CITATION: Monaghan v. Dorion, 2016 ONSC 7560
BARRIE COURT FILE NO.: FC-10-1140-02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kellie Monaghan Applicant
– and –
James Dorion Respondent
Applicant, Self-represented
Respondent, Self-represented
HEARD: November 17 and 18, 2016
REASONS FOR DECISION
JARVIS J.
1On October 26, 2010 Wood J. made an Order, on consent, that the applicant mother (“the mother”) and respondent father (“the father”) share parenting of their (then) infant daughter, A.D., born January 2, 2010. The child was to primarily reside with her mother. On alternate weekends and overnight once a week, the child would be with her father. Excepting the Christmas holidays, all other times were left to the parties to agree.
2The Order made by Wood J. made no reference to “custody.” Rather it provided that the parents “share in the parenting of” their daughter. Among its several terms, the Order obligated the parents to consult each other on major issues affecting the child. Child support of $300 monthly was ordered in accordance with the Child Support Guidelines (“the Guidelines”). For all intents and purposes, the parties’ shared custody.
3On October 23, 2015 the father started a Motion to Change Wood J.’s Order. He requested that a formal Order be made for joint custody, that the child's residential/access arrangements be changed to reflect equal time with each parent, and that child support be terminated. In her January 8, 2016 Response and Claim, the mother asked that she be awarded sole custody and that an income higher than what the father acknowledged be imputed to him for child support purposes. That claim has since been amended to request an Order permitting the child to move with the mother to Whitby.
4These are the principal issues in this trial:
(a) should the child be allowed to move to Whitby with her mother?;
(b) regardless of the outcome of (a), what change (if any) should be made to the child's residency schedule with each parent?; and,
(c) should there be any change in the amount of child support?
5It is not uncommon that where a mobility issue arises, a claim for custody by the parent opposing the move is made. Despite the fact that the father started these proceedings before the mother proposed to move the child, the parties agreed at the Trial Management Conference that the issue of that move is pivotal to determining the other issues.
Evidence
6Both parties testified. In addition to her testimony, the mother called Elaine Chapelle, a career development coach, as a witness. The father called his mother.
7The parties’ narratives were mostly consistent about the history of their daughter’s parenting before the father started his Motion to Change. Both described her as a good student, very involved in extra-curricular, athletic, activities and, according to the mother, very close to her slightly older half-sister with whom A.D. had been raised. While it was clear from the trial that the parties cared little about each other, they acknowledged, directly in the case of the mother, and indirectly in the case of the father, that the other was a good parent.
8The parenting arrangements set out in the Order of Wood J. were subsequently followed, and expanded in the sense that the child spent more time than the 2010 Order prescribed with the father and his parents. The mother worked two jobs, often not finishing until after the child's school day ended. The paternal grandmother would pick-up the child from school about two times a week. Other times, the child would be picked up by the mother or one of her friends from school or from the paternal grandmother's residence.
9The mother worked as a patient care assistant at a local mental health facility. She also worked in the kitchen area. She was a single parent with two pre-teen children whose work days were long and her finances strained, living paycheque to paycheque in a rented house.
10The father worked as a labourer in the construction industry. He lives with his parents. He took the child to all of her extra-curricular activities, the costs for which were paid by him and his mother. He does not drive.
11In early August 2015, the mother took stress leave from her employment and around, or shortly after, the time that she did not return to that work, and was terminated, she consulted Ms. Chapelle.
12The YMCA of South Muskoka is funded by Employment Ontario. It offers a broad spectrum of coaching and counselling services for the more vulnerable and less educated, including youth at risk. Ms. Chapelle had 10 years career development experience when she was consulted by the mother within days of her work termination. Ms. Chapelle and the mother discussed the mother's career goals and explored available retraining and future employment options. Given the mother's history as a patient care assistant and her interest in the mental health field, Ms. Chapelle thought that the best employment option for the mother to pursue was as a Personal Service Worker (“PSW”) with a mental health emphasis.
13The mother was concerned about her ability to support her children if she undertook training. As the mother had Métis status, Ms. Chapelle referred the mother in October 2015 to a local native friendship centre for financial assistance, which was approved. The mother applied for, and was accepted in, a PSW training program but that would not start until February 1, 2016. Between mid-October and when training commenced, the mother looked for work and kept in weekly contact with Ms. Chapelle, who also assisted the mother in a number of job applications. It was during this time that the father started his Motion to Change.
14The father testified that several years before he and the mother met he had been involved in a motor vehicle accident involving two police cruisers. He was intoxicated, lost his driver’s licence, and since then had not regained it. He was still paying the fines imposed. His mother, or other persons, provided his transportation or, when it was necessary, he paid for transporting A.D. and him to her activities. He had back problems and had already undergone back surgery. Further surgery was likely in the near future.
15In 2012 the father married. Around the time that he started these proceedings, he and his wife separated. Since December 2015, he has resided with his parents and paid them $600 monthly for his room and board. He acknowledged that he relied a lot on his parents, and his mother testified that they had loaned him between $15,000 and $19,000 for legal expenses, which they expected to be repaid someday.
16The mother began her PSW training at the Midland Learning Center on or about February 1, 2016 and was able to work her training around her child care responsibilities. Between the date that the course began and its June 29, 2016 completion date, the mother sought out employment opportunities in the Midland and surrounding area with Ms. Chapelle's assistance. But, as Ms. Chapelle testified, there were no jobs in the areas surveyed that would pay for someone having the mother's mental health experience, and what possible jobs were available were at nursing homes which paid only a modest part-time hourly rate that would, according to the mother, be insufficient to support her and the children and offered little or no job security. Looking further afield, Ms. Chapelle identified a number of promising employment positions in the Greater Toronto and surrounding area that could use a person with the mother's skill set. During this time, a Case Conference scheduled for February 9, 2016 was adjourned, and ultimately rescheduled, to June 28, 2016.
17In April 2016, the mother was notified by her landlord that he intended to move back into the residence that she rented from him. The landlord wanted vacant occupancy as of June 11, 2016. Around this time too, the mother had identified, and was interviewed by, a health services employer in the Durham region who subsequently offered the mother employment paying her anywhere from 20% to 35% more than what she could have earned in the Midland and surrounding area along with health and pension benefits that were either superior to, or simply not offered by, area employers. The mother accepted the offer: her employment was to start on July 5, 2016.
18On May 16, 2016, the mother signed an agreement to lease a residence in Whitby having a June 1, 2016 possession date. She had not told the father about this, or about her new employment. He learned about the mother's plan to move to Whitby from their daughter.
19Despite the fact that the mother was represented by counsel, the father brought an urgent motion without notice on June 8, 2016. That was ultimately adjourned to June 28, 2016 when pursuant to temporary, and without prejudice, Minutes of Settlement Wood J. made an Order for a week-about access starting June 29, 2016. That Order also provided, among other things, that “the child's residence shall be deemed to be Midland until further Order of the court or hearing of the motion” and that the child remain enrolled in her Midland school.
20The mother graduated with Honours from her PSW course at the end of June.
21During the 2016 summer, the child alternated between her paternal grandparents’ residence with her father and the Whitby residence to which the mother and the child's older sister had moved. As described by the mother, this residence was a newly constructed three bedroom, two bathroom, fully detached home with a fenced-in backyard. It was located two houses away from a park and bus stop. The child and her sister would attend a nearby school.
22On August 18, 2016 McDermot J. made an Order dealing with the child's residency, the relevant terms of which are the following:
The applicant mother shall not be permitted to relocate with A.D. to Whitby, and A.D. shall continue to have her residence in the Midland/Penetanguishene area.
The child shall be registered in school at her present school in Midland.
The summer week about time sharing shall continue until the commencement of her school year.
Upon commencement of school if the applicant mother has returned to Midland, the terms and conditions of the Order of Justice Wood, dated October 26, 2010 shall continue in full force and effect and the child shall continue to live in the primary care of the applicant mother.
If the applicant mother does not return with the child to Midland, the child shall have her primary residence with the respondent father subject to reasonable time sharing with the applicant mother.
23On September 1, 2016 Sutherland J. heard a motion by the mother to stay the Order of McDermot J. That motion was dismissed.
24On September 15, 2016 the father brought a motion seeking clarification of the Order of McDermot J. While the child was attending school in Midland, and the mother commuting daily to Whitby for work, the child and her mother were, in essence, “couch-surfing” at the residence of the mother's cousin in the Midland area. The issue raised was whether that was sufficiently compliant with paragraph 5 of McDermot J.’s Order, potentially changing the child's primary residence to the father. Wildman J. adjourned the motion to September 27, 2016 before McDermot J. On that date McDermot J. agreed, with the parties’ consent, to conference the issues. The parties were unable to settle.
25A Settlement Conference was scheduled on October 7, 2016. The mother attended: the father went fishing. Wood J. observed,
“The [respondent father's] failure to appear for this Settlement Conference would appear to be a deliberate step to ensure that the matter could not be placed on the November list despite clearly demonstrated urgency. This sort of manipulated delay should not be allowed or encouraged.”
26Wood J. ordered that a combined Settlement/Trial Management Conference proceed before him on October 21, 2016 so that, if necessary, a trial could be scheduled for the November sittings of this court.
27The combined conferences were held on October 21, 2016. Afterwards, the mother agreed that, pending the trial proceeding as anticipated, the child remain in the care of her father during the school week in Midland. The five to six hour daily commute for the mother was too physically draining, expensive and disruptive to her and her other daughter.
The Proposed Relocation
28The mother’s evidence is that the move to Whitby would be beneficial for A.D. The child and her older sister have a very close relationship. They would continue to live together under their mother's primary care, even attending a nearby school. The child, her sister and mother would attend a local church, continuing the practice that they had followed when living in Midland. The maternal grandfather lives in the Greater Toronto Area and the mother has cousins in the Whitby area, as well as her best friend. The mother has no siblings. The maternal grandmother, who has mental health challenges and from whom the mother is estranged, lives in a long-term care facility in Midland.
29The proposed move is an economic imperative, not one intended to undermine the child's relationship with her father. The mother lost her employment as a result of stress-related issues for which she sought out and received medical treatment. She retrained but could not find, even with professional assistance, sufficiently well-paying, and secure, employment in the Midland and surrounding area. The modest amount of support paid by the father was also insufficient to relieve the daily financial challenges confronting the mother, a single parent on whom two children were primarily dependent for their physical, emotional and psychological well-being. The father acknowledged that his $300 monthly support payments were not always on time - the mother described the father’s payment history as “unreliable” and only adding to her month-end difficulty of paying her family’s expenses, which were modest in any event. The unexpected termination of the lease for the rental property in which the mother and children lived was, together with all else that was happening, a perfect storm.
30The mother testified that her new employment involved less time at work than she had formerly been obliged, with two jobs, to spend, and for more income. She had benefits, a pension and these, when viewed overall, provided a level of financial and psychological security absent in Midland.
31The mother testified that she would assume the driving responsibility to and from Midland in order to maintain the child's contact with the father and his extended family and, at least until the father carried through with his plans to regain his licence privileges, forgo child support. That would help the husband retire more quickly what fines remained owing from his driving offences. Unlike the mother, who had a family plan centred on the children's life with her, the father maintained that the child should remain in the Midland area residing with him at his parents’ residence. He is financially dependent on them and likely will remain partially, if not almost wholly, dependent on them for the foreseeable future given his back condition and potential future surgery. The court was not told what other career options were open to the father or what inquiries he had made to explore vocational retraining in the event that, again, he was unable to engage in physical labour.
Analysis
32The mother’s loss of employment and her subsequent acceptance of new employment in the Durham region necessitating a residency change involving the child and the time that she would spend with her father are material changes in circumstances affecting the parties’ abilities to meet the child’s needs.
33The authorities are clear that where, as in this case, there is a material change in circumstances, the issue for the court to determine is what, in all of the circumstances, old and new, is in the child's best interests. In Gordon v. Goertz, 1996 CanLII 191 (S.C.C.), [1996] S.C.R. 27, the Supreme Court of Canada summarized the law dealing with child mobility and emphasized not only that “[E]ach case turns on its own unique circumstances” but also that the “focus is on the best interests of the child, not the interests and rights of the parent.” The court framed the considerations for the court as involving, among other things, 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;
(f) disruption to the child of a change in custody; and
(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
34The impact on A.D.'s best interests of the proposed move must be assessed in light of the Gordon factors.
(a) the existing custody arrangement and relationship between the child and the custodial parent
35This is not a factor because there would be no change in primary residence of the child.
(b) the existing access arrangement and the relationship between the child and the access parent
36In the circumstances of this case, it is not appropriate to view the father as an “access” parent but it is nonetheless important to observe that he agreed, shortly after the child’s birth, that her primary residence would be, as it has ever since been, shared with her mother and sister.
37In addition to the times which Wood J. ordered that the child be in her father’s care, she would spend late Monday afternoons/early evenings with him for activities. The mid-week overnight was expressed “to accommodate the mother’s work schedule.” Often the child would be at the paternal grandmother’s residence after school.
38The father described his loving relationship with his daughter and her with his extended family. He was very involved with her care after her birth. The mother said that she admired the father as a parent. His mother testified that the child had a very strong bond with her father.
(c) the desirability of maximizing contact between the child and both parents
39The arrangement proposed by the mother will undoubtedly reduce the amount of time that the child will be able to spend with her father, a lot of which, as the parties testified, involved the child participating in extra-curricular activities. The weekday overnights will be impractical and the father will not be able to take the child to, or observe her at, her activities. To some extent these can be addressed by additional weekend or holiday time and regular contact facilitated by technology applications such as Skype.
(d) the views of the child
40Each party conveyed different impressions of the child’s views about the proposed move. The mother testified that the child wanted to live with her sister and her: the father said that she wanted to stay in Midland. Given the exigent circumstances of this case, no Order to appoint the Office of the Children’s Lawyer, even if the appointment was accepted, could have been of any practical assistance. What seems clear is that the child is comfortable, and happy, when in the care of either parent.
(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
41The mother’s reason for moving is relevant to her ability to meet the child’s needs. As already noted, the circumstances giving rise to the move were a combination of factors involving financial and emotional stress outside of the mother’s control, themselves exacerbated by the dearth of employment opportunities in the Midland area and the coincidental need to locate alternative housing. The litigation was started for reasons other than the move and while the parties, at first, were arguing over which of them should be formally recognized as the child’s legal custodian and with whom she should be primarily resident, there was no change to the time that the child was spending with either parent.
42In Gordon, McLachlin J. rejected the existence of a legal presumption favouring a custodial parent. While there is no formal Order for custody in this case, McLachlin J.’s observations about the views of the parent with whom a child primarily has lived are relevant,
48While a legal presumption in favour of the custodial parent must be rejected, the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent’s parenting ability.
43In Ligate v. Richardson, 1997 Can LII 650 (ONCA), 34 OR (3d) 423 (Ont.C.A.) Moldaver J. (as he then was) accepted that the personal and professional advantages accruing to a parent wishing to move with a child were entitled to great respect and serious consideration in circumstances where, as in this case, that parent was prepared to make accommodations to reinforce the other parent’s relationship with the child. In this case the mother testified that she was prepared to assume responsibility for driving the child to, and picking her up from, Midland and open to unequal sharing of non-school days during the school year (such as Professional Development days) and long weekends, including summer week-about driving.
44Economic factors impacting the moving parent are also entitled to great respect and serious consideration as they will invariably affect the happiness and stability of the child’s environment: Woodhouse v. Woodhouse, 1996 CanLII 902 (Ont.C.A.). The positive factors in support of the proposed move must be balanced with the negative factors if that move is refused: Bjornson v. Creighton, Ontario Court of Appeal, C35031, (November 19, 2002). In this case, the mother testified that in Midland she would have, and had, no financial stability. She argued that if the move was refused she would be compelled to return to the Midland area where she would have “no fighting chance” to, what the court inferred was, succeed. That diminished future would impact both of her children.
45In several respects the dilemma faced by the mother echoes that faced by a mother in Lebrun v. Lebrun, [1999] O.J. 3393 (Ont. S.C.J.) where Pardu J. observed,
32The children’s need for shelter, food and clothing which could be provided by adequate earnings by the mother must take priority over the disruption of a move, and reduced contact with the father and his family. The intellectual and emotional flowering of these children cannot occur until their basic physical needs are met.
33The economic realities require that the mother be free to pursue employment which will permit her to escape the welfare rolls. I am confident she will manage the move in a way which promotes the children’s best interests.
34An order restricting the residence of the children would, as in Woods v. Woods (1996), 1996 CanLII 18119 (MB CA), 110 Man. R. (2d) 290 (C.A.), condemn the mother and children “to a life of penury with a dissatisfied [mother] to improve their lives from both a material and psychological standpoint.”
46The father objected to the move because he suggested that the mother could find “adequate” work in the Midland area. He did not say what that work involved, by whom that work might be offered, what the mother might be expected to earn or even whether there could be benefits. He guessed, too, that there was a higher cost of living in the Whitby area that potentially wiped out any financial advantage of the move but he offered no evidence in support. Despite the importance of these proceedings, the father’s objections were nothing more than speculation.
(f) disruption to the child of a change in custody
47The mother testified that A.D. had a strong relationship with her older sister with whom she had been raised since birth. The girls attended the same schools and church together. While the best interests of the older sister are not before this court, the implication is inescapable that the relationship between the siblings would be affected, and likely adversely, by changing A.D.’s residency to the father as he has requested. The mother, in any event, was adamant that she would not allow the children to be separated.
(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know
48McLachlin J. in Gordon adverted to the difficult balancing act involved in mobility cases when she observed that
“In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, its extended family and its community.”
49The paternal grandmother testified that she felt very close to the child, as did her husband. The paternal grandmother would often drive the child to school, buy her clothes, pay for some of her activities and provide after school care when needed. She acknowledged that she and the mother enjoyed a good relationship and that it was important that the child be with her mother and step-sister. She and her husband took, and paid for, vacations involving the child twice yearly. A move would reduce the amount of time that the child would see her paternal grandparents.
50The child participated in dance, art and gymnastics. Although very young, she played hockey in Midland last year.
51While a move would impact the amount of time that the child would see her paternal grandparents, there is no reason to suspect that the paternal grandparents would treat the child any differently than in the past, refuse to invite her to join them for vacations or that the mother would object to those invitations if made. Nor is there any reason why the child would not be able to participate in the same range of activities in Whitby as enjoyed in Midland. Overlooked by the father in his evidence was the fact that the child’s activities often took place while the mother was compelled to work later hours than she wished.
Conclusion on Proposed Move
52Taking into account all of the evidence, the mother’s proposed move to Whitby is in the child’s best interests. The child’s relationship with her father is to be fostered and facilitated by the terms of the Order set out below.
Child Support
53When Wood J. ordered on October 26, 2010 that the father pay $300 a month for child support, that amount was based on a payor earning $32,700 as required by the Guidelines. In these proceedings, the husband’s income was noted to be $8,867 (2013 as assessed), $15,574 (2014 as assessed), possibly the same for 2015 as the prior year and $25,200 estimated for 2016. The mother suggested that there was an unrecorded cash component to the father’s income and that his declared income was inconsistent with his lifestyle. The father was seeking a reduction in child support to reflect the change in his financial circumstances.
54The mother estimates that her new employment will pay her in excess of $55,000 a year together with benefits and a pension.
55The financial statements of each party disclose either no assets, in the father’s case, or, in the mother’s case, a fully financed automobile.
56It is clear that both parties have significant financial challenges. The father needs to retire the balance of the fines owing as a result of his driving conviction and the mother needs to create a more financially stable environment for herself and her children. Her proposal to forgo child support on a temporary basis to enable the father to regain his driving privileges seems generous, if not sensible in the circumstances. She will have, at least for the foreseeable future until the father is able to drive, the responsibility of transporting the child to and from Midland and paying the associated gas expenses.
Disposition
57The father argued that after the mother decided to accept employment in the Durham region, she should have informed him right away. He also relied upon the Orders made by Wood J. and McDermot J. as suggestive of the mother acting either impulsively or deliberately in defiance of them. The father posted Facebook comments that are regrettable and given that Wood J. was unimpressed by the father’s failure to attend the Settlement Conference scheduled for October 7, 2016, each party’s behaviour, while not acceptable, was somewhat understandable given the importance of the issue to them, and the emotions involved. I do not interpret either parent’s litigation conduct as demonstrating that they would not, in future, comply with court Orders.
58As difficult as it may be for the father to accept that A.D.'s move to Whitby is in her best interests, the reality is that the child should be given the opportunity to emotionally and intellectually flower in the family environment in which she has been raised since birth with her mother and sister. In no way should this outcome be viewed as impugning or minimizing the father’s relationship with the child or what the father and his family have contributed but rather, it weights the delicate balancing of the child’s best interests in favour of the proposed move.
59Accordingly, an Order shall issue as follows:
The Order of Wood J. dated October 26, 2010 shall be varied as set out below.
The parties shall share joint custody of the child, A.D., born January 2, 2010.
The child shall be permitted to move with her mother to the Whitby area where the child shall reside in her primary care. This move shall take effect on or before January 2, 2017 in order to ensure as little disruption as possible to the child’s schooling.
Subject to subparagraph 5 of this Order, the status quo after October 21, 2016 shall continue until January 2, 2017.
The parties shall share equally the Christmas holidays. These shall be defined to mean the period starting on the afternoon after the child’s last day of school before the holidays to and including the Friday before the week in which school begins in the New Year.
Paragraphs 1 (b) to (d) and (e) v. and vi. of the Order of Wood J. dated October 26, 2010 shall remain in full force and effect and be incorporated into the Order to be issued.
Commencing January 9, 2017 and in alternating weekends thereafter the child shall reside with her father from after school on Fridays to Sunday evening (8:00 p.m.). Subject to subparagraph 14 of this Order, the mother shall be responsible for transporting the child to and from Midland from her Whitby residence.
Should a weekend where the child will be residing with her father is preceded, or succeeded, by a school event or holiday such as, for example, a Professional Development day or Thanksgiving, then the child’s time with the father shall commence on the evening before the event begins or end on the evening before the following school day.
The father shall be entitled to communicate daily with the child by Skype or other such communication application. The times shall be reasonable and respectful of the child’s schooling and other activity commitments.
To facilitate the father's ability to regain his licence privileges and to pay the fines outstanding relating to the suspension of those privileges, the father's obligation to pay to the mother support for the child in accordance with the Guidelines shall be forthwith suspended to June 30, 2017.
Neither party shall enroll the child in an activity that will take place during a time when the child will be with the other parent, or for which there will be a cost expected to be shared by the other parent, without the other parent’s written consent being first obtained.
Neither party owes anything to the other on account of child support.
On or before May 15, 2017 each party shall provide to the other a complete copy of their 2016 Income Tax Return with attachments and, afterwards, a copy of their Notice of Assessment within seven days of its receipt.
The mother shall be at liberty on or after May 31, 2017 to apply to the court for an Order for child support in accordance with the Child Support Guidelines and to vary subparagraph 7 of this Order dealing with allocation of the parties’ transportation obligations for the child.
In the event of any dispute about the interpretation of any of the terms of this Order, or if Directions are needed to implement them, either party may move on four days’ notice to the other party by 14B motion for directions before me.
60In his Endorsement dated September 30, 2016 McDermot J. reserved to this court the issue of costs arising from the motion heard on August 18, 2016. Those costs, in respect to which the parties have already filed submissions, will be assessed when determining the overall costs of these proceedings. In the event that the parties are unable to resolve those costs, save and except for those reserved by McDermot J., by December 31, 2016 then each shall file with this court by no later than January 13, 2017 their submissions on those costs limited to three double-spaced pages along with their Offers to Settle, if any, Bills of Costs and Authorities upon which they may be relying. Those submissions are to be filed in the Continuing Record. If no submissions are filed by that date, then the court will proceed to determine only the costs reserved by McDermot J.
Justice D.A. Jarvis
Date: December 5, 2016