Superior Court of Justice – Ontario
Family Court
Citation: Burchell v. Kissi-Antwi, 2016 ONSC 6122 Court File No.: F1532-15 Date: 2016-09-29
Re: Lynette Maria Burchell, Applicant And: Anthony Kissi-Antwi, Respondent Robert McCormick and Jane Susan McCormick, Respondents
Before: Aston J.
Counsel: Linda C. Henry, for the Applicant Alexandra Kirschbaum, for the Respondent Anthony Kissi-Antwi Robert McCormick and Jane Susan McCormick, Self-Represented
Heard: September 28, 2016
Endorsement
[1] The mother’s motion is found at Tab 21, the father’s at Tab 23 and the motion of Robert and Jane McCormick at Tab 25 of the Continuing Record.
[2] The father and the McCormick’s share joint custody of the three children, Mya, age 9, Nathan, age 6 and Sophia, age 5. The mother has access which occurs during the time the children are in the care of the McCormick’s (who are her aunt and uncle) and subject to their discretion as to frequency, duration and supervision. See the final order of May 7, 2015. That order also imposes on the father an obligation to consult with the McCormick’s (but not the mother) before making certain decisions regarding the children. It also specifies that he is not to change the residence of the children to a place more than 100 kilometres from Brantford (where the mother and the McCormick’s reside). London is deemed to be within that 100 kilometre radius even though the father’s actual residence with the children is marginally further away.
[3] The father has given up the rented London residence and wishes to move with the children to Lindsay, Ontario where he has found a good job after a lengthy period of unemployment. He has not yet breached the residency condition in the May 7, 2015 order but he has been commuting for several months now between his job in Lindsay and the family residence in London. He told his landlord as early as July 18, 2016 that the family was moving to Lindsay but only brought his motion for permission to do so August 31, 2016 in response to the mother’s discovery of his secret plan and her motion to compel him to abide by the May 7, 2015 order or alternatively to place the children in her care.
[4] The McCormick’s motion does not address the mobility issue except to support the mother’s opposition to the move. The relief they seek in their notice of motion is simply that if the children’s residence is changed from the father that the children ought to be placed in their care rather than in the mother’s care.
[5] The travel time from Lindsay to Brantford is about 3 hours, longer during Toronto’s rush hour.
[6] The issue now before the court arises in the context of the mother’s motion to change wherein she seeks custody of the children or alternatively, more expansive and unconditional access. A settlement conference is scheduled for November. The Office of the Children’s Lawyer is in the process of preparing a fresh report under s. 112 of the Courts of Justice Act. A main pillar of the submissions of the mother and the McCormick’s is that the father’s motion for permission to move to Lindsay is premature.
[7] I have reviewed and have in mind the principles of law set out in Plumley v. Plumley, 1999 13990 (ON SC), [1999] O.J. No. 3234 and Hazelwood v. Hazelwood, 2012 ONSC 5069, [2012] O.J. No. 4274 together with the references therein to other authorities.
[8] There is little doubt the father was intending to move and then present the other parties and the court with a fait accompli. He has little respect for court orders. His assertions that he thought this case would be completed by October 1, 2016 ring hollow. However, the issue to be decided is not an exercise in castigating the father; the overriding consideration is the best interests of the children and the specific consequences for them if the father’s proposal is allowed or denied.
[9] The children already spend about one and a quarter hours in the car each way under the current residential schedule. The additional time for a Lindsay/Brantford commute would also mean the weekend start time of 5:30 p.m. on Friday and the end time of 6:00 p.m. on Sunday would need some modest adjustment. The move would mean another change in schools, now partway into a new school year, albeit early in the year.
[10] A main advantage to the children of the proposed move is that their father, unemployed for three years and struggling to maintain the family without any assistance from the mother or the McCormick’s, would be able to earn more than $50,000 per annum with a concomitant boost in their standard of living. Equally importantly, the elimination of the father’s need to commute between London and Lindsay will mean that he is more available to the children during the week. The proposals of the McCormick’s and of the mother for the children to be placed in their care are in the circumstances of this case more disruptive to the lives of the children than the father’s plan. Though all proposals involve a change of community and a change of school, the father’s proposal at least continues his role as the day-to-day caregiver.
[11] In my view, it is in the best interests of the children to grant the relief sought by the father in his motion, conditional on a variation of the responsibilities for transporting the children to and from the McCormick’s and a modest modification of the access terms as follows:
The McCormick’s are to choose a pick-up and drop off point 50 to 100 kilometres from their residence;
The father is to assume all responsibility and cost for delivering the children to that pick-up point and picking them up there after access;
The Friday exchange time is changed to 6:00 p.m. and the Sunday exchange time is changed to 5:00 p.m.;
The alternate weekend access is expanded to change Friday’s to Thursday’s on any access week that the children are not in school on the Friday and the Sunday is changed to Monday whenever the children are not in school on the Monday of an access weekend; and
The other provisions of the orders of March 4, 2015 and May 7, 2015 (including specifically the transportation cost provision in para. 2 of the latter order) are to remain unchanged.
[12] The motions by the mother and the McCormick’s are dismissed. For oral reasons given at the time the motions were argued the father’s motion to strike paragraphs of the mother’s affidavit is dismissed.
[13] Though the father is by and large successful on these motions, I decline to order any costs in his favour because of his litigation conduct as noted. He knew of the need to vary para. 3 of the order of May 7, 2015 as early as May or June but did not bring the matter to court or even advise the other parties of his proposal until he was caught secretly trying to leave.
“Justice D. R. Aston”
Justice D. R. Aston
Date: September 29, 2016