Hezekiah C. Smith v. Melissa Kimberly Joy Ley, 2016 ONSC 6092

Court File No.: FC: 09-024394-02 Date: 2016-09-28 Superior Court of Justice – Ontario – Family Court

Re: Hezekiah C. Smith, Applicant And: Melissa Kimberly Joy Ley, Respondent

Before: The Honourable Mr. Justice R. Kaufman

Counsel: The Applicant acting in person William Doodnauth for the Respondent Karen Tobin acting as agent for the Office of the Children’s Lawyer

Heard: September 21, 2016

Ruling on Motions

Kaufman J.:

[1] There are two urgent motions before the court. One is brought by the applicant for custody of his daughter Olivia-Louise Ley Smith born the 7th day of May, 2004. In addition, the applicant seeks an order for police enforcement of such order and that the respondent release to him all of the child’s legal documents. He requests that the motion be heard before the Conference currently scheduled on October 3, 2016 and that he be allowed to register the child at a school located in Keswick.

[2] The second motion is brought by the Office of the Children’s Lawyer (“OCL”) requesting an order that the respondent execute all required consents to disclosure of collateral information with respect to the child including, but not limited to the child’s personal health information and school records and police records pertaining to the respondent. Failing compliance by the respondent, the OCL requests an order dispensing with her consent to obtain the requested information. The OCL also request costs against the respondent. The OCL’s motion material was served upon the respondent on the same day as the motion.

[3] The affidavit of the clinician assigned to assist counsel for the OCL indicates that the requested consents were originally provided to the respondent on July 28, 2016 and, when not received, follow up requests were made through the respondent’s recently retained counsel to no avail. On September 14, 2016 partial but not all of the consents were provided by the respondent.

[4] At the conclusion of argument of both motions, Ms. Tobin indicated that if the remaining consents were provided by September 23, 2016 the OCL’s motion would be withdrawn without costs. Otherwise, on consent, the motion would be adjourned to the Settlement Conference before Justice McGee on October 3, 2016 with the court having authority to dispose of the motion pursuant to Rule 17 (8) of the Family Law Rules.

Background

[5] The parties separated in 2009 after a common-law relationship of approximately six years. They are the parents of Olivia. The applicant resides in another common-law relationship on his partner’s family farm in Pefferlaw, Ontario. He and his current partner had previously been married from 1997 to 2000 and subsequently reunited in or about the month of May, 2015. Until recently, the respondent and the child resided in Oshawa until the respondent’s unannounced move to Kitchener, Ontario in late August, 2016. It is that move that necessitated the bringing of this motion.

[6] In accordance with the final Order of Justice Corkery (pursuant to Minutes of Settlement) dated January 16, 2012, the parties were awarded joint custody of the child with her primary residence being with the respondent. The applicant was entitled to access on alternating weekends, every Wednesday evening from 6:00 p.m. until Thursday morning, two additional days per month not to be taken on the respondent’s weekends and such further and other access as agreed upon by the parties. The Order also provided for a sharing of driving, a holiday schedule and support including contribution to the child’s special or extraordinary expenses.

[7] The Order also provided that the respondent would advise the applicant and keep him informed of all important matters relating to the child’s health, residence, welfare, education, religion and upbringing as the issues arise and in advance if possible.

[8] On June 19, 2015 the applicant commenced a Motion to Change requesting custody and primary residence of the child. The Response to Motion to Change was filed on July 23, 2015 in which the respondent requested sole custody of the child, additional payment of extraordinary expenses and that the applicant have supervised access on alternating Saturdays and Sundays for a period of eight hours each day. On October 22, 2015 the parties entered into a consent Order regarding the financial issues and on November 2, 2015 Justice Rogers referred the matter to the OCL.

[9] On July 8, 2016 Justice McGee conducted a lengthy conference which focused on the child’s best interests. The conference resulted in the parties consenting to a temporary Order on summer parenting.

Applicant’s Submissions

[10] The applicant indicates that on Monday, September 5, 2016 (Labour Day) he received a text message that the respondent had relocated to Kitchener, Ontario and that Olivia would be enrolled in a new school, St. John’s Catholic Elementary School. Neither the applicant nor the OCL had notice of this move nor was his consent requested.

[11] The applicant notes that Olivia had previously been enrolled in an IEP program and that the respondent’s transient behaviour was detrimental to his daughter’s education. He maintains that he can better provide Olivia with a stable home and environment and that he has the assistance of his common-law spouse to assist the child with her homework and to care for the child when he is at work. He proposes to enroll Olivia at Our Lady of the Lake, the sister school to St. Thomas Aquinas which she had attended last year. He indicates that the new school would support Olivia’s IEP program.

[12] In addition to his affidavit dated September 7, 2016, the applicant wished the court to consider a further affidavit sworn on September 21, 2016 which was apparently served upon both the respondent and the OCL the day prior. Due to the urgency of this matter I indicated that I would not give much weight to comments within the latter affidavit attributed to the child’s psychiatrist as the respondent had not had an opportunity to respond to this material and a formal report from the psychiatrist was not available.

Respondent’s Submissions

[13] The respondent indicates that in September, 2014 she had moved to Oshawa from York Region because the accommodations were less expensive and that she had secured part-time employment there. She relocated to Kitchener on August 29, 2016 after accepting a job transfer that offered her full-time employment and alternating weekend overtime work. She is employed as a professional school/charter driver. She submits a letter from Elliott Coach Lines confirming that she had been an employee since February, 2013 and that she made a transfer from her previous position due to lack of consistent work and wages. Both her current and previous employer is owned by Student Transportation of Canada. In response to a question from the court, she indicated that she accepted the offer after August 18, 2016.

[14] The respondent apologizes for not having advised the applicant or the OCL in a timely manner about her recent job offer and the necessity of her move. She indicates that the applicant had moved three times since the separation and that she therefore believes that he would understand her necessity in moving to better herself. Although she did not want this to be seen as being insensitive to the applicant’s parenting relationship with their daughter, the full-time job was ultimately necessary for financial reasons which is in Olivia’s best interests. She offers to compensate the applicant by allowing him an extra hour on Sunday evenings with his daughter. She also agrees to meet with him at a location which is approximately 51 minutes from his home so that his driving time was not increased.

[15] The respondent advises the court that Olivia has been diagnosed with ADHD, ODD and anxiety along with a learning disability. She has an IPRC and an Individual Education Plan. She states that as Olivia’s school only went up to grade 6 that she would have started a new school in September that includes grades 7 to 12 and would require Olivia to have a 45 minute bus ride to and from school and she believes that the new school in Kitchener would benefit Olivia socially as she would still be in elementary school rather than having to socialize with high school-aged children.

[16] The respondent indicates that she resides in a townhouse in Kitchener which she shares with a family friend. Olivia shares a room with the friend’s daughter. The respondent states that she has many close friends and family members in the Waterloo Region and that Olivia is within walking distance to her new school. The respondent advises that her current job also allows her to transport Olivia to and from school without the need for her to have to attend before and after school programs. She also advised the court that she has nowhere to reside back in the Oshawa area as she had vacated her premises in that locale.

[17] The respondent has not filed a revised affidavit as required by Rule 35.1 reflecting her new accommodation.

OCL’s Submissions

[18] The OCL’s submissions relied upon the affidavit of the clinician, Karen Guthrie-Douse dated September 20, 2016. In her capacity as a clinician, she interviews children and their parents with respect to custody and access disputes, prepares Reports pursuant to section 112 of the Courts of Justice Act and assists counsel who have been appointed to provide independent legal representation for children. She describes her role as interviewing children and collateral sources, observing the children’s interactions with their parents and assisting counsel with formulating a position on behalf of the children. She was assigned to assist Ms. Tobin on July 26, 2016.

[19] The evidence contained in the deponent’s affidavit emanates from interviews with the child, her parents and collateral sources and the review of documents including court documents and correspondence.

[20] In interviewing the applicant, Ms. Guthrie-Douse was advised that there had been problems with the summer residential schedule in that Olivia had been returned to him late after both residential periods provided for in the consent Order. He described his concerns that Olivia was not doing well at school and that she was not completing her homework while residing with the respondent. He alleged that the respondent had moved numerous times since the separation and was at one point homeless. Subsequently, the applicant provided information indicating that the respondent had lived with Olivia in 12 different residences since the 2009 separation with numerous moves associated with breakdown in relationships with boyfriends.

[21] In interviewing the respondent, Ms. Guthrie-Douse was advised of the respondent’s current accommodation and that she had plans on staying there “forever.” She was told that Olivia accompanies her on her bus routes before and after school and that she believed that Olivia was happy with the move and made friends on the first day of school. She intended to continue to take Olivia to see her psychiatrist in Toronto and to connect her with counselling services in the Waterloo area.

[22] The deponent’s affidavit also recites the difficulties in having the respondent provide the consent and authorization forms for disclosure of information. Based on the apparent determination of the OCL’s motion, nothing is gained, at this time, by a further review of this issue.

[23] A review of the collateral information received by the OCL indicates the following:

(a) Olivia’s grade 3 report card from June, 2013 indicates that she was absent 7.5 days and late 44 times and that her learning skills were rated as both needing improvement and satisfactory; (b) the grade 4 report card of June, 2014 indicated absences of 12.5 days and late 8 times; (c) the grade 5 report card of June, 2015 indicates that she was absent 16 days and late 14 times; (d) the grade 6 report card indicates that she was absent 22 days and late 45 times; (e) in all four years, her marks ranged from B’s to D’s with minor variations; (f) the Psychological Assessment completed on July 31, 2015 noted that the child has a long-standing history of attentional struggles with a diagnosis of ADHD. Her academic difficulties have been present since the outset of her education and concluded that she suffered from a Learning Disability; (g) in speaking with the new principal, the clinician was informed that the principal had some concerns regarding the child’s Psychological Assessment and her IEP from her previous school. In a previous school, the child had assistive technology that did not accompany her to the new school as she was now in a different school board. In addition, the child, in her previous school, was withdrawn from her classroom daily to receive specialized support which was not available in the new school. The principal commented that the IEP recommendations may need to be revisited given the resources available at the school. She also indicated that after Olivia was enrolled at the school, she learned that the respondent was a school bus driver for one of the routes that includes the school and that this was a potential conflict of interest. The principal also indicated that she had not had any contact with the applicant; and (h) documentation received from the York Region Children’s Aid Society dated June 17, 2015 summarized 14 previous activations of the file in addition to the last activation of the file which closed on July 31, 2015. Although the majority of the activations were not verified, there were four activations in which concerns had been verified with three of them concerning Olivia. The summary noted that “Ms. Ley had a lengthy history with the Society with four different partners, showing adult conflict, neglect and parent/child conflict. There appears to be conflict between Ms. Ley and every partner she has been involved with, which in most cases has been witnessed by the children. This pattern of conflict continues to appear between her and Mr. Smith has been witnessed by Olivia… It was explained to the parents that there was a high level of risk of harm for their child due to the history the family has with the Society and the ongoing conflict between them.”

[24] On August 19, 2016 Ms. Tobin and the clinician met Olivia and at the conclusion of the interview, Olivia requested that the information that she provided be kept private except expressing her wish that she wanted to live with her father and that she would like that arrangement to be made before the beginning of the school year. At a further meeting on September 18, 2016, Olivia indicated that she had returned to her mother’s home in Oshawa on August 31, 2016, after spending most of the summer with her father and that evening her mother informed her that they were moving to Waterloo. Olivia reported that she was “shocked” and when she expressed this to her mother, the response was “this is how it is.”

[25] Olivia reported that they live in a complex close to her mom’s boyfriend. She reported that she had met him once but then stated that she and her mother have gone to his house about seven times to sleep over, mostly on the weekends.

[26] Olivia reported that she and her mother had moved in with her mother’s friend and the friend’s two children, aged eight and 17 and that she shared the room with the older child. It was her understanding that the arrangement was temporary but she was unsure of where they would live after that. Olivia reported that she did not like moving and listed six other locations where she has resided with her mother including Barrie, Keswick, Queensville, Holland Landing, Oshawa and Waterloo. She expressed her belief that the purpose of the move to Waterloo was to be farther away from her father.

[27] Olivia also reported that her mom told her that both Ms. Tobin and Ms. Guthrie-Douse were “bad guys” and that Ms. Tobin was “taking advantage of her.” Olivia stated preference would be to live with her mother in Keswick and to spend every other weekend and every Wednesday and Thursday with her father.

Analysis

[28] The relevant test in determining the merits of the claim for custody or access to a child shall be determined on the basis of the best interests of the child as found in the Children’s Law Reform Act [1]. The court is obliged to consider amongst a number of factors the love, affection and emotional ties between the child and the respective parents, the child’s views if they can be reasonably ascertained, the length of time that the child has resided in a stable home environment, the permanence and stability of the family unit and the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child.

[29] A review of the evidence provided by the OCL reflects a most troublesome situation impacting upon the stability of a 12-year-old child. Clearly, since 2009 the child has resided in a somewhat permanent status quo with her mother but it can hardly be said to have been stable. There have been apparently 12 changes of residences seemingly predicated on the respondent’s involvement with others. The child has special needs; her previous school in Oshawa was able to provide for those needs but there is nothing in the respondent’s evidence to indicate that she has made inquiries of the new school although her affidavit indicates that she is mindful that her daughter requires a school that meets her needs. The present accommodation has no sense of permanence. Olivia is sharing a bedroom with a 17 year old. This fact, in itself, is contradictory to the respondent’s assertion that her daughter would benefit socially by remaining in a school where she does not have to socialize with high school age children. She indicates that her new home is in close proximity to the child’s school and yet she negates any apparent benefit to the child by having the child accompany her on her bus routes at the beginning and end of the day.

[30] The court is mindful that competing positions are best resolved after trial where the trier of fact can make credibility findings and the evidence submitted by the parties can be subject to cross-examination. Courts show a marked reluctance to change a status quo that has existed for a lengthy period of time on a temporary motion. For instance, it has been said that only in exceptional cases will a court act upon an assessor’s recommendation before a full investigation provided by a trial [2]. Where such exceptional cases were found to exist and where compelling evidence is present then courts have effected a change of residence/custody where it has been found to be consistent with the best interests of the child. [3]

[31] Recently Justice Pazaratz faced a fact situation not dissimilar to the one at bar. In Cosentino v. Cosentino, 2016 ONSC 5621 (SCJ) [4] the court was required to adjudicate a temporary motion and cross-motion concerning a three year old little boy scheduled to commence junior kindergarten the following day. His parents had a shared parenting arrangement that had existed for more than a year which was detailed in a Separation Agreement that included a provision for them to discuss schooling options for the child within the geographical area where they were both then resident. The court noted:

Parents should think twice about trying to move a child to another city in the middle of a custody dispute. In any contest between "best interests of the child" and "fait accompli" — best interests will always prevail. [5]

[32] The Court further noted at paragraphs 15-18:

15 It is impossible for a motions judge to make the necessary factual and credibility determinations based on the materials before the court.

16 On a temporary choice-of-school motion — particularly one with mobility overtones — a cautious approach is necessary to safeguard the best interests of the child, and avoid manipulation of the process.

17 The status quo — and avoiding reckless creation of a new status quo — are important considerations.

18 For clarity:

a. The issue is not whether a parent should ever be allowed to relocate a child's residence an hour away. The abundant caselaw on mobility makes it clear that in appropriate circumstances — after thorough consideration of all of the evidence -- much greater moves have been approved as being in the best interests of the child.

b. The issue is whether a parent should be allowed to unilaterally impose a change to a child's routine which will subvert a successful status quo , and create an entirely self-serving new status quo in the middle of a custody dispute and in the middle of a section 112 investigation.

[33] In Cosentino, the court was faced with competing affidavits replete with a “he said/she said” version of the parties’ relationship and involvement with the child. In the case at bar, there exists a final court Order that is the subject matter of a Motion to Change. In the midst of the litigation and in the midst of the investigation by the OCL, the respondent has made a unilateral decision without the simple courtesy of first notifying the applicant (as required by the existing court Order regarding the child’s schooling), the OCL or even her own recently-retained counsel of an intention to relocate. She was aware of her job offer at least three weeks prior to the commencement of the new school year. In moving as she did, she paid lip-service to her daughter’s best interests in furtherance of her own under the pretext of obtaining employment with greater remuneration albeit of a part-time nature. She has been secretive regarding the permanency of her accommodation, her efforts to secure other employment closer to home and any information regarding her relationship with a new boyfriend. Upon close examination of the affidavits before the court, there is little, if any “he said/she said” for the court to determine. The respondent concedes that she exercised poor judgment and attempts to justify it by noting that the applicant had also moved three times since their separation although she gives no information as to whether or not these moves impacted upon the child. Although served late with the OCL’s affidavit detailing the child’s challenges, the respondent filed no response nor did she request an opportunity to do so.

[34] As noted, the Settlement Conference is scheduled for October 3, 2016. It cannot be determined, with any certainty, when the trial of this matter will be scheduled. The OCL’s investigation, as thorough as it is with such short notice, is incomplete, largely attributable to the respondent’s reluctance to provide the requested consents and authorizations on a timely basis. A report is required from Dr. Bordbar, the child’s psychiatrist. Further information may be required from the York Region Children’s Aid Society. At this stage, it would appear that the scheduling of a trial would be premature but this issue can be better canvassed between the parties and the Case Management Justice.

[35] The respondent’s behaviour brings this case within the category of exceptional cases necessitating a change of residence for the child. Accordingly it is Ordered:

Orders

1. Effective September 30, 2016 the child shall have her principal residence with her father in Pefferlaw, Ontario.
2. The child shall be enrolled at Our Lady of the Lake Catholic School in Keswick.
3. The access arrangements in the final Order of Justice Corkery dated January 16, 2012 shall be amended to provide that the respondent shall have access with the child every alternate Friday evening at 6:00 p.m. to Sunday evening at 7:00 p.m. and this shall be extended by one (1) day in the event of a statutory holiday. There shall be no midweek access pending further court order. The holiday schedule provided for in paragraph 8 of the final Order shall continue save and except that the child shall reside with the applicant father on Thanksgiving weekend in even-numbered years and with the respondent mother in odd-numbered years, from the Friday before Thanksgiving at 5:00 p.m. until Monday at 5:00 p.m.
4. All access exchanges will take place at the Tim Hortons location at 25 Woodstream Boulevard in Vaughan.
5. Both parents shall be entitled to receive information from the child’s school and physicians. Upon enrolling the child in school, the applicant shall provide the school with the respondent’s contact information currently available to him.
6. The respondent shall be entitled to telephone access with the child each Tuesday and Thursday at 8:00 p.m. If the child is not home, immediately upon her return she shall be encouraged by the applicant to contact the respondent by telephone.
7. Neither parent shall discuss current legal issues with the child nor disparage the other to the child nor shall they allow others to do so.
8. The Support Deduction Order dated October 22, 2015 shall be rescinded effective September 30, 2016. The issue of the respondent’s obligation to provide support and contribution to extraordinary expenses for the child shall be conferenced on October 3, 2016 at the scheduled Settlement Conference.
9. To expedite entry of this Order, it shall be prepared by the OCL.
10. The respondent shall forthwith release to the applicant the child’s Birth Certificate, Baptism Certificate, Health Card and the child’s medications.
11. This Order shall be enforced by any police force having jurisdiction in any area where the child may be and if required, to locate, apprehend and deliver the child to the person named in the Order pursuant to the provisions of section 36 of the Children’s Law Reform Act. This Order shall expire upon the granting of the final Order in the subject proceeding unless otherwise provided for in the final Order.

[36] If counsel need to address any issue other than costs, they should arrange a time to appear before me.

[37] If the parties are unable to resolve the issue of costs, then the applicant shall serve and file submissions by October 15, 2016, the respondent by October 31, 2016 and any reply submissions by November 14, 2016. Submissions shall not exceed three pages exclusive of Bills of Costs and Offers to Settle and shall be filed in the Continuing Record.

Justice R. Kaufman Released: September 28, 2016

[1] R.S.O. 1990, c. C-12, s. 24 [2] See for instance Grant v. Turgeon 2000 Carswell 1128 (Ont. SCJ), and McEachern v. McEachern, 5 RFL (4th) 115 (Ont. Gen. Div.) [3] See Kaverimanian v. Manickam, 2014 CarswellOnt 3392 (Ont. S.C.J.) , where the court also was concerned about the quality of evidence to be relied upon and the proximity to trial. In Violante v. Beun, 2014 CarswellOnt 7245 (Ont. S.C.J.) Justice Mesbur changed custody of a 12 year old girl notwithstanding that the trial was scheduled 3 months later [4] Cosentino v. Cosentino, 2016 ONSC 5621 (SCJ) [5] Ibid , paragraph 1