Court File and Parties
Citation: Robinson v. Locke-Robinson, 2017 ONSC 4964 Court File No.: D-21467-16 Date: 2017-08-10 Superior Court of Justice - Ontario
Re: Robert Louis Robinson, Applicant v. Kirsty Catherine Isabel Amanda Locke-Robinson, Respondent
Before: A.D. Kurke, J Counsel: Mr. T. Kestle, for the Applicant Mr. M. Mottonen, for the Respondent Heard: August 2, 2017, at Sudbury, Ontario
Endorsement
Overview
[1] Respondent and applicant move to change paragraphs in the orders of Hennessy J. of June 9, 2016, and of Poupore J. of November 10, 2016, affecting the schedule of care by the parties of their child Robert Campbell Louis Robinson (“Robbie”), born October 13, 2013. In essence, they seek to modify the custody and access regime on an interim basis, with the respondent wishing to reside either in North Bay or New Liskeard, and the applicant to remain in Sudbury. Additionally, account must be taken of Robbie’s need at this time to transition to junior kindergarten.
Background
[2] The applicant and respondent married in 2009. The applicant works at the Ministry of Natural Resources and Forestry. The respondent graduated from the Northern Ontario School of Medicine in May 2012, and then started her residency in family medicine.
[3] Robbie was born October 13, 2013. Except for four months spent in North Bay, when the family was still together, they resided in the matrimonial home on Boland Avenue in Sudbury. While the respondent mother generally primarily cared for Robbie, while she convalesced from back-related issues at various points, the applicant assumed a greater share of responsibility over Robbie’s care. Robbie has attended Garderie Touche-à-tout at Laurentian University since November 2014. Both parents were and are actively involved in all aspects of Robbie’s life.
[4] The parties separated October/November 2015, and the respondent left the matrimonial home with Robbie. She went into student residence at the medical school. She resumed a residency in North Bay in June 2016.
[5] That is when Justice Hennessy dealt with the matter.
[6] Paragraph 1 of the order of Hennessy J. established joint custody of Robbie by both parents. In para. 2, Robbie’s primary residence was to be with the respondent mother, with whom he would be 8 nights out of every 14. Paragraph 4 ordered Robbie enrolled 4 days per week in the Garderie Touche-à-tout, a daycare located on the campus of Laurentian University in Sudbury. Paragraph 5 required counsel for the parties to figure out how to make a workable schedule. The order was to be in force until at least December 31, 2016 (para. 6).
[7] Justice Poupore helped the parties put a schedule in place. Paragraph 2 of Poupore J.’s order put Robbie under the care of the applicant father Monday to Thursday, on which days Robbie would attend the daycare in Sudbury. The respondent mother would have Robbie from Thursday after daycare until the following Monday morning. Paragraph 3 of the order permitted that on the last Sunday of each month, the applicant father could pick Robbie up at the McDonald’s at 999 McKeown Avenue, North Bay, at 8:30 a.m.
[8] The respondent’s medical residency was completed by the end of 2016. At that point, the respondent was unemployed until March 2017, while awaiting full licensing with the College of Physicians and Surgeons of Ontario. She then took up locum work in North Bay and New Liskeard, which has allowed her to establish medical contacts in those areas. From those contacts, two job offers have been generated: one is permanent in the Centre de santé communautaire du Temiskaming in New Liskeard, where the respondent grew up, and where she still has friends and family, including her parents. The other is a contract position with the Blue Sky Family Health Team in North Bay, where the respondent worked for a time, and where there is the future possibility of taking over another physician’s practice. Both positions offer regular weekday daytime work, although the North Bay position comes with one day of on-call duty every two weeks, and some emergency care expectations.
[9] French-language training for Robbie is important to both parents. The respondent, who is francophone, has researched schools in New Liskeard and North Bay that offer full French programming, which would continue the language focus that he has received at daycare. The applicant, who is Anglophone, proposes French immersion at Alexander Public School in Sudbury.
[10] The respondent’s parents have been involved in Robbie’s life and upbringing since his birth. They live in New Liskeard, and are relatively close to North Bay. The applicant’s family is not, apparently, from northern Ontario, although he regularly travels south to visit with them. The applicant describes his family as close-knit, and Robbie has visited with the applicant’s family 3 or 4 times per year.
[11] The respondent mother signed an amended Return of Service agreement with the City of Greater Sudbury, requiring her to start employment in medical practice for two years in Sudbury by December 2018, or repay $40,000 in loans to Sudbury that were used to fund her education.
[12] There is evidence that the applicant father does not communicate well currently with the respondent. He has refused participation in co-parenting counselling or ended it prematurely. For his part, the applicant father explains that the respondent has not been generous at permitting him time with Robbie, and that counselling did not appear to be improving that situation.
Orders Requested
[13] The respondent mother, in a Notice of Motion at Tab 23 of the Continuing Record, seeks mainly to change paras. 3 and 4 of the order of Hennessy J., which set out the 8+6 day routine and the daycare enrollment, respectively. She also seeks to amend paras. 2 and 3 of the order of Poupore J., which set out the routine to be followed in the 8+6 day schedule and pickup and drop-off details. Para. 5 of the order of Hennessy J. would be deleted in its entirety to accommodate a new court-set framework. The respondent mother also seeks child support. In a Notice of Motion at Tab 25, the respondent mother seeks permission to enroll Robbie in a full French elementary school in either North Bay or New Liskeard.
[14] The applicant father is opposed to Robbie spending more time out of Sudbury. In his own Notice of Motion at Tab 26, he proposes that Robbie be enrolled in September at Alexander Public School in Sudbury, and that the respondent mother have care of Robbie from Friday or Thursday after school until Monday morning all but one weekend in every month. He also seeks child support.
[15] The reasons driving these changes are attractive job prospects in either New Liskeard or North Bay for the respondent mother, with whom Robbie has primary residence, and the view of both parties that Robbie should be registered in junior kindergarten this coming September.
[16] Rule 14(1)3. of the Family Law Rules, O. Reg. 114/99, as am., permits the parties to apply for the changes that they propose. In my view, the need to enroll Robbie in school, and the job offers now available to the respondent, require changes to the current orders.
[17] On the day that these motions were argued, the parties were able, on consent, to put in place a holiday schedule.
Law
[18] Section 24 of the Children’s Law Reform Act, R.S.O. 1990, C. C.12 (“CLRA”) sets out specific factors for a court to consider in determining the best interests of the child, in applications involving custody and access. Also of great importance are the dictate of s. 20(1) of the CLRA that the father and mother of the child are equally entitled to custody of the child, and the principle that “maximum contact” with both parents is generally in the best interests of the child, enunciated in s. 16(10) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).
[19] Complicating the custody and access assessment is the mobility issue, in that the respondent mother wishes to make permanent her and Robbie’s absence from Sudbury, which was granted on a partial and temporary basis by Hennessy J. That said, the mother’s residence in North Bay is currently the status quo; a move to New Liskeard would take Robbie significantly further from Sudbury.
[20] Concerning section 24 of the CLRA, I take into account particularly the following factors, although I have considered all of the factors set out in that provision:
a. Both parties are extremely close to Robbie, and have been involved in all aspects of his care and upbringing since at least June 2016;
b. However, Robbie is still a child of tender years. Since Robbie’s birth, for the most part, the respondent has been his primary caregiver;
c. Both parties have presented plans outlining the benefits of a life for Robbie either in New Liskeard, North Bay, or Sudbury, and the amenities, services and attractions, and educational opportunities available for Robbie in those communities;
d. The fact that the respondent’s family live in New Liskeard ensures that they can be regularly part of Robbie’s life either in North Bay or New Liskeard. Indeed, the respondent’s parents spend a lot of time already with Robbie in North Bay;
e. Both parents have or will have schedules that will permit them parenting time with Robbie. While it may have been possible for the respondent mother to find employment as a doctor in Sudbury, the jobs on offer in New Liskeard or North Bay give her the same parenting boon that the applicant father apparently enjoys working for the government of Ontario – regular weekday hours;
f. Hennessy J. allocated “primary residence” for Robbie with the respondent in June 2016. While 6 days out of every 14 were spent with the applicant, for the bulk of that time Robbie was in daycare, and not in the applicant’s custody;
g. On the other hand, the existing arrangement grants to Robbie significant time with both parents. The applicant father calculates that Robbie currently spends 43% of his time with the applicant;
h. It is desirable that Robbie continue his education in French to permit him fluency in both of Canada’s official languages. The respondent reasonably submits that French immersion could represent a reduction in focus that could have the effect of reducing Robbie’s level of fluency in French;
i. Early concerns that Robbie may suffer from a speech delay problem or developmental delay/autism have passed. Robbie can commence schooling at this point in any location. Continuity of medical care is no longer a concern.
[21] Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 (“Goertz”), remains the leading authority regarding the factors to be considered in order to determine the best interests of the child in situations of relocation. That case considered the issue in the context of s. 17 of the Divorce Act, permitting variation of a custody order, as is the case in this situation. Those factors also apply in motions for interim relief: McDonald v. McDonald, [2006] O.J. No. 1143 (Sup. Ct.), at para. 20.
[22] A relocation type of analysis would be useful in this case. What Hennessy J. and Poupore J. managed to achieve for Robbie requires updating to take into account the current situation. The respondent mother has attractive employment opportunities available to her in New Liskeard and North Bay. With regular school about to commence, Robbie must go to a schedule that permits him enrollment full time in either Sudbury or North Bay or New Liskeard. The flexibility permitted by Robbie’s enrollment in daycare and the respondent’s unemployment until March 2017 is no longer available. Robbie will be in school, with working parents.
[23] I note that the language issue is not a primary driver in the circumstances of this case. Although the applicant proposes attendance in French immersion at Alexander Public School, there are several schools offering full French programming in the Sudbury area.
[24] The first issue for consideration under the test in Goertz is a determination whether there has been a material change in circumstances affecting the child since the custody and access order under consideration. The parent seeking to make the change bears the onus of demonstrating the change in circumstances. If the change has been established, then the court must reconsider “all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them”. The test looks to the best interests of the child, rather than the interests and rights of the parents: Goertz, at para. 49.
[25] The need to enroll Robbie in school, and the employment opportunities now available to the respondent, constitute material changes in circumstances. This latter consideration, since the respondent mother was designated Robbie’s primary caregiver by Hennessy J., also must be considered to affect Robbie.
[26] In the relocation analysis, a court must begin with the factual findings by Hennessy J., whose order defined the parameters of the current situation of custody: Goertz, at para. 49.3. In her Reasons of June 9, 2016, which are in evidence on this motion, Hennessy J. determined the following, among other things:
a. That joint custody would be appropriate, even though the respondent mother would be residing in North Bay, and the applicant father in Sudbury;
b. Robbie had spent more nights to that point with the respondent mother. He was a child of tender years. It was appropriate that his primary residence be with the respondent mother;
c. It was appropriate for Robbie to remain in daycare in Sudbury at Laurentian four days per week;
d. It appears that the most significant reason for Robbie to maintain a regular presence in Sudbury was to permit him continued access to the healthcare practitioners who were treating his perceived health concerns, including speech language problems and potential autism;
e. Hennessy J. was uncertain whether North Bay was considered to be only a temporary location for the respondent. In the event that it would be of longer standing, Hennessy J. anticipated that the issue would have to be revisited, with a more comprehensive plan of care;
f. Access by driving to pick up Robbie and drop him off was an important consideration in this case. The logistics of travel requirements were why Hennessy J. encouraged the parties to hammer out the details of the schedule themselves. As an aside, it is noteworthy that the parties’ initial difficulties in this regard appears to account for their attendance before Poupore J., and his further order.
[27] In determining the best interests of the child, the court should consider the following factors among others (Goertz, at para. 49.7):
a. the existing custody arrangement and relationship between the child and the custodial parent;
b. the existing access arrangement and 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 reasons 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;
g. disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
[28] Courts have considered other principles as supplementing the test in Goertz:
a. Courts should be cautious in permitting a move on an interim basis, thereby upsetting the status quo, especially given the limitations of affidavit evidence on interim motions, unless there are compelling circumstances, or if there is a strong probability that the custodial parent’s position will prevail at trial: Plumley v. Plumley, 1999 13990 (ON SC), [1999] O.J. No. 3234 (Sup. Ct.), at para. 7; Walsh v. Walsh, 2012 ONSC 4965, at paras. 35-38; Terris v. Terris, [2002] O.J. No. 499 (Sup. Ct.), at para. 29;
b. Multiple changes of residence should be avoided, so as to limit disruption to the child’s living arrangements: Blodgett v. Deroy, 2009 CarswellOnt 7102 (Sup. Ct.), at para. 19;
c. The maximum contact principle must also be acknowledged in the context of mobility: Berry v. Berry, 2011 ONCA 705, at para. 13.
[29] The applicant also argues that a decision favourable to the respondent mother on the mobility issue now would have the effect of granting “summary judgment” on the issue of place of residence, a concern reflected in some authorities: thus see Guillotte v. Sinopoli, 2011 ONSC 77, at para. 11. I am not particularly drawn to this argument, as the court’s concern in Guillotte was a jurisdictional one between Ontario and Quebec, and a decision to permit school registration in any of Sudbury, North Bay, or New Liskeard could establish a status quo in any of those places, to the incidental benefit of either parent. Nevertheless, a decision must be made; Robbie’s schooling should not have to await trial.
Analysis
[30] The current status quo provides for joint custody, with primary residence of Robbie with the respondent mother in North Bay, although Robbie spends significant time with the applicant father in Sudbury.
[31] The applicant father submits that it is the respondent who has chosen to work in North Bay or New Liskeard, rather than in Sudbury. He submits that it would be appropriate at this point to transfer primary residence to the applicant father, and enroll Robbie in school in Sudbury, where he has spent most of his weekdays anyway.
[32] Robbie is by now established in each of two communities: North Bay and Sudbury. An alteration in his schedule, so long as he remains in those two communities, will not be unduly disruptive for him.
[33] In accordance with the authorities, the status quo should not be altered any more than necessary. On any calculus, Robbie appears to have thrived in his current situation, even with his parents residing in two different, but neighbouring, cities. Taking into account the various factors from the legislation, Goertz and other mobility authorities, the least disruptive alteration to the status quo for Robbie would be that he be enrolled in a school where he primarily resides – with the respondent mother in North Bay. However, the maximum contact principle requires that I take into account that Robbie has had, and is entitled to continue to have, significant contact with the applicant father.
[34] The applicant father generously proposed that if Robbie’s primary residence must remain in North Bay or New Liskeard, he would do all the driving necessary to accommodate access, so long as a deduction in child support be granted from what would be owing under the Federal Child Support Guidelines to recognize the hardship of the travel and its expense. He proposed that the amount be reduced by $300 per month; the respondent mother proposed the reduction be $250. Obviously, driving time and the expense for fuel would increase significantly if the applicant father had to drive to New Liskeard from Sudbury rather than to North Bay. While North Bay would allow for evening access on a weekday, New Liskeard would make such access impossible.
[35] Relocation by the respondent mother to New Liskeard for employment would significantly increase the distance between Robbie and his father in Sudbury, and represent a move to yet another community for Robbie, who is not yet four years old. Such a step would be unnecessarily disruptive for Robbie, his living arrangements, and for the applicant father. It would also limit the opportunity for maximum contact between Robbie and the applicant father, which would not be in Robbie’s best interests.
[36] The respondent mother has an attractive opportunity for employment in North Bay, where she currently resides with Robbie, and to which city Robbie has had the opportunity to become accustomed since June 2016. At the conclusion of the respondent mother’s contract in North Bay, she would have the option of taking over a practice there in the Fall of 2018, or returning to Sudbury under her contract with that city. The duties under the respondent mother’s contract with Sudbury, given the option to meet its terms by paying back the money leant her, is not significant in my analysis.
[37] The respondent cannot be faulted for not finding similar employment opportunities in Sudbury to those she has been offered in New Liskeard and North Bay. Not surprisingly, her professional contacts have been in New Liskeard and North Bay, where she has worked, rather than in Sudbury. Job offers have been made by those aware of her circumstances as a parent caring for a child part of the time. It is in Robbie’s best interests that the parent with whom he has primary residence have a work situation that permits her the greatest opportunity to spend time with him, and also have the benefit of a satisfactory and familiar work environment: Bjornson v. Creighton, 2002 45125 (ON CA), [2002] O.J. No. 4364 (C.A.), at paras. 29-30, 38.
[38] In North Bay, the respondent mother has the considerable assistance of her parents from New Liskeard, who are also regularly involved in Robbie’s life. The proximity of Robbie’s extended family is an important factor in the analysis. The evidence before me indicates that the applicant father’s family reside in southern Ontario, and that they accordingly have less contact with Robbie.
[39] Robbie’s health concerns figured large in the reasoning of Hennessy J. It was a very important factor in establishing so significant a presence for Robbie in Sudbury. Hennessy J. wanted to ensure continuity of care with healthcare providers in the city where Robbie had spent his first two and a half years. Indications from both parties are that Robbie’s health and developmental issues appear at this point to have resolved. Language issues have given way to significant ability in both English and French. Robbie has been described by the respondent mother as “precocious”.
[40] At this point, in any event, Robbie, like all children, must endure the disruption necessarily occasioned by the transition from daycare to school. The transition will be better accommodated by Robbie’s entry into a full French program, which will carry on the linguistic focus of his daycare. The respondent mother has already researched an appropriate school in North Bay: École Publique Héritage. The disruption would only be considerably heightened if Robbie’s primary residence at this point were altered to that of the applicant father, particularly given communication issues on the applicant’s side.
[41] The applicant father proposes that the current care situation could be exactly maintained by requiring that Robbie be registered for school in Sudbury and that the respondent mother pick Robbie up after school Thursday, and return him Sunday. The applicant argues that attendance every weekday is not strictly necessary in junior kindergarten anyway. While an exchange of custody of Robbie could continue to take place on Thursday, junior kindergarten should not be viewed as nothing more than glorified daycare. The structural and socialization aspects of schooling should begin in kindergarten. By attending kindergarten every day with their peers, children begin to mature towards school-age friendships and to adapt to the schedule that will give structure to their lives through high school. The applicant’s plan would be in the applicant’s interest, but not in Robbie’s best interest.
[42] Having considered the relevant factors under the CLRA, the Divorce Act, and the jurisprudence concerning mobility issues, it is my view that the parents should continue to have joint custody, with primary residence of Robbie remaining with the respondent mother. The respondent mother may register Robbie for junior kindergarten at a school of her choosing in North Bay. It remains in Robbie’s best interest that he continue to have significant access to the applicant father. He shall have significant access to Robbie, and a deduction in child support to offset the travel expenses that would otherwise represent a hardship and a potential barrier to maximum contact.
Orders to go
[43] The Temporary Order of Hennessy J. of June 9, 2016 shall be varied as follows:
a. Paragraph 2 of the Order shall be varied by adding the words “in North Bay” to the end of the paragraph, so that it will indicate: “The primary residence of the child…Robbie…shall be with the Respondent mother…in North Bay”. This variation is to take effect September 5, 2017.
b. Paragraph 3 of the Order shall read:
“3.a. The applicant father will have access to Robbie for the first three weeks out of a cycle of four weeks from 5:00 p.m. each Friday until 6:00 p.m. each Sunday. 3.b. On weeks where a P.A. day falls on the Friday of an access week, the applicant father may pick Robbie up at 5:00 p.m. Thursday, rather than 5:00 p.m. Friday.
3.c. The applicant father shall also have access Wednesday evening in each of the two weeks following the third weekend of the applicant father’s weekend access to Robbie, from 5:00 p.m. until 8 p.m.
3.d. Access pickups and drop offs shall be at the McDonald’s restaurant at 999 McKeown Avenue, North Bay.
3.e. The first weekend of this access schedule shall commence Friday September 8, 2017.”
This variation is to take effect September 5, 2017.
c. Paragraph 4 of the Order shall read: “The child Robbie Robinson is to be enrolled in junior kindergarten at a school of the respondent mother’s choosing in North Bay, Ontario.” This variation is to take effect immediately.
d. Paragraph 5 of the Order shall read: “Pursuant to the Federal Child Support Guidelines, and the applicant father’s income (2016) of $71,430, he should pay to the respondent mother $651 per month in child support. However, that amount is reduced by $301 per month to recognize the hardship to the applicant father of doing all the access driving between Sudbury and North Bay. The applicant father is to pay child support to the respondent mother of $350 per month, commencing September 1, 2017, and the first day of each month thereafter.” This variation is to take effect September 1, 2017.
e. Paragraph 6 of the Order is to be deleted immediately.
[44] The Temporary Order of Poupore J. of November 10, 2016 shall be varied as follows:
a. Paragraphs 2 and 3 are to be deleted immediately.
[45] If the parties are unable to agree on the costs of this motion, they may provide written submissions of no more than three pages to the court within 20 days.
A.D. Kurke J.
Date: August 10, 2017