Court File and Parties
COURT FILE NO.: FC-12-1734-2 DATE: 2016 08 19 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jason Garry Deslauriers, Applicant AND Ashley Rose Russell, Respondent
BEFORE: Madam Justice Liza Sheard
COUNSEL: Özlem Eskicioglu, for the Applicant Gary Blaney, for the Respondent
HEARD: August 15, 2016
Endorsement
[1] The proceeding before me arose with a Motion to Change brought by the applicant father, (“the Father”) to change the Final (and consent) Order of Justice Kershman, dated December 23, 2014 (the “Kershman Order”). He was asking for an order that the parties’ son, Jaxon Russell Deslauriers born February 9, 2012 (“Jaxon”), begin his schooling at the school in the Father’s school district in Orleans. Jaxon is four and a half years old and is to start all-day kindergarten in September 2016.
[2] The respondent mother (“the Mother”) responded to the Father’s motion by seeking a significant variation of the Kershman Order that would extinguish the custody and access plan agreed to 18 months ago. Among other things, the Kershman Order sets out a four-phase transition from Jaxon’s primary residence with the Mother and mid-week and weekend access to the Father to Jaxon spending equal time with both his parents. The parties are in Phase Two.
[3] Phase Three is to begin in September 2016 and would expand the Father’s time with Jaxon to include one full week in four. The final phase, Phase Four, is to begin on February 10, 2017 at which date Jaxon is to be spending equal time with each parent. A week on and week off arrangement.
[4] In September 2015 the Mother moved from Orleans to Findlay Creek, a 30-minute drive from the Father’s house. She wants to enroll Jaxon in a school close to where she now lives. The Mother moved to Findlay Creek to move in with her new partner, Michael Sammon. In May 2016 their daughter was born.
[5] The Mother has not returned to running her part-time beauty business and plans to remain as a stay-at-home mother to raise Jaxon, her new baby, Teagan Sammon, and Mr. Sammon’s 7 year-old son from his prior relationship. The Mother asserts that Mr. Sammon is willing and able to help out with Jaxon’s childcare arrangements, if needed, as he works a short distance from the parties’ home and the school proposed by the Mother.
[6] Both parties agree that Jaxon receives good and loving care while at the other’s homes. However, the Mother asserts that she should now have sole custody of Jaxon and that his primary residence should remain with her. She no longer wishes to implement Phases Three and Four as set out in the Kershman Order.
[7] The Mother asserts that her new living arrangements and relationship and her decision to remain at home, rather than to resume running her part-time beauty business, constitute a material change in circumstances. She asserts therefore that the Court may look afresh at the best interests of Jaxon and, she believes, will conclude that her parenting proposal for Jaxon is in his best interests.
[8] The Father disputes that there has been a material change in circumstances that would give the Court jurisdiction to embark on a fresh inquiry into the best interests of Jaxon.
[9] For the reasons set out below I have concluded that the Mother has failed to show that the changes she has made constitute a material change in circumstances. Having failed to meet that threshold, the Court may not vary the Kershman Order. Further, even if I had found there to have been a material change in circumstances, I conclude that it is in Jaxon’s best interests to maintain the parenting plan and terms that are set out in the Kershman Order.
[10] The Kershman Order contemplates that the parties will hire a Parenting Coordinator to help the parties resolve parenting issues and act as a binding arbitrator in the event of a dispute. There is no Parenting Coordinator at present. Given the time of year, a decision must be made about where Jaxon is to go to school in September. The Parties ask this Court to make that decision. For the reasons set out below, I have determined that it is in Jaxon’s best interests that he be enrolled in kindergarten at St. Thomas More School (kindergarten to grade 6) at 1620 Blohm Drive, Ottawa. That is the school put forward by the Mother.
The Father’s Motion to Change
[11] The Father’s motion to change was brought on February 20, 2016. He sought an order that the parties enroll Jaxon at Fallingbrook Community Elementary School of the Ottawa-Carleton District School Board located in Orleans, Ontario in September 2016. Largely because of the distance between the parties’ homes and the distance from the Mother’s home to Fallingbrook School, the Father also sought to skip Phase Three of the Kershman Order and to begin Phase Four in September 2016. In the alternative, has asked that, effective August 1, 2016, Jaxon’s primary residence be with him with generous regular access to the Mother.
[12] At the hearing, and perhaps in response to the position being advanced by the Mother, the Father’s position was that he would be content to abide by the terms of the Kershman Order, including the requirement that the parties retain a Parenting Coordinator.
[13] At para.20 of her Response to the Father’s motion to change, the Mother sought to vary the Kershman Order to give her sole custody of Jaxon; to require the Father to do all pick-ups and drop-offs of Jaxon for his weekday visits; that the Father pay child support for Jaxon in accordance with the Child Support Guidelines and his proportionate share of s. 7 expenses and to provide life insurance to secure his child support obligations.
[14] Child support had been waived by the parties in the Kershman Order in recognition of the parties’ “modest financial means” and to “allow their limited resources” to be directed to ensure that Jaxon had appropriate childcare and healthcare; to retain a Parenting Coordinator and to pay other childrearing costs.
[15] In his materials, the Father agrees to now pay child support in accordance with the Guidelines together with his proportionate share of section 7 expenses. His consent on those issues may form part of my order.
[16] The materials before me included two volumes in the Continuing Record, transcripts of the parties’ questioning, and lengthy facta and casebooks.
[17] At the outset of the hearing, I confirmed that based on the motion before the Court, the parties required a decision on three issues:
- Where will Jaxon go to school in September 2016;
- Whether there been a material change in the circumstances of Mother or Father; and
- If so, what variation, if any, should be made to the Kershman Order in consideration of the factors set out under s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).
[18] The parties may have to resolve other parenting issues. The Mother argued that a Parenting Coordinator is not necessary and that she cannot afford one. Instead, her counsel urged me to adjudicate on a variety of issues such as Jaxon’s dentist, his doctor, religion, recreational activities, and holiday and vacation access. The Father is prepared to hire a new Parenting Coordinator to deal with those issues. That is what the parties themselves agreed to do.
[19] Based on the evidence before me, there does not appear to be a significant or possibly any real dispute over those things. The Father had agreed to Jaxon’s baptism in the Roman Catholic Church but did not agree on Godparents. I do not understand there to be any real or pressing issues about many of the other matters identified by the Mother. Those issues may be less difficult to resolve once Phase Three and Phase Four are in effect.
[20] Should the parties seek the further judicial intervention on the issues that are not determined by this Order, they may schedule a Settlement Conference.
Background
[21] The parties are the biological parents of Jaxon. They never lived together. The parties were involved in litigation with respect to the custody and access of Jaxon since shortly after his birth.
[22] The Kershman Order was made, on consent, less than 18 months ago. It provided for joint custody of Jaxon and the phased-in transition from Jaxon’s primary residence with the Mother to his fully-shared residence between the Mother and the Father. The evidence is that that Jaxon is properly cared-for and well-loved by the Mother and by the Father.
[23] The parties were able to work through a number of issues with the assistance of the Parenting Coordinator. For reasons that are contained in the motion materials, the Parenting Coordinator resigned and has not been replaced. That option remains available to the parties, should they be unable to resolve any parenting disputes either with the assistance of counsel, or at a settlement conference.
Material Change in Circumstances
[24] The jurisdiction to vary the Kershman Order is proscribed by the provisions of section 29 of the CLRA:
A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. R.S.O. 1990, c. C.12, s. 29.
[25] If the applicant fails to show the existence of the needed material change in circumstances, the inquiry ends. If the threshold is met, then the court must embark on a fresh inquiry into the best interests of the child having regard to the provisions of section 24 of the CLRA. In this fresh inquiry, both parents bear the evidentiary burden of demonstrating where the best interests of the child lie; there is no legal presumption in favour of the custodial parent: see Bubis v. Jones, [2000] O.J. No. 1310, 6 R.F.L. (5th) 83 (Ont. S.C.J.), at para. 21; Persaud v. Garcia-Persaud, 2009 ONCA 782.
[26] The leading case on material change in circumstances is Gordon v. Goertz, [1996] 2 SCR 27. At para. 13, the Court defines what is required to vary a custody order:
It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.
[27] Despite having brought a motion to vary the Kershman Order, in his Factum, the Father denies that there has been the material change in circumstances of the parties. He simply argues that Jaxon should go to school in Orleans and not in Findlay Creek where the Mother relocated without the consent or approval of the Father. The Kershman Order is silent on where Jaxon will go to school and, at the moment there is no Parenting Coordinator in place to help the parties work through or to arbitrate disputes. As a result, this Court is being asked to make that decision.
[28] The materials show that the parties have made efforts to try and resolve the disagreement about Jaxon’s school. However, without a Parenting Coordinator in place who was to arbitrate disputes and render binding decisions, the Father brought his motion.
[29] The Mother argues that there has been a change in circumstances since the making of the Kershman Order:
(i) She moved to Findlay Creek in September 2015 to live with her current partner, Mr. Sammon, with whom she has a stable relationship, and his now seven year-old son; (ii) In May 2016, the Mother and Mr. Sammon had a daughter, Teagan; and (iii) At the time of the Kershman Order, the Mother had been working part-time. She is now at home and plans to remain a stay-at-home mother and able to devote her full time to the care of her two children and Sammon’s son, who has his primary residence with them.
[30] The Father denies that Mother’s changes constitute a material change in circumstances. He asserts that the Mother’s relationship is not lengthy enough to establish that it is a “stable relationship”. He points to her brief engagement to and cohabitation with another man, which occurred after the birth of Jaxon but prior to the Kershman Order. The Father argues that the mother has moved to Jaxon to three different homes in the last two years and has not provided him with a stable environment.
[31] The Father contends that the Mother’s relocation to Findlay Creek may not be permanent as it depends upon the success of her new relationship. She is not married to Mr. Sammon; does not have a cohabitation agreement; and does not have an ownership interest in the home in which they live.
[32] Notwithstanding those arguments and based on the evidence before me, I believe it is reasonable to conclude, which I do, that the Mother’s relationship with Mr. Sammon is one of some existing and anticipated permanence.
[33] However, the onus is on the Mother to establish that her changes constitute a change in the condition, means, needs or circumstances of Jaxon; and/or the ability of the parents to meet his needs; that those changes which materially affect Jaxon; and that those changes were either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.
[34] The Mother seeks to rely on the decision of Stimpson v. Stimpson, 2016 ONSC 5066 to support her position that the changes in her personal life constitute a material change in circumstances. In Stimpson, the Court concluded that there had been a material change in circumstances when the applicant mother sought to move from Ottawa to Toronto. She was moving to marry her boyfriend who lived in Toronto and to take a new job. The Court further found that the move to Toronto was not foreseeable at the time the parties had entered into the separation agreement and as a result it constituted a material change in circumstances at para. 25).
[35] The Mother also relies upon the decision of Parker v. Dowd, 2011 ONSC 7084. In Parker, the court concluded there had been a material change in circumstances when the applicant mother sought to move from Renfrew County to Halifax, Nova Scotia. The reason for the move was that her husband of four years, with whom she had had a child, was involuntarily transferred to Halifax.
[36] Counsel for the Mother acknowledged that both of these cases were relocation cases but argued that they provide guidance on what constitutes a material change in circumstances under section 29 of the CLRA.
[37] The Stimpson and Parker cases are readily distinguishable from the case before me. Firstly, this is not a relocation case. More importantly, in both Stimpson and Parker the court determined that the changes that precipitated or required to the relocation were neither foreseen nor reasonably foreseeable by the parties.
[38] That cannot be said here. Paragraph three of the Kershman Order contemplates that the parties may move and states that the parties shall reside within 50 km of Ottawa, which is defined as the intersection of Bank and Laurier streets. Therefore the Mother’s move from Orleans was within the contemplation of the parties.
[39] That the mother might repartner was or could have been foreseen by the parties. In his materials, the Father refers to the Mother’s short-lived engagement with another man. That pre-dated the Kershman Order. I conclude therefore that the Mother’s future repartnering was or could have been within the contemplation of the parties.
[40] The Mother asserts that her new decision to be a stay-at-home mother is a material change. She argues that the Father acknowledged on questioning that it is preferable for a child to spend time with a “biological parent” rather than with a third party. She uses that apparent admission to support her argument that it is possible and foreseeable that the Father’s work might, in future, require Jaxon to be cared for by his paternal grandmother or a third party caregiver.
[41] First, that reasoning would exclude Mr. Sammon (not a biological parent) as a caregiver, something that is proposed by the Mother in favour of her parenting proposal. Second, the evidence is that the Father has changed jobs, which allows him greater flexibility to accommodate Jaxon’s schedule. The Mother says she is concerned that he will not succeed in his new career and may be forced to return to work in the retail sector. Whether or not the Mother’s prediction is correct, as of today, the Father has a flexible work schedule and an accommodating employer, both of which allow him a greater ability to care for Jaxon than he had at the time of the Kershman Order.
[42] The Father responds, with considerable persuasion, that the Mother always worked part-time and after the Kershman Order, reduced her hours with the result that she rarely used daycare. Therefore, her argument today that her decision to become a stay-at-home mother is not a material change in circumstances: she has always had very limited hours of work and a flexible schedule, and has always been able to be a hands-on caregiver for Jaxon. The Mother has only infrequently needed the assistance of others to care for Jaxon.
[43] The fact that the Mother is now at home full-time, appears to be a very minimal change in the circumstances given she worked only variable part-time hours and had a flexible schedule that allowed her always to be the primary caregiver for Jaxon while he was with her. That evidence is illustrated in the transcript of the Mother’s questioning at pages 13-15.
[44] I accept the Father’s arguments that the Mother’s status as a stay-at-home mother is not a change that affects Jaxon. Also, it may bear noting that the Mother has exchanged her very part-time self-run beauty business for caring full-time for a newborn, a four year-old and a seven year-old step-child.
[45] I further note that para. 25 of the Kershman Order contemplated that Jaxon would have childcare: that is one reason given for the waiver of child support. Therefore, the parties did contemplate that Jaxon might be cared for by someone other than a biological parent such as a paid caregiver.
[46] The Mother also argues that the Father’s change in employment is a material change in circumstances. At the time of the Kershman Order, Father worked in an e-cigarette store. Now, he has changed his employment to work as a commissioned salesman. The Mother claims that the Father’s new employment is precarious and that, based on his performance in 2016, it is unlikely that he will be successful as a “Freedom 55” insurance salesman. She believes that it is more likely that sometime in the future, he will have to return to working in a retail environment such as the e-cigarette store or an eye glasses store, in which he worked previously.
[47] Stated differently, Mother asserts that her concern is not about Father’s current employment, which, by all accounts, including letters from Father’s employer confirming his flexible hours, provides him with a greater ability to care for Jaxon than he might have had at the time of the Kershman Order. The Mother’s stated concern is that sometime in the future, the Father may be required to return to the type of employment that he had at the time the Kershman Order was made.
[48] The decision made today is based on circumstances as exist today. I agree with the views expressed by Justice LeRoy in Parker v. Dowd, 2011 ONSC 7084, at para. 56, who determined that the court must assess the child’s best interests based on the circumstances as they existed at trial:
The purport of this analysis is to review and assess the circumstances of these families in the here and now. The outcome of a trial, particularly one involving a review of children’s status, is analogous to a snapshot of a given place at the particular time. The future is unpredictable. Not much turns on whether Mr. Parker’s assignment turns out to be two, three or five years or whether Mr. Parker successfully achieves his career objective of relocating to Ottawa or elsewhere. The central issue is an attempt at doing what is best for the children involved in the circumstances as they are today. The future will take care of itself.
[49] I conclude, therefore, that none of the Mother’s repartnering; move from Orleans to Findlay Creek, (well shy of 50 kilometres from the corner of Bank and Laurier Streets); new baby; or her decision to stop her part-time beauty business to become a stay-at-home parent, satisfies the three-part test set out in Goertz.
[50] At the hearing, the Father stated that he was content to abide by the phase-in of full equal sharing as set out in the Kershman Order. While he had originally sought to advance Phase Four from February 2017 to August 1, 2016, at the hearing, he advised that he would be content to abide by its terms. For that reason, I do not need to determine whether his change in employment is a material change in circumstances that would justify his request to change the Kershman Order. However, were to I required to decide that issue, I would conclude that his change in employment also fails to satisfy the Goertz test.
Jaxon’s school in September 2016
[51] The Kershman Order does not address schooling for Jaxon. Specifically, it does not address where Jaxon is to go to school in the event that one of the parties moves from where they were living in Orleans. Certainly, that Jaxon would be attending school was entirely foreseeable and had to have been foreseen by the parties at the time of the Kershman Order.
[52] There is no Parenting Coordinator in place now and both parties ask this Court to decide where Jaxon should go to school in the fall.
[53] The parties do agree that the Mother and the Father are good and loving parents to Jaxon. There are no complaints about the Mother’s new partner or the living arrangements while Jaxon is with her. There are no complaints about the living arrangements while Jaxon is with the Father. Both before and after the Kershman Order, the Father has lived in a house in Orleans. Since the Kershman Order, the Father’s own father has passed away, and he and his brother have become the owners of the house that had been owned by their father. There has been no change to the Father’s living arrangements except that he now appears to be a half-owner of the property in which he has been living for a number of years.
[54] Given that the Kershman Order contemplates that the parties could live 50 kilometres from Bank and Laurier Streets, I conclude that the parties did or could have contemplated that Jaxon could go to a school that might be closer to the home of one parent than to the other. The evidence before me was that, even when they lived in Orleans, they did not live in the same school district.
[55] There was no proposal before me that Jaxon might go to a school in a district that was midpoint between his parents’ homes. The options presented to the Court were that Jaxon either attend a school close to the Father’s home in Orleans or the school close to the Mother’s home in Findlay Creek.
[56] There are good reasons for the Mother to have moved to Findlay Creek: she has moved in with a new partner who owned a home there and who also had a young child living with him, enrolled in a local school. Also, the mother has had a baby, who is the child of her new partner, and she is not working outside the home. Therefore, at present, she has limited or no financial ability to pay for her own accommodation. While she remains a “stay-at-home mother,” the Mother will be dependent upon her new partner to provide her with financial support.
[57] By contrast, the Father has a job which does not require him to attend at an office or a place of business, apart from some occasional training. As a salesman, he will conduct his business either from his home or by travelling to his potential clients. Also, he has inherited a half-interest in a house with his brother. The Father states that his brother may wish to sell him his interest in the house, such that the Father would become the sole owner of the house. Despite that, there is no evidence before me that suggests that the Father is prevented from choosing to sell his interest in the house to his brother or sell the house to a third party and relocate somewhere that is closer to Jaxon. He may not wish to do that, but as compared to the Mother, the Father has much greater financial and other flexibility.
[58] In submissions, counsel for the Father specifically referred the Court to an email sent by the Father to the Mother in May 4, 2015 in which he specifically offered to relocate closer to the Mother in Findlay Creek in return for her agreeing to begin phase four in September 2016. From that, I conclude that the Father then had the ability and willingness to relocate. Therefore, weighing the relative abilities of the Mother and the Father to be flexible in their living arrangements, I conclude that the Father has a greater ability to either relocate and/or to travel to Jaxon’s school, when Jaxon is with him. I recognize that this is inconvenient to him, but it makes little sense to put Jaxon in a school away from either of his parents’ homes, which would require Jaxon to travel every school day in order to give less inconvenience to his parents.
[59] Although neither party referred to it, I am assisted by the decision in Lawson v. Lawson, 2007 ONCJ 34. In that case, there was a dispute over where to send the child to school. In Lawson, the parties lived in different cities but there other many facts that are very similar to the case here: the child was four-and-a-half years old; the parties had shared custody; the issue was where to enroll the child who was starting junior kindergarten; each was “laudatory about” the other as a parent; the mother was the one who moved (for work); the existing schedule had been achieved by agreement; at the time of the hearing, the child spent more overnights with the mother; the drive to the school in the father’s city would be more onerous on the mother and less of a burden to the father; and the mother had more family supports available to her in her city, including her new partner. The Court did not weigh the relative merits of the schools. There is little need to do so here as the evidence is that both schools proposed by the parents are good schools and suitable for Jaxon.
[60] In Lawson, as here, the father argued that the child had a connection to his city. The child had only lived in the father’s city for 2½ years and had been living in the mother’s city since then. In this case, Jaxon has been living in Findlay Creek for close to one year.
[61] In Lawson the court noted that it was an inconvenience for both parents to have to drive the child to the other’s city but concluded that “as long as the parties continue to live in different cities, the imposition seems inevitable” (para. 18).
[62] I reached a similar conclusion here. On balance, it is in Jaxon’s best interests that he be enrolled in the school that is closer to the Mother’s home. It will be an inconvenience for the Father but that is unavoidable in the circumstances.
[63] The Mother has confirmed that she wishes to enroll Jaxon in St. Thomas More School (kindergarten to grade 6) at 1620 Blohm Drive, Ottawa effective September 2016. The parties have had discussions about whether or not Jaxon should be baptized. The Mother is Roman Catholic and the Father has no religious affiliation. On the materials before me, it seems that the Father had agreed to have Jaxson baptized but an agreement could not be reached as to a suitable Godparent(s). There is no evidence before me as to whether or not Jaxon must be baptized in order to attend St. Thomas More School. I assume, therefore, that he need not be. However, that St. Thomas More School is a Separate school appears consistent with the long-standing and expressed wish of the Mother that Jaxon be raised by her as a Roman Catholic, to which the Father appears to have given his consent.
Outstanding Issues
[64] One of the matters raised before me was the termination of the Parenting Coordinator. For reasons that are set out in the motion materials, the Parenting Coordinator terminated her services with the Mother and the Father. The Mother does not wish to incur the expense of retaining a new Parenting Coordinator. Certainly, had her request to be awarded sole custody been granted, a Parenting Coordinator would make less sense.
[65] The Father claims that that parties have been able to communicate and points to many emails between them on parenting issues. The Father also points to the success they had in reaching agreement with the assistance of a Parenting Coordinator and to the agreement they reached on many issues on January 29, 2015 (see Exhibit “Q” to his affidavit sworn May 25, 2016). I view that agreement as a good indication that the parties are able to resolve many of the important and day-to-day parenting issues regarding Jaxon.
[66] The Father indicates that he is prepared to look for and jointly hire a new Parenting Coordinator to assist the parties in resolving any existing and/or future disputes concerning how to raise Jaxon. While his income is very limited at this time, given his new career change, the Father appears willing to make a financial investment in a Parenting Coordinator. The Mother says she cannot afford to pay that cost. The Continuing Record and Questioning Brief would suggest that a great deal of time has been spent on the litigation. I would hope that the Mother might reconsider her position about using a Parenting Coordinator. Not only might that save future legal fees, it might assist the parties to improve their ability to discuss and eventually be able to resolve their disagreements without the need for any professional assistance or judicial intervention.
[67] Counsel for the parties also expressed hope that they will be able to assist their clients to negotiate a resolution of any outstanding disputes, without further judicial intervention. I share that optimism, which comes in part from the success the parties have had to date in co-parenting Jaxon.
[68] It is not an easy thing for the parents in these circumstances to work together. Given that they never lived together, they are different from many parents who began their life together with a shared agreement and understanding on how to raise their children. However, unlike so many parents whose relationships have ended, the parties here do not have the lengthy and acrimonious history that often stands in the way of parental decision-making.
Costs
[69] The parties have had mixed success on the relief they have sought from this Court. In the circumstances, it would appear appropriate to me that there be no order as to costs. However, there was no opportunity for the parties to make submissions with respect to costs. Accordingly, if the parties cannot agree on costs, each may submit written submissions not to exceed three pages, plus a bill of costs, within 30 days of the date of the release of this endorsement. If I do not hear from the parties, within 30 days of the date of the release of this endorsement, there will be no order as to costs.
Justice L. Sheard J. Date: August 19, 2016
