Cziraky v Cziraky, 2017 ONSC 279

Court File and Parties

COURT FILE NO.: FS-14-13936 DATE: 20170112 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Joyce Cziraky, Applicant AND: Michael Joseph Cziraky, Respondent

BEFORE: Howard J.

COUNSEL: Zane R. Handysides, for the Applicant Deborah-Lynn Gibson, for the Respondent

HEARD: January 6, 2017

Endorsement

[1] The applicant mother and the respondent father were married for some 18 years. There are two children of the marriage, namely, Tyler Brock Martin Cziraky (born June 15, 2006 – now 10½ years old), and Alexa Grace Jocelyn Cziraky (born August 28, 2008 – now 8½ years old).

[2] The applicant mother brings a motion (tab 27 of the Continuing Record) to permit her to relocate with the children to Thunder Bay from their current residence within Essex County. The respondent father brings a motion (tab 25) that the children of the marriage continue to reside within Essex County until further order of the court.

[3] I heard argument on the motions commencing on the morning of Friday, January 6, 2017. The applicant mother has a job opportunity in Thunder Bay that commences Monday, January 9, 2017, as further described below. Time was of the essence. By email correspondence sent to counsel on Friday, January 6th at 5:59 p.m., I advised counsel that the applicant’s motion is allowed, with reasons to follow. These are the reasons.

[4] Pursuant to a Consent Endorsement Request executed May 12, 2015, I issued an interim order dated May 15, 2015, which provided, inter alia, that the applicant and the respondent shall have joint temporary custody of Tyler and Alexa “on the basis that the applicant shall provide the children with their primary residence”; that the respondent shall have access to the children alternate weekends from Friday evening until Sunday night, and each Wednesday evening from 5:00 p.m. to 8:00 p.m. (together with other specified access); and that the respondent shall pay child support in the amount of $249.65 per week in accordance with the table set out under the federal Child Support Guidelines, O. Reg. 391/97 as amended, based on the respondent’s annual income of $74,274.00.

[5] The consent order did not provide for any interim spousal support.

[6] At the time of the consent order of May 2015, the applicant was earning approximately $45,000.00 per annum from her employment as a network assistant for the Windsor office of Public Health Ontario.

[7] The applicant and the respondent took part in a custody and access assessment, which was completed by Mr. Mark Donlon on July 22, 2015.

[8] In my view, the most significant passage of Mr. Donlon’s assessment is set out at page 19 of his report, where Mr. Donlon observed that:

The single greatest challenge to the children’s healthy growth and development is the failure of the parties to work in a collaborative manner with each other. Both parents are urged to accept that their current circumstances of ongoing conflict and bitterness are inconsistent with the best interest of their children. Research findings consistently show that children in both divorced and non-divorced families do better psychologically and developmentally when they have warm and positive relationships with two involved parents and where exposure to parental conflict is low. Although the investigator agrees that the children need and would benefit from counselling, both parents are urged to accept that it is their failure to work constructively with each other that causes the most anxiety for the children, and resolving that would have the most beneficial impact on them.

[9] Mr. Donlon concluded that the evidence did not support the contention that the parties could work well enough with each other to justify an order of joint custody. (The respondent husband had sought an order of joint custody with the children spending half time with each parent.)

[10] In the result, Mr. Donlon recommended that full custody of both children be given to the applicant. He recommended that the respondent should be consulted regarding significant decision-making and that, consistent with his basic rights under the Children’s Law Reform Act, the respondent should have full access to health and school reports.

[11] Mr. Donlon also recommended an expansion of the respondent’s access, consistent with what he noted to be the children, particularly Tyler, expressing an interest in same. To that end, Mr. Donlon recommended that the children should continue to spend alternating weekends with their father and that on those weeks when they spend the weekend with their father, there should be one midweek overnight visit, and on those weeks when they spend the weekend with their mother, there should be two midweek overnight visits with their father.

[12] Mr. Donlon recommended that the children should spend equal time with their parents during the summer and holiday periods.

[13] Both parties are agreed that the applicant took time out of the workforce on maternity leave after the births of each child. The applicant also spent an additional year off (the reasons for which are disputed) to assist Alexa in dealing with social anxiety and academic difficulties. Both parties are agreed that the children have resided primarily in the care of the applicant from December 30, 2014, until the present. I find that the applicant has been the children’s primary caregiver since at least that date.

[14] I also find that the applicant has been the primary source of financial support for the children since the separation of the parties. The applicant was required to bring a motion before the court, some four months after separation, for an order that the respondent provide basic table-amount child support and for payment of the arrears of child support owing.

[15] On the evidence before me, it appears that the respondent refuses to contribute towards the child care costs and uninsured medical expenses incurred by the applicant for the children. While he does contribute to the cost of hockey for Tyler (apparently because the respondent is interested in hockey), he does not contribute towards the cost of dance for Alexa, nor the cost of soccer or baseball for either child.

[16] Unfortunately, in April 2016, the Windsor-Essex County office of Public Health Ontario was closed due to restructuring, and the applicant lost her job – a good job from which the applicant received, as referenced above, approximately $45,000.00 per annum, plus medical benefits and pension, as well as flexible work hours that allowed the applicant to tend to the children’s extracurricular activities and medical appointments. The applicant received eight weeks of severance pay for her five years of employment.

[17] At present, the applicant’s only source of income (apart from the child support she receives from the respondent) is Employment Insurance Benefits of $444.00 per week (approximately $23,088.00 per annum). On this, she provides for the two children.

[18] The applicant took advantage of the “Second Career” program offered through Employment Insurance, pursuant to which she is enrolled in the Community and Justice Program at St. Clair College in Windsor. The program is designed to lead to employment in the public sector, which aligns with the applicant’s interest. The evidence indicates that the applicant has a strong interest in working with children, especially in the role of advocate. The evidence indicates that the complainant is doing well in that Program, maintaining an average of 90%.

[19] The evidence indicates that the applicant is finding it very difficult to make ends meet financially based on the reduced income of $23,088.00 that she receives through E.I. Benefits. The applicant has cashed in her pension to provide for herself and her children. The applicant’s evidence, which is essentially unchallenged and which I accept in any event, is that she is coming to the end of her financial resources.

[20] Upon the closure of the Windsor-Essex County office, the applicant was given the opportunity to apply for a one-year contract position with the Government of Ontario in Hamilton. The applicant chose not to pursue the Hamilton position because at the time she remained hopeful that she would be able to secure a comparable position within Essex County and avoid having to relocate to a different community. The applicant’s decision would seem to have been somewhat, in that, the Hamilton office was permanently closed effect June 2016.

[21] I also accept the applicant’s evidence that she has been diligently looking for work since learning of the elimination of her position at Public Health Ontario, as set out in considerable detail at pages 6 through 8 of the applicant’s affidavit sworn December 28, 2016 (tab 28 of the Continuing Record).

[22] In short, while her initial employment search was limited to public service positions within the County of Essex similar to the position she had with Public Health Ontario, the applicant then sought employment outside of the public sector in Essex County. She was unsuccessful in obtaining alternate employment, which included applications to Caesar’s Windsor, Huron Lodge Nursing Home, Fiat Chrysler, Home Depot, Shopper’s Drug Mart, Wal-Mart, Canada Post, etc.

[23] The applicant then applied for positions outside of the County of Essex, again without success – with one exception.

[24] The one exception is a position with the Office of the Provincial Advocate for Children and Youth, for which the applicant was flown to Thunder Bay for an interview. Following her interview, the applicant was offered the position of Administrative Assistant within the Thunder Bay office. The offer is set out in a letter dated November 29, 2016. The offered position would pay $45,566.00 per annum, which is consistent with her previous earnings at Public Health Ontario. The applicant’s evidence is that the offered position is squarely in line with her education and is very similar to her previous position at Public Health Ontario.

[25] The applicant’s evidence, which I accept, is that the offered position carries with it the potential for future advancement. The evidence of the applicant is that she met and spoke with the Director of the Provincial Advocate’s Office for Thunder Bay, who advised the applicant that after completion of the one-year position of Administrative Assistant, the applicant would become a permanent full-time employee. The applicant would then have the opportunity to apply for additional positions within the Ministry. The applicant spoke with the Director about applying for the position of Advocate within the Thunder Bay office; if successful, the applicant’s wages would increase to somewhere in the range of $75,000.00 to $95,000.00 per annum.

[26] The applicant also spoke with the registrar of Confederation College in Thunder Bay and they have agreed to transfer her credits from St. Clair College so that she may complete her education in Thunder Bay.

[27] I am satisfied that the Thunder Bay position represents a realistic and lucrative avenue of employment, with the potential for future advancement, for the applicant. Bottom line, it is the only job offer that she has received in the eight months since the elimination of her previous position in Windsor. And it has the potential to greatly enhance the lives of the applicant and the children. In my view, it has the potential to give the children a better life.

[28] The applicant accepted the position in Thunder Bay, understandably enough, but subject to the decision of the court as to whether it would permit her to relocate with the children to Thunder Bay. I accept the applicant’s evidence that her children are her utmost priority, and that if the court were to decide not to permit her to relocate to Thunder Bay with her children, she would not “leave her children behind” but would, regrettably, resign from the new position in Thunder Bay, remain in Essex County, and re-apply for Employment Insurance Benefits.

[29] I accept the applicant’s evidence – which is essentially unchallenged – that in the eight months that the applicant has been actively searching for alternate employment, the Thunder Bay opportunity is the first position that has been offered to her, and that, if she is compelled to forego the position, she would likely continue to experience significant difficulty in finding comparable employment within Essex County.

[30] All parties agree that I must consider the principles set out in Gordon v. Goertz, [1996] 2 S.C.R. 27. I have also considered and have been greatly assisted by the decisions in Plumley v. Plumley, [1999] O.J. No. 3234 (S.C.J.), and Dwyer v. Belleperche, 2012 ONSC 4871.

[31] While I have considered all of the authorities submitted to me, counsel agree that the decisions in all such cases turn on their own particular facts.

[32] As Campbell J. said in Dwyer v. Belleperche, at para. 11, the court’s decision to either allow or not allow a significant relocation could have significant impact on the parties and their relationships with the two children. To paraphrase Campbell J., if the move requested by the applicant is not allowed, then the applicant will have to forsake a very promising employment opportunity – the best, and the only, job offer she has received in eight months of searching – because, as a credit to her in her capacity as the children’s mother, she is not prepared to abandon her role as the children’s primary care-giver. Conversely, if the move is allowed, the respondent’s access to and time with his children will, by necessity, be significantly impacted.

[33] In Plumley v. Plumley, at para. 7, Marshman J. set out the following criteria for considering mobility issues on an interim motion:

It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis:

1. 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.
2. There can be compelling circumstances which might dictate that a justice 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.
3. 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.

[34] The respondent concedes that there has been a material change in circumstances since the consent order of May 15, 2015 – in short, the applicant has lost her job and is now earning about half of her previous income that she enjoyed at the time of the consent order.

[35] The respondent also agrees that in accordance with Gordon v. Goertz, where the “material change in circumstances” threshold is met, the court must embark on a fresh inquiry as to what is in the best interests of the children.

[36] I well appreciate that there is a general reluctance on the part of the court to affect fundamental change to a child’s lifestyle on an interim motion; that it is more difficult to address the child-focused inquiry required under Gordon v. Goertz on the typically conflicting and incomplete affidavit evidence that – as here – is available to the court on interim motions; and that considered caution is required where there has been no trial or substantive hearing of the issue, especially where the move, if permitted, may well predetermine the outcome of the hearing, practically speaking.

[37] Here, the respondent submitted, through counsel, that the issue of the applicant’s proposed relocation to Thunder Bay should be, in essence, re-submitted to Mr. Donlon for further assessment and report, and that the matter should then proceed to a settlement conference, following which “it may not be necessary to have a full trial.” Counsel submitted, more than once, that a full trial would likely not be necessary in this case following delivery of an updated report from Mr. Donlon.

[38] The fundamental problem I have with the respondent’s position is twofold. Firstly, it does not seem to recognize or accept the fact, which in my view is critical in this case, that the best interests of the children in the circumstances of the instant case are inextricably bound up with the employment and financial interests of the applicant mother. Secondly, the respondent’s position would seem to suggest that the court should not consider the long-term financial interests of the applicant, which, in my view, serve to further the best interests of the children. In my view, the long-term financial interests of the mother are critical to the consideration of the children’s best interests given especially that the mother has been the children’s primary financial care-giver since December 2014.

[39] As in Dwyer v. Belleperche, at para. 16, “[t]he respondent’s suggestion that the applicant stay in Essex County and receive unemployment insurance or take alternate employment ignores the applicant and [the children’s] long-term financial interest. At no point does the respondent suggest he will assume a greater portion of the financial responsibility for [the children.]” Similar considerations apply in the instant case.

[40] The respondent’s submission that the mobility issue should not be decided on an interim basis absent a full trial is belied by counsel’s repeated submission in oral argument before me that it may not be necessary to have a full trial after an updated report from Mr. Donlon is obtained, and that counsel does not believe a trial will be necessary after receipt of such an updated report from Mr. Donlon.

[41] In my view, those submissions undermine the respondent’s position that I should not decide the mobility question without a full hearing on the merits. In my view, given the time constraints and exigencies posed by the applicant’s pending position in Thunder Bay, which apparently must be taken up by January 9, 2017, and was already pushed back from January 3, 2017, at the request of the applicant, there is little choice but to decide the matter based on the affidavit evidence before me, even if it is conflicting on some collateral issues, because the alternative is to adjourn the determination of the issue to a later date – a full hearing on which the respondent says may well not be necessary – as a result of which, the applicant’s only and best opportunity for meaningful and promising employment will have evaporated.

[42] Counsel for the respondent suggests that the difference between the applicant’s income under E.I. Benefits and her income under the Thunder Bay position is only $20,000.00 per annum or approximately $10,000.00 for the six months until the end of the children’s school year in June 2017. In my view, the respondent’s assessment is not fully sensitive to the circumstances of the applicant and the facts of the instant case. Considering whether a given amount of money is a “large amount” in the eyes of any given person is always an inherently relative and subjective exercise. No doubt to a person earning, say, $120,000.00 per annum, perhaps $10,000.00 is not a “large amount.” Perhaps even it is not quite a “large” amount to a person earning $74,274.00 per annum, such as the respondent here. But to a person subsisting on essentially $444.00 per week of E.I. Benefits (exclusive of the respondent’s child support), or some $23,088.00 per annum, I do not think it can be fairly said that $10,000.00 is not a significant amount to the applicant.

[43] The analysis of Marshman J. in Plumley requires consideration of whether there is a genuine issue for trial. If the applicant were granted sole custody of the children, there would be no question (without more) that she would be able to relocate the children to Thunder Bay or elsewhere. The assessment report of Mr. Donlon, requested on consent, recommended that the applicant be given sole custody of the children. It is difficult to perceive that the basic recommendation of Mr. Donlon on the question of custody would change if he were requested to update his assessment. It would seem that a primary basis for Mr. Donlon recommending that the applicant have sole custody of the children was based on the party’s inability to communicate constructively together in furtherance of the best interests of the children. There is nothing in the evidence before me to suggest a change in the parties’ comportment since the time of Mr. Donlon’s assessment. On the contrary, the evidence suggests that the parties continue to be unable to work together in a constructive manner. It is therefore difficult to reasonably foresee a change in Mr. Donlon’s recommendation that the applicant mother have sole custody of the children.

[44] In my view, as per Dwyer v. Belleperche, at para. 18, there is a strong enough probability that the applicant’s position on custody will prevail at trial (should same be necessary, as the respondent would say) so as to allow the relocation to Thunder Bay on an interim basis.

[45] That said, I fully appreciate that the applicant suggested proposal necessarily entails significant disruption to the respondent’s access schedule to the children. Indeed, I have struggled with the reality of the impact.

[46] The applicant’s request would require the children to move from their life-long residence within Essex County and from their school in the middle of the school year. While a change in schools is probably more easily tolerated when it is made so as to facilitate the children starting afresh in the new school as of September, the reality is that any change to a young child’s school setting is inherently disruptive, whether made in September or some other month. Further, a school transition in January, if not a relatively natural transition period, is certainly not an uncommon time period for a child’s transition to a new school.

[47] In considering the disruption to the children’s lives, I have also considered the evidence of the applicant that she has researched school options for the children in Thunder Bay and has, in fact, spoken with the superintendent of the public school board there. The applicant toured the Vance Chapman Public School in Thunder Bay and learned that it is one of the top-rated schools in the area, which offers programs that the applicant believes would be of assistance, in particular, to Alexa given her needs.

[48] In addition, the applicant has been involved in a committed relationship with Mr. Randy Kowal since March 2016, which is said to be “rapidly moving toward marriage.” Mr. Kowal is a constable with the Thunder Bay attachment of the Ontario Provincial Police. Also significantly, the applicant’s best friend, Ms. Brandy Kirchen, and her husband and children reside in Thunder Bay, and Ms. Kirchen works for Public Health Ontario. The applicant’s children are well acquainted with Ms. Kirchen and her family, including her children, aged 12, 7, and 6 years, with whom the applicant’s children play well together. The children have visited Thunder Bay and are developing friendships with the children of Mike and Cathy Golding, whose children are aged 8 and 7 years, the Goldings having been introduced to the applicant through her best friend, Ms. Kirchen.

[49] Accordingly, I accept the evidence set out in paras. 25 to 26 of the applicant’s affidavit sworn December 28, 2016 (tab 28 of the CR), that the applicant has developed a circle of friendships and the beginnings of a support network through her best friend, Ms. Kirchen, all of whom, while not being direct family connections, have been very welcoming and have offered their support in facilitating the transition of the applicant and the children to Thunder Bay.

[50] Recognizing that the children’s potential move to Thunder Bay will significantly disrupt the respondent’s access to the children every other weekend and for three hours each Wednesday evening, the applicant has offered, on the record, to agree to the respondent’s access on the following basis:

a. each Family Day weekend from Friday after school until Monday evening; b. each March Break from Friday after school until the Sunday evening immediately preceding the children’s return to school; c. each Easter Weekend from Thursday after school until Monday evening; d. six weeks each summer; e. each December 26th to January 2nd; and f. such further and other times as can be mutually agreed upon by the parties, including regular email, telephone, and/or social media communications.

[51] There is some merit in Mr. Handysides’ observation that, in offering this proposed access schedule, the applicant is essentially ceding to the respondent most of the “fun time” with the children, while she herself retains the responsibilities of daily discipline, homework, and the “daily grind” of parenting the children. She is prepared to do that in order to give the children a better life.

[52] In addition, the applicant is prepared to drive the children to and from the respondent’s residence, at her own expense, for both the Christmas and summer vacations, and to pay for the cost of airline travel between Thunder Bay and Windsor, through Porter Airlines, at an approximate cost of $500.00 per person per trip to facilitate the other incidents of access.

[53] Under the current access arrangements established pursuant to the consent order of May 15, 2015, the respondent was provided with 55 overnight visits during the course of the year. The schedule proposed by the applicant provides the respondent with 56 overnight visits with the children. While the proposed schedule of the applicant, practically speaking, cannot allow for the three hours of midweek access visits on Wednesday evenings, let alone the increased midweek access recommended by Mr. Donlon, I note that there is a fairly significant dispute in the evidence as to whether the respondent has been regularly accessing the full three-hour visits on Wednesday.

[54] Moreover, other aspects of the applicant’s proposed access schedule greatly exceed that which was recommended by Mr. Donlon. For example, Mr. Donlon had recommended that the children spend equal time with their parents during the summer vacation and holidays. The applicant’s proposal cedes most of that time to the respondent.

[55] In any event, I am satisfied that the children will be able to maintain a consistent relationship with their father under the proposed access schedule of the applicant, especially given the potential of social media and the prospect of face-to-face digital communication through such programs as Skype, FaceTime, etc.

[56] In weighing all of the circumstances, I conclude that on an interim basis it is in the children’s best interests that the applicant’s relocation with the children to Thunder Bay be allowed.

[57] I therefore allow the applicant’s motion in accordance with paras. 1 and 2 of her notice of motion (tab 27 of the CR).

[58] With respect to para. 2(vii) of the applicant’s notice of motion and the “regular telephone, email, and video communications” proposed, the parties are directed to engage in discussion, through counsel, to establish a schedule for such Skype, FaceTime, or other social media or telephone access on, ideally, an every-other-day basis, at such after-school hours as may be agreed upon.

[59] It follows that the balance of respondent’s motion (tab 25) is dismissed.

[60] Given the communication difficulties between the parties, as noted by Mr. Donlon in his assessment report, the parties are directed to consider, through counsel, establishing a communication protocol using the Our Family Wizard website. The parties should share the cost of such a protocol.

[61] Unless the parties agree otherwise, the parties shall retain Mr. Mark Donlon to provide an updated assessment pursuant to s. 33 of the Children’s Law Reform Act. If Mr. Donlon is unable to conduct the assessment, then the parties shall agree upon another clinical investigator. The assessment shall be conducted after a sufficiently lengthy period following the transition of the applicant and the children to Thunder Bay as Mr. Donlon (or the other clinical investigator) may determine, in his discretion, so as to permit a meaningful report to the parties and the court.

[62] The parties, through counsel, shall arrange a mutually convenient date for a settlement conference through the Trial Coordinator’s Office. The settlement conference should be scheduled so that the updated assessment is available at the conference, unless the parties agree otherwise.

[63] Although I have allowed the applicant’s motion and dismissed the respondent’s motion, and while costs would normally follow the event, I do not believe the instant case is an appropriate one for an award of costs. In my view, the applicant’s motion was made necessary because of unforeseen circumstances and the fall-out of the elimination of the applicant’s employment in Windsor. I recognize that this order has caused a significant disruption to the respondent’s access schedule with his children. In all of the circumstances, I make no order as to costs.

Original Signed by “Howard J.” J. Paul R. Howard Justice

Date: January 12, 2017