NEWMARKET
COURT FILE NO.: FC-15-48381-00
DATE: 20151023
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Sofia Vinnik
Applicant
– and –
Robbie Jay Berman
Respondent
Kristy A. Maurina, for the Applicant
Steven Benmor, for the Respondent
HEARD: July 30, 2015
REASONS ON DECISION ON MOTION FOR CUSTODY ORDER, SUPPORT AND RELOCATION
SUTHERLAND J.:
Introduction
[1] On July 30, 2015, I heard a motion brought by the applicant, Sofia Vinnik (“Applicant”), along with a motion brought by the respondent, Robbie Jay Berman (“Respondent”). In my endorsement dated August 5, 2015, I provided my decision with respect to both motions and I indicated that reasons for my decision would follow. Below are my reasons.
Background
[2] The Applicant and the Respondent were married on June 30, 2002. They separated on August 31, 2009. They have one child of their marriage, namely Dayle Nomi Berman born October 3, 2004 (“Dayle”), who is ten years of age.
[3] The Applicant re-partnered in 2009. The Applicant’s new partner’s name is Jonathan Duschinsky (“Jon”). Jon and the Applicant have a child of their relationship, namely Mila Vinnik-Duschinsky (“Mila”).
[4] Since the separation of the Applicant and the Respondent, no separation agreement was entered into and there is no court order dealing with the issues of custody, access, child support, mobility, or residence. To their credit, the Applicant and the Respondent have been able to deal with the issues without a formal separation agreement or court order.
[5] The issue of relocation became relevant due to the unforeseen event that the residence of the Applicant and Jon, a rental property, was sold by the landlord. Accordingly, Jon, the Applicant, Dayle and Mila had to vacate the property on or before May 31, 2015. It is this triggering event that caused Jon and the Applicant to decide where they wished to live with their family and what is in the best interest of Dayle and Mila.
[6] It is also not disputed that Dayle attends Toronto Waldorf School, a private school located in Richmond Hill, Ontario. The tuition for this private school in the approximate amount of $18,000 is paid by Jon. The Respondent pays $250 per month in child support plus $200 for payment of past section 7 expenses.
[7] The Respondent is a self-employed chiropractor. He resides in a home in Richmond Hill with his father and brother.
[8] The Applicant and Respondent agreed on an access schedule which was a three week rotation schedule, as follows:
(a) Week 1: Saturday from 1:30 p.m. to Monday morning return to school;
(b) Week 2: Friday after school to Sunday at 4:00 p.m. Tuesday evening overnight;
(c) Week 3: Tuesday evening overnight where Dayle spends her weekend with the Applicant, Jon and Mila.
[9] The Applicant has requested to relocate Dayle to Guelph, Ontario from Richmond Hill, Ontario.
[10] There are numerous reasons why the Applicant and her partner, Jon, decided to move to Guelph, Ontario. The Applicant has put forth reasons which include the cost of living and the cost of private school, being a similar private school in Guelph known as Trillium Waldorf School which has a tuition that is substantially less than the tuition at Toronto Waldorf. There is a Waldorf School community and friends that the Applicant and her family including Dayle, have in the Guelph area, and Jon has business opportunities in Guelph with the University of Guelph. Jon is in the agricultural business specifically nutrient recycling technology. The company in which Jon is a partner is raising $20,000,000 in capital to construct a colony built facility with a number of factories. The first of such colony built facility and factories are being developed in partnership with the City of Guelph and the University of Guelph.
[11] The Applicant and her family are residing with friends. They did not move to Guelph. They were, in effect, living out of “suitcases” until this court has had an opportunity to adjudicate the issues of the motions.
Issues
[12] The issues presented from the motions of the Applicant and the Respondent are as follows:
(a) On an interim basis should the Applicant be able relocate Dayle to Guelph, Ontario?
(b) If so, is there any change in the parenting schedule agreed upon between the Applicant and Respondent?
(c) Should Dayle’s primary residence be with the Applicant?
(d) Should the Applicant be permitted to register Dayle in the Trillium Waldorf School in Guelph, Ontario?
(e) Should there be an order for interim sole custody in favour of the Applicant or the Respondent?
(f) Should an order for child support based on an imputed income of the Respondent in the amount of $50,000, without prejudice to either party be granted?
(g) Should an order that the Respondent should contribute to Dayle’s section 7 expenses including private school tuition be granted?
(h) Should an order that the Applicant deliver complete answers and financial records as set out in the Respondent’s request for information dated June 24, 2015 be granted? and
(i) Should an order severing the issue of divorce from the corollary relief issues be granted?
Relocation to Guelph, Ontario
Position of the Parties
[13] The Applicant takes the position that she is in fact the custodial parent and the primary parent for Dayle. The request for relocation is not an attempt to frustrate in any way the relationship with Dayle and the Respondent. The Applicant has put forth that she and her partner, Jon, will assist in any transportation of Dayle to and from the Respondent’s home. The Applicant also offered a “room” in her house in Guelph for the Respondent to sleep overnight if that would facilitate and ease the difficulty in travelling from Guelph to Richmond Hill.
[14] The Respondent’s position is that the court cannot determine on a motion whether it is in the best interest of Dayle to move to Guelph. The Respondent puts forth the position that in order to do so a trial must take place where the court is able to review all the evidence, being oral testimony and a parental assessment through either a private assessor or the Office of the Children’s Lawyer (“OCL”). The Respondent also takes the position that there has been no questioning on the material and that the court, only on the basis of the affidavit material filed on these motions, cannot make a determination on whether or not the Applicant can relocate to Guelph with Dayle.
Legal Principles
Relocation
[15] In determining whether there should be a relocation of the residence of Dayle, the statutory authority to be reviewed is Section 24(11) of the Children’s Law Reform Act[^1] and the leading case from the Supreme Court of Canada of Gordon v. Goertz[^2]. In that decision, the court held at para. 49:
49 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.
[16] The ultimate consideration of the court is the best interests of the child. In reviewing the best interests of the child, the court can take into consideration the maximum contact principle[^3]. The court can also take into consideration: the distance of the move, the financial benefit of the move to the family, whether the move will likely be ordered after a trial, the financial security the move may create, the quality of the “custodial” parent’s emotional, psychological, social and economic well-being, and the quality of the child’s primary caregiving environment.[^4] and [^5]
Interim Relocation/Mobility Orders
[17] When an interim order is seeking a change in mobility or relocation, the court is very cautious in granting such an order. The court will consider, generally speaking, the following factors before granting the order:
(a) The reluctance to upset the status quo on an interim basis and permit the move where there is a genuine issue for trial;
(b) There be compelling circumstances which might dictate the court to allow the move on an interim basis;
(c) Even if there is a genuine issue for trial, a move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at trial.[^6]
[18] There are cases where the court has held that an order for an interim order to permit a move or relocation is not granted. There are cases where the court has found that the facts presented to the court in that particular case were not compelling for a court to grant such an order on an interim basis without hearing viva voce evidence through a trial.[^7]
[19] In contrast, there are cases where the court has allowed an interim move based on the best interests of the child and determining that the evidence presented at that motion were compelling circumstances where the court can make an interim finding that it is in the best interests of the child to allow such a move.[^8]
[20] In each of these cases, the court looked at the factual basis of each case to determine whether or not there was or was not compelling reasons to provide an interim order for relocation or mobility. There is no “hard and fast” rule that prohibits a court from an order on an interim basis granting a change in the residence or relocation of the parent and the child(ren). Each case must be determined on the facts of that case, with the paramount test always being the “best interests” of the child.
Analysis
[21] There is no pre-existing court order or Separation Agreement in the circumstances of this case, and therefore I find there is no requirement to find a material change of circumstance.
[22] The Respondent urges this court to make a finding that the evidence provided is not compelling for this court to make an interim order for the relocation or mobility of Dayle. The Respondent also urges the OCL should be appointed to provide the court with the wishes of Dayle before a court can make a decision on the best interests of Dayle. The Respondent, however, has not brought a motion requesting that an OCL lawyer be appointed. Notwithstanding the fact that the Respondent has not brought a motion to request the appointment of the OCL, I do not agree with the Respondent’s submission that the court does not have ample evidence through affidavits before it, to make a determination on an interim basis of the relocation of Dayle.
[23] Having reviewed the material provided on both these motions, I do find that there is ample evidence from the court to determine the best interests of Dayle. I also find that there are compelling circumstances for which an interim order ought to be made. These include:
(a) The Applicant and her family do not have a residence at this time and have been living “out of suitcases” through the generosity of friends;
(b) The move will provide financial stability and financial benefits to the Applicant and her family;
(c) The Waldorf School in Richmond Hill which Dayle is presently attending, has a campus in Guelph with the same school atmosphere that Dayle has experience with and is comfortable with, at a substantial decrease in tuition;
(d) The access in which the Respondent has with Dayle will be largely unchanged;
(e) The Applicant has agreed to accommodate the Respondent with respect to extra transportation costs and effort from Richmond Hill to Guelph had has agreed to take on a large portion of the driving, if necessary.
(f) The standard of living for the Applicant’s family including Dayle will be better in Guelph than in Richmond Hill;
(g) The disruption for the move for Dayle would be minimal, given the familiarity that Dayle has with the Waldorf School in Guelph and she already has friends and attachments with attendees at the Waldorf School in Guelph;
(h) The Applicant and her family will be in a better financial position and will be “happier” which will benefit Dayle.
[24] In reviewing the Respondent’s objections to the move, I find that the Respondent’s objections were not oriented to the best interests of Dayle per se, but were for more in his own personal best interests. The Respondent was more concerned with contact with Dayle due to his travelling time and expense from Richmond Hill to Guelph. The Respondent argues that the distance of the move from Richmond Hill to Guelph is significant. Further, the Respondent submits that if a consideration for the move is that private school costs would be less expensive in Richmond Hill, then Dayle should attend a public school. Again, the submissions put forth by the Respondent, I do not find, were Dayle centred, but more centred to the Respondent’s own wishes and needs.
[25] The Respondent also made an issue with respect to the distance between Richmond Hill and Guelph. The Respondent put forth that the travel distance is approximately one hundred and eight kilometres from the residence of the Respondent to Trillium Waldorf School, which would take approximately ninety minutes one way as opposed to the approximately twenty four minutes one way it takes for the Respondent to leave from his home to the former Richmond Hill home of the Applicant. The evidence put forth by the Respondent is that it is approximately twenty minutes utilizing the 407 ETR.
[26] In contrast, the travel distance from the Respondent’s home to that of Trillium Waldorf School in Guelph using Highway 401 is one hour and twenty-seven minutes one way. However, if using the 407 ETR highway, the Applicant has put forth that it is approximately fifty-seven minutes one way.
[27] In living the Greater Toronto Area (“GTA”), I do not find that travelling approximately ninety minutes from one part of the GTA to another part of the GTA as being excessive or significant. Thus, travelling ninety minutes to travel to Guelph, I do not find as being excessive or significant. Travelling ninety kilometres if utilizing the 407 ETR, or one hundred and twenty-three kilometres if utilizing Highway 401, is not, in my opinion, significant or excessive in itself to warrant a refusal to allow relocation.
[28] I also find that there is no need to appoint the OCL to determine the “wishes” of Dayle. I find that it is not in the best interests of Dayle to have this motion effectively delayed for several months to request the appointment of the OCL, and if the OCL lawyer accepts the appointment, to investigate and report back to this court is time-intensive. To allow such a delay, Dayle would be living in a temporary residence with the family and would be living out of “suitcases” for a period of time until that temporary residence has been obtained. This type of living arrangement and delay, I do not find to be in the best interests of Dayle.
[29] I therefore find that it is in Dayle’s best interest, to relocate with the Applicant and the family to Guelph. The parenting time that the Respondent will have with Dayle will be affected minimally, basically the elimination of mid-week evening access. The Respondent’s weekend access will not be limited or eliminated. The Respondent’s loss of mid-week access can be made up through a slight changing of the parenting schedule by providing him more access during holidays, summers and through parenting development days. Accordingly, I do find that the Applicant’s motion is less to do about relocation or mobility for Dayle and more to do about arranging the parenting schedule to maximize the Respondent’s time with Dayle and compensate the Respondent’s loss of mid-week access. The Respondent will not lose, in any significant way, his ability to have access to Dayle. His parental relationship with Dayle will not be affected significantly and Dayle will not lose her relationship with the Respondent because of the relocation. Given the distance involved in this relocation, the added transportation of the Respondent to see Dayle is not a significant factor in these circumstances, in my opinion, in determining that the relocation to Guelph should not be permitted.[^9]
Support
[30] The Applicant in her motion is requesting the court to make a temporary order imputing income in the amount of $50,000 against the Respondent, an order for child support, an order that the Respondent contribute to section 7 expenses of Dayle, which include “her private school tuition and related fees, without prejudice to the Applicant’s claims in this matter.”
[31] Pursuant to Section 19 of the Federal Child Support Guidelines^10, a court can impute income to a payor spouse. Section 15.1(2) of the Divorce Act[^11] provides the court with the authority to make an interim order requiring a spouse to pay child support for a child of the marriage in accordance with the Federal Child Support Guidelines.
[32] Section 7 of the Federal Child Support Guidelines also provides the court with authority to order a spouse to pay all or any proportion of a child’s special and extraordinary expenses taking into account the necessity of the expense and the reasonableness of the expense.
[33] However, before the court on a temporary basis makes an order for child support or the payment of section 7 expenses, it should have, as best as possible on a motion, full evidence which the court can utilize in making such an order for child support or section 7 expenses. If there is financial disclosure that has not been fully exchanged, though requested, a court may be reluctant to make an order for support without that disclosure being provided.
[34] In the circumstances of this case, the Respondent has requested through a request for information, financial disclosure from the Applicant. Not all the requests for financial disclosure have been answered. As the Respondent points out, there is financial information in the requests requested from the Applicant that are pertinent for the court in order to make a determination, on a temporary basis, an amount for child and spousal support. Furthermore, the parties have been living, without much disagreement, on the amounts that the Respondent has been paying for child support and contributions to section 7 expenses.
[35] Given the request for information by the Respondent and the further financial disclosure required, I am not satisfied at this junction that I can make an appropriate order for child support or the imputation of income without the financial disclosure requested by the Respondent being provided.
[36] Therefore, I will not be making a temporary order for child support or the section 7 expenses requested by the Applicant. I am adjourning those portions of the Applicant’s motion sine die returnable on ten days’ notice after financial disclosure has been answered. If there is a dispute concerning what financial disclosure items as requested by the Respondent in the request for information dated June 24, 2015 have been or have not been answered, the Respondent may bring a motion dealing with those specific issues back to court on ten days’ notice.
Disposition
[37] My disposition with respect to the motion brought by the Applicant and the motion by the Respondent is as set out in my endorsement on the record dated August 5, 2015.
Costs
[38] If the parties cannot agree on costs, I will accept written submission for costs. The Applicant to provide her written submissions within fourteen days from the date of this order. The Respondent will have fourteen days thereafter to serve and file his response. The submissions shall be no more than three pages in length double-spaced excluding any costs outline, case law or offers to settle.
“Sutherland J.”
Justice P.W. Sutherland
Released: October 23, 2015
[^1]: R.S.O. 1990, c. C. 12
[^2]: 1996 191 (SCC), [1996] 2 S.C.R. 27
[^3]: See: Berry v. Berry, 2011 ONCA 705
[^4]: See: Berry v. Berry, supra; Bjornson v. Creighton, 2002 45125 (ON CA); Drury v. Drury, 2006 CarswellOnt 1233 (S.C.J.); McCluskey v. Stewart, 2015 ONSC No. 5257; Knapp v. Munro, 2015 ONSC No. 5444
[^5]: In Canada, the only common law province that has a statute that deals with relocation is British Columbia namely the Family Law Act, SBC 2011, c 25, section 65. In the United States, states such as Florida, Michigan and Maine also have legislation that deal with relocation of children. While other states such as Massachusetts, Maine and New Jersey only have the Courts get involved in relocation when the children and the parent wish to leave the state. The United Kingdom has the Children Act 1989, (UK) c. 41 that governs the relocation of children. The best interest of the child is the paramount consideration in all the jurisdictions. Although, some of the jurisdictions listed, including Australia, do allow relocation without approval within a certain geographical area.
[^6]: See: Plumley v. Plumley, 1999 13990 (ON SC)
[^7]: See: Datars v. Graham, 2007 CarswellOnt 5257 (S.C.J.)
[^8]: See: MacDonald v. MacDonald, 2006 CarswellOnt 1755 (S.C.J.); Florinski v. Florinski, 2008 CarswellOnt 5309 (S.C.J.); Baxter v. Cameron, 2010 CarswellOnt 5946 (S.C.J.); Yousuf v. Shoaib, 2007 CarswellOnt 113 (S.C.J.); McCluskey v. Stewart, supra; Knapp v. Munro, supra; Plumley, supra; MacKenzie v. Newby, 2013 CarswellOnt 14030 (Ont. C.J.)
[^9]: The issue of distance has been discussed in Ligate v. Richardson, 1997 650 (ON CA), [1997] O.J. No. 2519 (C.A.) and in Roth v. Carruthers, 2000 22429 (ON SC), [2000] O.J. No. 5013 (S.C.J.)