CITATION: D.M.R. v. D.R., 2016 ONSC 767
COURT FILE NO.: WALKERTON – 73/14
DATE: 20160129
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
D.M.R.
Self-represented
Applicant
- and -
D.R.
Self-represented
Respondent
HEARD: January 28, 2016
FINAL REASONS FOR DECISION ON MOTION TO CHANGE
Conlan J.
I. Introduction
[1] In April 2013, I presided over a family law trial involving the mother, D.M.R., the father, D.R., and their children.
[2] I was not required to decide issues about custody and access pertaining to the parties’ son, C.R. Those matters were resolved on consent by way of Minutes of Settlement which were then incorporated in to a Final Order made on April 8, 2013.
[3] The parties had agreed to share joint custody of C.R., born in […] 2002 (now 13 years old). The boy’s primary residence was agreed to be with his mother. On consent, C.R. was to enjoy access with his father on alternate weekends and each Tuesday overnight, along with specified access for holidays and other special occasions.
[4] In June 2015, the father brought a Motion to Change my Final Order made on consent, dated April 8, 2013. D.R. wants to change that Order to provide that the child, C.R., live with him “50 percent of the time”.
[5] The mother opposes that request.
[6] Justices presiding at previous Court appearances ordered that the father’s Motion to Change regarding C.R. be heard as a long Motion (not a trial).
[7] The matter initially came before me in Walkerton on October 1, 2015. No evidence was called. The matter proceeded on the basis of the filed materials on both sides. Both parties were self-represented, as they continue to be currently. Submissions lasted about one hour in total.
[8] At the conclusion of the submissions by the parties, at my suggestion, we discussed the possibility of me interviewing the child, C.R. I was concerned that each party was providing a very different picture of what the child wants. In the absence of any evidence from the child and without legal representation for the child, I was concerned that I did not have enough information to properly adjudicate the matter. Without hesitation, both parties readily consented to me interviewing the child.
[9] My interview of C.R. took place at the Owen Sound Courthouse on October 16, 2015. It occurred in private in a child-friendly room. Only myself and C.R. were present in the room. A Court reporter was present in the adjacent Courtroom. The interview was recorded. A transcript was ordered by me. I ordered that the transcript be sealed and not unsealed without a further Order made by a Court of competent jurisdiction.
[10] That procedure was all explained by me to the parties at Court on October 1, 2015. The parties understood and happily consented to that procedure.
[11] In written Reasons dated October 16, 2015, reported at D.M.R. v. D.R., 2015 ONSC 6423, I indicated that, based on my interview with the child, I was inclined to grant the father’s Motion to Change but would postpone that decision until early in 2016. The postponement was to allow the parties to get through the holiday season without disruption and, more important, to give me an opportunity to see how things went after my initial interview with C.R. and to speak with him again, privately, in the new year.
[12] I invited the parties to request the appointment of independent counsel for the child if either parent thought that would be beneficial. Neither party made that request.
[13] I also invited the parties to request an opportunity to file additional evidence on the Motion to Change if either parent wanted to do so. I did not hear from the father in that regard. The mother did not follow my instructions and, instead of requesting the opportunity to file additional evidence, she simply went ahead and filed a three-page affidavit, with exhibits attached thereto, sworn on January 25, 2016 (three days before the return date in Owen Sound on January 28).
[14] In that affidavit, the mother alleges that the child’s attitude and behaviour at home and at school changed almost immediately after my Reasons dated October 16, 2015 were released to the parties.
[15] Further, the mother alleges that C.R. does not take his ADHD medication when he is with his father.
[16] In addition, the mother states that the father may have to move out of the area to find other employment.
[17] According to the mother, since about mid-November 2015, the child has settled down and has returned to the way that he was before my earlier Reasons were released.
[18] On January 28, 2016, in Owen Sound, I interviewed the child again (using the same procedure described above). I also heard further submissions by the parties.
II. The Positions of the Parties
[19] The father’s position is that the child wants to live with him at least half of the time.
[20] The mother’s position is that the child is perfectly content with the status quo. The mother further submits that any change to the structure and routine currently in place for C.R. would not be in his best interests.
III. Analysis
[21] I have some difficulty with the mother’s recently deposed affidavit. I do not understand why the child’s behaviour and attitude would have changed so dramatically in October 2015 when my Reasons were crystal clear that I did not tell the child what I might do, and further, I directed the parties not to discuss or share my Reasons with C.R.
[22] Also, I have reviewed the child’s report card dated November 18, 2015. I see nothing in that report card that suggests a downturn in the child’s progress at school in October or November 2015. In fact, the report card is generally a positive one.
[23] I have considered all of the evidence submitted on both sides. I have considered the submissions made by the parties. I have considered what was said by the child during my two interviews with him.
[24] It is not in the best interests of the child to disclose to the parties the details of what transpired during my interviews with the young man. He spoke clearly and unequivocally. He was never inconsistent in expressing his wishes. He promised me that he was being honest and forthright.
[25] As I did with my first meeting with the child, I order that a transcript be prepared of my interview with C.R. on January 28, 2016. That transcript shall be sealed and not unsealed and not accessed by anyone without a further Court Order.
[26] There is no question that there has been a material change in circumstances since April 2013. The clear wishes and preferences of the child, who will be turning 14 years old in May 2016, are different now than the evidence showed them to be nearly three years ago.
[27] No change to the status quo of C.R.’s primary residence ought to be made unless I am satisfied on balance that the change would be in the best interests of the young man. His views and preferences are important but are only one factor to consider.
[28] Best interests of the child are determined on a consideration of all of the child’s needs and circumstances. That is precisely what the legislation directs. Subsection 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended, provides as follows.
Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) 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;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.
[29] Although the above factors are said to govern decisions with respect to custody and access, they are also relevant to a consideration of where the child resides and, specifically, whether that residence ought to be primarily with one parent or shared equally between the two homes.
[30] I will now turn to a consideration of those factors.
[31] In my assessment, the love, affection and emotional ties between C.R. and his father are no less than they are with his mother.
[32] In terms of the emotional ties between C.R. and his siblings, that factor favours maintenance of the status quo. It is clear that those siblings are closer to their mother than their father, and thus, it is natural to assume that their relationships with C.R. may be easier to maintain if C.R. is living primarily with his mother.
[33] The child’s views and preferences are entirely consistent with the decision that I am making on this Motion to Change. I am satisfied that I have been able to clearly ascertain those views and preferences and that C.R. has spoken to me freely and honestly and without pressure or influence from either parent.
[34] The length of time that C.R. has lived primarily with his mother favours maintenance of the status quo, although it must also be said that I find that both parents are equally able to provide the child with a stable home environment.
[35] My view is that these parents are equally able and willing to provide the young man with guidance and education, the necessaries of life and any special needs of the child. I will be making an order that directs each parent to ensure that C.R. takes his medication, including that for his ADHD, regularly and as prescribed.
[36] In terms of the plan proposed for the child’s care and upbringing, nothing will materially change except for how often he is at his father’s home. His schooling and his extra-curricular activities, as examples, will remain as they currently are. Both parents’ homes, the current school and the upcoming high school are all within close proximity of one another and all within the same small town in Bruce County.
[37] The permanence and stability of the respective family units are neutral factors in this case. Each parent offers a permanent and stable home which is unlikely to experience change in the foreseeable future.
[38] Both D.M.R. and D.R. are equally able and willing to act as a parent to C.R.
[39] The general principle that a child ought to have maximum contact with both parents, as long as that is in the best interests of the child, can best be met by granting the father’s Motion to Change.
[40] Finally, I am concerned about the mother’s tendency to see the father through a dirty glass. For example, in her recently sworn affidavit, the mother makes an issue about the father being involved in the past with another woman and receiving reports from third parties about a concern for C.R.’s well-being as a result thereof. It is not clear to me from the mother’s affidavit that she ever met that woman, nor does it appear that the mother ever spoke to the father or C.R. about that woman. In those circumstances, it seems unfair to insinuate in the affidavit that this woman illustrates bad judgment on the part of the father or some sign of him putting the child at risk.
[41] After all, if the mother really thought that the father was placing the young man at risk, then why did the mother continue to support the joint custody arrangement, with access to the father? It makes no sense unless the mother is prone to exaggeration, which I find to be the case.
[42] An assessment of the factors relevant to a determination of what would be in the best interests of C.R. is not a mechanical exercise of simply adding up checkmarks in columns. There are some factors that favour the maintenance of the status quo. There are some that favour the granting of the father’s Motion to Change. There are others that are relatively neutral.
[43] In the end, I am confident that a change to C.R.’s residency such that he will spend roughly equal time in his mother’s care and in his father’s care is, indeed, in the best interests of the young man.
[44] Consequently, the father’s Motion to Change is granted. Effective July 1, 2016, C.R. shall reside equally with both parents. Final Order accordingly.
[45] Why have I made the change effective on July 1, 2016, rather than immediately? I have done that for these five reasons. First, that will allow the family some time to plan ahead for the change to occur. Second, that will allow the parties some time to agree on exactly how the 50-50 residency will be structured (for example, a week-about regime or something else). Third, that will allow the parties some time to think about whether there is anything else in the April 2013 Final Order that needs to be changed given the decision herein. The parties should seek some legal advice in that regard. Fourth, the delay will enable C.R. to complete the current school year, grade 8, without disruption. Fifth and finally, the delay is in accordance with the express wishes of the child.
[46] A Final Order must be submitted to me as soon as possible, in accordance with these Reasons. In addition to reflecting the change in residency effective July 1, 2016, that Final Order must include two further terms: (i) that neither party shall move outside of the Town of Walkerton without prior permission from the Court by way of an Order, and (ii) that each party shall ensure that C.R. takes his medication regularly and as prescribed.
IV. Conclusion
[47] For all of these reasons, D.R.’s Motion to Change issued on June 23, 2015 is granted.
[48] For clarity, nothing herein alters the custodial arrangement ordered in April 2013; the parties shall continue to have joint custody of C.R.
[49] Neither party shall share or discuss these Reasons with C.R. Neither party shall pressure the child to speak about his interviews with me. He expects and is entitled to have those discussions remain private.
[50] This is not a defeat for the mother. I have no doubt that D.M.R. is a devoted, responsible and caring mother. She can continue to be that after the change in residency takes effect.
[51] This is not an appropriate case for costs to be awarded to either party.
Conlan J.
Released: January 29, 2016
CITATION: D.M.R. v. D.R., 2016 ONSC 767
COURT FILE NO.: WALKERTON – 73/14
DATE: 20150129
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
D.M.R.
Applicant
- and -
D.R.
Respondent
REASONS FOR DECISION ON MOTION TO CHANGE
Conlan J.
Released: January 29, 2016