SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: FC-11-377-00

DATE: 20151019

RE: NATASHA DEGAN, Applicant

AND:

DINO DEGAN, Respondent

BEFORE: The Hon. Mr. Justice P. Sutherland

COUNSEL: Duty Counsel, R. Meza for the Applicant

R. McInnis Agent for Counsel D. Winnitoy, for the Respondent

HEARD: October 15, 2015

ENDORSEMENT

[1] There are two motions. There is a motion brought by the Applicant which is found at Vol. 4, Tab 6 for an order that the access in the final order of Justice Nelson dated May 22, 2014 (final order), be stopped and that the children have access to the Respondent Dino Degan bi-weekly at Kawartha Lakes Supervised Access Centre. The Respondent’s motion, found at Vol. 4, Tab 9 for: (a) an order that the Applicant comply with para. 2 of the final order; (b) an order that the Applicant enrol the children of the marriage, namely, Joseph Thomas Degan born January 23, 2009 and Marissa Elizabeth Degan born September 1, 2010 at Maple Grove Public School in Barrie, Ontario; (c) an order that the Applicant comply with the access provisions of para. 5, 6, 7 and 8 of the final order; and (d) an order that the Applicant remain in compliance of the terms of the final order along with costs of the motion.

Background

[2] The Applicant and the Respondent were married on October 13, 2008 and separated on February 1, 2011.

[3] From the divorce application, a final order was made on May 22, 2014. In that final order, which was on consent, the Applicant was given full and final custody of the children of the marriage, the Respondent was given access and there was an order made for child support, s. 7 expenses, with a detailed access schedule.

[4] Also, in the final order, at para. 2, the final order stated:

The Applicant shall not move the residence of the children more than 80 kilometres outside of Barrie, Ontario except by order of the court or consent of the parties.

[5] Neither the Applicant nor the Respondent appealed the final order.

[6] The Applicant has brought a motion to change the final order only with respect to the access provisions. The Applicant has requested that paras. 5 through 8 of the final order be deleted and the Respondent have access to the children at Kawartha Lakes Supervised Access Centre. This motion to change was commenced on October 7, 2015. In the continuing record there is no affidavit of service of the motion to change upon the Respondent. The Applicant brought a motion returnable October 8, 2015. That motion was adjourned to October 15, 2015 to deal with the issues of the motion including that of urgency and to allow the Applicant to respond to the Respondent’s motion materials and to retain counsel.

[7] There has not been a case conference held with respect to the motion to change brought by the Applicant.

[8] The Applicant has brought her motion arguing urgency and that the Respondent should not have access to the children of the marriage. However, in the motion material filed by the Applicant, she failed to disclose to the court that she moved the children out of Barrie to Fenelon Falls on September 27, 2015. The Applicant moved the children out of Barrie to Fenelon Falls before she commenced her motion to change and before she brought her emergency motion to suspend the access of the Respondent to the children.

[9] In contrast, the Respondent has brought a motion which was returnable October 8, 2015 which was adjourned to October 15, 2015 which sets out that the Applicant moved out of Barrie to Fenelon Falls.

[10] The Applicant also took the children out of Maple Grove Public School in Barrie at the end of September, 2015, moved to Fenelon Falls and enrolled the children in a public school in Fenelon Falls, Langton Public School.

Position of the Applicant

[11] It is the position of the Applicant that the Respondent is in breach of the final order and that his access should be suspended. Further, it is the position of the Applicant that she moved to Fenelon Falls because the rental home where she was living had caught on fire and there was fire damage in the home which made it uninhabitable. The fire took place in July, 2015. From July, 2015 until the end of September, 2015 the Applicant indicates that she was living in a cottage. The Applicant also indicated in submissions that it is less expensive to live in Fenelon Falls than Barrie.

Position of the Respondent

[12] It is the position of the Respondent that he is not in breach of the final order. It is the position of the Respondent that there is absolutely no reason for his access to be stopped. The Respondent’s position is that if you look at the timeline of all the recent actions, the timeline speaks for itself. The Applicant did not advise the Respondent of her move until after she moved. The Applicant did not bring a motion to change the Respondent’s access until after she moved and took the children out of the school they were attending in Barrie and enrolled them in a school in Fenelon Falls. It is the Respondent’s position that the Applicant is in breach of the final order namely, para. 2 in that she changed the residence of the children without a court order or without the consent of the Respondent more than 80 kilometres from Barrie. The final order has not been varied or appealed. There has been no case conference. The Applicant improperly moved the children more than 80 kilometres from Barrie. The Respondent states the distance is 108 kilometres. The Applicant should comply with the terms of the final order and return the children to a residence which is less than 80 kilometres from Barrie.

Response of the Applicant

[13] The Applicant in response says that Fenelon Falls is not more than 80 kilometres from Barrie but is approximately 78 kilometres from Barrie. The Applicant has utilized a measurement by drawing a straight line between Barrie and Fenelon Falls. In effect, the Applicant has drawn a line over Lake Simcoe to come to her calculation that the distance between Fenelon Falls and Barrie is less than 80 kilometres.

Legal Principles

Motion Before a Case Conference

[14] Rule 14(4) of the Family Law Rules mandates that no motion or supporting evidence may be served and a motion may not be heard before a case conference has been completed dealing with the substantive issues in the case.

[15] Rule 14(4.2) of the Family Law Rules indicates that the requirement of a case conference before a motion does not apply if the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice.

Analysis

[16] The first question that must be answered is whether either of the motions brought by the Applicant and the Respondent fall within the exemption of Rule 14(4.2) of the Family Law Rules. In reviewing the notice of motion, affidavit and motion to change brought by the Applicant, I do not see that there is any urgency or hardship or other reason in the interests of justice that the motion brought by the Applicant should be heard before a case conference.

[17] The Applicant wishes to end the access of the Respondent as set out in the final order. Her evidence to do so is because the Respondent attended at the school of the children in Fenelon Falls, being Langton Public School, and threatened not to return the children to school. However, what is absent from the affidavit material of the Applicant in support of her motion is that she moved the children from Barrie to Fenelon Falls, notwithstanding para. 2 of the final order. The Applicant attached the final order to her affidavit but did not advise the court that she has moved outside of Barrie to Fenelon Falls. For those reasons, I do not find the motion brought by the Applicant falls within the exemption of Rule 14(4.2) of the Family Law Rules.

[18] Dealing with the motion brought by the Respondent, the motion of the Respondent is basically for the Applicant to comply with the final order. The Applicant moved the children from Barrie to Fenelon Falls without any prior warning or consent of the Respondent and without an order of this court.

[19] Given that the children have just enrolled in a school in Fenelon Falls and given that the Applicant took actions to move the children without either advising the Respondent or obtaining his consent, I do find that the Respondent’s motion falls within the exemption of Rule 14(4.2) of the Family Law Rules in that there is hardship and the issue of the residence of the children needs to be dealt with sooner rather than later in the best interests of the children and in the interests of justice. For those reasons, I will hear the motion of the Respondent.

Move From Barrie to Fenelon Falls

[20] The factual basis of this motion is not in dispute. It is not in dispute that the Applicant moved to Fenelon Falls from Barrie without a court order or without the consent of the Respondent. The issue becomes whether or not the distance between Fenelon Falls is 108 kilometres as submitted by the Respondent, or 78 kilometres as submitted by the Applicant. The difference in the distance between Fenelon Falls and Barrie is based on how one does the calculation. The Applicant has done a calculation using a direct straight line from Barrie to Fenelon Falls over Lake Simcoe. If you take that straight line the distance is less than 78 kilometres. The Respondent has taken a measurement from Barrie to Fenelon Falls by car using the highway to drive around Lake Simcoe. If you use that calculation, the distance is 108 kilometres one-way. It is the position of the Applicant that the final order is not clear on how the 80 kilometres is calculated. I do not agree with the position of the Applicant.

[21] It is clear to me that Justice Nelson in his order dealing with 80 kilometres, intended that it was 80 kilometres by transportation in the usual way, by vehicle. I base my conclusion on common sense and further we are dealing with access and transportation of children for access. The usual way to do such transportation is by a vehicle.

[22] Furthermore, if the Applicant was unsure of the meaning of the 80 kilometres as stated in the final order, she had a variety of ways to deal with this. She could have brought a motion requesting some form of interpretation of the final order. She could have sent a letter or email sent to the Respondent or the Respondent’s lawyer advising him of her intention to move to Fenelon Falls and tried to obtain an agreement of whether it falls within the 80 kilometres or not.

[23] The Applicant took none of these actions. I infer that the reason the Applicant did not take any of these actions is because she was well aware that Fenelon Falls is more than 80 kilometres from Barrie by vehicle and did not want to advise the Respondent that she intended to move to Fenelon Falls, in non-compliance of the final order. In effect, I find that the actions of the Applicant were calculated with respect to her intention to move to Fenelon Falls notwithstanding the access of the Respondent and further notwithstanding the terms of the final order.

Disposition

[24] Given that the Applicant has moved the residence of the children more than 80 kilometres from the City of Barrie, the next step is to determine what should be done due to the actions of the Applicant. My concern is with the best interests of the children. This court is loath to have the children move once again, however, this Court cannot condone actions by a party in contravention of a court order. The importance of compliance with court orders, especially in family law, was highlighted by Justice Blair when he stated:

…No society which believes in a system of even-handed justice can permit its members to ignore, disobey or defy its laws and its court orders at their whim because in their own particular view it is right to do so. A society countenances such conduct is a society tottering on the precipice of disorder and injustice.[^1]

[25] Accordingly, the actions of the Applicant in moving outside the 80 kilometre zone as set out in the final order cannot be condoned, notwithstanding that the children will have to move again.

[26] Having said that the actions of the Applicant cannot be condoned, she does have sole custody as per the final order.

[27] I therefore make a temporary order that:

(a) The Applicant shall comply with paragraph 2 of the final order and return the residence of the children to less than 80 kilometres from the City of Barrie.

(b) The final order makes no reference as to where the children shall attend school and I make no finding on which school the children should attend.

(c) That a case conference be held immediately on the issues of the motion to change of the Applicant.

(d) The Applicant has 30 days from the date of this decision to comply with paragraph (a) of this order, and paragraph 2 of the final order.

(e) The final order shall be complied with.

Costs

[28] If the Applicant and Respondent cannot agree on costs, I will entertain written submissions for costs. The Respondent has 14 days from the date of this decision to serve and file his written submissions for costs, and the Applicant has 14 days thereafter to serve and file her submissions. The submissions are to be no more than two pages double spaced inclusive of any cost outline, case law or offers to settle.

Sutherland J.

Date: October 19, 2015

[^1]: Surgeoner v. Surgeoner (1991), 6 C.P.C. (3d) 318, 1991 CarswellOnt 465 (Ont. Div.) para. 5.