CITATION: Geoffrion v. Bélanger, 2017 ONSC 5349
COURT FILE NO.: FC-16-2426
DATE: 20170908
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DAPHNÉE GEOFFRION
Applicant
– and –
MATHIEW BÉLANGER
Respondent
Julie J. Gravelle, for the Applicant
Ron Paritzky, for the Respondent
HEARD: September 7, 2017
REASONS FOR decision
Audet J.
Introduction
[1] This is a motion by the applicant mother (“the mother”) for an order allowing her to move to Montreal with the parties’ two children, aged 8 and 2. Despite this pending motion, on August 1, 2017 the mother unilaterally relocated with the children to Montreal without notice to, or the consent of, the father.
[2] On this interim motion, there is only one issue, namely the issue of mobility. The question is whether or not it is in the best interest of these children to allow the mother to remain in Montreal with them. The burden is on the mother, who brought this motion to show that it would be in the children’s best interests to remain in Montreal, with her.
[3] After hearing the mother’s oral submissions, I advised the parties that I was of the view that the mother had not met that burden, and that the motion was therefore dismissed with written reasons to follow. These are my written reasons.
The Law
[4] The legal principles applicable to interim motions on mobility are well settled. In Plumley v. Plumley, 1999 13990, the court stated at par. 7:
It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis:
A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.
There can be compelling circumstances which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.
Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent's position will prevail at a trial.
[5] In Datars v. Graham, 2007 34430, 41 R.L.F. (6th) 51, the court stated at par. 16:
The problem that this court faces on this motion, however, as McSorley J. observed in Kennedy, is that it is difficult if not impossible in most cases to complete the extensive child-focused inquiry required under Gordon v. Goertz on the typically conflicting and incomplete affidavit evidence that is often available to the court on interim motions. Consequently, the general reluctance of the court to effect fundamental changes in a child's lifestyle on interim motions has resulted in a slightly more restrictive approach to interim mobility cases, one that recognizes the short-term nature of interim orders and the summary nature of interim motions. As well, since the decision on an interim motion in a mobility case will often strongly influence the final outcome, particularly where relocation is permitted, caution is called for, especially since even more disruption may be caused in a child's life if an interim order permitting the move is later reversed after trial: Downey v. Sterling, 2006 ONCJ 490 (Ont. C.J.); Goodship v. McMaster, 2003 53670 (ON CJ), [2003] O.J. No. 4255 (Ont. C.J.).
[6] In Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.), the Supreme Court of Canada established the relevant legal principles to take into consideration on a mobility case. The focus of the inquiry is on the children’s best interests, and that requires a full and sensitive inquiry with the judge taking into consideration the following:
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; disruption to the child of a change in custody; and
f. disruption to the child consequent on removable from family, schools, and the community he or she has come to know.
The Facts
[7] The parties began cohabiting in 2006 or 2007 and separated in November or December 2015. They were never married. They have two children; Félix who is currently 8 years old (he was seven at the time of the parties’ separation), and Rémi who is currently two years old (he was one at the time of the parties’ separation).
[8] The father is a physician and the mother, until very recently, was a stay-at-home parent. It is undisputed that the children have been in the mother’s primary care since the date of separation. It is equally undisputed that the parties’ separation and their co-parenting relationship since the separation have been fraught with a very high level of conflict. The Children’s Aid Society has been involved on and off, the police have been called to intervene on a number of occasions, and the eldest child, Felix, is showing serious signs of distress as a result of the parental conflict.
[9] The level of access between the children and their father has gradually decreased since the parties’ separation. Initially, the father saw Rémi (then a baby) every day for short periods of time except for Fridays. He also had him in his care for several hours every weekend. The father had Félix in his care for two overnights during weekdays as well as every second weekend. Within a year after the separation, Félix was refusing to see his father, and access between the two of them became scarce and then ceased altogether. The father continues to have Rémi in his care two out of three weekends. He used to have him every Wednesdays as well, overnight, but this overnight access was recently removed.
[10] In November 2016, the mother filed an application seeking sole custody of the children, access to the father every second weekend, child support, spousal support, and other corollary relief. A motion was set to proceed on March 21, 2017 with regards to access to the father and disclosure issues. During the case conference which took place on March 2, 2017, and on consent of the parties, an order was made that the parties were to retain the services of a custody and access assessor; the cost of which would be covered by the father without prejudice to his claim for contribution by the mother at a later date. In her notice of motion dated December 22, 2016, the mother was not seeking to relocate in Montreal with the children. For reasons unknown to me, the motion did not proceed in March. On March 6, 2017, the mother filed an amended application which included a request for an order allowing her to move to Montreal with the children.
[11] In December 2016, and at the alleged insistence of the mother, she retained the services of a psychologist, Dr. Roberge, to provide family therapy aimed at improving the relationship between the father and Félix. Therapy began in January 2017.
[12] Following the March 2017 case conference, the parties had exchanges with Dr. Weinberger whom they wanted to retain to perform the assessment. After some back and forth with him, he notified the parties that he could not take on that retainer. This led the parties to argue over whether or not they should retain Dr. Beaudoin who is located in Ottawa (and who was the father’s preferred choice), or Dr. Perusse who is located in Montreal (and who was the mother’s preferred choice). In a letter dated June 23, 2017, counsel for the father confirmed with counsel for the mother that the father was reaching out to Dr. Perusse and that “I still do not understand the insistence on the Montreal professional when one is available closer to Ottawa, but it is not worth dickering over.” Dr. Perusse was eventually retained, and according the parties, has already met with the family several times and is close to completing her assessment.
[13] On August 3, 2017, the mother filed a notice of motion (dated June 14, but only served on August 3) in which she sought various interim relief including an order allowing her to relocate to Montreal with the children. The motion was set to be heard on August 23, 2017. The mother’s extensive affidavit in support of her motion was sworn on July 31, 2017 and served on the father on August 3, 2017. The father alleges that it is only when he received the mother’s motion materials on August 4, 2017, that he learned that the mother had already relocated with the children to Montreal, which came as a shock to him.
[14] Although the evidence makes it clear that the mother had sought the support of the Children’s Aid Society and of the children’s physician to validate her move with the children to Montreal, there is no evidence in the file that would suggest that she notified the father of her intended move. I find as a fact that the mother relocated with the children to Montreal on August 1, 2017 without notice to the father and without his consent, and that it is only subsequent to her having moved to Montreal that she filed her motion for an order allowing her to relocate with the children.
The Mother’s Position
[15] The mother justifies her and the children’s move on several basis. She claims that there are serious concerns about the mental and physical health of the two children, particularly Félix, many of which are the result of the father’s and his new spouse’s poor relationship with them, and with each other. In the mother’s view, the father is blind to the children’s best interests and the emotional climate this creates is putting the children’s well-being and safety at risk. She states that the father has never been involved in the children’s lives and his toxic behaviour is affecting the children’s development. She states that the father has not engaged meaningfully in family therapy with Dr. Roberge, and that he has refused to pay which resulted in her terminating the therapy recently. She also indicates that Félix “lost confidence in Dr. Roberge because he went to many sessions which were supposed to take place with his father and his father did not attend.”
[16] She states that the Ottawa Children’s Aid Society, and in particular Geneviève Marcil who was the Society worker involved with this family, has serious concerns about the father’s parental alienation campaign which she characterized in her affidavit as “extreme.” She further states that there is a physical danger for the children in visiting their father since he refuses to fence his pool at home. She is of the view that the father makes bad decisions and lacks judgment with regards to the children’s health. In particular, she alleges that the father does not accept the diagnosis of anxiety disorder for Félix, which causes him great prejudice, and she claims that the Ottawa hospital has requested that she files a formal complaint against the father as he would have behaved against established protocols which in turn has put the children’s treatment at that hospital at risk. She states that Félix lives in fear of running into his father in his neighbourhood.
[17] In addition to the above, she claims that she suffers from severe financial difficulties as a result of the father’s refusal to provide financial disclosure, to pay adequate support for her and the children, and to contribute to the children’s special and extraordinary expenses. She further claims that the father has refused to buy her interest in the parties’ joint home, thus precluding her from finding suitable accommodations for her and the children. She acknowledges that she is currently receiving approximately $6,000 per month in combined child and spousal support from the father, but claims that the support only recently started to be paid by the father.
[18] She states that she has no family in Ottawa, no employment opportunities as a result of her not mastering the English language, and has no support in Ottawa in caring for the children, including from the father. She claims that she has suffered from severe migraines for many years as well as from insomnia, weight loss, and psychological distress which have worsened since the separation and as a result of the father’s misconduct.
[19] Finally, she states that Dr. Roberge has recommended that Félix be taken out of the school he has been enrolled in since he began attending school, namely, Lycée Claudel. She says that Félix does not feel good about the teachers and other support staff at that school; that their teaching methodology creates additional stress and anxiety for him, that Félix has been unable to make any friends in that school, and that he is isolated. The mother’s efforts to convince the father to move Félix into another school in Ottawa have proven unsuccessful.
[20] The mother indicates that, with the help of professionals involved with her and the children, including the Children’s Aid Society, she elaborated a plan to move to Montreal as it was those professionals’ opinions that it would be in her and the children’s best interests to do so. In Montreal, she has rented a place suitable for her and the children and signed a 12 month lease. She has registered Félix in a new school of her choosing and has located various professionals to replace those the children had in Ottawa. She has obtained part-time employment as an administrative assistant in her father’s business and has started to contribute to her own self-sufficiency. She states that she is committed to ensuring that the father continues to have access two weekends out of three, as was the status quo before her move.
[21] Félix started school in his new school in Montreal two weeks ago. According to the mother, he is thriving in this new school which is at walking distance from her home. He has already made a new friend. She indicates that her own health has greatly improved. She has not had one migraine in a month and she has gained seven pounds. She attends a clinic in Montreal specialized in migraines and notes that there are none in Ottawa. She and the children have seen her family and friends every day since they moved. They assist in caring for the children when she is not available. Félix has started taking karate lessons and he loves them (she indicates that Félix did karate in Ottawa but had to stop as his father refused to continue to pay for the lessons, a fact which he denies). She has never seen Félix so happy since the date of the parties’ separation.
Analysis
[22] The problem with the mother’s position is that many of her allegations are clearly contradicted, not only by the father’s evidence, but also by the objective evidence contained in professionals’ letters, Children’s Aid Society records, and doctor’s reports.
[23] For instance, contrary to the mother’s assertion, the evidence suggests that the father has been very engaged in the family therapy provided by Dr. Roberge. Whereas the mother states that the father has only had one session with her, and whereas she has had seven, she fails to mention that for six of her seven sessions, she was only the accompanist (“parent accompagnateur”), and the sessions were actually individual counselling with the child alone. In addition, Dr. Roberge’s letter dated June 15, 2017 clearly indicates that the father has had two, not one, sessions with her. The father has also included in his affidavit a series of emails between him and Dr. Roberge which makes it clear that he has continued to be involved in this process, making arrangements for additional meetings and meeting with Dr. Roberge three additional times after she wrote her June 15 letter (on July 12, July 26 and August 9).
[24] Further, in case workers notes written by Geneviève Marcil from the CAS on July 27, 2017 summarizing her telephone interview with Dr. Roberge, she indicates having been told by Dr. Roberge that the father showed a desire, in her opinion, to improve his relationship with his son, and that he was open in discussions and participated well. She confirms that the father has often exchanged emails with her to plan meetings. She confirmed having observed that the father’s new spouse had insight, showed good judgment, and had a deep desire to do what was right for the children. She also confirms that it is the mother who discontinued the therapy, on the basis that she felt that the father was not making the necessary efforts. Dr. Roberge was of the view that while the relationship between Félix and his father was strained, it could be improved through therapy.
[25] There is also no indication in the Children’s Aid Society records (which were filed into evidence by the mother herself) that the father had engaged in “extreme parental alienation.” On the contrary, in his case notes dated August 22, 2017, Luc Lefebvre, a Society worker, confirms that post-separation conflict between the parents is present, that he observed indicia of parental alienation on both sides, that Félix was aware of information relating to the court action to which he should not be privy, and that while concerns were verified, the Society was closing its file since the mother had moved to Montreal.
[26] While the mother alleges many wrongdoings on the part of the father with regards to his care of the children, his angry and conflictual behaviours, and his sole responsibility in the post separation conflict, there is objective third-party evidence which suggests that she may very well have anger management issues herself. Of note is the affidavit filed by Tom Christie, the manager of a restaurant who personally witnessed the events that took place on July 1, 2016, involving the mother, the father, and his new spouse, while the children were present. In his affidavit, he describes how the mother rushed into the restaurant and caused a big scene in front of the children who were in the care of the father and his new spouse. She was asked to leave, and when she refused, the manager decided to move the father’s table inside of the restaurant to stop the altercation.
[27] In addition, in her case notes dated August 21, 2017, Geneviève Marcil expresses being worried about the fact that the mother left Ottawa without a court order allowing her to do so, in light of the pending litigation. She writes that “they” (i.e. workers involved at the Society) are in agreement that Félix needs therapy and that moving away and attending a new school would possibly contribute to elevated stress. She then writes that the mother, upon being told this, became angry. She went from being sweet to being angry very quickly and intensely. She writes that the mother then stated that she would “find somebody to blame” (“trouver un coupable”) if something happened to her son, and asked her what information the father revealed to them to sway them in the father’s favour.
[28] While the mother claims that the father has refused to buy her interest in the parties’ joint home, a letter dated June 23, 2017 from the father’s counsel to the mother’s counsel confirms that the father is prepared to purchase the mother’s interest in the home for the amount she had asked, and provides her with a comprehensive draft agreement confirming same, and also confirming that the payment would be made to her within 30 days of execution. The mother refused to sign the agreement.
[29] The mother’s evidence also contains gross exaggerations which put into question her credibility and the veracity of her testimony in general. For instance, while she states that Dr. Roberge has recommended that Félix be taken out of Lycée Claudel, the evidence confirms that she has opined that that school is a structured environment and could be anxiogenic in certain circumstances. Nowhere do I see objective evidence that would suggest that she has recommended that Félix be taken out of that school. It should further be noted that Félix is doing remarkably well academically.
[30] While the mother claims that the father refuses to acknowledge that Félix suffers from anxiety, and that the father is the cause of that anxiety, the evidence is far from conclusive in that regard. Firstly, the father, in his affidavit, readily admits that Félix suffers from anxiety and that he has become increasingly resistant to seeing him. This said, I have not seen evidence (except in the mother’s own testimony) in any report or opinion from professionals that would suggest that this is the result of the father’s own (or sole) doing.
[31] The mother claims that her financial situation has drastically improved with her move to Montreal. While I acknowledge that the mother’s rent may be lower in Montreal than in Ottawa, I note that the difference between the two is $600. She is currently receiving $6,000 of support per month for her and the children; so it does not appear that the $600 per month difference is so significant as to justify a move at this stage of the proceeding. The mother has provided no evidence that would suggest that she cannot obtain a part-time administrative position similar to the one she has with her father’s company in Ottawa. I simply do not accept that a French-speaking individual who has a limited knowledge of English is unable to find employment in the Ottawa Region, particularly since it is minutes away from Gatineau, Quebec, where certainly many opportunities exist.
[32] I also find that the mother’s testimony contains many self-serving allegations, which are clearly disputed by the father in his evidence, and which can only be resolved by way of a trial in which these allegations can be tested and the parties’ credibility assessed.
[33] While the mother’s evidence and position may very well prevail at trial, I am of the view that it was wrong for the mother to upset the status quo on an interim and unilateral basis. The status quo that the mother was trying to establish by her unilateral move is highly prejudicial to the father’s position in this proceeding and will inevitably lead to an inability on his part to improve his relationship with his older son. I am of the view that there are no compelling circumstances here which would dictate a change in the children’s residence pending a full assessment by Dr. Perusse, and a trial allowing the parties to test the other’s evidence. I also find, based on the evidence that is before me, that it is far from certain that the mother’s position will prevail at trial.
[34] I am of the view that, while the move to Montreal has most certainly improved the mother’s mental health and overall well-being, and thus may very well have a positive impact on the children themselves, the disruption to the children resulting from being removed from their community, schools, health professionals and therapists, in addition to being physically separated from their father by a two hour drive, is not in their best interests at this time. While I realize that forcing the children back to Ottawa and having them go through a second move in less than two months is going to be upsetting to them, I am of the view that the short-term disruption in their lives is required to ensure their long-term well-being.
Disposition
[35] As a result of the above, I make the following order :
The children, Félix Goeffrion born November 29, 2008, and Rémi Bélanger Geoffrion born November 8, 2014, shall be returned to Ottawa on or before September 15, 2017;
The child, Félix Goeffrion, shall resume school at Lycée Claudel on September 18, 2017, unless the parents’ consent in writing to his being enrolled in another school at a different date;
If not already done, the father shall pay the necessary tuition for Félix to be enrolled in Lycée Claudel immediately;
The child, Félix Goeffrion, shall immediately resume therapy with Dr. Roberge, the cost of which will be paid by the father on a without prejudice basis. The father shall continuously engage in such therapy as requested or recommended by Dr. Roberge;
This matter is added to the January 2018 trial list to deal with the issue of custody of, and access to, the two children, as well as the mother’s request to move to Montréal with the children.
[36] Should there be any difficulties in the due implementation of this order, they shall be brought before me.
[37] Should the parties be unable to agree on costs, I will accept brief written submissions not exceeding two pages from the father within the next 15 days, followed by brief written submissions not exceeding two pages from the mother within 15 days thereafter. Any reply by the father not exceeding one page shall be forwarded to me within five days thereafter.
[38] Counsels’ arguments in this motion were in English, and as a result my reasons for judgment were written in that language. However, this is a bilingual matter and my reasons shall be translated in French and the translated copy provided to the parties.
Madam Justice Julie Audet
Released: September 8, 2017
CITATION: Geoffrion v. Bélanger, 2017 ONSC 5349
COURT FILE NO.: FC-16-2426
DATE: 20170908
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DAPHNÉE GEOFFRION
Applicant
– and –
MATHIEW BÉLANGER
Respondent
REASONS FOR Decision
Audet J.
Released: September 8, 2017