Court File and Parties

COURT FILE NO.: FC-15-1634-00 DATE: 20170530 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DEREK TIMOTHY WHITFIELD, Applicant AND: JO-ANNE WAKEM, Respondent

BEFORE: THE HONOURABLE MADAM JUSTICE M. E. VALLEE

COUNSEL: Ruby Leung, Counsel, for the Applicant Heather McKnight, Counsel, for the Respondent

HEARD: April 27, 2017

Endorsement

Introduction

[1] The parties had a 13 year common-law relationship. They lived in a home in Beeton which is owned by the applicant father, Mr. Whitfield. I will refer to it as the family home. There is one child of the relationship, Jenny, who is eight years old. The mother, Ms. Wakem, has three older boys from a previous relationship.

[2] The parties separated in June 2015. Ms. Wakem resides in the family home with the two youngest boys and Jenny. The eldest boy lives with his maternal grandparents in St. Mary’s, near Stratford. Mr. Whitfield lives with his parents in Newmarket and has unsupervised access with Jenny every Saturday from 10 a.m. to 7 p.m. pursuant to the order of McDermot J. dated February 23, 2017.

[3] Ms. Wakem began a relationship with Sean Luffman in June 2016. He is a member of the Armed Forces. His parents, family and most of his relatives live in Pembroke. He was transferred to Pembroke in December 2016 to facilitate his retirement. At that time, Ms. Wakem stated that she wished to move to Pembroke with all of the children. Pembroke is a 4.5 hour drive one way from Newmarket. Ms. Wakem has no relatives in Pembroke. Mr. Luffman is her only connection to Pembroke.

[4] Ms. Wakem brings this motion for an interim order that she be permitted to move to Pembroke with her boys and Jenny. The father opposes this motion and brings a motion seeking expanded access.

Issues

1. Is a move to Pembroke in Jenny’s best interests?
2. Should Mr. Whitfield have expanded access to include overnights?

Applicable Legal Principles

[5] The overriding test that must be applied in determining mobility issues is the best interests of the child, not the interests and rights of the parents. (see Gordon v. Goertz, [1996] 2 S.C.R. 27)

[6] On an interim basis, there must be a pressing or compelling reason for the move; otherwise, allowing a parent to relocate can have a significant effect on the final outcome of a custody case. (see Crewson v. Crewson, 2014 ONSC 4372)

[7] When there is a genuine issue for trial, a court will be more reluctant to upset the status quo on an interim basis. Compelling circumstances may exist for a move. Even though there may be a genuine issue for trial, a move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at trial. (See Plumley v. Plumley, [1999] O.J. No. 3234 (SCJ))

Is a move to Pembroke in Jenny’s best interests?

Ms. Wakem’s Position

[8] Currently, Mr. Whitfield is paying all of the expenses relating to the family home. Ms. Wakem states that she cannot afford to move from the family home to another location nearby. She can afford to live with Mr. Luffman in Pembroke. She has secured employment in Pembroke for herself and for her boys at the same company where Mr. Luffman will work when he retires from the military.

[9] Ms. Wakem alleges that there has been significant domestic violence in her relationship with Mr. Whitfield. As a result, she has numerous health issues. She is fearful of Mr. Whitfield.

[10] In June 2015, Mr. Whitfield was charged with assaulting the eldest boy Simon and was ultimately convicted. He received an absolute discharge. Currently, a peace bond is in place. As a result of this, Simon will not live in the family home. He has been living with his grandparents in St. Mary’s. Ms. Wakem states that a move to Pembroke would allow her to reunite all four children under the same roof. She would be much happier in Pembroke and therefore the home environment would be better for Jenny. She also states that it is very difficult for her to visit Simon because she must stay in Beeton on weekends to facilitate Mr. Whitfield’s access. She does not have the opportunity to drive to St. Mary’s.

[11] Ms. Wakem proposes that if she is permitted to move to Pembroke, Mr. Whitfield can have access with Jenny by driving 4.5 hours to Pembroke on Fridays, staying overnight at a motel, and seeing Jenny on Friday, Saturday and Sunday, presuming that he has time to drive to Pembroke on Fridays. On Sundays, he would drive 4.5 hours back to Newmarket.

Analysis

[12] On an interim motion, the court’s primary concern is Jenny’s best interests, not Ms. Wakem’s best interests nor the best interests of Jenny’s stepbrothers. While the move to Pembroke would result in Jenny’s living with all of her stepbrothers, the rest of Ms. Wakem’s reasons for moving relate to her best interests and perhaps the best interests of her sons. Ms. Wakem’s desire to continue her relationship with Mr. Luffman is the main reason for the move. He has been her new partner for one year. The success of the move depends entirely on Ms. Wakem’s continuing her relationship with Mr. Luffman. The fact that she can afford to live with him in Pembroke and that she and the boys will have employment there is completely irrelevant to Jenny’s best interests.

[13] There are no pressing or compelling reasons for the move at this time. Allowing this move on an interim basis would likely have a significant effect on the final outcome of this matter.

[14] Ms. Wakem’s proposal for Mr. Whitfield’s access to Jenny in Pembroke is not feasible. Staying in a motel for two nights on every access weekend would be very costly for Mr. Whitfield. The long drive would be a major burden for him. This could result in Mr. Whitfield’s actually seeing Jenny less often in contrast to the current arrangement. The possibility of decreased access to her father is contrary to Jenny’s best interests.

[15] Nothing persuades me that a move to Pembroke is in Jenny’s best interests at this time.

Should Mr. Whitfield have expanded access to include overnights?

[16] As noted above, Mr. Whitfield has unsupervised access with Jenny every Saturday from 10 a.m. to 7 p.m. pursuant to the order of McDermot J. dated February 23, 2017. This began in April. Prior to that, he had six supervised access visits. The reason for the supervision was for Jenny’s comfort level. It was not a protection issue. (see McDermot J.’s endorsement of February 23, 2017, page 5). There is no evidence of any problems during Jenny’s access visits.

[17] I have considered s. 24(4)(c) specifically regarding the father’s assaulting Simon and Ms. Wakem’s serious allegations that he assaulted her during the relationship. While these are significant factors, there is no evidence of violence against Jenny.

[18] Jenny’s best interests are served by having maximum contact with both of her parents. I see no reason why Jenny’s access with her father should not be extended. Mr. Whitfield requests access on three weekends out of four. If access is to be extended, Jenny’s best interests are also served by having weekend time with Ms. Wakem. Accordingly, Mr. Whitfield shall have unsupervised access on alternating weekends as follows:

Commencing on June 3, 2017, and for the following three visits on alternating weekends, Saturday and Sunday each day from 10 a.m. to 7 p.m.

Commencing on July 29, 2017, and for the following three visits on alternating weekends, Saturday at 10 a.m. overnight to Sunday at 7 p.m.

Commencing on September 23, 2017 and going forward, alternating weekends Friday at 7 p.m. to Sunday at 7 p.m., until further order of this court.

Costs

[19] If the parties cannot agree on the costs of these motions, they may make submissions in writing. The text of the submissions shall be no longer than three pages with 1.5 spacing, regular margins and 12 point font. The applicant shall serve and file submissions within ten days of the release date of this endorsement. The respondent may file responding submissions within a further five days.

VALLEE J. Date: May 30, 2017