ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: F1-2064/06
Date: 2015-09-28
BETWEEN:
Jamie Patrice Love
Self-Represented
Applicant
- and -
Michael Scott Wilcockson
Richard Startek for the Respondent
Respondent
HEARD: August 18, 2015
The Honourable Mr. Justice R. J. Mazza
[1] This is a motion to change brought by Mr. Wilcockson to vary the order of Justice McLaren dated April 12, 2007, whereby Mr. Wilcockson is requesting that the child, Michaela Wilcockson, born December 7, 1999, be permitted to reside with him in the Town of Dorset, Ontario.
[2] By the order of Justice Gordon of July 21, 2015, the matter was to proceed by viva voce evidence.
Background
[3] By the order of Justice McLaren of April 12, 2007, which was issued pursuant to Minutes of Settlement, the parties were to share joint custody of the child. In addition to Mr. Wilcockson having to access every other weekend from Friday at 5:30 p.m. to Sunday at 12:00 p.m. and every Wednesday between 5:30 p.m. and 6:00 p.m. until Thursday morning at 7:30 a.m., the parties worked out a detailed arrangement with respect to shared holidays and special occasions.
Testimony of Michael Wilcockson
[4] Mr. Wilcockson stated that he is currently paying child support in the amount of $206.00 per month, and that the parties have continued to follow the access regime faithfully, with some flexibility upon mutual consent. However, although communication between Ms. Love and Mr. Wilcockson has been uneventful, that changed when the child decided that she wished to live with her father. Initially this was not an expressed desire by Michaela, but in fact discovered by her mother in her daughter’s diary.
[5] With Ms. Love’s consent, Michaela resided with her father between May of 2013 and August of 2014. During that period of time, mother and father simply exchanged their roles, and Ms. Love was exercising the access previously enjoyed by Mr. Wilcockson, and Mr. Wilcockson became the custodial parent. It was in December of 2014 that Mr. Wilcockson in fact moved to Dorset. However, Ms. Love refused to allow her daughter to move with her father, and wished to resume the access regime pursuant to Justice McLaren’s order.
[6] Although Mr. Wilcockson testified that communication between the parties had been open, it also had deteriorated.
[7] In describing why he moved to Dorset, Mr. Wilcockson stated that he enjoys the lifestyle, but, however, the distance has required the parties, again, to resort to some flexibility regarding access to Michaela.
[8] In his discussions with Michaela he stated that she wished to move with him also to experience the northern life. And given her age, 15, soon to turn 16 in December of 2015, Mr. Wilcockson is asking the court to give serious consideration to the child’s wishes.
[9] In describing his residence in Dorset, Mr. Wilcockson stated that he resides in a 1,000 square foot mobile trailer, which consists of three bedrooms and a family area. The home appears to be in a resort, which has approximately 32-unit mobile trailers, 4 cottages, and 1 huge lodge, the latter accommodating about 20 people. The resort is managed by his mother, and he has a sister who also resides in the same location with her husband and their four children. As well, there are aunts and uncles and cousins on his mother’s side who live in the area.
[10] He testified that in addition to the alternate two weeks which he enjoys with his daughter during the summer, there have been occasions when she has visited him on consecutive weekends.
[11] However, from January to September, he visited her approximately every six weeks because of the distance. He estimates that the drive between Dorset and Hamilton is approximately 2.5 hours.
[12] Although he agrees he has not made any arrangements to register Michaela for high school, he has made enquiries and has been told she will be accepted. As well, he is yet to locate a family doctor and dentist, but plans to make those arrangements if the court approves of the child’s transfer to his care.
[13] He described Michaela as being a good student, having marks in the 70s and 80s. She will be starting grade 11 in September.
[14] And as for his employment status, he testified that he had originally been working for the lodge where he resides, but due to the fact that the Family Responsibility Office had contacted him on more than one occasion, his employer felt it was interfering with his work, and accordingly, he was dismissed.
[15] Nevertheless, he continues working for the lodge for a minimum number of hours in order to satisfy his monthly lease payment of $380.00. This lease payment permits him access to the land on which his home is located.
[16] He currently is also working for Corbridge Construction, a company owned by his brother-in-law, which is in the business of building homes and decks. He currently earns $24.00 an hour and works approximately 30 hours per week. When asked to produce copies of his paystub on cross-examination, he stated he only had an invoice to indicate that he is paid. He also admitted that he does receive some cash, which is not claimed for income tax purposes.
[17] On cross examination by Ms. Love, he admitted that he had not registered Michaela for school or obtained a family doctor a dentist, but chose instead to await the decision of the court. He further admitted that between the periods of May 2013 and September of 2014, although Michaela was officially living with him, she decided to come and go between residences as she pleased.
[18] In response to the question as to whether he is responsible enough to care for Michaela, he stated that he has a home, a car, and a job and therefore he sees no reason why he would not be able to care for his daughter on a full-time basis.
Testimony of Ms. Love
[19] Ms. Love is remarried and is the mother of a 9-year-old and a 6-year-old. She has full-time employment with DARTS transportation working 35 hours a week, and her husband works a 40-hour week as an insurance broker for Pearson Dunn.
[20] Regarding that period of time between May 2013 and August 2014 when Michaela was supposedly living with her father, she testified that it was not a continuous arrangement, but that in fact Michaela, would at times choose to live with her father, rather than face any disciplinary measures imposed upon her by her mother.
[21] Moreover, in view of the fact that Michaela has two half-siblings, she testified that if she were to move with her father, her siblings would miss her. She also admitted that Michaela does very well in school, and suggested that she simply finish her high school, after which she could decide whether or not she wished to reside with her father.
[22] However, she is uncertain about the environment in Dorset. The child knows no one but her father and relatives. Her friends are here, and she would be moving to a place where there is, in her words, “too much unknown”. While her father would be working, she would be alone much of the time. Ms. Love does not know the friends which Mr. Wilcockson said Michaela has made in Dorset. It would not be in her best interests to move from a stable home environment to a place where there is clearly too much uncertainty.
[23] As well, she has already selected her courses for school, which start in September. She has a clear idea of her future plans for her career and education. It would therefore not be in her best interests to move from a stable environment to one that is untried.
Submissions by Mr. Startek
[24] Mr. Startek began his submissions by referring the court to his draft proposed order, which allows for specific holidays and monthly visits along with summer access and some flexible time sharing if necessary.
[25] There is also a request for a termination of child support if the child is permitted to reside with her father, along with an order for child support payable by Ms. Love. However, in view of the fact that very little financial evidence was called at this hearing, which was focused on custody and access, Mr. Startek acceded that the issue of child support would have to be dealt with at another time.
[26] In support of his position that the child be allowed to reside with her father, Mr. Startek made reference to the law and the criteria used by the court to determine the appropriateness of permitting a child to reside with a parent in a distant location. And where the child is of mature years, i.e. that is the early to mid-teens, the child’s wishes should be given significant consideration.
[27] Mr. Startek further submitted that the relationship between the parties has been open and flexible, so much so that his client has agreed that if Michaela ultimately found that residing with her father was not to her liking, he would not prevent from returning to live with her mother.
[28] As for Mr. Wilcockson’s ability to care for his child, Mr. Startek submitted that his client is employed. He also owns his own home, a vehicle, a snowmobile and other assets, which are all a strong indication that he is in a position to provide for Michaela’s welfare.
[29] He further submitted that Mr. Wilcockson’s decision not to officially register Michaela for high school, as well as deciding not to find her a family doctor or a dentist, was to avoid being seen by the court as being presumptuous about his expectation that Michaela would be allowed to reside with him in Dorset.
[30] Ms. Love submitted that Mr. Wilcockson’s decision to withhold making any educational, dental, or medical arrangements for his daughter is simply an indication of a pattern of behaviour which he has always demonstrated, namely a lack of assuming total responsibility for his daughter’s care. During the marriage it was Ms. Love who in fact had made those arrangements.
[31] Moreover, she submitted that he has been untruthful about his employment in the past, and has no proof of his current employment, other than one invoice. As well, there is no evidence of the employment arrangements that he has made during the wintertime, since the construction industry is somewhat seasonal.
[32] As well, he has not even been able to manage his table amount of child support on a consistent basis.
[33] In addition, Michaela is becoming a young woman and will be going through emotional changes whereby she will require guidance by her mother. In Ms. Love’s opinion, she is not old enough to make such a decision, and but for her age of 15 years, Ms. Love submitted, this matter would not have been before the court.
[34] The very fact that there is an agreement by her father that she be allowed to return to her mother if Michaela was not happy in her new environment, suggests that the child is part of an experiment. Moreover, Mr. Wilcockson has failed to demonstrate that he has made adequate preparations prior to her arrival.
Analysis and Conclusion
[35] In the leading case of Gordon v Goertz from the Supreme Court of Canada 1996 191 (SCC), 19 R.F.L. (4th) 177, the court found that a parent applying for a change in a custody or access order must meet the threshold requirement of demonstrating a material change of circumstances affecting the child. In the case before me, I am satisfied that, in fact, there is a material change in circumstances, namely Mr. Wilcockson is currently residing in Dorset and the child has expressed wishes to reside with her father.
[36] The Supreme Court then went on to say 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.
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.
[37] The court went on to say that:
…“maximum contact” principle mentioned in Sections 16 (10) and (17) under the Divorce Act is mandatory, but not absolute, and a judge is only obliged to respect it to the extent that such contact is consistent with the child’s best interests.
[38] In applying those principles to the case before me, firstly although I recognize that Michaela is 15 years of age and that her wishes should therefore be given more serious consideration than a child of younger years, I also note it is only one of the factors which this court has a duty to consider.
[39] In considering the weight this should give Michaela’s wishes, the evidence suggests to me that Michaela’s wishes lack what I consider to be commitment. I make this observation based on my finding, which appears to be not disputed, that even when Michaela was allowed to live with her father when Mr. Wilcockson resided in Hamilton, she did not do so on a continuous basis. It appeared, in my opinion, to be more of a convenience which she exercised to her advantage, particularly at times when she refused to abide by the disciplinary measures imposed upon her by her mother.
[40] Furthermore, there does not appear to be any evidence that suggests that when she in fact was obliged to return to reside with her mother in August 2014, she offered little resistance.
[41] Moreover, she has been principally residing with her mother since the inception of Justice McLaren’s order of 2007, I find that her mother has been her main caregiver, exercising all responsibilities of a custodial parent, including providing all necessaries.
[42] In addition, although I understand that Mr. Wilcockson decided not to make any arrangements for his daughter with respect to her school or health care, prior to any order made by the court, nevertheless I find that such a decision would mean sending his daughter to an uncertain environment. For example, there has been no initial attempt to assist her with obtaining her courses at the high school in Huntsville and communication with the school has been minimal. Although Mr. Wilcockson gave as his explanation not wanting to make what he considered to be premature arrangements, the reality is that it would be unsettling for his daughter.
[43] For this court to allow Michaela to reside with her father, it would mean significant disruption to the child not only as a result of the change in custody, but also a significant disruption to the child as a consequence of her being removed from her family, her school, friendships which she has nurtured over the years, and the community which she has come to know.
[44] I agree with Ms. Love when she expresses a concern that she has no familiarity with any of Michaela’s new friendships which she may have made while visiting her father in Dorset. There appears to have been no communication between Mr. Wilcockson and Ms. Love with respect to that particular aspect of Michael’s life.
[45] As well, I am not satisfied that Mr. Wilcockson has what I consider to be steady employment. In any event, the modest wages he is currently earning does not satisfy that he would be in a position to provide for his daughter’s necessaries, even with a contribution by Ms. Love.
[46] On the other hand, the child currently resides with Ms. Love and her husband, both of whom have full-time employment.
[47] Regarding the child’s schooling, she appears to be an excellent student, and has with her mother’s assistance chosen her courses for high school, is registered, and is ready to attend.
[48] I find that the stability offered by Ms. Love far outweighs the uncertain stability, which Michaela may find if she were to reside with her father.
[49] As well, given the fact that Mr. Wilcockson is willing to have the child returned to reside with her mother if in fact she is not happy residing in Dorset, this suggests to me a certain lack of commitment by both child and father. And any change of custody order should not be based on only the possibility of success.
[50] Regarding whether or not access to Mr. Wilcockson would be significantly reduced, given the historical flexible arrangements which the parties have been able to implement, I am satisfied that Mr. Wilcockson’s access will not be demonstrably affected.
[51] Accordingly, Mr. Wilcockson’s motion to have the child reside with him is dismissed, and Justice McLaren’s order shall remain in place with the following minor variations, which will read as follows:
Given the significant distance between Mr. Wilcockson’s residence and the child’s residence, Paragraph 5(b) of Justice McLaren’s order no longer seems feasible. Although I will not delete that provision because it still may be accommodated by any future change in residence, neither party is presently required to abide by that provision.
The Applicant mother and Respondent father shall make reasonable efforts to share transportation associated with facilitating access between Respondent father and child, keeping in mind their respective work schedules and familial obligations.
Times of exchange to facilitate time sharing shall be arranged by the parties.
If the parties are unable to agree on the arrangements, I may be spoken to.
[52] If the parties require any clarification of my order, or have any questions with respect to the implementation of the order, I may be spoken to.
[53] If the issue of costs cannot be agreed upon, the parties are to provide me with written submissions within 45 days of the date of this judgment after exchanging a copy of their written submissions with each other.
Mazza, J.
Released: September 28, 2015
COURT FILE NO.: F1-2064/06
DATE: 2015-09-28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jamie Patrice Love
Applicant
- and -
Michael Scott Wilcockson
Respondent
REASONS FOR JUDGMENT
Mazza, J.
Released: September 28, 2015