Court File and Parties

Court File No.: FC-16-1247 Date: 2016 08 16 Superior Court of Justice - Ontario

Re: Victoria Dawn Forget, Applicant And: Jarrad Matthew Green, Respondent

Before: Mr. Justice Mark Shelston

Counsel: Megan Lepage, counsel for the Applicant Joan Rothwell, counsel for the Respondent

Heard: August 9, 2016

Endorsement

[1] The applicant (“the mother“) and the respondent (“the father”) are the parents of two young girls namely, Kathryn Eliza Green, born January 21, 2005 and Colleen Samantha Green, born December 28, 2011.

[2] The parties resided together until separation in February 2014. Since that time, the children have lived primarily in the care of the father with access to the mother being one overnight per week being either Friday or Saturday night. In addition, the mother had daily contact with the children by FaceTime as well as an extended weekend on an irregular basis.

[3] The father has just completed a three-year course at Algonquin College studying civil engineering technology. He has gone into debt to finance that study program.

[4] The mother is currently on maternity leave. She resides with a common-law partner and they have a child, born in October 2015. The mother will soon be starting a course to become a paralegal.

[5] The father advised the mother in May 2016 that he had been accepted at McMaster University in Hamilton in the Civil Engineering Infrastructure Technology program. The father seeks to move in August 2016 with the children to Hamilton, Ontario to pursue a university education. The father is offering access in Ottawa as well as in Hamilton. The mother opposes the move on an interim and permanent basis.

[6] The issue for determination is whether on a temporary basis, the Court should permit the father to move with the children to Hamilton, Ontario.

[7] Both parties have filed motions seeking relief. The father’s Notice of Motion seeks the following:

1. an order that the respondent have interim sole custody of the children of the relationship namely, Kathryn Eliza Green, born January 20, 2005 and Colleen Samantha Green, born December 28, 2011;
2. an order permitting the respondent to move with the children to the Hamilton area so he can attend McMaster University;
3. an order that the respondent shall provide the applicant with contact information for the children’s schools and doctors and the applicant is free to obtain information directly from these professionals;
4. an order that the applicant (“the mother”) have access to the children: a. one weekend per month to include a professional development day or other holiday, statutory holiday or otherwise; b. four weeks during the summer from mid-July until mid-August; c. each Easter weekend from Thursday evening until Monday at 2:00 p.m.; d. the first week of Christmas vacation in even numbered years and in odd numbered years the second week of the Christmas vacation; e. March break; f. at other times as the parties may agree; and, g. nightly telephone calls/Skype/FaceTime.
5. An order that the access set out above shall take place in Ottawa unless the parties agree otherwise. The respondent is responsible for transportation of the children to and from Ottawa;
6. an order that the applicant may have additional access upon 10 days’ notice in Hamilton, Ontario. She is responsible for costs associated with these visits;
7. an order for costs on a substantial indemnity basis; and,
8. such further and other relief as this Honourable Court deems just.

[8] The mother’s motion seeks the following relief:

1. an order that the children shall remain resident in Ottawa, Ontario;
2. an order that the parties shall have joint custody of the children namely, Kathryn Eliza Green, born January 21, 2005 and Colleen Samantha Green, born December 28, 2011;
3. an order that should the respondent father move out of the Ottawa, Ontario jurisdiction, the applicant shall have primary residence of the children, with access to the respondent two weekends per month in Ottawa, Ontario, and additional access as can be arranged between the parties in Ottawa and/or Hamilton, Ontario;
4. an order that, should the respondent father remain resident in Ottawa, Ontario, the applicant mother shall have access as follows: a. between August 9, 2016 and August 30, 2016, the applicant mother shall have access with the children for two non-consecutive weeks; b. commencing September 1, 2016, without prejudice to the applicant’s claim for additional access, the applicant mother shall parent the children three weekends per month, from Friday after school until Monday before school, with pickup and drop off at school, and a visit on the off week; c. in the alternative to 3(b), without prejudice to the applicant’s claim for additional access, commencing September 1, 2016, the applicant mother shall have access to the children every second weekend from Friday after school until Monday before school, and on the off weeks, from Friday after school until 8:00 p.m. on Saturday; d. commencing September 1, 2016, the applicant mother shall have access to the children every Wednesday evening; e. the parties shall share all professional development days and holidays with the children equally; and, f. the applicant may continue to contact the children every day at all reasonable times.
5. An order that this matter shall be referred to the Office of the Children’s Lawyer to provide such services under s. 89(3.1) and s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43 as they deem appropriate for the children;
6. an order for costs on a substantial indemnity basis; and,
7. such further and other relief as this Court may deem reasonable and just.

Facts

[9] The parties met in 2004. They were both studying Culinary Management at Algonquin College. They started living together and their first child, Kathryn, was born on January 21, 2005. The parties lived together until March 2010 when they separated for the first time. At separation, the child remained with the father and the mother had access one day per week.

[10] The parties disagree as to why the mother left the child with the father and why she had access only one day per week.

[11] The parties reconciled January 2011 and a second daughter, Colleen was born on December 21, 2011. The parties separated for the final time on February 14, 2014.

[12] Since separation, the children have resided with the father. The mother has daily contact with the children by FaceTime and has them for one overnight visit each week. Additional access includes full weekends and additional time in the summer.

[13] The father argues that the mother has not been interested in the children’s life, has failed to obtain information from the school and at times, has exhibited dysfunctional behaviour.

[14] The mother argues that the father has committed domestic violence towards her, is controlling, has belittled her, and has unilaterally controlled her access to her children.

[15] Despite separating in February 2014, neither party started court proceedings and the parties have not signed an agreement regarding the custody, access, child support and other issues relating to their children. There were offers to mediate that were not pursued.

Litigation History

[16] On June 9, 2016, the mother commenced an Application seeking, inter alia joint custody of the children, an order that the children remain in Ottawa, specified access, and other relief.

[17] On June 24, 2016, the father filed an Answer where he sought sole custody of the children, permission to move to Hamilton, access to the mother in Ottawa, and child support.

[18] On June 30, 2016, the father brought an urgent motion seeking permission to move with the children to Hamilton, Ontario. The Honourable Justice Roger dismissed the urgent motion; set a date for the motion to be heard on August 3, 2016; and established a timetable for the delivery of the affidavit material.

[19] On August 3, 2016, the parties appeared before the Honourable Justice Sheard and agreed to an interim order that required the parties to file their financial statements within 30 days; the father to disclose his accumulated student debt by August 8, 2016, as well as an acknowledgement by the father that he has not applied for any position as an engineering technologist. On August 9, 2016, the parties appeared before me.

Jurisprudence

[20] In Datars v. Graham, 2007 ONSC 34430, Justice M.G.J. Quigley, when dealing on an interim motion with a mobility issue, stated at para. 3 the following:

On this interim motion there is only one issue, and that is the issue of mobility. As the caselaw referred to below makes clear, the issue of mobility is to be resolved by reference to only one question-is it in Zach’s best interest that he moved to Ottawa with his mother or should he continue to reside in this region? On this interim motion, however, a further question is whether that question can properly be decided in this case on the basis of the unchallenged affidavit evidence of the parties, or do Zachary’s best interest require that this issue be determined at a full hearing where the examination of the parties can be tested and better evaluated following cross-examination?

[21] At para. 16 of the decision, the Court identified the difficulty in making such decisions on mobility cases on an interim basis on untested affidavit evidence where the Court held:

The problem this court faces on this motion, however, as McSorley J. observed in Kennedy, is that it is difficult if not impossible in most cases to complete the extensive child-focused inquiry required under Gordon v. Goertz on the typically conflicting and incomplete affidavit evidence that is often available to the court on interim motions. Consequently, the general reluctance of the court to effect fundamental changes in a child’s lifestyle on interim motions has resulted in a slightly more restrictive approach to interim mobility cases, one that recognizes the short-term nature of interim orders and the summary nature of interim motions. As well, since the decision on an interim motion in a mobility case will often strongly influence the final outcome, particularly where relocation is permitted, caution is called for, especially since even more disruption may be caused in a child’s life if an interim order permitting the move is later reversed after trial: Downey v. Stirling, 2000 ONCJ 490; Goodship v. MacMaster, 2003 ONCJ 53670.

[22] In Plumley v. Plumley, 1999 ONSC 13990, at para. 7, Justice Mary E. Marshman set out the factors to be considered in deciding a mobility issue on an interim basis as follows:

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, 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 possibility that the custodial parent’s position will prevail at trial.

[23] In Gordon v. Goertz, [1996] 2 S.C.R. 27, the Supreme Court of Canada established the relevant legal principles to take into consideration on a mobility case. The focus of the inquiry is on the children’s best interests and that requires a full and sensitive inquiry with the judge taking into consideration the following:

a. the existing custody arrangement and relationship between the child and the custodial parent; b. the existing access arrangement and the relationship between the child and the access parent; c. the desirability of maximizing contact between the child and both parents; d. the views of the child; e. the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; disruption to the child of a change in custody; and f. disruption to the child consequent on removable from family, schools, and the community he or she has come to know.

Analysis

[24] Since February 2014, the children’s primary residence has been with the father. He has been the parent responsible to make the decisions regarding their health and education. He has the assistance of his mother who lives with him and has provided a significant amount of care for the children. Part of the father’s plan is that his mother will be moving to Hamilton with him to assist him in raising his children.

[25] By letter dated March 16, 2016, the father was advised that he had received conditional acceptance into his program subject to providing his official college transcript showing a minimum final cumulative average of 75%. The father was also accepted at Lakehead University in the same program but chose McMaster University as it was closer to Ottawa to allow the girls to meet their mother. His classes begin September 6, 2016.

[26] One of the advantages of applying to Lakehead University and McMaster University was that the father would receive credit for his pursuit of his college degree from Algonquin College. By receiving such a credit, this would reduce the normal four year course to two years thereby reducing the need for student loans which have financed the father’s education to date.

[27] The father believes that pursuing this university degree in engineering will open up employment opportunities to care for his children. The father has filed the documentation showing that the median salary for an engineering technologist is $52,552 while the median salary for a civil engineer is $62,502.

[28] The evidence is contradictory as to whether the mother ever agreed that the father could move outside of Ottawa to pursue his education.

[29] The mother now seeks an order that the parties have joint custody, that the children remain in Ottawa, and that the mother have access to the children either three weekends per month or every second weekend. In addition to access from Friday after school to Saturday at 8:00 p.m., an additional week day access.

[30] The mother alleges that the father has dominated her since the separation in that he dictated the terms of her access. The mother alleges that the father has frightened her and pushed her during arguments. He has exercised unilateral control over when she could see the children, would change access plans based on his best interests and refused to keep the mother advised as to the events in the children’s lives.

[31] The mother states that she delayed in applying to court for a variety of reasons including having another child and caring full time for that child. There is contradictory evidence regarding domestic violence, allegations of unilateral control by the father, what role the mother was allowed or asked to play in the children’s lives and the views and preferences of the eldest child, Kathryn.

[32] Kathryn is 11 ½ years of age and she will be 12 years of age in January. The Court would need to consider her views. The evidence is contradictory regarding her wishes.

[33] The children’s school, doctors, close family and friends, and babysitter are all in Ottawa. The travel time from Ottawa to Hamilton is five hours and the mother does not have a driver’s licence or car.

[34] The father has given notice to his landlord terminating his lease. At the motion, his counsel advised that if he is not permitted to move, he has had discussions with the landlord that may allow him to remain in his rental unit. Further, the father has provided no evidence as to a possible deferral of the commencement of his education to allow the Court.

[35] The father, in his proposed plan, does not have a school selected for the children or a residence to live in Hamilton. The father argues that until he receives permission to move to Hamilton, he does not know where he will live and he does not know what school district the children will be attending. There is no evidence that the father’s even contacted the local school boards. The father’s plan, at this time, is vague.

[36] The parties are only at the beginning of the litigation. They have agreed to appoint the Office of the Children’s Lawyer and have agreed that the mother will have access to the children from August 14 to August 27, 2016. The parties have not even attended a case conference.

[37] The Court must be cautious at this stage of the litigation. The Court does not have all the information required to conduct a child-focused inquiry. The views and preferences of Kathryn need to be obtained and considered. The true nature of the parties’ relationship and the access arrangements since separation need to be presented at trial. The Court must consider many factors in making the ultimate decision, but at this stage of the litigation, significant information is not available to allow the Court to conduct the inquiry.

[38] On the issue of custody and access pending the trial of this matter, the Court will not make an order as to the custody of the children. The children have their school, medical practitioners and activities in the city of Ottawa. There is no need to make an order for custody at this time and that issue should be left to the trial judge.

[39] With respect to access, the status quo for over 2 years is that the children see their mother one overnight per week, daily communication and extended weekends. The mother did not seek further access before being advised by the father as to his intended move in May 2016. The trial judge will be able to consider all the evidence and conduct a child focused hearing. At this juncture, the Court will retain the status quo of access until trial.

Disposition

[40] Considering the factors set out in the jurisprudence including the need to exercise caution on an interim motion based on untested affidavit evidence, the Court is not satisfied that the father’s proposed move to Hamilton, Ontario is in the children’s best interests. The children shall remain in the city of Ottawa until this matter it is adjudicated on a final basis.

[41] On consent, the Office of the Children’s Lawyer is appointed and the mother shall have access to the children on from August 14, 2016 to August 27, 2016.

[42] On the issue of custody, the Court makes no order as to custody. The Court orders that the children’s primary residence shall be with the father and that the mother shall have access one overnight per week; daily communication with the children including by telephone calls/Skype/FaceTime; extended weekend access two times per month; and any other times as the parties may agree.

[43] The parties shall set a date for the case conference. This matter shall be placed on the January 2017 trial list.

Costs

[44] On the issue of costs, I urge the parties to settle the issue. In the event they are unable to do so, I direct the applicant to provide her cost submissions which shall not exceed two pages in length along with any Offers to Settle and Bill of Costs by August 24, 2016. The respondent shall have until September 7, 2016 to file his cost submissions which shall not exceed two pages in length along with any Offers to Settle and Bill of Costs.

Mr. Justice Mark Shelston Date: August 16, 2016