Court File and Parties

CITATION: Teague v. Violante, 2016 ONSC 1402

COURT FILE NO.: FD295/11-01

DATE: 2016/02/26

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: Sheena Icoma Teague, Applicant

AND:

Antonio Pedro Alvites Violante, Respondent

BEFORE: MITROW J.

COUNSEL: Kristine N. Jackson, for the Applicant

Bayly Guslits, for the Respondent

HEARD: February 17, 2016

ENDORSEMENT

[1] Each party brings a motion. The issue raised in both motions is interim mobility.

[2] The respondent father seeks an interim order requiring the applicant mother to return the children to London from Brampton. The applicant mother seeks an interim order allowing her to remain in Brampton with the children.

[3] For reasons that follow, the father’s motion is allowed; the mother’s motion is dismissed; the children are ordered returned to London.

BACKGROUND FACTS

[4] There are two children of the marriage: Tiago, age seven, and Ishmael, age four.

[5] The parties were married in 2008. They separated for the first time in 2009; they reconciled in 2010 and then separated on a final basis in January, 2011. The parties were divorced pursuant to a divorce simpliciter dated May 14, 2015.

[6] The applicant was pregnant with the youngest child at the time of the final separation. There is no dispute that at the time of the separation, the applicant moved with the youngest child to Brampton, Ontario and then relocated to London, Ontario after the eldest child was ordered returned to London.

[7] The applicant then commenced an application in this court after the final separation, and this resulted in a final order dated September 3, 2013 (“the final order”) made on consent pursuant to minutes of settlement. The final order included the following provisions relevant to the motions:

a. The applicant was awarded sole custody and primary care of both children;

b. The respondent was awarded access that included alternate weekends from Thursday at 4:30 p.m. to Sunday at 5:00 p.m. (to be extended to Monday at 5:00 p.m. if Monday was a statutory holiday; and alternate Thursdays from 4:30 p.m. overnight to Friday at 5:00 p.m.;

c. Paragraph six of the final order stated as follows regarding the issue of mobility:

“If the Applicant wishes to move with the children to a location more than 40 kilometres from a boundary of the City of London, she must give the Respondent 60 days written notice of her intention to do so and she will advise the Respondent of her new address and provide the Respondent with all information he needs to fully inform himself about the children, such as school, daycare and physician information.”

[8] The evidentiary record suggests that the parties’ past relationship has been conflictual; the respondent had been subjected to a restraining order for a period of time, and the final order included the provision in para. 4(i) allowing the parties to communicate by email about the children, and only by telephone if there was a “true medical emergency” involving one or both of the children.

[9] It is not disputed that the applicant moved the children to her parents’ residence in Brampton for the start of school in early January, 2016, after the Christmas school break.

[10] In the meantime, the applicant remained in London as she was in the midst of completing her P.S.W. program, where she was scheduled to finish in mid-February, 2016.

[11] The applicant explained that she chose to return to school in September, 2015. It was her plan to find a career to enable her to end her reliance on social assistance. The applicant explained that her parents have lived in Brampton, in the same home, for 35 years, and her father is now retired. The applicant’s sister and her family live “five minutes away” from her parents. The applicant also deposes that one of the family members is fluent in French and can assist the children in their homework. The eldest child was enrolled in a French immersion program in London; the youngest child was in junior kindergarten.

[12] It was the applicant’s plan to live with her parents as soon as she completed her educational program. The applicant deposed that she will have access to a larger job market in the Brampton area, and that her family will provide a support system to assist her in child care. It is not disputed that the respondent pays no child support. He too has a history of being on social assistance and although he has worked, it has been apparently on a somewhat sporadic basis.

[13] The respondent raises the issue that he had no formal written notice from the applicant, as required by the final order, informing the respondent of the move to Brampton and the various details as required by the final order. The respondent deposes that he was “shocked” to learn in early January, 2016 that the applicant had moved the children to Brampton and had enrolled them in school there.

[14] There was a significant issue between the parties as to whether the respondent received the written notice respecting the applicant’s proposed move.

[15] Although the applicant forwarded a registered letter in late October, 2015 to the respondent in purported compliance with the final order, including the details on timing of the proposed move to Brampton, there is no dispute that this letter was returned as unclaimed. The respondent denied receiving any notice to pick up the registered letter.

[16] After becoming aware that the letter was returned unclaimed, the applicant then sent the letter to the respondent via email to three different email addresses, that to the applicant’s knowledge, had been used in the past by the respondent; however, two of the emails “bounced back” as undeliverable; the applicant then assumed that the respondent received the third email. The respondent deposes that he no longer used the three emails; he did however, have a current active email address that he did use. It was the respondent’s evidence that he was unaware that any of those emails had been sent.

[17] There is evidence, not in dispute, that the parties generally communicated with each other by text, at least in the recent past. Both parties had attached copies of some text messages exchanged between them during October, 2015.

[18] The parties agree that mid-October, 2015, that the applicant raised with the respondent that she was planning to move to Brampton with the children. The applicant, importantly, agrees (see para. 48 of the applicant’s affidavit sworn February 8, 2016) that she did not tell the respondent that she planned to move in January, 2016; however, she deposes that she told the respondent that she would complete her program in February, 2016 and that she planned to move in with her parents in Brampton soon thereafter.

[19] The respondent agrees that a conversation took place; that the applicant raised with him the possibility of the move to Brampton; however he deposes that the conversation was general in nature, and that he was provided with no specifics as to any potential time for such a move.

[20] Although text messages were exchanged between the parties on October 18, 2015 as to potential changes to the respondent’s access to accommodate a proposed moved, it is also apparent from the respondent’s text message the next day, that the respondent did not want the children to move from London.

[21] The respondent takes the position that as he did not receive any formal written notice, that he assumed that the applicant had reconsidered moving with the children to Brampton, especially given the respondent’s text message that he was not in favour of the move.

[22] In relation to the issue of whether notice was given, the reality is this: the parties agree that the topic was broached approximately mid-October, 2015, but they disagree as to whether specific timing of the proposed move was discussed; the respondent knew that he was entitled to receive 60 days’ written notice as required by the final order; the evidence on the motion is consistent with the respondent not having received any written notice as to the proposed move to Brampton; and as soon as the respondent learned of the move, the respondent brought an emergency motion.

[23] When the respondent brought his motion, he had not yet issued a motion to change; but soon afterwards, when he retained counsel, the motion to change was issued. The applicant takes no issue with the respondent having served his emergency motion prior to the issuance of the formal motion to change.

[24] The onus is on the applicant to prove compliance with the final order. The applicant’s evidence on the motions is insufficient to establish that written notice was given to, and received, by the respondent. Although the applicant, quite properly sent a registered letter, she was also aware that the letter was returned unclaimed.

[25] In the circumstances, it is quite puzzling as to why the applicant failed to either hand the letter to the respondent (in the presence of a witness, if necessary) or why the applicant failed to send a text message to the respondent as they had been communicating via text on a fairly regular basis. It made little sense for the applicant to rely on old email addresses used previously by the respondent.

[26] The respondent’s position is that the applicant should look for jobs in London. He submits that London is the children’s home and that their friends are in London. The respondent further deposes that his mother moved from Chatham to London to be available to assist in child care. However, the applicant disputes the extent of the paternal grandmother’s involvement with the children.

[27] There is evidence from both parties that the respondent had been seeing the children more than provided in the final order, primarily as a result of assisting the applicant while she was taking her course. However, there is a dispute as to the extent of the extra time that the respondent has spent with the children.

[28] Finally, it is the respondent’s position that a move to Brampton will affect the access that he has with the children, namely that he will not be seeing the children on a mid-week basis during the school year; the respondent further submits that he can be available, or his mother can be available, if care is required for the children while they are scheduled to be with the applicant if she is not available.

DISCUSSION

[29] The law in relation to mobility summarized in Gordon v. Goertz, [1996] 2 S.C.R. 27 at para. 49. However, on a motion in relation to interim mobility, the evidentiary record, usually consisting of affidavits where some of the material evidence is in conflict, makes it impossible to carefully consider all of the factors as summarized in Gordon v. Goertz; indeed, such is the situation in the present case. The full analysis as required by Gordon v. Goertz in this case, can only be conducted by the trial judge.

[30] The first issue for determination at trial is whether the party applying for a change of custody or access can demonstrate a material change in circumstances affecting the children. The proposed move to Brampton does raise a triable issue as to whether there is a material change.

[31] In the leading interim-mobility case of Plumley v. Plumley, 1999 CarswellOnt 3503, Marshman J. summarized the guiding principles at para. 7:

It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis:

1. A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.

2. There can be compelling circumstances that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.

3. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at a trial.

[32] Further, the burden is on the parent seeking the change to prove that compelling circumstances exist to justify the move; courts are generally reluctant to allow a relocation on an interim basis, as the interim order may become a substantive factor in influencing the final decision; courts should be cautious in allowing a temporary move when material facts are in dispute: see the decision of Sherr J. in Boudreault v. Charles, 2014 ONCJ 273 (C.J.) at para. 26.

[33] I have little doubt that the respondent would have brought an emergency motion prior to the applicant moving the children to Brampton if the respondent had received the 60 days’ written notice of the proposed move as required by the final order.

[34] In considering the first factor in Plumley, I find that there is a genuine issue for trial as to whether a move should be permitted. Regarding the second factor, there are no compelling circumstances that require a move on an interim basis.

[35] Regarding the third factor, this presents the most difficulty; although the evidentiary record suggests that the applicant is more likely to succeed at trial than the respondent, I am unable to find that there is a “strong probability” that the applicant’s position will prevail at trial, given the conflicting evidence on the motions.

[36] I must consider also the fact that the children, through no fault of their own, have lived in Brampton and have gone to school there for close to two months. While I give some weight to this fact, in assessing the children’s best interests, I consider also that the move was made without compliance with the notice provision set out in the final order. The applicant cannot benefit from creating the “Brampton status quo” which would not have occurred had the respondent been given the required notice, and which would have enabled him to bring his emergency motion prior to the children being moved to Brampton.

[37] During argument the applicant’s counsel indicated that the applicant still had her residence available to her in London until the end of March, 2016; further, it was clear that if the children were ordered to return to London then the applicant would accompany the children.

[38] Since the motions were brought, it is encouraging to note that the parties have been able to work out interim access, and this includes my order dated February 19, 2016 made on consent to deal with interim access on a without prejudice basis pending the release of these reasons.

[39] Considering all of the evidence I find that it is in the children’s best interests to be returned to London. The order below provides a brief timeframe to allow the applicant to resettle the children back in London. This should occur during the March break.

[40] The parties are encouraged, strongly, to continue to explore a settlement and to avoid trial.

ORDER

[41] For reasons set out above, the following interim order shall issue:

1. The applicant’s motion is dismissed.

2. Pending the final disposition of this case, the children’s principal place of residence shall revert to, and shall remain, London, Ontario effective March 16, 2016, which is the date during the March break week that the children are to be with the respondent, pursuant to the interim order dated February 19, 2016.

3. Between the date of this Order and March 16, 2016, the children may continue to reside at their principal place of residence at Brampton, Ontario and they may go to school in Brampton, Ontario up to and including the commencement of the March break week.

4. The respondent shall have access to both children as set out in the Order dated February 19, 2016 for the period up to and including Sunday, March 20, 2016 at 5:00 p.m. Thereafter, the access schedule should be in accordance with the existing final order dated September 3, 2013.

5. The children shall be re-enrolled in the same schools that they were in prior to moving to Brampton, Ontario in January, 2016, but this Order is subject to the rules of the Thames Valley District School Board regarding the school boundaries. The applicant shall make best efforts to relocate to a residence where each child will be able to attend the same school.

6. Leave is granted nunc pro tunc to bring the motions prior to a case conference.

7. If the parties are unable to agree on costs of the motions, the respondent shall forward his written costs submissions to the trial coordinator within 14 days; the applicant shall forward her costs submissions within 14 days thereafter; and the respondent shall forward his reply submissions, if any, within seven days thereafter. The written cost submissions shall not exceed three typed pages (two typed pages for reply) plus copies of any offers, time dockets and authorities.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: February 26, 2016