Court File and Parties

Court File No.: FS-17-0058-00 Date: 2017-07-14 Ontario Superior Court of Justice

Between: Megan Sue Singh, Applicant Counsel: C. Arnone, for the Applicant

- and -

Tejinder Pal Singh, Respondent Counsel: C. Belda, for the Respondent

Heard: July 11, 2017 at Thunder Bay, Ontario

Before: Madam Justice B. R. Warkentin, R.S.J.

Reasons on Motion

[1] This motion was brought by the Applicant, Megan Sue Singh, (the “mother”). She and the Respondent, Tejinder Pal Singh (the “father”) separated on January 2, 2017. They have one child, Deven Bodhi Singh, born September 1, 2016 (“Deven”).

[2] The mother seeks an urgent, temporary order granting her permission to relocate with Deven who is now 10 months of age, to Manitouwadge, Ontario on July 15, 2017 or as soon as possible thereafter. The mother also seeks a temporary order granting her sole custody of Deven, or in the alternative, a declaration that she is Deven’s primary caregiver, with no order regarding custody to be made until trial.

[3] The father opposes the mother’s motion to relocate with Deven and an order granting the mother sole custody. He acknowledges that the mother is Deven’s primary caregiver and does not object to a declaration to that effect.

Background Circumstances

[4] After the parties’ separation in January 2017, the mother moved into the home of her sister in Thunder Bay with Deven. Deven was only four months old at the time and the mother was still nursing Deven. The mother was on maternity leave at the time. Her maternity leave will end at the end of August 2017.

[5] The father remained in the parties’ matrimonial home until it was sold and subsequently moved to a two bedroom apartment in Thunder Bay.

[6] The mother has been employed in the Musselwhite Mine (“Musselwhite”) near Thunder Bay for the past seven years and is currently on maternity leave as indicated above. The Mother’s work schedule at Musselwhite consisted of working two weeks in the mine while residing in barracks associated with the mine followed by two weeks off. She earned between $80,000 and $100,000 per annum depending on the overtime and extra shifts that she was able to accept.

[7] The mother does not want to return to Musselwhite after her maternity leave ends. She has, instead, secured an offer of employment in the Hemlo Barrick Operation Mine, located 64 kilometers from Manitouwadge. The driving distance from Thunder Bay to Manitouwadge is approximately 5.5 hours.

[8] If the mother accepts the offer of employment in the Hemlo Barrick Operation Mine, she will work 13 days in a row comprised of six day shifts and seven night shifts followed by eight days off. The shifts would be 10 hour shifts. She would not be required to reside on site, however the driving time to and from the mine would be an hour in each direction, resulting in a minimum 12 hour day for the 13 day period.

[9] The mother’s annual salary at Hemlo Barrick Operation Mine would range between $75,000 and $80,000 with the possibility of a greater income if she accepts overtime or other additional shift work.

[10] The father currently works as a civil engineering technologist with J.D. Barnes Ltd. in Thunder Bay. He earns just over $30,000 per annum. His work schedule is from Monday to Friday; 8:00 am to 5:00 pm in Thunder Bay with occasional work outside Thunder Bay, which may require that he travel for a few days or a week or more at a time.

[11] The mother claims that unless she is permitted to relocate with Deven to Manitouwadge, she will be unable to secure reasonable employment in the Thunder Bay area and this will be detrimental to Deven. She claims that: a) She is currently, and should remain, the primary caregiver to Deven; b) Her request for relocation to Manitouwadge is urgent; and c) On balance, relocation with Deven together with her plan of care, is consistent with Deven’s best interests.

[12] Since separation, the father has been provided regular, albeit modest access to Deven. The father acknowledged early on that it was in Deven’s best interests that he remain in the mother’s primary care in light of his tender age at separation (four months) and the fact that the mother was breastfeeding him regularly.

[13] The father’s visits were initially for a period of an hour a day. That has changed to three hour visits. The father’s visits have been at the mother’s discretion notwithstanding the father has sought regularization of his visits and increased time with Deven.

[14] The mother informed the father shortly after separation of her desire to move with Deven to Manitouwadge. The mother has some family support in Manitouwadge and has proposed a plan of care in which she would hire caregivers and utilize her family members when she is at work. The mother seeks the following orders: a) That she be granted temporary sole custody and primary care of Deven, with the father provided with reasonable access as follows: i) From July 15, 2017 (or the date of relocation) until Deven is comfortable with longer stretches of access in the father’s care in Thunder Bay, the father shall:

• Pay no child support;
• Make no contribution towards day care costs for Deven; and
• Shall exercise access in Manitouwadge including overnight access. ii) From the date on which Deven is comfortable with overnight access in Thunder Bay (which the mother expects may occur when Deven is approximately 16 months old):
• the father shall pay child support at the Guideline amount less $100 per month in recognition of the father’s access costs;
• the father shall not be required to contribute to the day care costs of Deven, subject to there being no spousal support payable by either party; and
• the father shall have care of Deven in Thunder Bay, starting with 2 nights consecutively and building to 3 nights consecutively, with the parties or a reasonable designate to meet in Terrace Bay for exchange in both directions. b) Until the date of relocation with Deven, the father shall pay child support in accordance with the Child Support Guidelines. After the date of relocation, child support would be paid in accordance with the Guidelines subject to some reduction associated with access costs.

[15] The father opposes any move that would take Deven away from Thunder Bay and asks that the mother’s motion be dismissed.

[16] The father also seeks certainty in his access schedule with Deven that would depend upon the mother’s circumstances. If the mother returns to work in Musselwhite Mine in September, the father seeks shared parenting to coincide with the mother’s 14 day on - 14 day off work schedule.

[17] Alternatively, the father seeks to have increased access between now and September, 2017, to include contact with Deven every second day during weekdays for a period of 2 hours, as well as a set schedule granting him increased weekend access, including overnight access.

[18] If the mother’s motion to relocate with Deven is granted, the father seeks temporary joint custody and an order that Deven shall remain in Thunder Bay until September 2017 so that he may exercise access to Deven during the summer months on the following schedule: a) While the father is working in Thunder Bay: i) Every second day for a period of up to 2 hours immediately following the end of his work until 7:15pm. ii) In July, every Saturday and Sunday from 10:00am until 7:00pm. iii) In August, every Saturday at 9:00am until Sunday at 7:00pm b) In the event that the father is working out of town, access shall be in accordance with his days off work for up to 4 consecutive days, from 10:00am until 7:00pm in July and continuous overnight access in August.

[19] The father proposed that commencing September, 2017, if the mother is granted permission to relocate with Deven, his access would be: a) While the father is working in Thunder Bay he would have access every weekend in Thunder Bay from Friday at 6:00pm until Sunday at 7:00pm. b) In the event that the father is working out of town, access would be in accordance with his days off work for up to 4 consecutive days, from noon on his first day off work until 7:00pm on his last day off. c) The parties would meet halfway between Thunder Bay and Manitouwadge for access exchanges.

Discussion and Decision

[20] There was an extensive court record with numerous affidavits in support of each party’s position. Counsel for the mother and father also submitted facta summarizing their positions as well as the relevant case law regarding mobility on an interim motion.

[21] Counsel for the mother argued that the move should be permitted on the basis that there is a strong likelihood that the mother’s position would prevail at trial because the move is in the best interests of Deven.

[22] Counsel for the mother stressed that there are compelling circumstances that would support the move to Manitouwadge, namely the financial benefit that would accrue to the family because of the mother’s ability to earn income while also remaining the primary caregiver for Deven. The mother also noted that since separation she has experienced a decrease to her savings in order to provide for herself and Deven, notwithstanding the father has been paying child support in accordance with the Guidelines.

[23] Counsel for the father argued that this issue should not be determined on an interim motion but should be dealt with at trial. His counsel also argued that the urgency claimed by the mother is overstated.

[24] Of significant importance to the father is the fact that due to Deven’s tender age, it would be extremely difficult for the father to continue to develop a strong paternal bond with Deven given the distance between Manitouwadge and Thunder Bay. Even the most generous access schedule would be difficult to maintain in light of the 5.5 hour commute. The father stressed the jurisprudence and the provisions of the Divorce Act that support the “maximum contact” concept between parents and their children after separation.

[25] Counsel for the parties each reviewed the case law on mobility rights. They agreed that the leading authority remains the Supreme Court of Canada Case of Gordon v Goertz, [1996] 2 S.C.R. 27, 134 D.L.R. 321, [1996] 5 W.W.R. 457, 19 R.F.L. (4th) 177, 141 Sask. R. 241. They both also agreed that these cases are determined on a case by case basis depending on the circumstances of the litigants.

[26] It is apparent from the evidence before me that the mother had planned to move with Deven from virtually the time the parties’ separated. She has managed her affairs to support this plan, including living with her sister rather than obtaining her own accommodation, dictating the amount of access the father had to Deven and keeping a journal with respect to incidents where the father’s visits did not go smoothly.

[27] The difficulty with mobility applications such as this, whether in an interim proceeding or at trial, is that a move of this significance will result in a loss to the child of the other parent’s day to day involvement in their lives.

[28] This is not a case where the father has been absent, abusive or in any way misconducted himself so as to demonstrate that his visits with Deven should be curtailed. The father has demonstrated since Deven’s birth, his desire to play a role, indeed a large role, in Deven’s life. He has been considerate of the mother’s circumstances with breast feeding and her desire to ensure that Deven’s needs were met.

[29] There has been conflict between the parties, however, my review of the level of conflict shows that the parties have been attempting to communicate and for the most part are able to do so. Deven is the first child for them both and so it is not surprising that there have been differences in their respective approaches to his care, particularly in light of the tension between them as to the mother’s wish to relocate. The evidence does not support a conclusion that the parties are not able to cooperate with each other.

[30] Because of Deven’s tender age, to remove him from Thunder Bay at this stage would in effect result in the father losing his opportunity to forge and strengthen his parental relationship with Deven. Young children before the age of 2 or 3 require frequent and regular interaction with the non-primary caregiver in order to develop and strengthen their relationship.

[31] Neither party provided any expert or medical evidence as to the effect that a move of this nature would have to the father’s parental role when a child is so young. However, the literature and case law in these circumstances is well known. I accept that … “children who are separated from one parent for extended periods of time during their first two or three years of life may not be capable of sustaining a meaningful relationship with that parent thereafter in addition to sustaining other possible adverse impacts.” Prassad v. Lee at para. 49.

[32] Unfortunately, the mother’s plan for access between Deven and the father is not realistic should she relocate to Manitouwadge. The distance between Manitouwadge and Thunder Bay is simply too great. The mother desires to maintain control of ascertaining when Deven might be capable of managing overnight visits with the father after she has moved to Manitouwadge. Much would depend on how often the father would be able to visit in Manitouwadge.

[33] In my view, the effect of granting the mother’s motion to relocate would be to sever the paternal relationship between the father and Deven at a critical stage in Deven’s development. In order to foster that relationship, Deven and the father require frequent contact, something that would be impossible if the mother and Deven reside in Manitouwadge.

[34] Deven’s right to have a strong and lasting bond with his father overrides the possible financial and other benefits to the mother of relocating.

[35] I therefore find that it is not in Deven’s best interests to be relocated from Thunder Bay at this stage of his life. The mother’s motion is therefore dismissed.

[36] I am not prepared to make an order for custody at this time; however, I do find that the mother is the primary caregiver for Deven.

[37] I also find that the father should have a regular, consistent access schedule that includes ever increasing amounts of time with Deven over the next months leading to overnight access. This schedule should include at least one or more short visits during the week and at least one longer visit each weekend. The schedule should take into consideration the father’s work schedule including make-up visits should the father’s work take him out of town.

[38] If the parties are unable to reach a resolution regarding the father’s access schedule, they may return to court before me and if I am not available, before any other judge, in order to resolve the access schedule.

[39] As a final note, I wish to emphasis the right of the child to have a relationship with each of his parents. I would encourage the parties to ask their health care providers or counsel to provide them with literature regarding development of young children and the importance of strong attachment to both parents and the effect that conflict has in a child’s healthy development.

Costs

[40] If the parties are not able to resolve the issue of costs, they may provide written submissions not exceeding 4 pages, together with their Bills of Costs within 20 days.

Madam Justice B. R. Warkentin, R.S.J. Released: July 14, 2017