Court File and Parties
COURT FILE NO.: 50469/15 DATE: 2016-07-13 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: TYSON DANIEL SCHLEGAL, Applicant AND: MISTY ELIZABETH SCHLEGAL, Respondent
BEFORE: The Honourable Mr. Justice D.A. Broad
COUNSEL: Stanley P. Jaskot, for the Applicant Stephen Grant and Erin F. Crawford, for the Respondent
HEARD: June 29, 2016
Endorsement
Background
[1] The parties were married on November 21, 2009. They disagree on the date of separation. The applicant (husband) says that they separated on December 26, 2014 while the respondent (wife) says that they separated on April 20, 2015.
[2] The parties have two young children, Elle Marie Schlegel born July 8, 2010 (currently 6 years of age) and Luke Daniel Schlegel born June 8, 2012 (currently 4 years of age).
[3] Pursuant to a motion brought by the applicant on an urgent basis, prior to a case conference, Justice Sloan ordered on an “interim, interim, without prejudice” basis, inter alia, as follows:
(a) The respondent shall have custody of the children; (b) The residence of the children shall be in the Regional Municipality of Waterloo; (c) The children shall attend the KW Bilingual School in Waterloo; (d) The respondent shall have exclusive possession of the former matrimonial home in St. Clement’s Ontario; (e) The applicant shall have access to the children each Wednesday from 3:30 p.m. to 7:00 p.m. and alternate weekends from Saturday at 9:00 a.m. to Sunday at 7:00 p.m.; and (f) The parties shall utilize the “Our Family Wizard” software to communicate regarding all aspects of the children’s lives.
[4] By consent Order dated March 9, 2016 the applicant agreed to pay to the respondent interim child support in the amount of $6,000.00 per month, interim spousal support in the amount of $13,700.00 per month and interim disbursements in the sum of $75,000.00
[5] Following separation in the spring of 2015 the applicant purchased a commercial/residential condominium in Waterloo. In January, 2016 he purchased a new home in Kitchener, backing onto the Westmount golf-course which is currently being renovated for his use. He anticipates moving into this new home in July or August 2016. The parties have entered into an agreement of purchase and sale for the sale of the former matrimonial home in St. Clement’s. The closing date is scheduled for July 27, 2016. The respondent will have to move out of the former matrimonial home by that date.
Nature of Motions
[6] The respondent has brought a motion seeking:
(a) a temporary and permanent order permitting her to move with the children from the Region of Waterloo to the City of Oakville in the Region of Halton; (b) an order that the children attend Fern Hill School, Burlington, Ontario, or in the alternative, the Rotherglen School, Oakville Ontario, commencing the 2016/17 academic year; (c) that the applicant contribute his proportionate share of the children’s tuition and other school fees; and (d) if the order is granted in paragraphs (a) and (b), the children’s residential schedule be amended to permit access to the applicant from Friday at 5:00 p.m. to Sunday at 7:00 p.m. and that a detailed holiday schedule be implemented.
[7] The applicant has brought a cross-motion seeking:
(a) dismissal of the respondent’s motion for leave to re-locate to Halton Region with the children; (b) a temporary order expanding his regular weekly access schedule to alternating weekends from Friday pick-up at school (or 4:00 p.m. if the children are not in school) until drop-off at school on Monday morning (or 9:00 a.m. if the children are not in school) and every Wednesday from pick-up at school until drop-off at school on Thursday morning; and (c) a detailed holiday schedule.
Position of the Respondent on Relocation Proposal
[8] The respondent argues that, both before and after separation, she has been the primary parent to the children. She gave up a successful career as a pediatric nurse to get married and have children which allowed the applicant to focus on his successful business consisting of a number of agricultural and processing operations at various locations throughout Southern Ontario, requiring him to travel extensively for work.
[9] The respondent states that, although the children have been doing well at the KW Bilingual School, at their young ages they have not yet established long-standing friendships there nor connections to the community. She states that she has significantly greater connection to Oakville then she does to Kitchener-Waterloo. Her main support is provided by her mother and stepfather (who she considers as a parent) who reside in Oakville. At the beginning of the parties’ marriage the respondent’s mother would spend from mid-December until March in Florida, frequently returning to Oakville to see her and the children. However over the last two years her mother has not been in Florida other than on a couple of occasions for short periods of time. Her mother and her stepfather have remained home over the winter months to help support her and the children. Both children have had weekly interaction with one or both of the respondent’s parents since they were born and the children are very familiar with Oakville, her parents’ home, parks, restaurants and they attend a church with the respondent and her parents, where Elle attends Sunday school.
[10] The respondent states that she gave up a promising career as a nurse and much of her personal life in order to devote herself to her family unit. She is now in a position where she cannot pursue her career as effectively, she is socially and physically isolated and she is been cut off from the friends that she made during the marriage, as those people have remained aligned with the applicant following separation.
[11] The respondent has become concerned that KW Bilingual School is not an appropriate school for the children. She feels that she is being shunned by the teaching staff and by other parents and she is no longer comfortable approaching or communicating with the children’s teachers about their day-to-day activities.
[12] Because the matrimonial home in St. Clement’s is in a rural location the children have historically travelled up to several hours per day as part of their day-to-day routine. Driving from home to school, activities and to visit family has been part of the children’s regular routine since they were born. Luke’s daycare was in Elmira and Elle’s school was in Kitchener which meant several hours a day for the children in the car every school day. The respondent states that her proposed move to Oakville decreases the amount of time that the children would have to be in the car on a daily or weekly basis.
[13] The respondent states that she has been away from her nursing profession since 2009 and will need to engage in re-education to be able to work. She believes that there will be more opportunities for her specialized focus of cardiac pediatrics in a larger centre such as Oakville or Burlington.
[14] The respondent proposes a location for access exchanges on Highway 401 at Highway 6 which is a 27 minute drive from the applicant’s current residence, which is only seven minutes longer, depending on traffic, from the current time which the applicant requires to travel to pick up the children. For illustrative purposes the respondent points out that the furthest point which she could move within the Region of Waterloo, pursuant to the current order, is a 41 minute drive from the applicant’s current residence, demonstrating the arbitrariness of the boundary in which she is currently permitted to move.
[15] The respondent states that she intends to reside close to the children’s school and that her proposed location for the move does not increase the amount of time the children spend in the car on a daily basis, She says that the applicant’s travel time to pick up the children would not be increased in a significant way and, in the context of the significant amount of travel he engages in for work and leisure, the increase is immaterial.
[16] The respondent suggests that the existing access schedule for the applicant be amended to provide that he would have the children from Friday at 5 PM to Sunday at 7 PM which would result in two overnights rather than the one that which he currently has. The 3 ½ hour Wednesday access visit would be eliminated in lieu of the additional overnight on alternate weekends.
Position of the Applicant on Relocation Proposal
[17] The applicant states that relocation from the Region of Waterloo to the Region of Halton is not in the children’s best interests, will cause disruption to them and will curtail the applicant’s ability to have frequent and meaningful contact with the children. He says that there are no compelling circumstances or unique opportunities to warrant a move on an interim basis prior to trial and that since the evidence of the parties is highly conflicting a determination of such a significant issue should be addressed only at a trial based upon a fulsome record.
[18] The applicant disputes the extent of the respondent’s connection to Oakville, stating that she only lived there as a boarding student at Applebee College for her final year of high school, lived briefly in Waterloo while she attended university there and then lived in Etobicoke while she attended Humber College and then after she became a practising nurse.
[19] The applicant states that his immediate family reside in proximity to the Kitchener- Waterloo region, with his mother residing in Owen Sound, his sister in London, another sister in Listowel, his father in London and his brother in Amherstburg (near Windsor). He states that the Kitchener-Waterloo region is the only home that the children have known. They are both doing very well at KW Bilingual School and they are involved in activities in the Kitchener-Waterloo region.
[20] The applicant states that he has managed to build a fully integrated turkey farming and processing operation and with his success he has had the ability to hire supervisors and managers to oversee the day to day operations. This will result in reduction of the amount of travel required for his business leaving him free or to spend time with the children. He proposes that his access time be increased to alternating weekends from Friday after school until return to school on the following Monday.
Analysis
(a) Relocation
[21] The parties are agreed that since the existing order of Sloan, J., providing for the children’s residence to be in the Region of Waterloo and that they attend KW Bilingual School was made on an “interim, interim without prejudice” basis, the respondent need not establish a material change in circumstances to succeed on her relocation motion, nor for the applicant to succeed on his cross-motion for expanded access.
[22] The leading case giving guidance on whether a relocation should be permitted on a temporary motion is Plumley v. Plumley , [1999] O.J. No. 3234 (S.C.J.) in which Justice Marshman set out the following principles at para. 7:
(a) 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. (b) There can be compelling circumstances which might dictate that a justice 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. (c) 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.
[23] In the case of Knapp v. Munro 2015 ONSC 5444 Charney J. summarized the applicable principles at para. 25, as follows:
(a) The courts should be reluctant to upset the status quo where there is a genuine issue for trial as to custody and access. (b) There may be compelling reasons to allow the move, but those reasons must reflect the best interest of the child(ren), not the parent. (c) The move can be allowed on an interim basis if the court is satisfied that the move would likely be ordered after the trial. (d) The onus is on the parent seeking to move the children to establish that it is in the child's best interest. (e) The move should not be granted unless it is clearly in the best interests of the children.
[24] Justice Charney made the following additional observations at paras. 28 and 29:
While I have considered all of the relevant factors set out in the cases referred to above, the principles most relevant to the present case relate to the need for the mother to establish a secure and safe residence for herself and her children. For example, in Boudreault v. Charles , 2014 ONCJ 273 (Ont. C.J.) Justice Sherr states at paragraph 26(j):
Several cases have recognized that requiring a parent to remain in a community isolated from his or her family and supports and in difficult financial circumstances will adversely impact a child. The economic and financial benefits of moving to a community where the parent will have supports, financial security and the ability to complete their education and establish a career are properly considered in assessing whether or not the move is in the child's best interests. (citations omitted)
In the same case, at paragraph 26(k), Justice Sherr states:
There is case law that says that if a primary caregiver is happier, this will benefit the child. See: Del Net v. Benger , 2003 CarswellOnt 3898 (Ont. SCJ).
[25] Applying these principles, I find that permitting the respondent to relocate with the children to Oakville is in the children’s best interests and will not interfere materially with the ability of the applicant to exercise access to the children and to maintain a meaningful and healthy relationship with them.
[26] Given that Justice Sloan’s order was made on an “urgent” basis prior to a case conference, and was specifically made on an “interim interim, without prejudice” basis, it is evident that it was intended to deal with the immediate circumstances which prevailed at the time and was not necessarily intended to prevail until trial. Although it would be considered unusual on an “urgent” motion prior to a case conference to order that the children be enrolled in a specific school, it was evidently done in this case because the children had already been preregistered to attend the KW Bilingual School in Waterloo. There is nothing to suggest that the order respecting school enrolment was intended to necessarily extend beyond the 2015-2016 academic year.
[27] The parties have now had the opportunity to exchange detailed affidavit material and each have undergone extensive oral questioning. Although the applicant seeks joint custody, he has not moved to vary the order for custody granted by Justice Sloan. Even if it may be said that a genuine issue for trial with respect to custody exists, in my view there is a strong probability that the respondent’s position will prevail at a trial. She has been the children’s primary caregiver throughout their lives. During the marriage the applicant travelled extensively on business and was often absent from the home. It is evident that the inability of the parties to communicate effectively on parenting issues would militate against any serious consideration of shared custody as an outcome following trial.
[28] Given that the respondent and the children will be required to move upon the sale of the former matrimonial home at the end of July, 2016, it would be disruptive to the children and not in their best interests to require them to make a move within the Region of Waterloo at that time only to see them relocate again to the Region of Halton following trial.
[29] I accept the respondent’s evidence that her primary supports are her mother and stepfather who reside in Oakville and are in a position to play an important role in the children’s lives and to provide support to her in her parenting. The children already have established a routine of church attendance in Oakville with the respondent’s parents. I also accept the respondent’s evidence that she has no family support and little, if any, social support in the Region of Waterloo and that she will be happier in Oakville where she will enjoy the support of her parents. As indicated above, the benefit to the children of having a happier primary caregiver is a factor to be considered. In the context of this case this is not an insignificant consideration.
[30] In my view the respondent’s proposal to relocate to Oakville is made in good faith and not with the intention of frustrating or reducing the applicant’s access to the children. Indeed, in my view, the move will not curtail the applicant’s ability to have frequent and meaningful contact with the children in any material way. The difference in travel time for the applicant to exercise access to the children, based on the respondent’s proposal for a mid-way meeting point is measured in minutes and not in hours and is therefore to be considered immaterial, particularly since the children’s travel time to school and back in Oakville on a daily basis will be reduced from what they have been accustomed to when living in the former matrimonial home and attending KW Bilingual School.
[31] It is noted that the applicant chose to purchase a luxury home backing on a golf course in Kitchener, rather than in a location in the Region of Waterloo which would be closer to where the respondent was proposing to relocate in Oakville, knowing that she intended to make application to the court for leave to move there with the children.
[32] Contrary to what he indicates in his affidavit and factum, the applicant’s extended family cannot be said to reside “in proximity to the Kitchener Waterloo region.” They are certainly not materially closer to Kitchener-Waterloo than where the respondent seeks to relocate to in Oakville. Moreover the children’s relocation to Oakville will not adversely impact their ability to have contact with the applicant’s extended family while they are in the applicant’s care in Kitchener. There is no suggestion that the children would be regularly visiting with the applicant’s extended family members while in the respondent’s care, even if she were to remain in the Region of Waterloo.
[33] I have determined that, in the best interests of the children, leave should be granted to the respondent to relocate with them to the Region of Halton and that they be enrolled, at the respondent’s option, at Fern Hill School, Burlington, Ontario, or at the Rotherglen School, Oakville, Ontario for the 2016-2017 academic year.
[34] In making this determination now rather than waiting until trial, at some undetermined time in the future, I have had regard to the following apt comments of Corbett, J. in the case of Konkin v. Aguilera 2010 ONSC 4808 (S.C.J.) at para. 27:
Finally, I acknowledge some of the cases consider that it is unwise to make interim orders on mobility issues, when the matter may remain contested at trial. That is a fine ideal, but the court process does not follow the same rhythm as real life. The goal of an interim order here, as in other contexts, is to preserve a reasonable state of affairs that accords with the best interests of the child pending trial. As I indicated to the parties orally, I would have preferred to have heard this issue as a trial, to have listened to the various family members testify, and to have more time to reflect on the matter. But a decision must be made now, rather than months or years from now, and a legitimate and timely request to move should not be thwarted by the inevitable effluxion of time inherent in the litigation process.
(b) Parenting Schedule
[35] The parties are agreed that the applicant’s access time with the children should be increased on a temporary basis pending trial. I find that this is in the children’s best interests. Given that the children will be attending either Fern Hill School or Rotherglen School, it is not appropriate that the children remain in the applicant’s care on alternate weekends until Monday mornings on school days but rather that they be returned to the respondent’s care on Sundays by 7:00 p.m. to allow them to complete their nighttime routines in the respondent’s home and to reduce their rising times and travel times to school on Monday mornings. However, the applicant should be permitted, at his option, to be exercised prior to commencement of the school year, to pick the children up from school on Friday afternoons on alternate weekends. In the event of statutory holidays falling on either a Friday or Monday on a weekend when the children are scheduled to be in the applicant’s care, the weekend shall be extended to include the statutory holiday with the children in his care. During summer vacations, subject to the vacation schedule, the applicant shall have the children on alternate weekends commencing on Friday at 5:00 p.m. until Sunday at 7:00 p.m.
[36] The holiday/vacation schedules proposed by the parties are each reasonable. It is to be remembered that the vacation schedule is only to remain in effect until final disposition at trial or until earlier final resolution of the parenting issues by agreement of the parties. The parties are encouraged to agree upon a holiday/vacation schedule which works for them in the children’s best interests.
Disposition
[37] To give effect to the foregoing, it is ordered, on a temporary basis, as follows:
(i) paragraphs 2, 3 and 5 of the Order of the Honourable Justice Sloan dated September 2, 2015 shall be deleted in their entirety; (ii) the remaining paragraphs of the said Order shall remain in effect; (iii) leave is granted to the respondent, Misty Elizabeth Schlegel, to move with the children Elle Schlegel, born July 8, 2010 and Luke Schlegel, born June 8, 2012 (the “children”) from the Region of Waterloo to the Region of Halton on or before August 15, 2016; (iv) the children shall attend, for the 2016/2017 academic year, the Fern Hill School located at 810 North Service Road, Burlington, or in the alternative, at the option of the respondent, the children shall attend the Rotherglen School located at 2045 Sixth Line, Oakville; (v) if the children attend the Fern Hill School or the Rotherglen School, the applicant shall contribute the aggregate amount of $22,320.00 to the children’s school tuition and associated fees; (vi) the applicant shall have access to the children on alternate weekends from Friday at 5:00 p.m. to Sunday at 7:00 p.m., provided that at his option, to be exercised in writing one week prior to commencement of each academic year, the applicant shall be entitled to pick the children up from their school on Friday on a weekend when they are scheduled to be in his care at the end of their school day; (vii) except as set forth below, in the event of a statutory holiday falling on a Friday or Monday on a weekend when the children are scheduled to be in the applicant’s care, such weekend shall be extended to include the statutory holiday and the pick-up and drop off days shall be shifted accordingly; (viii) unless otherwise agreed between the parties, access exchanges shall take place at the commuter parking lot at the Highway 401 and Highway 6 (Queen Street/Brock Road S.) interchange (interchange 299); (ix) The following holiday/vacation schedule shall be implemented: a. Summer Holidays: the applicant will have the children for up to 7 days (5 days plus his regular weekend) for two non-consecutive weeks. The applicant will advise of the weeks by July 15, 2016 in 2016, but by April 15, in subsequent years. Once this time has been scheduled, the respondent will not sign the children up for activities, unless she has already done so by the date of release of this Endorsement, which would conflict with the applicant’s time. b. regardless of the regular schedule, the applicant will always have the children for Father’s Day, and the respondent will have the children for Mother’s Day. c. each parent shall have the children on his or her own birthdays and in respect of a child’s birthday, unless otherwise agreed, the applicant shall have the child from 9:00 a.m. to 1:00 p.m., and the respondent shall have the child from 1:00 p.m. to 5:00 p.m. in odd-numbered years commencing 2017, with the order to be reversed in even-numbered years; d. Christmas School Break - the applicant shall have the children from after school on the last day of school until: i. in even-numbered years (commencing 2016): 5pm on December 24th ii. in odd-numbered years (commencing 2017): 12 noon, December 25th iii. every year, at the applicant’s option, he shall have the children in his care from noon on December 31 to Noon on January 2; the applicant will advise the respondent whether he wishes to exercise this time by October 31 of any given year, failing which, the children will remain in the respondent’s care; iv. the children shall be in the respondent’s care for the Christmas School Break, except as specified above, until the return of the children to school; e. March Break – the applicant shall have the children for March Break up for up to 7 days, inclusive of his regularly scheduled weekend. The respondent shall have the children for the balance of March Break – the applicant will advise the respondent of his chosen week by December 31, of each year; f. Easter - The applicant shall have the children on Good Friday from 10am to Saturday at 5pm commencing in 2017. The parties would then alternate Easter each year.
Costs
[38] The parties are encouraged to agree upon costs. If they cannot agree, the respondent may make written submissions as to costs within 21 days of the release of this endorsement. The applicant shall have 14 days after receipt of the respondent’s submissions to respond and the respondent has 7 days thereafter to deliver any reply submissions. The initial submissions of the respondent and the submissions of the applicant shall not exceed 3 double-spaced typed pages, exclusive of Bills of Costs or Costs Outlines. The respondent’s reply submissions, if any, shall not exceed two such pages.
All such written submissions are to be forwarded to me at my chambers at 85 Frederick Street, Kitchener, Ontario N2H 0A7. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
D. A. Broad J. Date: July 13, 2016
