SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 265/10
DATE: 20150918

RE: Christopher Andrew Heron, Applicant

AND:

Ashley Hickson, Respondent

BEFORE: B. G. MacDougall, J.

COUNSEL:
Counsel, Alexander J. S. McLeod for the Applicant

Counsel, Brent Walmsley for the Respondent

HEARD: September 14, 2015

ENDORSEMENT

Background

[1] The parties are parents of Ashton Michael Scott Heron-Hickson, born August 8, 2000.

[2] The parties consented to a Final Order, dated October 9, 2013 (Ingram, J.), giving the mother sole custody of Ashton with a provision for access by the father to be supervised, subject to a number of conditions, mainly dealing with the father’s substance abuse issues. The Access Centre terminated the supervised access on June 17, 2014. The father only exercised a few access visits.

[3] The Consent Order also provided for unsupervised visits if the father was able to satisfy a number of conditions set out in the consent order. There are insufficient materials filed by the father to satisfy the conditions in the October 9, 2013 order to move the father`s visits to “unsupervised”.

[4] In the interim, the father has moved from the Lindsay area to Hamilton where he is in a new relationship and has 2 other young children.

[5] The October 9, 2013 Consent Order also contained the following paragraph regarding the mother`s residence:

(8) If the respondent mother intends to relocate with the child from Lindsay for the purposes of furthering her education, she shall not move more than 150 kilometres from Lindsay unless with the written consent of the applicant father or by court order. The respondent mother shall provide 60 days’ notice of any such move and her proposal for access following the move, and if the parties cannot agree, either party can bring a motion before Justice Ingram for a determination of the issue of the respondents proposed move and the applicants proposed access

[6] The mother did move to Edmonton, Alberta with Ashton purportedly “for the purpose of furthering her education”, however she did not have the father`s consent or a court order to “relocate with the child from Lindsay.”

[7] The father then brought a motion seeking joint custody of Ashton and an order requiring the mother to return Ashton to Lindsay, Ontario. The mother brought a cross-motion seeking an order to permit her to remain in Alberta with Ashton.

[8] The motions came before Scott, J. on May 28, 2015. Scott J. provided a 6 page, 31 paragraph endorsement and ordered:

(i) The mother to return Ashton to Ontario before June 18, 2015;

(ii) A prohibition against Ashton from being removed from Ontario or changing the child’s residence from the jurisdiction of Kawartha Lakes;

(iii) That the father be permitted to bring a motion “for reinstatement of access to his son, Ashton” on condition that he serve and file a number of documents relating to his substance abuse issues and criminal activities;

(iv) A request that the Office of the Children`s Lawyer provide assistance; and,

(v) That there be an expedited trial.

[9] The mother did return with Ashton as ordered. The father has not, as of this date, brought his “reinstatement of access” motion.

[10] The Office of the Children`s Lawyer has declined to become involved as the mother has expressed her intention of residing in Alberta.

[11] On September 3, 2015, the mother brought an “Emergency Motion”, again seeking an order for permission to relocate to Alberta with Ashton.

[12] The mother wished to enrol Ashton in school. She has started a new job in Edmonton and Ashton`s young half-brother is residing in Edmonton with the mother.

[13] The mother has agreed to return to Lindsay for the trial, if necessary.

[14] The mother`s September 3, 2015 motion came before Ingram, J. on a “without service” basis and Ingram, J. required the motion materials to be served on the father and adjourned the matter to today.

[15] Ingram, J. ordered the father to file by September 11, 2015:

(a) Details of drug history;

(b) Updated criminal record;

(c) Updated reports from methadone clinic and from Hamilton;

(d) Detailed reasons for not exercising access and why child should not be sent to Alberta immediately.

[16] The father has not filed any materials in response, but his counsel seeks an adjournment of the motion and a request that the mother re-submit new Intake forms to the OCL setting out that the child is now residing in Lindsay, pursuant to Scott, J.’s order.

Discussion

[17] The Consent Order of October 9, 2013 provided an alternative supervised access regime other than at the Kinark Supervised Access Centre. The father would have supervised access to Ashton at the residence of the paternal grandmother provided, as set out in para. 2(a) of the order:

2(a) …if said residence is deemed suitable by the Kawartha Haliburton Children`s Aid Society (“KHCAS”), and if the said paternal grandmother is approved by the KHCAS, and if the applicant complies with all conditions for access as requested by the KHCAS.

[18] There are no materials before me that indicates that the father has done anything to put into place this other option of having his mother supervise his visits with Ashton.

[19] Scott, J. provided in para. 26 of her endorsement:

(26) Furthermore, it is necessary that Mr. Heron immediately gather together all his corroborating evidence and present to the court his best plan or proposal to not only resume his relationship with his son, but to ensure it continues to be viable on a sustained and permanent basis so that it is in the child, Ashtons, best interests for his father to be reintroduced to him in the very near future. In that regard, Ms. Hicksons position must be given some weight that the child cannot wait much longer for the father to provide actual benefit to him and to be a positive influence in his life. [Emphasis added].

[20] The father has not complied with this provision. As noted, he has not satisfied all the conditions required of him as set out in the October 9, 2013 order to attempt to move the supervised access to unsupervised.

[21] As noted earlier, the father has not yet complied with para. 3 Ingram, J.`s Endorsement of September 4, 2015.

[22] The fathers counsel submits that, given the fathers move to Hamilton, his new job and new family obligations, he has not had sufficient time to comply with these requirements.

[23] This delay on the fathers part and/or his failure to be proactive in dealing with his relationship with Ashton could be interpreted as the father ``moving on with his new life`` with the result that his relationship with Ashton is no longer of significant importance. If that is truly the fathers priotity, then there would be no need for a trial to take place regarding the mother`s wish to live in Alberta with Ashton and her other son.

[24] As referred to, Scott, J. noted that:

“...the child cannot wait much longer for the father to provide actual benefit to him and to be a positive influence in his life.”

[25] Accordingly, I am providing a deadline to the father to provide the information required on the September 4, 2015 endorsement of Ingram, J. in para. 3 by September 30, 2015.

[26] The mother`s motion is adjourned to October 7, 2015 at 9:30 a.m. before Ingram, J.

B. G. MacDougall, J.

Date: September 18, 2015