BARRIE COURT FILE NO.: FC-08-1088-00 DATE: 20160714 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
P.J.T Applicant – and – S.W. (M.) Respondent
Applicant, Self-represented Respondent, Self-represented Lynn Kirwin for the OCL
HEARD: May 18, 19, 20, 24, 25, 26, 27 and June 3, 2016
REASONS FOR DECISION
Summary of Decision
1In March of 2012 the parties signed a consent that their eight year old son, [1] now eleven and a half, would grow up in Barrie, Ontario. That consent, which included terms for a parenting schedule, extended travel to the United Kingdom to visit the mother’s fiancé, and child support, was incorporated into a final order that issued on May 19, 2012.
2The final order resolved all claims set out in the father’s July 2010 Rule 15 Motion to Change, and the mother’s claims in response – chiefly, to move A.’s residence to Manchester, England. The final order brought forward, and confirmed the parties’ September 2, 2008 consent to joint custody.
3This is a second Motion to Change, issued by the mother in March of 2013 and amended January 9, 2014. In the amendment she once again asks for an order changing A.’s residence to Manchester, England. The proposed move is exactly the same move that was contemplated in the 2010 proceeding. She also asks to update child support.
4The amendment was preceded by a decision to marry her fiancé. However, her marriage is not proposed as a material change. Nor would it be. At the time of the final order it was entirely foreseeable that they would marry. In fact, marrying allowed the mother to sponsor her new spouse to Canada within a spousal application.
5Rather, the mother argues that the father’s unbecoming and in her view, unstable conduct is reason enough to move their son’s residence; coupled with the much preferred circumstances that she passionately believes awaits them in England.
6The mother is a British citizen by birth, and A. is a citizen by descent. Her eyes sparkle when she speaks of the Manchester area where she grew up, and where her high school sweetheart - now her husband, - his sons and each of their large extended family’s lives are centred. She is determined to go home, join her husband, and give her son the perfect English family that he deserves.
7To vary the final order, section 17 of the Divorce Act, R.S.C. 1985, c. 3 requires the mother to demonstrate an unforeseen, material change in circumstances since the final order was made. As summarized in Gordon v. Goertz, [1996] 2 S.C.R. 27, [2] the material change must be significant to the child. The change must have altered the child’s needs or the ability of a parent to meet those needs in a fundamental way that was unforeseen at the time of the original order. Only if a material change is established, may the court enter into a fresh consideration of the merits of the proposed change in order to make a new order that addresses A.’s best interests within the new circumstances.
8Given the disruption that moves have on children, such orders should only be granted in limited circumstances; Walsh v Walsh [2012] ONSC 4965.
9The focus is on the best interest of the particular child at the centre of the litigation, not the interests of the parents.
10Section 17(5) of the Act states that a final order cannot be varied absent such a change in circumstances. Otherwise, the second action masquerades as an appeal. The court cannot retry the case, substituting its discretion for that of the original judge, or in this matter, the consent of the parties. The court must assume the correctness of the final order and consider only the unforeseen change(s) in circumstances affecting the child since the time of the prior order.
11The onus of establishing a material change is on the person seeking the change. If the material change cannot be established, the claim is to be dismissed.
12For the reasons that follow, I can find no unforeseen material change since the agreement of March 2012, or the subsequent Order of May 2012 that has altered their son’s needs, or the parents’ ability to meet those needs.
13There is no evidence that the myriad of irritations and disappointments the mother experiences when co-parenting with the father are significant, or in any manner affects their son. As often cited, and well- articulated in Kaplanis v. Kaplanis, 10 R.F.L. (6th) 373 ONCA, courts do not expect communication between separated parents to be easy or comfortable, or free of conflict. Perfection is neither realistic nor to be expected. The question is whether the parents have a reasonable measure of communication and cooperation that allows them to work in tandem towards best meeting their child’s needs.
14I find that these parents have that measure of communication and level of cooperation. A. is thriving in their joint care. He is deeply connected to each parent, loves them fully, and transitions happily between their homes.
15The mother’s second focus at trial was the need to protect her son from what she sees as irredeemable character flaws in the father: alcoholism, aberrant sexual practises and a long term relationship (ended in December 2015) with a woman whose lifestyle choices deeply offend her. At the same time, she agrees that there is no evidence that these flaws have in any manner affected their son.
16Specifically, there is no evidence that the father has ever drunk to excess while in a caregiver role, there is no evidence that the son has any knowledge of his father’s sexual preferences, and the son has a healthy connection with his father’s former girlfriend, and her son. For many years the son related to the girlfriend as a fun, loving step-mother. He continues to see her and her son, his step-brother for mid-week shared meals.
17I accept that the mother’s on-line discovery of the father’s sexual preferences was unforeseen at the time of the final order. What I cannot determine is whether the objective was to humiliate the father, or to raise genuine questions regarding his ability to parent. As considered by Pazaratz, J. in S. (J.) v. M. (M.), 2016 CarswellOnt 4928 (Ont. S.C.J.) irrelevant and scandalous information often does nothing to assist the court in determining the best interests of a child.
Separating parents are already in crisis. Our court process can either make things better or worse. And our success will hinge in part on our ability to address the modern realities of the technology and social media. Between e-mails, Facebook, Twitter, texts and selfies - privacy and discretion seem a thing of the past. These days there's no shortage of really embarrassing stuff couples can dredge up against one another - if that's really the path we want to encourage.
18Justice Pazaratz goes on to consider when an embarrassing post can assist the court in determining a contentious issue: the confirmation of drug or alcohol abuse, inter-spousal intimidation and threats, or patterns of communication. But he makes it abundantly clear that there is no need to attach pictures that tell the court things that they need not know – in his words:
Nasty doesn't work.
The mean-spirited and malicious inclusion of humiliating and completely irrelevant nude pictures and texts in this case cries out for a stronger message:
Nasty won't be tolerated.
19In this case, it was counsel for the OCL who tendered on-line suggestive pictures of the father that appear to have been posted on his former girlfriend’s private account. It is not clear to me how counsel obtained the photos. I am advised that they have now been taken down. It is undisputed that the father has no ability to control what is posted by his former girlfriend.
20Again, there was no suggestion that A. knew or knows anything about this aspect of his former step-mom and father’s private life, only a nefarious suggestion by OCL counsel that he might someday discover it. Perhaps. There is much for a preteen boy to discover on the internet. But in the absence of any evidence that it has affected him, or his relationship with his father, or his father’s ability to care for him it is not relevant to this decision. [3] Both parents are careful with his internet use, protect him from inappropriate circumstances and are committing to raising a balanced, thoughtful and healthy young man.
21In finding no material change, it is not necessary to engage in a fresh inquiry as to A.’s best interests; although I make certain observations within these reasons that in my view, support a modest expansion of the father’s parenting time – a claim sought by him in his 15B Response to the second Motion to Change. At the conclusion of these reasons I also give effect to the mother’s claim to update the father’s payment of child support from that set out in the May 19, 2012 final order.
Relevant Chronology: to the End of the First Motion to Change
22The mother was a popular, talented young 16 year old when her parents made the decision to emigrate from Manchester, England to Canada. She described it as her father’s ‘dream.” That dream meant that she had to leave behind her school sweetheart, a large extended family and a community that she loved. She had a terrible time of it, despite her parents providing many opportunities and unconditional support for their only daughter.
23In Toronto, she obtained an enviable education and worked in graphic arts and marketing design. When she met the father in 2003 she was a senior art director earning $63,000 a year. He was a separated father of a three year old son. He was training to be a firefighter. They were a good couple.
24When they were to become parents the following year, they made the decision to move north. In Barrie, they could afford a home and had better financial prospects. Their son, A., was born in late 2004. The father commuted to a full-time position as a Toronto Firefighter and continues to do so up to the present. But the mother’s career soon faded. The pressures of how she experienced motherhood, her wish to avoid commuting and the realities of life piled up. The relationship deteriorated. She felt isolated in Barrie. Counselling didn’t help.
25In 2008 the parents separated. Each has very different views of what occurred. Within months they settled all issues within comprehensive Minutes of Settlement dated September 2, 2008. The Minutes provided for joint custody, [4] child support and a detailed parenting plan fashioned around two terms that have remained constant throughout their young son’s life: that he would have his primary residence with his mother, and significant parenting time with his father – organized around his father’s schedule as a firefighter. [5] The mother purchased the father’s interest in their Barrie home. Neither parent was to change’s A.’s residence, or take him out of the province absent consent or a court order.
26Around this time, the mother’s English school sweetheart, Mr. M, reconnected with her through Facebook. He had a small flat about eight miles from where they had grown up, and a responsible employment position. They still knew all the same people. He was also separated, and the active father of two sons. It became a fairy-tale romance. By December of 2008 they were engaged. Mr. M travelled to Canada twice, and the mother and A. vacationed in England on four occasions. Mr. M qualified as a cab driver to allow greater flexibility in his schedule. He sent her money. He looked into emigrating.
27The father issued the first Motion to Change in July of 2010. A month earlier the mother had surprised him with a draft consent that would permit her to move their five and a half year old son to Manchester, England “on or after July 27, 2010.” The draft dispensed with any further consents on his part, allowed for access during certain vacation periods, for telephone and email contact, and other incidental terms.
28The draft consent was a significant departure from their Minutes of Settlement. It so concerned him that he immediately sought legal advice. On that advice, he issued a Motion to Change to prevent the move. Much litigation followed. The parties were self-represented throughout, as they are within this proceeding.
29Central to the first Motion to Change was the investigation and delivery of a comprehensive section 112 report by the Office of the Children’s Lawyer dated February 9, 2011; herein referred to as the “Carter Report.” The report recommended that A. remain in Barrie, have increased access time with his father, and that his primary residence be with his father should the mother relocate to England.
30The matter moved forward to trial. It did not resolve until after the Trial Management Conference of March 7, 2012. The resulting Minutes, incorporated into the final order of May 19, 2012 largely reflected the recommendations of the Carter Report. Things seemed to go well for the following period. A. did well at school and at home. Life was good. The father understood that the mother’s fiancé: Mr. M, was going to start the process of immigrating to Canada.
31Although the mother agreed to the second set of Minutes, and acknowledges that it is a binding agreement, she never really accepted the Carter Report recommendations. To this day she disagrees that it is in their son’s best interests to remain in Barrie. She says that she is “done” with Barrie and she sees little benefit to her son remaining here. She is absolutely certain that any resulting disruption to her son’s bonds with his father, half-brother, step-brother, friends and extended family will be inconsequential.
The Second Motion to Change
32In March of 2013 the father’s somewhat tumultuous relationship with his long term girlfriend came to an unfriendly end on a weekend during which A. was in his care. When the police were called, the father immediately called the mother to pick up A. He did not want A. to be present when the police came, or to in any manner be affected by the breakup.
33The mother dropped everything and arrived at the father’s home within minutes of the police. She had never had much time for the girlfriend, but on this occasion, when she realized what was happening, she took the opportunity to talk to her and the police at length. The father testified during this trial that he would not have been charged with assault against his girlfriend but for the mother’s intervention. The mother did not question or contradict the father’s testimony in this regard.
34Two days after the March breakup the mother attended the Barrie Family Court seeking a without notice, temporary restraining order against the father. She was successful. The ex-parte order prevented any contact between the father and the mother, and the father and their son, but for supervised access. The order was made despite the incident having nothing whatsoever to do with either the mother or the son, and the father having taking immediate steps to protect A. by calling his mother.
35The mother issued this second Motion to Change that same day. She claimed custody, supervised access, an order for alcohol and drug testing and an increase in child support. [6]
36The motion returned on notice, on March 28, 2013. The mother renewed her motion to have the father’s time with A. supervised. She asserted that the father drank to excess and that their son was at risk in his care. Seeing few options, the father agreed to access being supervised by his parents. He also agreed to A. travelling to England for a month in the summer. He began attending AA.
372013 was a very bad year for the father. He had been drinking to excess in the months leading to the breakup, he had been charged for the first time in his life, was on bail terms that put him out of his own home; and he desperately missed his former partner and her son, both of whom he loved and considered family.
38There is no evidence that A’s relationship with his father was changed by these events, but for periods when he was not able to see his dad as a result of his mother’s restraining order. Because he was not always seeing his father, he was also not seeing his half-brother, who shared certain access times. A missed his former step-mom and step-brother, whom he loved as part of his family. In time, the mother relented and agreed to unsupervised access, which the father recalls as having been confirmed in a mid- April email. The mother recalls it being closer to June.
39Access resumed in accordance with the previous schedule when the father regained possession of his home in June of 2013. He took in tenants to help defer legal expenses. One of those tenants enthusiastically testified in this trial on behalf of the mother. Despite never really seeing A., the tenant appeared to take considerable satisfaction in listing his former friends’ excesses, immoral conduct and bad decisions over the summer and fall of 2013 – some of which he quite enjoyed himself, before their relationship went sour. The tenant was asked to leave in early 2014 for failure to pay rent.
40I take little from the tenant’s testimony, but for a certainty that whatever went on in the father’s home, A. was not involved, or for the most part, even present. I did not find the tenant to be particularly credible. I question his reasons for testifying. His evidence was not child centred. He appeared to be there to get even.
41The mother’s other key witness to the father’s misconduct was equally suspect. It will take more than one sentence to explain her connection to these events. Mrs. B is the paternal grandmother of the father’s girlfriend’s son. I have referred to that son as A.’s step-brother. Mrs. B hates the father’s girlfriend. Perhaps it was not always so, but it clearly is now. She gave a colourful account of her many failings, some of which might even be true.
42Mrs. B is on the lookout for evidence that benefits her son – a wholly uninvolved father who high tailed it to Calgary when the pregnancy was discovered. She found some on a weekend during which she was caring for her grandson, and she was eager to share her evidence in this trial, despite it having no direct relevance to A. It was evidence of some very bad judgement on the girlfriend’s part. It was certainly not evidence of a material change in A.’s needs or the father’s ability to care for him.
43Mrs. B readily acknowledges that the father treats her grandson as a son, maintains him on his employment benefits, intercedes on his behalf at school, and is a much needed stabilizing influence on his uneven childhood. She confirms that the father continues to do so despite separating for good from her grandson’s mother in December 2015. She thinks that it is “weird” that he continues to act as her grandson’s step-father, to provide for him, and to keep her grandson connected to A. and his half-brother with whom he has grown up.
44Three things happened as 2013 came to a close. The March criminal charge was withdrawn on November of 2013 when the father entered a 12 month peace bond. The mother and Mr. M decided to marry, after a lengthy breakup during which she had seen other people. At trial she described their decision to marry in late November 2013 as a bold commitment, supported by their faith, in which they decided to “let the chips fall where they may.” Third, the mother decided to enforce the supervised access provisions within the March 28, 2013 Consent.
45The effects of her decision to suddenly enforce a consent that neither of them had observed for at least the last six months was as dramatic as it was deliberate. The father’s parents are snowbirds, and were not available to supervise. Supervised access facilities are on break during the Christmas period and were not available to give service. The mother did not even attend for her intake session – a precondition for service – until January 20, 2014.
46A. did not see his father for 8 weeks.
47On January 9, 2014 the mother amended her Motion to Change to seek an order permitting her to move A. to Manchester, England.
48I do not accept the mother’s narrative that she decided to enforce her “rights” because she could no longer tolerate access scheduling changes. The texts tendered (within incomplete strings) showed polite, respectful exchanges, and reasonable, normative requests for flexibility. Access had always been organized around the father’s work schedule and his schedule with his older son, an accomplished athlete. If anything, the texts show certain of her decisions to be unreasonable. Neither do I accept her assertion that she had a “right” to follow the consent. The consent had been varied six months earlier by the parties’ conduct, if not in writing.
49The father brought a motion to lift the term for supervised access, but could not get the motion heard until February 13, 2014. On the day of the motion, the mother consented to remove the term for supervision. A new schedule was fashioned around a Week One and Week Two routine. The father agreed to the mother taking A. to England over the March break.
50Upon her return from England, she brought a motion without notice to suspend the father’s access based on pictures that “a friend” had seen on the internet. Her motion was granted with a return date of April 10, 2014.
51On the return date, Justice Wildman carefully reviewed the father’s response and agreed that there was no basis for the access suspension. Out of an abundance of caution, she did admonish him with respect to pornographic pictures of his girlfriend – with whom he had reconciled – that were posted to an Instagram page. It was ordered that the girlfriend was not to be present at any point of the access.
52There was no evidence that A. had any exposure, or was in any manner affected by his father’s or his girlfriend’s sexual preferences.
53At the same time, Justice Wildman ordered that there was to be no deviation in the access terms agreed to on February 13, 2014, and allowed for police enforcement of access. During trial, the mother proposed that this was a condemnation of the father’s constant changing of the access schedule, but in reading the endorsement and materials filed, I conclude that it was actually fashioned to prevent further attempts by the mother to cancel access.
54The mother requested CAS involvement. It was declined.
55In March of 2014 the OCL once again became involved. In this second involvement they provided counsel, and ultimately a social worker to record and present A.’s views and preferences. A second section 112 report was not authorized.
56The father asked for adjustments to the summer access. A. likes to sleep in. The parenting schedule, is based on a school schedule. It required the father to return A. to his mother’s home before 9:00 a.m. on weekdays. The father asked to return him later in the morning. The mother said no. The OCL had to intervene on a number of occasions. Ultimately a better schedule was organized for both the upcoming school year and the summer of 2015.
57The father asked the mother to lift the restrictions on A. seeing his girlfriend. The OCL supported the request, noting a significant relationship between A. and his step-mother. The mother refused.
58While A. was having a good 2014-2015 school year, the litigation limped along. Each parent had outstanding requests for disclosure. The father continued to ask for expanded access. On October 16, 2014 the mother finally agreed to lift the condition preventing the girlfriend from having contact with A. Travel consents for A. to go to England, and on a trip with his father were agreed. A Trial Management Conference was held on March 13, 2015. The case management justice noticed that the father had never filed a 15B Response, so a timetable was set, and met. The matter was set to go for trial in May.
59By that time, the OCL had once again taken a position that A. not move to Manchester – now for different reasons. A. was 10, and was even more deeply rooted in his community than in 2011. He was well bonded with each parent, enjoying extended family inclusive of step and half siblings, and was completely integrated into his community. He lived in a rented home with his mother, in which his maternal grandparents lived downstairs. He spent time at his father’s home a short distance away, played sports and hung out with friends. All three boys regularly got together for outdoor activities.
60In short, A. was thriving in the environment in which he had lived all his life. Both parents agree that absent the tension in this case, A. is a happy, well-adjusted, compassionate child. Both parents agree that he has grown closer to his half-brother over the past year. He is looking forward to the next school years and which of his friends will be in his class.
61It is not clear why the matter did not proceed to trial in 2015. Perhaps it was because the father had decided to “take his foot off the gas.” He was hopeful that the issue of the move would pass with the OCL’s position, as it had in 2011. Both parents agree that the changes to the 2015 summer schedule were optimal, and went really well. They were incorporated into a consent on June 18, 2015. There were no disputes. A. had flexibility between his parents’ homes and he thoroughly enjoyed himself.
62Life went on. Mr. M came to Canada with his youngest son for a three week visit in August. He hoped to persuade his son to move with him to Canada.
63In December, the father broke up with the girlfriend, but this time without any dramatics. They remain friends, and share certain weekday meals together so that the boys stay connected.
64Another TMC was held on January 27, 2016. An endorsement governing the conduct of the trial issued, but the father did not believe that it would proceed. A. was spending quality time with his father, growing closer to his half-brother, regularly seeing his step-brother, and vacationing with both parents. At the same time, the mother was growing more certain that the move had to happen. The August 2015 trip to Canada had not changed Mr. M’s youngest son’s decision that he does not want to move to Canada. So they took A. to see his new English school during the 2015 Christmas break.
Observations of A.’s Views and Preferences
65The OCL interviewed A. on January 12, 2016, the day after he returned from the December 2015 trip to England. He stated that “he was pretty sure he wanted to move there,” and then later in that same interview said that “he was not really thinking about moving there.” The OCL probed deeper. A. liked the idea of moving to England, he liked his mother’s husband and all the English family, and stated that he “likes fish and chips and the candy is so much better.” The trip had been a really fun vacation. When he was shown his “new” home, school, and church; he expressed interest and enthusiasm.
66More than anything, he liked to see his mother so happy.
67At the same time, A. believed that if he moved to England, he could see his father just as much as he did now, just maybe at different times. It was apparent to the OCL that he had not fully processed what he would lose by moving to England, or what changes would lie ahead when his two home family would be separated by an ocean.
68The OCL indicated up to February 2016 that they could not take a position, as it was not clear that A. was unable to understand what a move to England would really mean for him. He wanted to see his Dad “a lot.” His Dad loves him “so much” and his Mom loves him “so much.” He “kinda wants to go but he kinda doesn’t want to go because he does not want to leave his friends.” He would miss his pets and his father’s girlfriend’s pets.
69Since his first meeting with the OCL on May 23, 2014, A. has made it clear that living in the middle of his parents has been his normal life since he was three. He goes to his Mom’s house, and he goes to his Dad’s house. He stated to the social worker that “when I am at my Dad’s I don’t miss my Mom and when I am at my Mom’s I don’t miss my Dad. I forget about everyone.”
70Interestingly, the OCL noted over time that this self-identifying form of splitting was coupled with an absolute and equal connection with each parent – like two sides of the same coin. Every phrase was about “Mom and Dad.” Time at Wonderland needed to be equal between Mom and Dad. He is deeply attached to each parent and has formed his personality around the realities of growing up in two homes. Homes that are close together.
71Despite the ongoing tensions, A. has been able to have the best of both worlds throughout his childhood to date. But at some point after February of 2016, A. realized that his Mom was so serious about moving, that she just might leave without him. The thought panicked him. One evening he shared his fear with his father. Now 11 years old, he was starting to see himself in separate terms from his mother, and he was terrified by the prospect of losing her. He had a breakdown. He spoke at length to his father and they had a good cry. His father assured him that both his parents love him and things would be sorted out.
72From March 2016 on, A. has told his counsel that he will not pick between his parents. Whether or not his Mom leaves without him, he can now articulate the intense pressure in which he lives: “if he moves to England he is gonna hurt his Dad, and if he stays here, he is gonna to hurt his mom.” He has become anxious. He is not doing well in school. It has become a “worry thing for him.” He says that “he doesn’t want to talk about England and he gets nervous about talking about it.”
73On A.’s last interview of March 7, 2016 he stated he “doesn’t know where he wants to be now.” He says that “he feels anxious about it.” He repeated that “the only thing he really wants to say is that if he moves there he is going to hurt his dad and if he stays here he is going to hurt his mom and he doesn’t want to.”
74The worker concludes her direct evidence by saying that, [T]he child’s views and preferences are strong, clear and consistent that he wishes to have both parents equally in his life. He has not been unduly influenced by either parent.
75His parents agree that he has a heartfelt desire to see each of them happy. He is easy going, cheerful, eager to please, flexible and accommodating. When pressed, each parent will acknowledge that A. sometimes says things, or will not say things to please them. He wants everyone to get along.
76A. just wants a decision made, and to have this over. He loves both his Mom and his Dad and he will not take sides. He does not want to hurt either of them. He has instructed his counsel to take “no position.” Smart kid.
The Mother’s Plan
77Much can be admired about the mother’s presentation at trial. She was supremely well organized and articulate. She is a planner. She had researched A.’s proposed school in Manchester and arranged for him to visit the school. It is an impressive facility specializing in mathematics and technology. She has sourced out a transition tutor to assist with adjustments to what is a very different school system. She has submitted school calendars showing school breaks when she proposes that A. could travel back to Canada, or the father could travel to England. She has investigated the cost of a chaperone so that A. can travel by himself.
78It is genuinely surprising that she has not used her considerable skills on a fulltime basis in the Ontario workforce. She has the complete support and assistance of her parents, who reside in the basement apartment of her rented home. She is a person of considerable abilities. She prepared and revised detailed budgets for a consolidated English home. One can feel her enthusiasm for life. She is devoted to her son.
79At the same time, there is a worrying quality to her devotion. She brooks no dissent that whatever makes her happy, will make her son happy. [7] She wants to get A. to their (her) real family – the family they (she) deserve(s) - as quickly as possible. She sees no separation between her interests and those of her son’s.
80In her world, she has already switched out her son’s father. She testified that her husband’s advice, guidance and morals are far superior to those of the father. In the evidence of the OCL social worker there was an interesting contradiction. The mother stated in her interview that A. sees Mr. M as his role model. When A. was interviewed, he made it clear that he does not. His father is his role model.
81The mother speaks of Mr. M.’s adult sons in England as if they are real brothers to A., not just people he spent time with while visiting, and with whom he maintains no ongoing relationship. She casually dismisses A.’s lifelong relationship with his older half-brother (whom he adores) and his ongoing relationship with his step-brother. One forms the view that she believes A. would be well rid of them.
82There are rich ironies lurking behind this family tragedy. The mother acknowledged a profound realization in her cross examination: she was asking her son to make the same emigration to another country which destroyed her happiness as a teen - but at a younger age and without both parents. Then she dismissed the acknowledgement out of hand. Life in England is so much better, she asserts, that no Canadian loss compares. She is absolutely certain that her son will have no difficulty adjusting, he will be better parented by her husband, and A.’s relationship with the father can simply continue long distance through a combination of travel and electronic communications. Just as her relationship has continued with Mr. M....the person with whom she can no longer tolerate a long distance relationship.
83Although it is not necessary to consider the merits of the mother’s plan of care in England, I will make the following observations. On its face, it is a decent plan. But there are real weaknesses. The most significant is that she has budgeted on the basis that she will re-enter the workforce in Manchester in a manner that for her own reasons, she has never chosen to do in the Greater Toronto Area. The only income she will have for certain is the same on-line work that she has in Ontario. Absent a significantly increased income, there is little, if any realistic prospect of there being sufficient funds for the number of proposed trips back to Canada.
Mr. M.
84Seven and a half years after becoming engaged, Mr. M continues to reside in England. There was much evidence and questioning during this trial as to why he has never completed the necessary steps to emigrate. He continues to assert that he will move to Canada if the court does not permit A. to move. He is a fine, hardworking and forthright man who wants to make his marriage work. He is also very close to his adult sons who reside in England. He understandably prefers not to be separated from them.
85Mr. M testified that he does not qualify to immigrate as a skilled worker, so he has had to apply as a spouse. The parties delayed marrying until the mother was discharged from a post separation bankruptcy. Otherwise, Mr. M.’s income would have become available to the mother’s creditors. The discharge did not occur until September 2013. Meanwhile there was a period in which they broke up: April 2013 until November 2013. Only then did they decide to marry, and they did so on February 1, 2014.
86After February 1, 2014 Mr. M. started the paperwork. He testified that to date, the paperwork is only “about 80%” complete. Both he and the mother spoke about discouraging delays in the process. He stated that he was unaware that he could qualify to be in Canada on a work permit while a sponsorship application was pending.
The Father’s View of the Proposed Move
87The father was genuinely supportive and respectful of the mother throughout this trial. He recognizes her dilemma. But he worries that A. will not adjust to a move to England. He sees their son as a young eleven year old who has spent his entire life in a two home family in Barrie. He will no longer have the benefits of growing up with both parents. A. will miss his siblings, his pets, his friends and his extended family. It will be an entirely different culture and school system.
88The father readily and supportively acknowledges A.’s love for his step-father. But a step-father is not a father. His father will be a continent away. If the mother is finding it challenging to maintain her marriage overseas, how will their preteen son keep up his relationship with his father? And if A. does adjust, joins sports teams and makes new friends, will he really want to travel back to Canada more than once a year? He wants to see more of his son, not less.
No Material Change in Circumstances
89The mother focusses her evidence on having a better plan for A.’s care in England than the father has in Ontario. But that is not the test. In order for the court to consider afresh the merits of her plan, she must first establish a material change in circumstances affecting A. which were not foreseeable in March of 2012.
90Three theories were advanced. Neither was coherent. Initially, the mother took a view that co-parenting with the father was an exercise in “chaos.” In this regard she relied on the selected text strings referenced earlier in these reasons. The text strings did not support her view.
91The mother later proposed in her testimony that the father’s criminal charge in March 2013 was the material change. I do not accept this submission. The father protected A. by calling the mother to pick him up. But for the mother seeking a restraining order in circumstances in which it ought not to have been granted, the regular schedule would have continued - but for access occurring outside the father’s home. It shortly resumed a normal routine in any event.
92A material change giving rise to a variation under section 17 of the Act must be a distinct departure from the prior circumstances, such as to make the order unworkable.
93The only real change occurred in December 2013 when the mother asserted the March 2013 consent for supervised access – a step she clearly took to further her own agenda. She defends her action on the basis that the father was making too many adjustments to the parenting schedule as he coordinated his work commitments and his other son’s sports schedule. I do not find that assertion credible, and even if it were, it was a wildly disproportionate response. In my view, it only makes sense as a deliberate attempt to create a parental vacancy in A.’s life. And she had just the candidate to fill it.
94The next theory advanced – although not fully articulated - is that some of the father’s consensual sexual activities in a monogamous relationship with his former girlfriend were immoral. The girlfriend did not give evidence at the trial. In response to the mother’s assertions, and the testimony of the tenant, the father testified to his and his former girlfriends’ active sexual life. He was unapologetic and sought to inform. I see no reason to reference that portion of his testimony in these reasons.
95There may be cases in which the risk of a child learning that a parent engages in certain consensual adult sexual activities is a material change. In those cases, I would expect to see a real link between the activity and a parties’ ability to parent. I do not find that there is any such link in this case. It is uncontested that none of the sexual activities have come to A.’s attention directly or indirectly. I accept the father’s confirmation that he has and will continue to shield A. from any such knowledge.
96In contrast, A. has suffered real harm from the constant uncertainty over a move to England. He has been interviewed extensively. His every nuance of speech, and certain facial expressions have been scrutinized to discern his true intentions. Even what he does not say has been analysed.
97A. is now scared of losing a parent. Parts of his life have been put on hold. This spring his mother deferred registering him in his first summer of football – a sport in which he idolizes his older brother – because of her firm belief that they are moving. Such uncertainty is causing real harm and it is in A.’s best interest to bring it to an end.
98Order to go that the mother’s claim to change A.’s residence from Barrie, Ontario to Manchester, England is dismissed.
Change to Father’s Parenting Schedule
99Each parent provided the court with a proposed draft order at the conclusion of trial. The father’s draft order provides for a modest increase in parenting time. It is consistent with the principal of maximum contact set out in section 16(10) of the Divorce Act. The OCL indicates that an increase in the father’s parenting time it is also consistent with A.’s stated views and preferences. I am satisfied on the totality of the evidence that it is in A.’s best interests to further balance out the time he spends between his parent’s homes.
100Order to go pursuant to the following paragraphs of the father’s draft order attached as Schedule “A”
- Joint Custody 2(b). Parenting Schedule
- Travel
101Paragraphs 2(a) and (c) of the father’s draft order are not to be included in the order. Each purports to govern the residence of the parents. Although a court may prohibit a parent from relocating a child’s residence, or a court may make a custody order that indirectly limits a parent’s mobility, a court cannot indenture an individual to a community: Falvai v. Falvai, 2008 BCCA 503.
102Order to go that should the mother relocate outside a one hour commute of the father’s present residence, the move shall constitute a material change of circumstances. In that event, A.’s primary residence shall default to the father until further agreement of the parties or court order.
103Paragraphs 4 and 5 of the father’s draft order are not to be included in the order, as they are unnecessary. Paragraph 6 shall not be included, see Patterson v. Powell, 2014 ONSC 1419, 2014 CarswellOnt 2627 (Ont. S.C.J.) Paragraphs 7,8 and 9 (child support and costs) are determined below.
Child Support
104The father’s Line 150 income is a steady base rate, subject to cost of living increases and overtime. He also has some income from taking in a tenant. [8] The present non-taxable amount of rent received, $500 per month, is offset by an increase in utilities that has not been calculated. He has an inactive business that in the past reported modest income and losses. I do not find it to be a source of income for this decision. He pays most, if not all extracurricular expenses for A. He maintains family plan employment benefits for A’s health, medical and dental expenses.
105For ease of calculation, I round the additional income earned by the father to $5,000 per annum to in part, recognize his costs of renting, and a gross-up of the balance.
106The mother deposes annual income of only $20,000 despite her view that she can earn in the range of $100,000 were she to be employed fulltime. She has worked fulltime when necessary – such as in the period prior to her discharge from bankruptcy. She is encouraged to maximize her income. Per section 19 of the Federal Child Support Guidelines I impute an income to the mother sufficient to support a 40% proportionate contribution to A.’s section 7 expenses.
107The May 19, 2012 final order for child support shall be varied as follows. All payments pursuant to that order and the temporary order of February 13, 2014 shall be a credit to any amounts owing.
- For the period of January 1, 2013 to December 31, 2013 the father shall pay monthly table support of $1,002 based on income of $115,486 ($105,486 + $5,000.)
- For the period of January 1, 2014 to December 31, 2014 the father shall pay monthly table support of $905 based on income of $103,258 ($98,258 + $5,000.)
- For the period of January 1, 2015 to December 31, 2015 the father shall pay monthly table support of $865 based on income of $98,081 ($93,081 + $5,000.)
- Commencing January 1, 2016 the father shall pay: a. monthly table support of $858 based on income of $97,234 ($92,234 [9] + $5,000) and all of A.’s special expenses, b. 60% of all section 7 expenses for A., including uninsured health, medical and dental expenses.
- Support Deduction Order to Issue.
Costs
108The applicant father shall serve and file his costs submission by August 5, 2016 and the respondent mother by August 26, 2016. Submissions are not to be more than three pages in length exclusive of Offers to Settle and a Bill of Costs.
Justice H. McGee
Date: July 14, 2016
1To provide the parties’ son with some small measure of privacy, he will be referred to throughout by his relationship to others, or the random initial of “A.” I will not state his birthdate, and will avoid any identifying indicia such as his school or sports team.
2Gordon v Goertz was decided under the Divorce Act. However the case law is clear that the legal principles also apply to cases brought under the Children’s Law Reform Act, i.e. between unmarried parents.
3And is most certainly not consistent with A.’s stated instructions to his counsel to take no position in the litigation.
4The consent can be found within a standard form Minutes of Settlement, but the Minutes were never incorporated into an Order. The parties agreed within this proceeding to continue joint custody of their son. A final order will thus issue as a term of this decision.
5The father works 7 shifts of 24 hours each month.
6During this trial the parties agreed to continue the 2008 agreement for joint custody. The mother no longer seeks an order for supervised access, or drug/alcohol testing.
7I am reminded of the notion of “a happy parent means a happy child” being seriously reconsidered in the cases of Berry v. Berry, 2011 ONCA 705, 7 R.F.L. (7th) 1 (Ont. C.A.) and Bilopavlovic v. Bilopavlovic, 2008 ONCA 380, 2008 CarswellOnt 2649 (Ont. C.A.).
8There were two tenants through part of 2013, the second tenant not paying in full his rent. For ease of calculation I have used an annual figure for one tenant.
9Annual income deposed in Financial Statement of May 9, 2016