Court File and Parties
COURT FILE NO.: FS-16-0004 DATE: 2016-08-31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ALEXANDRA KYLIE ATKINSON Applicant
William G. Shanks, for the Applicant
- and -
THOMAS JONATHAN ATKINSON Respondent
Elizabeth Calonego, for the Respondent
HEARD: August 25, 2016, at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Reasons On Motion
1On August 25, 2016, I heard motions brought by both Mr. and Mrs. Atkinson. Each sought to vary a temporary order made by Fregeau J. on consent at a case conference held February 24, 2016. At the conclusion of argument, I made an Order by endorsement which is appended to the end of these reasons. That order provided that the children were to remain in the matrimonial home in Dorion and that the parents provide day to day care on alternative weeks. I indicated to the parties that I would provide additional reasons for my decision.
2The parties were married July 16, 2011. They separated on December 10, 2015. Together they have four sons: Benjamin, almost 8; Beau, 6; Bobby, 4; and Barrett, soon to be 3.
3Among other things, the consent order provided that:
a) the involvement of the Office of the Children’s Lawyer was requested to conduct an investigation and to provide a report and recommendation to the Court as to the best interest of the children;
b) Mr. Atkinson pay temporary child support of $2196 per month; and
c) the children reside with their father one week out of four as allowed by his work schedule and with the mother the other three weeks.
4At the time the order was made Mr. Atkinson was employed as a miner at a remote live-in camp. His employment has since changed and he has recently secured employment that will allow him to return each night to the matrimonial home in Dorion.
5Since or before separation, Mrs. Atkinson has become involved with another partner who resides in Sudbury. Sudbury is approximately 1000 km from Dorion. Mrs. Atkinson gave birth to a daughter of this new relationship four weeks ago in Sudbury. In her affidavit, sworn August 12, 2016, she deposed that, since separation, she has moved from the matrimonial home and that she is currently living with her new partner and daughter in Sudbury. The date of the move is not specified. At the case conference Fregeau J. noted that “the mother is contemplating to move from the Thunder Bay area to Sudbury with the children. The father is opposed.” Mr. Atkinson deposes that Mrs. Atkinson moved to Sudbury in July 2016. An exhibit that Mrs. Atkinson relies upon in her affidavit has her mailing address at the matrimonial home in June 2016. There is nothing in the material to indicate to me that the children did not finish the school year in Dorion. I conclude therefore that Mrs. Atkinson moved to Sudbury in July 2016.
6The central issue was whether, on a temporary basis, the children should reside in Dorion where they previously resided or in Sudbury where the mother has moved recently. These motions are urgent as Benjamin, Beau, and Bobby will be in school in September. On the other hand, these motions are premature because the report from the Office of the Children’s Lawyer is expected at the end of September.
7Based on the allegations made by each parent in the affidavit material this is a high conflict separation. Each makes allegations attacking the parenting ability and lifestyle of the other. Caution should be exercised before basing a decision upon affidavit material alone in the circumstances.
8As McDermot J. said in Walsh v. Walsh, 2012 ONSC 4965 at para. 38 in discussing the decision of Marshman J. in Plumley v. Plumley, 1999 O.J. No. 3234:
As well as Marshman J., several other justices have commented that a temporary order permitting a party to move with the children should be only granted in limited circumstances. Although conflicting affidavits alone do not prevent such an order from being made (Luckhurst v. Luckhurst, [1996] O.J. No. 1972 (C.A.)), a number of judges have commented that a court must exercise caution in permitting a party to move on an interim basis where the available evidence is limited or conflicting, or where a trial may be necessary to determine the final custodial arrangements for the children: see Cox v. Darling, 2008 ONCJ 91 ([2008] O.J. No. 824 (C.J.) at para. 13) and Datars v. Graham (2007), 41 R.F.L. (6th) 51 (Ont. S.C.J.) at paras. 15-16. The cases also confirm that even on an interim motion, the factors under Gordon v. Goetz, supra must be considered and, as stated by Quigley J. in Datars [at para. 16] “it is difficult if not impossible in most cases to complete the extensive child-focused inquiry required under Gordon v. Goetz on the typically conflicting and incomplete affidavit evidence that is often available to the court on interim motions.” [Emphasis added]
I also accept the following excerpts from Madill v. Madill, 2014 ONSC 7227 as accurate statements of the law:
31In interim custody and access cases, the status quo is ordinarily maintained until trial unless there is material evidence that the best interests of the children require a change: see Grant v. Turgeon (2000), 5 R.F.L. (5th) 326 (Ont. S.C.); Kimpton v. Kimpton; and Easton v. McAvoy, 2005 ONCJ 319.
32The Court must consider the best interests of the children, including their needs and circumstances—with regard to the applicable factors listed in s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended.
And, I accept these statements from Batsinda v. Batsinda, 2013 ONSC 7869 as accurate statements of the law:
28In determining the issue of whether the status quo respecting decision-making and timesharing should be changed in the context of a motion for temporary relief, it is important to maintain a focus on what is meant by the status quo. The courts have clarified that the phrase status quo with respect to timesharing does not refer to a situation unreasonably created by one party after separation to create a tactical advantage in the litigation. (Irwin v. Irwin (1986), 3 R.F.L. (3d) 403 (H.C.); Kimpton v. Kimpton; Horton v. Marsh, 2008 NSSC 230) I agree with this proposition. This court has held in many cases that the status quo that is relevant on temporary custody and access motions is that which existed prior to the separation between the parties. (see, for example Howard v. Howard (1999), 1 R.F.L. (5th) 375 (S.C.J.)). In my view, for the purposes of applying the principles set out in Papp v. Papp regarding the strength of the evidence required to disrupt the status quo arrangement, the status quo that is relevant is that which existed just prior to the parties separation, except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation. A status quo created by one party unilaterally taking matters into their own hands, without any consent from the other party, does not fall within the principles established in Papp v. Papp. [Emphasis added]
9Mrs. Atkinson does not work and therefore argues that she is best able to provide daily care for the children. Although Mr. Atkinson is employed, his parenting plan utilizes the children’s grandparents and other family members in the community to assist with childcare while he is required to be at work. Mr. Atkinson is prepared to vacate the matrimonial home while the children are in Mrs. Atkinson’s care.
10I agree with this statement of law by Marshman J. in Plumley v. Plumley:
7It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis:
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.
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 unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.
Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at a trial.
11The paramount consideration is the best interests of the children. On the evidence presented, there appears to be a genuine issue for trial. I am unable to conclude, at this stage, that there are compelling circumstances that support a move or that the position of one parent will prevail over the position of the other at trial. The report of the Office of the Children’s lawyer is due in about 30 days. Paragraph one of my endorsement below sets out that my temporary order is to be reviewed by the court within 14 days of receipt of the report from the Office of the Children’s Lawyer. I conclude therefore on a temporary basis that it is in the best interests of the children to remain in Dorion in the matrimonial home where they lived until July and that Benjamin and Beau continue at the same school they attended last year. All four children will benefit from the extended family and support in the Dorion area.
“Original signed by”____ The Hon. Mr. Justice W.D. Newton
Released: August 31, 2016
APPENDIX A
COURT FILE NO.: FS-16-0004 DATE: 2016-08-26
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ALEXANDRA KYLIE ATKINSON, Applicant THOMAS JONATHAN ATKINSON, Respondent
HEARD: August 25, 2016
BEFORE: Newton J.
COUNSEL: William G. Shanks, for the Applicant Elizabeth Calonego, for the Respondent
E N D O R S E M E N T
12The issue on this temporary motion is where the children should be residing pending the receipt of the OCL report which is due in about 30 days. On consent, the parties agree that this temporary order is to be reviewed by the court (I am not seized) within 14 days of receipt of the OCL report. This review would be on all issues of temporary custody, access and child support. For further written reasons to follow I order, that on a temporary basis, there will be shared parenting with the children residing in the matrimonial home with the parents rotating in and out of the matrimonial home on the following schedule:
The children will remain with Mrs. Atkinson in Sudbury until Wednesday, August 31, 2016 at 10 AM. Thereafter Mrs. Atkinson will deliver the children into the care of one or both of the paternal grandparents, Benjamin and or Michelle Atkinson, who will transport the children to the matrimonial home. At that time, the mother will also deliver any clothing and other items required by the children to live in the matrimonial home until varied by further order of this court.
Commencing Sunday, September 11, 2016 at 7 PM if Mrs. Atkinson wishes to parent the children in the matrimonial home, Mr. Atkinson shall move from the matrimonial home and Mrs. Atkinson will occupy the matrimonial home. This arrangement will continue, one week on, one week off, until varied by further order of this court. Mrs. Atkinson to inform Mr. Atkinson through counsel of her intention to occupy or not occupy the matrimonial home by 4 PM Thursday of the prior week in which she wishes to occupy the matrimonial home.
Pending further order of this court, Mr. Atkinson is to be responsible for all expenses relating to the matrimonial home.
Should Mrs. Atkinson choose to occupy the matrimonial home, the children will be bused to school. The paternal grandfather, Benjamin Atkinson, will drive Mrs. Atkinson and the children for any reasonably necessary purposes such as medical, shopping needs etc. on reasonable notice.
Mr. Atkinson is not to install or use any surveillance devices in the home while Mrs. Atkinson is residing there with the children.
Should Mrs. Atkinson not choose to occupy the matrimonial home with the children she shall exercise a right of access to the children by taking the children to Thunder Bay for Mrs. Atkinson and the children to reside with her aunt, Rachel Brescia, from 5 PM Friday to 7 PM Sunday night commencing Friday, September 9, 2016 and continuing every second weekend thereafter until further order of this court. Confirmation of her intention with respect to access to be communicated through counsel by Thursday at 4 PM preceding the access. Travel cost to be borne by Mrs. Atkinson subject to variation by this court.
I have made no order with respect to child support and that is without prejudice to the right of either party to argue temporary child support at the review of this order. For clarity, the existing child support order shall continue until varied by this court.
If counsel need to re-attend before me to clarify or otherwise vary the terms of this order to give practical effect to its intent then counsel can arrange through the trial coordinator to speak to me by teleconference.
Costs of today (motion to 3 PM) reserved in the discretion of the disposing and/ or trial judge.
____ “Original signed by”___ The Hon. Mr. Justice W.D. Newton
DATE: August 26, 2016
COURT FILE NO.: FS-16-0004 DATE: 2016-08-31
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ALEXANDRA KYLIE ATKINSON Applicant
- and - THOMAS JONATHAN ATKINSON Respondent
REASONS ON MOTION Newton J.
Released: August 31, 2016 /cs