. The motion was adjourned on a couple of occasions until it was heard in September 2015.
DISPUTED EVIDENCE
[6] As an evidential issue, the parties maintain that each other has breached the Rules regarding affidavits since much of the evidence tendered on this motion contains unattributed hearsay and other innuendo. I agree with the parties in this regard but will not specifically address every instance thereof. I will, however, indicate that this evidence is of no use to the court because it was consistently denied and contradicted by opposing evidence. In other words, I must disregard the unattributed hearsay evidence because it was both unattributed and denied by the other party. It thus has no weight.
[7] With respect to the admissible evidence, the mother maintains that father has had, and continues to have, a drinking problem. She indicates in her affidavit that the father has a history of excessive drinking. She is concerned that the drinking continues to persist and that the father and his family are minimizing the risk to the child.
[8] The father, for his part, disagrees that he has a current drinking problem and instead suggests that the mother is painting him in a bad light in order to taint the proceedings. In his initial affidavit, he acknowledged that he had a previous drinking and driving conviction. Further, the father indicated that he had been sober since that incident and provided a letter from an addictions counsellor. The letter effectively indicates that, based upon the counsellor’s conversations with (and observations of) the father, the counsellor has no concerns regarding the father’s sobriety. The father’s parents also provided affidavits in which they indicated that the father does not have a drinking problem.
[9] Further, the father indicates that the CAS have closed a file regarding his parenting with no mention of any drinking problem. Post-conviction police occurrences related to this matter do not disclose any drinking by the father.
[10] The effect of the father’s evidence (as well as that of his parents) is that the father had a minor mishap in November 2013 when he was arrested for drinking and driving.
[11] The police occurrence from the incident was attached later in the record. The occurrence indicated:
Involved persons: [Name of the instant child]
Case File Synopsis
On the 14th of November 2013 at or around 16:00 hrs a motorist called in about a possible impaired driver providing a plate number, vehicle description and direction of travel. Police vehicles attended to the area and located Justin Cristillo as he exited his vehicle and was trying to crawl up his front stairs to his residence at 79 Crawford Avenue, Sault Ste. Marie Ontario. Cristillo had left his vehicle running up against his garbage can and stairs. Cristillo was obviously impaired to the point he could not walk up the stairs. He also displayed other indicia including a strong odor of alcohol on his breath, slowness of movement, glassy eyes and inability to stand unassisted. There were two cases of beer easily observed in the back of his car. Cst. Lapish arrested Cristillo at 16:06 hrs, read arrest, rights caution and the breath demand. Accused taken to station and at 16:49 hrs called counsel Mike Bennett. After an explanation of the event, Cst. Potter proceeded to conduct a breath test on the accused. He provided two samples, 313 and 331 milligrams of alcohol in 100 milliliters of blood. [emphasis added]
[12] The evidence with respect to the father’s ongoing drinking is also contentious. The mother states that the father’s former roommate called her in 2014 regarding the father’s drunken behaviour and that the roommate moved out of the residence as a result of same. The father denies said behaviour and indicates that the roommate also denies the mother’s allegations. Interestingly, however, no one provided the roommate’s affidavit, although the father indicates in his affidavit that the roommate was willing to provide same.
[13] In the spring of 2015, the mother moved to Sudbury to live with her new boyfriend. She claims that she moved because she resided in an unfit apartment in Sault Ste. Marie whereby her PUC bills were exorbitant and that she suffered resulting financial duress. Her new boyfriend resides in a comfortable home near Sudbury and the mother does not pay rent. The mother was able to transfer at work which provides her with both better economic opportunities and possible advancement.
[14] The father agrees that the mother has always been a good parent. Further, the father does not dispute the mother’s contention regarding her accomodations but indicates that there is no evidence in the file to suggest that the mother sought other, appropriate accommodation in Sault Ste. Marie. Accordingly, it was possible that the mother could have maintained a residence in Sault Ste. Marie that would have enabled the child to have maximum involvement with both parents.
[15] The parties also dispute the child’s custodial situation leading up to this motion. The father claims that he saw the child virtually every day up to March 2015. While he has certainly seen the child consistently since March as the child has been residing primarily with him, the mother states that the father’s involvement with the child was far more sporadic prior to the March 2015 Order.
The Father’s Position
[16] In his materials, the Father states that the child should not be permitted to move since:
- The father’s relationship with the son is strong;
- The father sees the son every day;
- The child has strong family ties in Sault Ste. Marie including both maternal and paternal family;
- The child is registered in school in Sault Ste. Marie and has friends there;
- The father takes care of the child’s needs and interests in a responsible, loving fashion;
- The mother’s unilateral actions should not punish the father; and
- The Court has no information about the mother’s new boyfriend such that we should be concerned with the child’s safety.
The Mother’s Position
[17] The mother posits as follows:
- The mother has always been the custodial parent and her wishes should be respected;
- A move to Sudbury puts the child’s family in a preferable situation whereby the child has access to more money; and
- A move to Sudbury means that the child is not in a dangerous environment whereas the same cannot be said for continued residence in Sault Ste. Marie.
THE LAW
[18] The Divorce Act governs the custody and access of children after the dissolution of a marriage:
Custody Orders
Order for custody
- (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.
Interim order for custody
(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).
Joint custody or access
(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.
Access
(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.
Terms and conditions
(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.
Order respecting change of residence
(7) Without limiting the generality of subsection (6), the court may include in an order under this section a term requiring any person who has custody of a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child.
Factors
(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
Past conduct
(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.
Maximum contact
(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
[19] While the Divorce Act does not explicitly define the test for “best interests of the child”, Section 24(2) of the Children’s Law Reform Act provide a useful framework:
Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.
[20] Counsel provided me with Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 as the leading case on varying Final Orders with respect to mobility issues. It should be noted that there are no custody Orders in this case and, as such, there are no Final Orders to be varied. However, paragraphs 49 and 50 provide a good guidelines for examining when child mobility should be ordered by the Court:
The law can be summarized as follows:
The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.
This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
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.
Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
The focus is on the best interests of the child, not the interests and rights of the parents.
More particularly the judge should consider, inter alia:
(a) the existing custody arrangement and relationship between the child and the custodial parent;
(b) the existing access arrangement and the relationship between the child and the access parent;
(c) the desirability of maximizing contact between the child and both parents;
(d) the views of the child;
(e) 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;
(f) disruption to the child of a change in custody;
(g)disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
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 its 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?
[21] While certain parts of the analysis are only applicable to instances where Final Orders are in existence, I accept that the remaining analytical framework described in the above-referenced excerpt is binding upon the Court when determining whether or not to allow the mother to move.
[22] I also accept that on interim mobility motions, the evidentiary burden is on the party seeking to move the child. Such Orders should only be granted in limited circumstances given the disruption moves have on children and the limited evidential foundation that affidavit evidence can provide: Walsh v. Walsh, [2012] ONSC 4965; Cox v. Darling, 2008 ONCJ 91; Datars v. Graham, 2007 CanLII 34430; Kennedy v. Hull, 2005 ONCJ 275.
ANALYSIS
[23] I must first state that there is some uncertainty as to who was the custodial parent at the time the Application was filed. The parties disagree as to who was involved with the child, for how long, and under what circumstances. They each have affidavits from family members in support of their respective positions. The evidence diverges such that viva voce evidence would be required to make any final determinations in that regard. Accordingly, I can take little, if anything from this evidence.
[24] I also accept that, since the Court Order of March 19, 2015, there are divergent views with respect to the father’s parenting although no CAS or police involvement has been necessary.
[25] I also agree with much of the father’s position. The child has laid down some roots in this community with both friends and family (extended and immediate). Moving would cause some disruption to his life, although it must be said that the disruption would not necessarily be overwhelming given the age of the child.
[26] Despite the foregoing, I am troubled by both the aforementioned police occurrence and the treatment thereof by the father and his family. Firstly, the father registered blows of 313 mg of alcohol in 100 mL of blood and 331 mg of alcohol in 100 mL of blood. These are dangerously high readings. Further, the father was on his way to his house which (based upon the “Involved Persons” portion of the police occurrence) contained his son. This egregious display of irresponsibility was minimized in the father’s affidavit evidence in that it was barely mentioned. Surely, a parent who engaged in such a dangerous activity would need to fully explain his actions. The effect of this (non-)treatment of the evidence by the father leaves the Court with the impression that the mother’s submissions regarding the father’s recent lack of sobriety may have some credibility (although I decline from specifically so finding).
[27] Indeed, the readings suggest that the father could have a serious dependency (although I decline from specifically so finding). Further, portions of the counsellor’s letter appear to be based largely on self-reporting by the father. Also, although I accept that the CAS and police reports do not mention alcohol, such a lack of discussion is not definitive. Therefore, I have concerns with respect to possible relapse by the father given his treatment of the incident in his evidence and the fact that he has continued to work at a bowling alley which includes a bar.
[28] The father states that he has an approximate 6 or 7 month track record of taking care of the child (since March 2015) such that the Court ought to be comfortable with the father’s supervision. However, the father’s November 2013 drinking and driving incident was not preceded by any antecedent criminal episodes. As such, while it is possible that the child may have been safe in the father’s care since March 2015, it is also possible that the father and his family are minimizing a situation where the child is at risk but that nothing untoward, as yet, has happened. I cannot determine which interpretation of the recent past is accurate without the benefit of viva voce evidence and cross-examination.
[29] On the other hand, I have no concerns about the mother. The father conceded that there are no concerns with respect to her parenting although he indicates that there is no information about the mother’s new boyfriend. I agree that, while it would be preferable to have information in this regard, I have no evidence to suggest that the new boyfriend presents a risk to the child.
[30] Therefore, the father’s plan contains possible issues with respect to the father’s irresponsibility when it comes to drinking while caring for his son whereas the mother’s plan contains no such issues. Simply put, the child’s best interests must certainly be met by the mother’s plan since the child will not be placed at risk were he to reside in Sudbury. It may well be that the same can be said for the father’s plan however, without the benefit of viva voce evidence and cross-examination, permitting the child to continue to reside in Sault Ste. Marie could thus put the child at risk of alcohol-induced irresponsibility. Such a result is inconsistent with the child’s best interests. Giving the father custody in the face of such uncertainty would be imprudent.
DECISION
[31] Accordingly, I give interim custody of the child to the mother and will permit the child to reside with the mother in Sudbury commencing September 28, 2015. The father shall be entitled to access every other weekend commencing October 9, 2015, from 7:00 p.m. Friday to 6:30 p.m. Sunday. Drop-offs will be at the Blind River Tim Horton’s. The parties can pay for their own travel costs. The mother will not change the address of the child without providing the father with 30 days notice thereof. Further, this decision is enforceable by the relevant law enforcement agencies.
[32] Given the potential levels of risk to the child and the divergeant positions taken by the parties, OCL involvement would be most beneficial in this case.
COSTS
[33] Despite her success on the motion, I fail to see the urgency of moving in March of 2015. I am unsatisfied that the mother could not have waited to move. Surely a transfer would have been possible subsequent to a trial. Equally, I have no evidence before me regarding other suitable apartments in Sault Ste. Marie. Accordingly, it is plausible that the mother moved to Sudbury simply to be near her boyfriend and that the child’s best interests (although met by such a move), were in fact a secondary consideration. Given the possibility that the mother’s move was not one where the child was at the forefront of her thoughts (although I do not explicitly so find), no costs order is appropriate in the circumstances.
Varpio J.
Released: September 16, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JUSTIN DAVID CRISTILLO
- and -
SHANNON CAUDLE
RULING ON MOBILITY MOTION
Varpio J.
Released: September 16, 2015