Court File and Parties

Oshawa Court File No.: FC-10-142-0001 Date: 20170626 Superior Court of Justice – Ontario – Family Court

Re: Aja Tsuji, Applicant And Steve Green, Respondent

Before: The Honourable Madam Justice S.J. Woodley

Counsel: Brian Hall, for the Applicant Thomas O’Malley, for the Respondent

Heard: June 21, 2017

Endorsement

Overview

[1] This motion, brought by the Respondent father, Steve Green, seeks an Order for the return of the child Craig Green, from Cobourg to Oshawa, Ontario, and for an Order that the residence of the child not be changed from Oshawa without the written consent of the parties or a court order.

Issues

[2] The issues are as follows: a. Should the child Craig Green be returned from Cobourg to Oshawa? b. Should the residence of the child not be changed from Oshawa without the written consent of the parties or a court order?

Facts

Background

[3] The Respondent father is 45 years of age and the Applicant mother is 33 years of age. The parties began living together in April 2005, and separated in January of 2010. There is one child born of the relationship, namely Craig Green, born July 25, 2007.

[4] Following separation the parties entered into legal proceedings which resulted in the final Order of the Honourable Justice Hatton dated August 18, 2011.

Final Order dated August 18, 2011

[5] Pursuant to the Order dated August 18, 2011, the Applicant and the Respondent have shared and equal care of the child, Craig, with the Applicant mother having primary residence. Child support arrears were set at $4,921.00 and ongoing child support set at $259.00 per month which was amended by Order dated January 12, 2012 to $301.00 per month.

[6] Although the shared access provisions have been complied with, the Respondent father is in breach of the child support provisions. To date, child support arrears of $4,921.00 remain outstanding with further accumulated arrears totaling approximately $10,000.00.

Respondent’s Motion to Change

[7] The proceedings between the parties returned to court by the Respondent father’s Motion to Change dated September 29, 2015 which seeks to amend the August 18, 2011 and January 12, 2012 Orders to set child support arrears and ongoing child support at $0. The Respondent’s Motion to Change seeks no other relief.

Applicant’s Response

[8] In response to the Motion to Change, the Applicant mother filed a Response which seeks to dismiss the Motion to Change and to amend the August 18, 2011 Order to provide the Applicant with sole custody and primary residence with the Respondent’s access to be limited to alternate weekends Thursday after school to Monday at school with the holiday schedule as per the August 18, 2011 Order to continue.

OCL Report dated September 26, 2016

[9] As part of the new proceedings (Respondent’s Motion to Change and Applicant’s Response to Change Custody and Access) Justice Nicholson requested the involvement of the Office of the Children’s Lawyer (OCL). The OCL prepared a report dated September 26, 2016.

[10] The OCL Report was prepared without any discussion or reference to the Applicant moving to Cobourg. To my mind the Report is therefore of very little assistance on this motion.

[11] However, to the extent the OCL Report may be of some assistance, the OCL recommended as follows: (1) the Applicant have sole custody of the child; (2) the child’s primary residence for the purpose of school should be with the Applicant; (3) all major decisions should be discussed with the Respondent but ultimately made by the Applicant; (4) the child should reside on a week about schedule between the parents’ homes with the transfer to occur Friday afternoon at school dismissal; and (5) neither party should move further apart than they are at present to facilitate Craig’s ongoing attendance at his present school.

Applicant’s Notice to Move to Cobourg

[12] On February 3, 2017, the Applicant wrote to the Respondent and advised that the Applicant intended to move to Cobourg, Ontario on July 7, 2017.

[13] On March 31, 2017, the Applicant filed a Form 35.1 Affidavit in Support of Claim for Custody which noted therein: (i) at page 3, para 10 (a) “I plan to live at 744 Greer Crescent, Cobourg, Ontario”; (ii) at page 4, para 10(e) “I wish that Craig attend Burnham Public School, Cobourg, Ontario”; and (iii) at page 4, para 10(f) “I wish that Mr. Green exercise care on alternate weekends and that the holiday care schedule would remain as is”.

[14] In March and/or early April 2017, the Respondent’s current lawyer advised the Applicant’s lawyer that he intended to bring a motion to prevent the Applicant from moving to Cobourg. According to the Respondent, the Applicant’s lawyer advised that he wanted to do questioning first before any motion to deal with the move.

[15] On May 4, 2017, the lawyer for the Applicant mother wrote to the lawyer for the Respondent father as follows: “As you know, we wrote to the former counsel of Mr. Green in early February 2017 advising of our client’s intention to move. We have recently received word that our client’s move date has been moved up to May 8, 2017. Further, we understand that our client wishes the child, Craig, to participate in baseball in Cobourg, Ontario.”

[16] On May 5, 2017, the lawyer for the Respondent wrote advising that he sent a request to the trial coordinator to obtain a motion date on mobility to be heard June 5, 2017. The letter noted that “your client must not change Craig’s current school”.

[17] Due to the timing of the May 4, 2017 notice and the May trial sittings, the Respondent was not able to bring his motion until after the child had moved to Cobourg.

[18] With respect to the timing of the move, the Applicant deposed that while her initial thought was to move in July of 2017, she has become quite ill with her pregnancy and her “health has dictated other avenues”. The Applicant deposed that she has a high risk pregnancy due to diabetes, anxiety and vein problems and was directed by her obstetrician to have bed rest. The Applicant stated the due to her health issues she could not attend questioning and was required to move earlier than anticipated.

[19] The Applicant and her family, including the child Craig, moved to Cobourg on May 8, 2017. The Applicant and the Respondent have continued to share access as per the August 18, 2011 Order. The child Craig Green has continued to attend his current school in Oshawa.

[20] The child Craig will soon complete his school year and the summer access schedule shall begin which provides for access on a two-week about schedule.

[21] The trial of the proceeding, being the Motion to Change and Response, is expected to proceed in the November 2017 trial sittings.

Relief Sought by Respondent’s Motion

[22] By Notice of Motion dated May 17, 2017, the Respondent sought: (1) an Order that the child Craig Green is returned to Oshawa immediately; (2) an Order that the residence of Craig Green cannot be changed from Oshawa without the written consent of the parties or a court order; and (3) an order that service and filing of the Notice of Motion and affidavit is shortened.

The Law

[23] Justice Gauthier, in Hazelwood v. Hazelwood, 2012 ONSC 5069, at para. 25 set out the key principles for mobility cases as established by the Supreme Court of Canada decision in Gordon v. Goertz, [1996] 2 S.C. R. 27, as follows: a. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child. b. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s need and the ability of the respective parents to satisfy them. c. The inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

[24] The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.

[25] Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.

[26] The focus is on the best interests of the child, not the interests and rights of the parents.

[27] More particularly the judge should consider, inter alia: 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 the removal from family, schools, and the community he or she has come to know.

[28] The burden is on the moving party (seeking to change the status quo) on an interim mobility motion to establish compelling reasons to grant the motion.

[29] Compelling circumstances must exist that are sufficient to justify an interim move. A pressing reason must be shown. (See Prasad v. Lee at para. 37).

[30] The status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity of a change to meet the children’s best interests.

[31] However, the court has acknowledged that although it may be unwise to make interim orders on mobility cases, the court process does not follow the same rhythm of life. The court must act reasonably and in the best interests of the child. (Konkin v. Aguilera, 2010 ONSC 4808, para 27).

[32] Under circumstances where an interim move will not interfere materially with the ability of a party to exercise access, then a court will be more likely to accept an interim move. (Schlegal v. Schlegal, 2016 ONSC 4590 at para 25).

[33] Where a litigant who is expecting a child moves on an interim basis and the birth of the child is imminent, then a court on the basis of practical considerations can allow such a move subject to a further review at a later date. (Suckert v. Suckert, 2013 ONSC 7806 at paragraphs 12 and 13).

[34] In determining the best interests of a child, the Court shall consider all of the child’s needs and circumstances including the love, affection and emotional ties between the child and the other members of the child’s family. (Children’s Law Reform Act R.S.O. 1990, c. C.12, section 24(2) (a)(ii)).

Analysis

Interpretation of the August 18, 2011 Order

[35] The Order dated August 18, 2011 does not place any prohibition on where the Respondent can reside despite the fact that the parties share a week about access schedule for the child.

[36] As for the Applicant’s ability to change her residence, paragraphs 2 and 28 of the August 18, 2011 Order provide as follows: “2. The child’s primary residence shall be with the Applicant, Aja Tsuji.

28. The Applicant Aja Tsuji shall be permitted to move within 30 km of her current residence. The Applicant shall provide the Respondent with at least 60 days notice of any move that is further than 30km from her residence.”

[37] The Applicant provided notice of her intent to move on February 3, 2017. The 60 day notice provision required by the August 18, 2011 Order expired on April 3, 2017 and the child moved on May 8, 2017. However, the child’s actual move was not made in accordance with the original notice date.

[38] Strictly speaking, the February 3, 2017 letter satisfied the notice provisions dictated by the August 18, 2011 Order. However, given the wrinkles with respect to execution of the notice and the importance of the issues in dispute (mobility and access), the August 18, 2011 Order cannot be strictly interpreted.

[39] The issue before me must be determined on a broader basis through application of the guiding principles applicable to interim mobility motions including a review of the best interests of the child.

Threshold Test to Change Residence of Child

[40] As previously noted, despite the fact that the child has already moved, it is unclear on the record whether the move was permitted by the terms of the August 18, 2011 Order. To ensure procedural fairness I approach the issue as a request to change the residence of the child with the status quo being that the child resides in Oshawa.

[41] First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

[42] In the present case, the Applicant’s family has expanded since the date of the 2011 Order through the birth of the Applicant’s son Leland and the pending birth of her daughter in August. The growth of the family necessitated a material change in circumstances affecting the child. I find that the threshold test has been met.

Best Interests of the Child

[43] Second, if the threshold is met (and I find that it has been met), I am to embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s need and the ability of the respective parents to satisfy them.

[44] In each of the parties’ materials there was some evidence about how the move affects the best interests of the child.

[45] The Applicant noted that her family wished to move to Cobourg due to their growing family. The Applicant and her spouse have another child, namely Leland, born May 31, 2015. In addition, the Applicant is pregnant with an unborn daughter, due in August 2017.

[46] The Applicant deposed that her family completed an extensive search within Durham region for a larger home. However, due to bidding wars and affordability, the best and most affordable accommodations were in Cobourg, Ontario. As a result, the Applicant and her family purchased a home municipally located at 744 Greer Crescent in Cobourg, Ontario.

[47] The Applicant deposed that if the Respondent paid the child support arrears and ongoing support, then she may have been able to afford a residence in Durham Region. However, not only did he not pay he brought a motion to rescind all support arrears and to reduce all ongoing support payments to nil.

[48] The Respondent’s material supports the Applicant’s position regarding child support in that the Respondent admits that he is in arrears of support and seeks to have his ongoing support obligation reduced to $0.

[49] The Applicant noted that the new home in Cobourg is clean and spacious close to schools and parks. The Applicant deposed that the family moved to Cobourg on May 8, 2017, due to health concerns relating to her current pregnancy. If the court requires Craig to return to Oshawa, this would separate her family. If the Applicant were required to live apart from Craig or Craig were required to live apart from the other members of his maternal family, including his baby brother, step-father, and soon to be baby sister, Craig would suffer emotionally and the family would suffer financially and Craig would no longer be entitled to benefits from the Applicant’s spouse.

[50] The Respondent father deposed that the move was not in Craig’s best interest and made reference to close friends and other relationships that the child held in Oshawa. However, the Respondent did not provide any specific references of close friends or other relationships. Further, while the OCL Report may not be entirely relevant to the proceedings, it is noteworthy that the report cites that the child has had difficulties with other students and has few friendships in his current school.

[51] The Applicant provided Google Maps that established the distance between the Respondent’s address and the child’s new address is approximately 52 kilometers. Further, as the Respondent currently resides approximately 25 km from the child’s school the difference to the Respondent’s commute will be approximately 27 kilometers.

[52] By the Respondent’s evidence, he is working sporadically. The distance of the move from Oshawa to Cobourg is not great and I find that the move will not interfere materially with the ability of the Respondent to exercise access.

[53] I find that there are compelling reasons to allow the Applicant to move to Cobourg on an interim basis.

[54] In the circumstances of this case, I find on an interim basis that it is in the child’s best interests to remain in Cobourg and that this finding will not materially affect the current access provisions for the Respondent.

Disposition of Motion

[55] The relief sought by paragraph 1 of the Respondent’s Notice of Motion that the child is returned to Oshawa, immediately, is hereby dismissed, without prejudice to argue the issue at the trial of the matter.

[56] The relief sought by paragraph 2 of the Notice of Motion that the residence of the child cannot be changed from Oshawa without the written consent of the parties or a court Order is dismissed, as no variance was sought by the Notice to Change, and otherwise for the reasons set out herein.

[57] As the motion was restricted to mobility issues which concern the best interests of the child, and as the Applicant mother moved the child prior to determination of the issue, each party shall bear their own costs of the motion.

Justice S.J. Woodley Released: June 26, 2017