CITATION: Guertin v. Dumas, 2017 ONSC 4979

COURT FILE NO.: FC-12-549-2

DATE: 2017/08/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Kevin Michael Guertin

Applicant

– and –

Melanie Marie-Paule Dumas

Respondent

Fan MacKenzie, counsel for the Applicant

Russell Molot, counsel for the Respondent

HEARD: August 18, 2017

Endorsement

Overview

1The applicant (“father”) filed a Motion to Change July 21, 2017 seeking to have sole custody of the child Mayla, that the respondent (“mother”) be granted access, that the child live primarily with the father as well as other relief including an order that the child attend school within the Ottawa French Catholic School Board.

2The father filed a motion returnable August 1, 2017 for temporary relief including leave for a motion to be heard before a case conference, an order that the child attend school at an Ottawa French Catholic school preferably École Élementaire Catholique Des Voyageurs, varying the parenting agreement and various other claims for relief.

3On August 1, 2017, Justice Engelking granted the father permission to bring an urgent motion to deal with the child’s residence and school registration before a case conference and set the date for August 18, 2017. The costs of the appearance before Justice Engelking were reserved to the motion judge.

Background

4The parties lived together from February 2009 until September 2009 shortly after the birth of their only child Mayla, born August 7, 2009.

5The parties entered into a final agreement which was confirmed by court order of the Justice Polowin dated March 25, 2015 which encompassed the issues of custody, access, child support, medical and dental coverage for the child, contributions to a registered educational savings plan, schooling and post-secondary education and security for support.

6The order of Justice Polowin granted various relief including that the parties shared\joint custody of the child, ordered that the child reside primarily with the mother and that the father would have access to the child including every other weekend from Friday at the end of the school day to the following Tuesday at the end of the school day and every Monday after school to Tuesday morning in the following week.

7Pursuant to paragraph 1.7 of the order the parties agreed as follows:

1.7 Kevin and Melanie will make important decision about Mayla’s welfare together, including decisions about Mayla’s:

(a) education,

(b) major non-emergency healthcare,

(c) major recreational activities, and

(d) religious activities.

8Further the agreement dealt with changes of residence at paragraph 1.22 and 1.23 as follows:

1.22 If Kevin or Melanie proposes to change his or her residence within 25 kilometers of the municipal boundary, he or she will give his or her new telephone number and address to the other.

1.23 If either party changes their residence beyond 25 kilometers of the municipal boundary, this shall constitute a material change in circumstances.

9For the 2016-2017 school year, the father was residing at his current residence in Orleans while the mother was residing at her parent’s home also in Orleans. The child was attending École Élementaire Catholique Des Voyageurs.

Position of the Parties

10The father’s position is that there has been a material change in circumstances by the mother moving to Plantagenet and changing the child’s school. Further, he submits the mother has no authority to unilaterally change the child’s school without his consent and affect his relationship with his child as a result of her unilateral decision to leave the city of Ottawa. He wants the child returned to Ottawa and that she return to her school in Orleans.

11The mother’s position is that she is well within her rights to move to Plantagenet because the new residence is inside of the 25 kilometer geographical restriction contained in the order of Justice Polowin and that she has the right to change the child’s school without the consent of the father. The mother’s position is that either party can move less than 25 kilometers from the boundary of the City of Ottawa and it would not be a material change in circumstance. Further, she submits that the real issue is that the change of schools is objected to by the father because it is inconvenient for him to drive his daughter to school from Orleans to Plantagenet when she is in his care.

Analysis

12In this case, the mother has been unemployed since 2003. She has been residing with her parents in Orleans. She is in receipt of social assistance. The father is employed as a server in a restaurant including Friday night starting at 4 pm and every second Saturday when he does not have his child. He continues to reside at his residence in Orleans.

13The father has a partner living with him in Orleans while the mother has been in a relationship with her partner for over two years. He lives in Plantagenet.

14The party’s relationship is highly conflictual. The child has been seeing her own counsellor as a result of the stress that she is feeling as a result of the dysfunctionality of the relationship between the father and mother.

15Less than one year after the consent order of Justice Polowin on March 25, 2015, in January 2016, the mother commenced a Motion to Change seeking to dramatically reduce the father’s access to every second weekend from Friday after school to Sunday at 6 PM. The father suspected that the mother was intending to move with the child.

16During the litigation in 2016, on October 25, 2016, the mother served a Response to Request to Admit where at page 9 regarding paragraphs 198-102, she made the following statement:

… The moving party has no intention of moving to Plantagenet. The reasons for the MTC application are clearly set out in the material. Furthermore, it is not the moving party’s intention to move to Plantagenet. In addition, had such a contention existed, her own legal counsel would have advised her of the law of mobility, and as such, the considerable difficulties she would have had in getting a court to make such an order. The present response confirms that it is not the moving party’s intention to move to Plantagenet.

17On November 14, 2006, at a case conference, the parties entered into minutes of settlement where both parties withdrew their claims. I accept the father’s evidence that he settled the case because he received assurance from the mother that she would not be moving to Plantagenet.

18However, just over six months later in May 2017 the mother indicated she is moving to Plantagenet when in her email dated May 21, 2017 she advised the father that her home address was in Plantagenet.

19The father has brought a case conference to address his request to set aside the November 14, 2016 minutes of settlement based on the mother reneging on her assurance she would not move to Plantagenet. Despite her email dated May 21, 2017, in her case conference brief filed on June 21, 2017, she indicated that she would wanted to move to Plantagenet but that she was currently residing with her parents. During this motion, the mother advised the court that she waited to move until June 26, 2017 after school finished. She never advised the father of her plans.

20Once the father found out that the mother intended to move to Plantagenet in 2017, the father moved to set aside the final minutes of settlement signed on November 14, 2016 based on his assurances from the mother that she was not moving. At the case conference on June 28, 2017, the father was advised that the matter was settled in November 2016 and that if he wanted to seek relief he should bring a Motion to Change. He did so in July 2017.

21Once the father found out that the mother had moved with the child to Plantagenet he contacted the school board in Plantagenet to indicate that he did not consent to the child going to school at that location. The school board’s response was that once both parties consented the child would be registered to attend school at St. Paul’s in Plantagenet.

22The father contacted the Ottawa French Catholic School board who indicated the Board would not allow the child to be registered at Des Voyageurs unless she resided in the father’s primary care or she was in a shared parenting arrangement.

23I find that if the mother had given the father more notice, he would have moved into the catchment area of Des Voyageurs. As a result of the mother’s attempt to conceal her move until after the fact, she has prevented the father with being able to move into the catchment area at this time.

24The mother’s parents continue to reside in the catchment area for the school Des Voyageurs. The mother’s affidavit states that her parents are planning on renovating their house soon so she would have to move and that her parents plan to move to Plantagenet as well. There is no further information about the parent’s renovation, including when it would start, the scope and its completion date. Nowhere in the evidence does it disclose that they are not able to have the mother and child returned to live in their home. I note that the mother’s parents did not file any affidavit material in this proceeding regarding the option of the mother returning to live with them.

25I find that both St. Paul’s School and Des Voyageurs are of equal calibre.

26I accept that the mother has been in a relationship with an individual for over a few years and that they may wish to move to a more serious relationship. The mother indicates that her partner has a positive influence on her life and that she wishes to develop the relationship more.I also accept the evidence of the mother that her partner has a very good relationship with the child.

27The child has been under the care of a counsellor, Ms. Sly. In an email dated July 12, 2017 she made the following statement about the child:

She is very worried about losing her friends. She mentioned that she might have to cancel her birthday party because no one will be there because she can’t invite her cheer friends which made her feel very sad. When is her birthday party supposed to be? When I discussed cheer with her, she is very upset. She feels like she lost everything. When I asked her how cheer made her feel she responded with brave and it made her feel good about herself because her coaches would say “good job” and “you did great”. It’s unfortunate that there was no middle ground found for this issue because Mayla is feeling a huge sense of loss right now. She is very concerned if she has to change schools and feels “nervous” because she doesn’t really know what is going on. I would encourage you both to get into mediation in this all figured out ASAP. If you met with the mediator you can negotiate everything and get a sign a legally binding agreement in ¼ of the time and cost of going through the court system.

28I reject the mother’s submission that she is entitled to move to Plantagenet and change the child’s school. While I agree that either party may move 25 kilometers from the municipal boundary of the City of Ottawa, that right is intertwined with the obligation that the parties agree on all major decisions regarding the child and that any such decision does not impact access rights.

29If I accepted the mother’s position, either party could move anywhere be it west, south or even north into the Province of Quebec as long as it is inside the 25 kilometer limitation and that such a move would not be a material change in circumstance. I agree that either party may move but if the move involves a major decision affecting the child and has a material effect on a party exercising their right of access, that moving party needs the consent of the other parent.

30I find that the mother has not been forthright with the father when she intended to move to Plantagenet because I find that the mother was aware of the difficulties in seeking to move as is evident in reading her Response to Request to Admit.

31I find that the mother was aware that the father was not in agreement to change the child’s school as a result of any proposed moved by the mother to Plantagenet. I find that when the mother moved on June 26, 2017, she was aware that the father would not consent to the move. In spite of that knowledge, the mother moved and changed the child’s school.

32The evidence discloses that by driving on Highway 17, the school is 28 kilometers from the City of Ottawa municipal boundary but it is just inside the 25 kilometer limitation on a direct line or “as the crow flies”.

33Whether the mother’s home is just in or just out of the 25 kilometer limitation, in my view, I find that the mother’s move will be a fundamental change in the child’s school as well as the father’s parenting time including picking up and dropping off the child at school.

34If the mother were permitted to move with the child to Plantagenet, the father would have to retrieve the child on Friday at 2:30 pm in Plantagenet, return the child on Monday morning to school for 8 am, retrieve the child at 2:30 pm Monday afternoon in Plantagenet, return the child to school on Tuesday morning for 8 am. On his off week, the father would be required to pick up the child at 2:30 pm on Monday afternoon and return her to school on Tuesday morning for 8 am.

35If the child were residing in Orleans and attending school at Des Voyageurs, the child school starts at 9 am and ends at 3:45 pm. The parties are used to this schedule and it does not impact on the father’s parenting time.

36I reject the mother’s submission that the father’s objections are based on it being inconvenient for him. I find that the mother’s decision to move to Plantagenet and the corresponding change of school is a material change in circumstances. The court order specifically states that the parties are to make joint decisions on the child’s education. Court orders are not suggestions. Court orders are to be followed. The mother did not follow the existing court order as she did not obtain the father’s consent to change schools and vary his access with his daughter.

37In Raifi v. Raifi 2014 ONSC 1377, the court stated at paragraph 21 and 22 the following

21. The parent who engages in self-help tactics despite the best interest of the child will generally raise serious questions about their own parenting skills and judgment. In many cases, courts conclude manipulative, selfish or spiteful parents simply can’t be trusted with custodial authority they would likely abuse. Izyuk v. Bilousov, 2011 ONSC 6451; Clement v. Clement 2010 ONSC 1113

22. Were only a short amount of time has elapsed between the deliberate creation of a new status quo in the hearing of the temporary motion, the court will be more inclined to presume that her restoration of a previous successful status quo is appropriate. Kennedy v. Hull 2005 ONCJ 275, 2005 O.J. 4719

38In Fallis v. Decker 2013 ONSC 5206, the court made the following comment with respect to a party disrupting the status quo:

27. Particularly at an early stage of litigation, the court should be reluctant to allow any disruption of the status quo. In this case the status quo was long-standing, beneficial to the children, and viable. Respondent had plenty of time to address the changes you had in mind, either with the applicant or through the court system. She must’ve known long ago that she was applying to attend school in Brantford. She must have been looking for rental accommodation in Hagersville for a while. It is inappropriate for parent to make secret plans which will have significant impact on children and parenting arrangements, and then announced those plans after decisions have been implemented.

39The father only found out in early July that the mother had actually moved to Plantagenet and registered the child in St. Paul’s School. The issue of setting aside the minutes of settlement was a live issue based on the mother’s decision to advise the father that she intended at some point to move to Plantagenet. The issue was canvassed at a case conference on June 28, 2017.

40I find that the mother decided to use the self-help remedy where she unilaterally decided to change the child’s school. I find that the mother failed to respect both the letter and spirit of the joint custody court order. The parties agreed that on any decision regarding the child’s education, they both must agree. In this case, the mother simply ignored the order and failed to abide by the letter and spirit of the court order. I reject her argument that she is within the 25 km geographical limitation before the magical words of “material change in circumstance” are engaged. I reject this submission that the mother can unilaterally change the child’s school because she is moved within 25 km of the boundary of the city of Ottawa. This submission fails to recognize that the obligation to jointly parent and to make joint decisions on major decisions affecting the child are the fundamental basis of a joint custodial arrangement. By the mother’s actions, she has disregarded the most fundamental aspect of a joint custody order where major decisions are to be made jointly.

41Based on the school board’s policy, the child cannot attend Des Voyageur unless one of the parties live in the catchment area. Prior to the mother unilaterally changing her residence on June 26, 2017, the child was eligible to attend Des Voyageurs.

Disposition

42I order that the child be returned to the catchment area for École Élementaire Catholique Des Voyageurs by August 25, 2017 and that the child be registered in said school for September 2017.

43I order that the parties schedule and attend a case conference on all issues on an expedited basis to be heard in the month of September 2017.

Costs

44I encourage the parties to settle the issue of costs by September 1, 2017. If they cannot, the father is to provide his costs submissions not to exceed three pages plus a bill of costs and any offers to settle by September 8 2017. The mother shall file her costs submissions not to exceed three pages plus a bill of costs and any offers to settle by September 15, 2017.

Shelston J.