Mohr v. Sweeney, 2016 ONSC 2248

CITATION: Mohr v. Sweeney, 2016 ONSC 2248

NEWMARKET COURT FILE NO.: FC-15-49040-00

DATE: 20160401

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Seon Mohr Applicant

– and –

Michelle Noreen Sweeney Respondent

Veena Pohani, for the Applicant

Carolyn J. Lloyd, for the Respondent

HEARD: March 9, 2016

RULING ON MOTION

MCGEE J.

Introduction

[1] The applicant, Mr. Seon Mohr (the “father” or “Mr. Mohr”) and the respondent Ms. Michelle Noreen Sweeney (the “mother” or “Ms. Sweeney”) are first time parents under difficult circumstances. They are in their forties, live in different cities and have almost nothing in common. Their brief relationship had already ended by the time their pregnancy was discovered.

[2] The one thing they share is a commitment to their infant daughter (“E.”) born […], 2015.

[3] The parents will need to make many decisions over the next two decades. This motion and counter motion has placed before the court the questions of venue, temporary custody and a parenting schedule.

Background

[4] Mr. Mohr issued this application in the Newmarket Superior Court of Justice on August 25, 2015. He did not list his address on the style of cause. It is agreed that he was, and continues to reside in his mother’s home in Markham, within the jurisdiction served by the Newmarket court. He listed Ms. Sweeney’s address as a home in Stouffville that was in the process of being listed for sale. The sale of that home closed October 30, 2015.

[5] An Answer to the Application was filed in Newmarket. Both parties completed their Mandatory Information Programs in that region. Throughout, Ms. Sweeney asserted that the proper jurisdiction was London, Ontario. She had been transitionally residing with her parents in London during the months of April, May and June. She moved into their house on a permanent basis in July 2015.

[6] In August of 2015 Mr. Mohr was seeing his daughter three to four times a week in the play area of a London shopping mall. The mother felt strongly that these early visits ought to occur in a public venue. Throughout the visits the father has demonstrated a remarkable and impressive commitment to his daughter. Each visit was on top of a four to five hour round trip from Markham. That pattern of visits continues to the present, with some modifications.

[7] The mother’s residence in London appears to be long term. It is where she grew up. Her extended family, friends and community are in London. She will continue to rely on the assistance of her parents. She has no comparable support network in York Region. Her Toronto based employment with the federal government, and the search for affordable housing had originally landed her in Stouffville. That employment, from which she is presently on an extended maternity leave, has now been transferred to London.

[8] The father’s residence has always been centred in York Region. He is between contracts in a challenging industry. His August 24, 2015 Financial Statement indicates that he has been unemployed since April 2014. He states that his mother’s financial support and his savings have seen him through this difficult period.

Venue

[9] Subrule 5(1) (b) of the Family Law Rules[^1] requires cases dealing with custody of, or access to a child to be commenced in the municipality in which the child ordinarily resides. It is to be contrasted with a motion for the transfer of a case under subrule 5(8) which requires the court to assess convenience.

[10] When a child is primarily resident with one parent, that parent’s home is the child’s primary residence for the purposes of deciding where the application is to issue, even though the other parent has access.[^2] Where an application is started does not ultimately decide a child’s primary residence if contested by the non-residential parent, only where the case is to be heard.

[11] It is not contested that the parties’ daughter has been primarily resident since birth with the mother. She has never been in the primary care of her father.

[12] When a proceeding has been improperly commenced in a municipality other than the one in which the child is ordinarily resident, the remedy is for the court to transfer the proceeding to the municipality where the child ordinarily resides.[^3]

[13] There are good policy reasons for subrule 5(1) (9). Foremost is the focus on the child, rather than the parent. Second is the legal reality that one parent cannot constrain by court order the residence of the other parent. Neither a residential, nor a non-residential parent can be compelled to maintain a residence close to the child, or to move that residence away.[^4]

[14] Analogous to mobility cases, courts can only bind the residence of a child, although it is acknowledged that in doing so, both the residential and the non-residential parent may be consequentially constrained, given their role in their child’s life.

[15] This application was issued after the residence of the parties infant daughter’s was well settled in London. It is arguable that the child was never resident in York Region. She was born in Toronto on […], 2015, spent her first few weeks in her mother’s Stouffville home under the care of her maternal grandmother, and then, when her mother was well enough to travel, spent the majority of her time in London.

[16] I find that this application was improperly commenced in York Region. I order that the herein proceeding in the Superior Court of Justice, Newmarket, Ontario, Court File No. FC-15-049040-00, be transferred to the Superior Court of Justice, Family Court, in London, Ontario.

[17] Having so decided, it is unnecessary to consider a transfer pursuant to section 5(8.)

Temporary Custody

[18] Custody orders primarily determine how all, or certain parenting decisions are to be made. Temporary awards of custody should be approached cautiously,[^5] and in accordance with the child’s best interests, pursuant to the factors set out in section 24 of the Children’s Law Reform Act[^6].

[19] No one factor is determinative, but certain may take on greater weight when the parents have never lived, or parented together.

[20] The mother relates her experiences with the father as “threatening, intimidating and controlling.” She seeks an order for temporary sole custody. She does not believe that joint custody is possible.

[21] The mother’s affidavit sets out a number of concerning events during her stay in hospital. It was a difficult birth, with a significant recovery period. She states that the father told hospital staff that she had mental health issues, was abusive, had been incarcerated and was on antipsychotic medication. She believes that he asked the hospital to investigate. A Children’s Aid Society caseworker was contacted.

[22] The mother’s psychiatrist intervened on her behalf. She and the baby were released from the hospital without further incident, or apparently, concern. The mother continues to receive voluntary care for minor depression. The Society investigated the allegations, verified no concerns and closed their file.

[23] The father denies that he maligned the mother in hospital. He deposes that, “[t]he mother was high risk and likely told staff about her psychiatric issues.”

[24] The father relates his view of the mother as “demanding, controlling and unreasonable.” He claims that the move to London was surreptitious and designed to remove him from his daughter’s life. In his March 5, 2016 he lists excuses that he states the mother has “concocted” to deprive him of access. He believes that she “is planning something sinister.”

[25] At the same time, he argues that this is not a high conflict case, and that the parties are able to communicate by email in a civil fashion. He asks for an order for joint custody to make certain that he is not excluded from his daughter’s life.

[26] The parties agree that the hospital requested that the father care for the mother and their daughter for the two weeks post-partum. The mother states that the father refused. The father disagrees.

[27] The father did not provide post-partum care. The mother arranged for a friend to come, followed by her mother. During that initial period it became clear to the mother that she had no supports in York Region.

[28] Lengthy portions of the parties’ respective affidavits contradict one another, but I find that two observations are consistent: the parties did not have a stable dating relationship, and the parenting relationship has been unusually difficult.

[29] The best interests of very young children are usually best served by stable custody and access arrangements, and the formation of strong relationships with both parents.[^7] Joint custody should not be awarded when there is no evidence of historical co-operation and effective communication between the parents, nor should joint custody be awarded in the hope that it would improve the communication and parenting skills of the parties.[^8] When a child is so young that she cannot communicate her developmental needs, communication between the parents is even more important.[^9]

[30] There was little evidence tendered on this motion, but for certain limited email exchanges, that the parties are able to effectively communicate. There is a significant distance between their homes. Infant care can involve many service providers who require a custodial parent’s consent.

[31] The mother is the primary parent, and has de facto made all parenting decisions to date. The factors set out in subsections 24(2) (c) and (f) of The Children’s Law Reform Act direct the court’s attention to the stability and continuity of a child’s care. The evidence on this motion persuades me that the mother is genuine in her intention to foster and protect their daughter’s relationship with her father.

[32] Although I remain optimistic for the future, the parents’ past dealings have been challenging. There may well be important medical and health decisions to be made at this early stage that could be delayed or frustrated by an award of joint custody, or the absence of any award. I am satisfied that in these unusual circumstances, a temporary order for custody to the mother is appropriate.

[33] I make the order of temporary custody with a caution. This is a temporary order based on the present record of a problematic parenting relationship. The father’s, his mother’s and the extended paternal family’s commitment to E. is undisputed. The father is encouraged to extend the positive approach seen in some of his personal emails, to all his actions, and his materials before the court.

[34] This temporary order does not preclude an order at trial for joint custody or parallel parenting. The mother must take care to consult on any parenting decisions of significance, seek flexible solutions, and be open to the prospect of positive co-parenting.

Parenting Plan

[35] I thank counsels for forwarding specific parenting plan proposals. I have taken some time to consider the proposals.

[36] During submissions, the parties set out agreements on travel arrangements, that breast milk be expressed for extended visits and that communications between the parents be primarily electronic. It is clear that both parents and their extended families recognize the limits of the present schedules. It is time to progress the father’s parenting time to include overnights in his home. There is no benefit to E. in delaying. Overnights are a vital component in the development of strong parent-child bonds.[^10]

[37] The overnight periods should include opportunities to also bond with paternal grandparents and extended family members, and allow for recovery periods following lengthy travel. Travel should be timed as much as possible during napping periods.

Order

[38] I make the following temporary order.

Wednesdays

(a) Commencing Wednesday, April 6, 2016 and every Wednesday thereafter, the father shall care for E. from 11:30 a.m. until 5:30 p.m. subject to his obtaining employment at which time it shall occur from 6:00 to 8:30 p.m.

First Overnight

(b) On Saturday, April 16, 2016, the parties will meet in Cambridge, Ontario[^11] at 2:00 p.m. and E. shall be transferred to her father’s vehicle. She shall continue in his care until Sunday, April 17, 2016 when the parties again meet in Cambridge and she is transferred to her mother’s vehicle at 2:00 p.m.

Start of Alternate Weekends

(c) On Friday, April 29, 2016, and every alternate weekend up to and including Father’s Day, the parties will meet in Cambridge, Ontario at 2:00 p.m. and E. shall be transferred to her father’s vehicle. She shall continue in his care until the Sunday, when the parties again meet in Cambridge and she is transferred to her mother’s vehicle at 2:00 p.m.; but for June 19th (Father’s Day) when she will return the next day (Monday) at 2:00 p.m.

Extension of Alternate Weekends to Start on Thursday

(d) On Thursday, June 30th, 2016, and every alternate weekend until further agreement or court order, the parties will meet in Cambridge, Ontario at 2:00 p.m. and E. shall be transferred to her father’s vehicle. She shall continue in his care until the Sunday, when the parties again meet in Cambridge and she is transferred to her mother’s vehicle at 2:00 p.m.

Additional Terms

(e) Should any return date precede a holiday Monday, the transfer shall take place at 2:00 p.m. on the Monday, rather than the Sunday. (For example the August 1st Civic Holiday.)

(f) Each parent may designate an alternate driver, to be communicated in writing at least 48 hours before an exchange.

(g) If either parent is to be more than 15 minutes late, he or she is to phone or text the other parent promptly.

Summer Holidays

(h) Each parent shall have a full, uninterrupted week with E. for summer holidays during a week in August, to be advised by May 13, 2016.

Electronic Access

(i) In addition to the above schedule, E. shall have Facetime, Skype, or other visual time with her father for 20 minutes every Tuesday evening following a weekend with her father, and every Thursday evening preceding a weekend.

Communications Book

(j) The parties’ communication shall be primarily electronic. In addition, the mother shall prepare a communication book to travel with E. The book will set out her schedule, meal preferences, and any relevant health and medical information. Any comments concerning E.’s wellbeing can be recorded in the book. The father will add to the book while E is in his care, also noting any items of relevance to E.’s care. Both parents are encouraged, but not required to include notes on special experiences, including pictures. Both parents shall keep comments in this book in a positive, loving fashion, so that it might someday be a keepsake for E. The communication book shall be evidence in this proceeding.

Exchange of Items

(k) Should the mother wish to send expressed breast milk with E. she is to purchase a cooler and any necessary items to transfer to the father. He shall keep the equipment in good care and return it on the Sunday. For any other supplies, the father is to be self-sufficient. The mother may wish to send a list of recommended items by April 8th to assist the father.

Review and Adjustments

(l) The pick-up and drop-off times can be further reviewed and adjusted, if necessary, upon the father securing employment, and/or the mother returning to work.

(m) The parents may agree to further and other times with at least 24 hours’ notice.

Costs

[39] Counsels are to attempt to resolve the issue of costs. If they are unable to do so, submissions are to be filed by April 22, 2016, with any responding submissions to be filed by May 6, 2016. Submissions shall be limited to three pages, exclusive of a Bill of Costs and copies of any Offers to Settle. Submissions are to be filed by 14B Motion to my attention within the Continuing Record. The file is not to be transferred to London before a decision on costs is rendered, until no costs are sought, or costs are agreed.

Justice H.A. McGee

Released: April 1, 2016

[^1]: O. Reg. 114/99, as amended [^2]: Andrews v. Andrews, 1988 5603 (ON SC), [1988] O.J. No. 2782 (Ont. Dist. Ct.) and Autio v. Lariviere, 2002 61228 [^3]: See above references and A.A.B. v A.P.J., 2012 ONCJ 546 [^4]: Not to be confused with orders restraining a person under section 35 of the Children’s Law Reform Act or section 46 of the Family Law Act, R.S.O. 1990, c. F.3 [^5]: For an excellent and comprehensive summary of why temporary custody should be approached cautiously, see paragraph 25 of Justice Pazaratz’s reasons in Coe v. Tope, 2014 ONSC 4002 [^6]: R.S.O. 1990, c. C.12 [^7]: G.(D.) v F.(A.) 2014 ONCA 436 [^8]: Ibid [^9]: Kaplanis v Kaplanis, 2005 1625 (ON CA), [2005] O.J. No. 275 (OCA) [^10]: Stewart v. Abedi, 2015 ONSC 1870; Heuss v. Surkos, 2004 CarswellOnt 3517 [^11]: I understood from counsels that a specific location is already in use.