Hayman v. Maticiw, 2017 ONSC 5725

CITATION: Hayman v. Maticiw 2017 ONSC 5725

TORONTO COURT FILE NO.: FC-17-21416

DATE: 20171013

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jennifer Elizabeth Hayman Applicant

– and –

Dean T. Maticiw Respondent

COUNSEL:

L. Kirwin

G. Colman and K. Rehal

HEARD: September 18, 2017

Ruling on Motion

NICHOLSON J.:

[1] This is a motion by the respondent father primarily focused on the return of the children from Barrie to Toronto. The mother moved with the children to Barrie without the father's consent in February 2017. He also requests an order to approve access facilitators, a 50/50 residential schedule, and an order for joint decision-making and daily contact by way of telephone with the children. He also requests that his access become unsupervised.

[2] Currently the mother resides with the parties’ two children in Barrie, Ontario and the father exercises access every Wednesday from 5:30 p.m. to 7:00 p.m. in Barrie and alternate weekends Saturday to Sunday overnight. His access is supervised or facilitated by agreed upon third parties.

[3] The parties had a seven-year common-law relationship from October 31, 2009 until February 2017.

[4] The two children are Langdon, who was born April 2, 2012, and Grayson was born March 2, 2014. The boys are now five and three years old. The child, Langdon, was diagnosed with autism spectrum disorder (ASD) at the age of four years. He is verbal and the diagnosis was in the mild to moderate range.

[5] On March 31, 2017 at a case conference, this long motion was scheduled to take place on June 8, 2017. However, according to the practice direction for the Toronto Superior Court of Justice, the notice of motion and materials were to be filed within 10 days of March 31, 2017. Counsel for the respondent at that time failed to meet this deadline.

[6] The respondent retained a new lawyer, Gene Colman who represented him at this motion. Mr. Colman inquired at the end of April 2017 whether the long motion could still proceed on the June 8 date. He was advised by the trial Co-ordinator on May 15, 2017, that the June 8, 2017 date had been vacated and the long motion was then scheduled for the next available date: September 18, 2017.

[7] An interim interim order by Eberhard J. was made on February 16, 2017, in Barrie. This order was made on the return date of the motion brought by the mother without notice to the father one week earlier. Within a matter of days of being served, the father retained counsel and filed materials opposing the orders sought by the mother. The court noted that the material before it was untested and replete with hearsay. Eberhard J. noted in her endorsement, "The court is very concerned not to let self help create circumstances that accomplish indirectly what cannot be done directly." She accepted and adopted the submissions of the respondent father's counsel that the applicant mother "ought not achieve an order in the nature of a mobility order by simply taking the children to a new jurisdiction and establishing a new status quo on the basis of an order granted without notice."

[8] The court also noted that the children had, until very recently, resided in Toronto, have been assessed in Toronto and had services in Toronto from doctors, occupational therapists, Montessori preschool and daycare. She also noted that Langdon had recently been diagnosed with ASD and had an individual worker through community living in the Toronto area.

[9] The court found that based on the evidence, the care of the two boys has largely been left to the applicant mother. The court made an order granting the mother interim interim care and control as opposed to interim interim custody. Eberhard J. indicated that such an order would not impede a motion for a temporary order as the evidence develops and her decision was being made prior to a case conference on untested evidence. She transferred jurisdiction of the matter to Toronto.

[10] A case conference was held in Toronto on March 31, 2017 by Diamond J. The date of June 8, 2017 was set for the long motion on that day but subsequently abandoned and moved to the September 18, 2017 date as outlined above.

[11] In most cases, an interim interim order would not have prejudiced either party from seeking a temporary order for custody and should not have stood in the way of the court today making an order returning the children to Toronto. In this case, however, the children have been with the mother in Barrie for almost eight months now. They have been enrolled in school, have seen doctors and dentists, and have undergone further assessments including one by the local school board (IPRC) resulting in an individual education plan for Langdon.

[12] Eberhard J. expressed concern about the father's rage and frustration in caring for the children. She therefore ordered that another adult be available to facilitate the father’s access. The parenting time was to be from Saturday at 10:00 a.m. until Sunday at 6:00 p.m., alternate weekends in Toronto at the family home with the access facilitator doing the transportation. The sister of the respondent was preapproved by the court to be an access facilitator.

[13] On March 31, 2017, the parties consented to four individuals to "supervise" the access. They also agreed to add midweek access in Barrie on Wednesdays from 5:00 p.m. until 7:00 p.m. The parties were also to attend mediation to address parenting issues in advance of the original date set for the long motion: June 8, 2017.

[14] Subsequent to the March 31 court date, the father brought a motion claiming that the mother had violated the original order made in Barrie preventing her from enrolling the child in services in Barrie. She had enrolled the child in junior kindergarten and they saw a speech and language assessor and had a dentist appointment. The court did not agree with the father but did grant his request for daily telephone contact. The court also suggested the parties provide a joint letter to the school/daycare.

[15] The father admits at paragraph 28 of his May 26, 2017 affidavit that he has a tendency to get angry. He is taking steps to improve this aspect of his life, seeing a clinical therapist for anger management counselling. In fact, he completed a course in anger management in 2015. He says that the mother has exaggerated the allegations about his abuse. He says both of them have become involved in angry exchanges, and she does not acknowledge her anger. He filed a letter from a psychotherapist confirming completion of an anger management course in December 2015, and a letter from his psychologist dated May 10 2017, regarding ongoing counselling. I am satisfied that the father is making adequate efforts to address his anger issues.

[16] Furthermore, the father's sister has provided notes of the supervision of the access and they can be found in Volume 2 at Tab 4 of the Continuing Record. Other access supervisor/facilitators have provided affidavits as well. Other individuals provided affidavits that spoke of the father and his relationship to the children. Although the mother complained that the father did not have any unbiased third-party evidence to support his position, she did not suggest that any of the supporting affidavits were inaccurate. She therefore did not challenge the veracity of the evidence that the father is satisfying his obligation to meet the needs of the children during his parenting time.

[17] In her affidavit material and her factum, the applicant mother requests certain orders including child support and an order for a certificate of pending litigation. However, the mother has no motion before the court regarding these issues, and they will not be addressed. The father is paying child support as of June 2017 in the amount of $700 per month. The mother indicated at the outset of this motion that she was content for that support to continue.

[18] The mother's explanation for moving to Barrie without the consent of the father or a court order is that she was motivated by a need to find a safe haven for herself and the children. She contends that it was not necessary for her to obtain a custody order prior to the move as she has always had primary care and control of the children and has always made decisions in their best interest. She claims that she had the support of her aunt in Barrie and could not afford to live in Toronto.

[19] She claims that the father's anger issues have been long-standing and that the anger management course he took in 2015 did little to assist. She says the family doctor reported her complaints about domestic violence to the Children’s Aid Society. She also argues in her affidavit that the family doctor recommended she find a safe exit immediately. However, the letter filed from the doctor does not support this contention. The Society investigated but did not meet with the father until three months after separation. Although the mother contends that the conflict was caused by the father exclusively, the Society does not reach the same conclusion. The Society acknowledged that the concern identified by the police who contacted them was a risk of emotional harm to the children based upon the conflict in the home; however, the risk was eliminated by the separation of the parties. The CAS took no position with regard to the access of the father. Furthermore, the evidence from the friends and family members submitted by the Society support the contention by the father that the conflict was caused by both parents.

[20] The mother claims that the services available for the children, and in particular Langdon, are much better in Barrie compared to Toronto. The father conceded during submissions that the mother thoroughly investigated and compared the services available in each city subsequent to the move. He also concedes that the children are very well settled in their new location with schools and other services well-entrenched.

[21] The evidence shows that prior to and since separation, the mother has consistently excluded the father from important decisions regarding the children including an assessment conducted of Langdon leading to the autism diagnosis, enrollment in school in Barrie, dentist appointments and consultation with occupational therapists.

[22] The father concedes that Langdon was diagnosed with autism spectrum disorder. He states that Langdon is verbal and intelligent but has difficulty with sensory processing and adapting to change. He argues that the move by the mother initially to Barrie would have been very difficult for Langdon. He concedes, however, due to the passage of eight months, both boys have become very settled in their new schools, neighbourhood and have several supports in place.

[23] The father also made submissions through counsel that if the court was not prepared to order that the children be returned to Toronto, it was his intention to move to Barrie to ensure maximum contact with the children. For this reason, he requests an access schedule providing an equal division of time between the parties regardless of the court’s decision relating to the issue of mobility. Both parents are involved in the landscaping industry. The mother is a landscape designer and the father does the landscaping work. Previously, she would refer much work to him. She continues to do much of her work in the Toronto area commuting regularly. The father is prepared to do the same but will relocate to be closer to the children.

[24] The issues before me today are:

(i) Should the mother be required to return the children to the Toronto area?

(ii) Should a temporary order be made for custody or joint custody and what is the residential schedule that is in the best interest of the children?

(iii) Does the father’s access continue to require supervision?

(iv) Should the no-contact order be removed and the parties be permitted to communicate with one another by way of Our Family Wizard and/or their respective lawyers?

The Law

Best Interest Test

[25] The test is set out in s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12:

Merits of application for custody or access

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

Best interests of child

(2)The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2).

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2, 3).

Mobility

[26] Sherr J. did a thorough analysis of the law in the area of temporary mobility in Boudreault v. Charles, 2014 ONCJ 273, 45 R.F.L. (7th) 482:

[25] The leading case for determining if a relocation should be permitted on a temporary motion is Plumley v. Plumley, 1999 13990 (ON SC), [1999] O.J. No. 3234 (S.C.J.), where the court set out the following principles:

a) A court will be more reluctant to upset the status quo on an interim motion and permit the move when there is a genuine issue for trial.

b) 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 of the best interests of the children or the best interests of the children might dictate that they commence school at a new location.

c) Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong possibility that the custodial parent’s position will prevail at trial.

[26] The following are additional principles regarding temporary relocation cases:

a) The burden is on the parent seeking the change to prove compelling circumstances exist that are sufficient to justify the move. See: Mackenzie v. Newby, [2013] O.J. No. 4613 (OCJ).

b) Courts are generally reluctant to permit relocation on a temporary basis. The decision will often have a strong influence on the final outcome of the case, particularly if the order permits relocation. The reality is that courts do not like to create disruptions in the lives of children by making an order that may have to cause further disruption later if the order has to be reversed. See: Goodship v. McMaster, 2003 53670 (ON CJ), [2003] O.J. No. 4255 (OCJ).

c) Courts will be more cautious about permitting a temporary relocation where there are material facts in dispute that would likely impact on the final outcome. See: Fair v. Rutherford-Fair, 2004 CarswellOnt 1705 (Ont. S.C.J.). In such cases, the court requires a full testing of the evidence. See: Kennedy v. Hull, [2005] ONCJ 275.

d) Courts will be even more cautious in permitting a temporary relocation when the proposed move involves a long distance. It is unlikely that the move will be permitted unless the court is certain that it will be the final result. See my comments in: Downey v. Sterling, 2006 ONCJ 490, [2006] O.J. No. 5043 (OCJ) and Costa v. Funes, [2012] O.J. No. 3317 (OCJ).

e) Courts will be more cautious in permitting a temporary relocation in the absence of a custody order. See: Mackenzie v. Newby, supra.

f) Courts will permit temporary relocation where there is no genuine issue for trial (see: Yousuf v. Shoaib, [2007] O.J. No. 747 (OCJ)), or where the result would be inevitable after a trial (see: Mackenzie v. Newby, supra, where the court observed that the importance of the father’s contact with the child could not override the benefits that the move would have on the child).

g) In assessing whether the three considerations in Plumley, the court must consider the best interest factors set out in subsection 24 (2) of the Children’s Law Reform Act (the Act) and any violence and abuse in assessing a parent’s ability to act as a parent as set out in subsections 24 (3) and (4) of the Act as well as the leading authority on mobility cases, Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.). The law is summarized in paragraphs 49 and 50 of that case as follows:

49 The law can be summarized as follows:

a) The inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

b) 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.

c) Each case turns on its own unique circumstances. The only issue is the best interests of the child in the particular circumstances of the case.

d) The focus is on the best interests of the child, not the interests and rights of the parents.

e) More particularly, the judge should consider, inter alia:

1. the existing custody arrangement and relationship between the child and the custodial parent;

2. the existing access arrangement and the relationship between the child and the access parent;

3. the desirability of maximizing contact between the child and both parents;

4. the views of the child;

5. 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;

6. disruption to the child of a change in custody;

7. disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new.

h) These principles apply with necessary modifications to an initial consideration of custody and access and not just to a variation of access. See: Bjornson v. Creighton (2002), 2002 45125 (ON CA), 31 R.F.L. (5th) 242 (Ont.C.A.).

i) The financial security of the moving parent is a relevant factor in mobility cases. See: Greenfield v. Garside, 2003 53668 (ON SC), 2003 CarswellOnt 1189 (Ont. SCJ).

j) Several cases have recognized that requiring a parent to remain in a community isolated from his or her family and supports and in difficult financial circumstances will adversely impact a child. The economic and financial benefits of moving to a community where the parent will have supports, financial security and the ability to complete their education and establish a career are properly considered in assessing whether or not the move is in the child’s best interests. See: MacKenzie v. Newby, supra, paragraph 53, where in paragraph 54, Zisman J. also accepted the following passages from Lebrun v. Lebrun, [1999] O.J No. 3393 (SCJ) where the court wrote at paragraphs 32-34 as follows:

32 The children's need for shelter, food and clothing which could be provided by adequate earnings by the mother must take priority over the disruption of a move, and reduced contact with the father and his family. The intellectual and emotional flowering of these children cannot occur until their basic physical needs are met.

33 The economic realities require that the mother be free to pursue employment which will permit her to escape the welfare rolls. I am confident she will manage the move in a way which promotes the children's best interests.

34 An order restricting the residence of the children would, as in Woods v. Woods reflex, (1996) 1996 18119 (MB CA), 110 Man. R. (2d) 290 C.A., condemn the mother and children "to a life of penury with a dissatisfied [mother] bereft of work and dignity. The alternative is to empower the [mother] to improve their lives from both a material and psychological standpoint." While the security of the positions offered to the mother cannot be assured, I am satisfied that the prospects of good, full-time employment are much better in southern Ontario. Leave is granted to the mother to move the residence of the children within Ontario.

k) There is case law that says that if a primary caregiver is happier, this will benefit the child. See: Del Net v. Benger, 2003 CarswellOnt 3898 (Ont. SCJ).

l) The level of co-operation that the moving parent will provide in facilitating access to the other parent is also a relevant consideration in a mobility application. See: Orrock v. Dinamarea, 2003 CarswellBC 2845 (B.C.S.C.).

[27] However, in the case before me, the mother did not bring a motion to permit her relocation with the children prior to the move. She unilaterally removed the children from the home without the prior consent of the father or court order. This court must therefore consider the jurisprudence regarding self-help.

[28] In Bloom v Bloom, 2017 ONSC 1568, Doyle J stated:

36. ... Courts have frowned on parents who unilaterally take steps to upset the status quo in order to obtain an advantage in a parenting dispute.

37. In J.(D.L.) v. L. (D. J.), the mother unilaterally terminated shared parenting. The Court stated that the unilateral action by a parent is not to be condoned. See also Surana v. Surana, where the Court did not condone the mother’s self-help action and did not accept her abuse allegations.

38. As articulated by Wright J. in Kimpton v. Kimpton 2002 CarswellOnt 5030, at para 1 and 2:

There is a golden rule which implacably governs motions for interim custody: stability is a primary need for children caught in the throes of matrimonial dispute and the de facto custody of children ought not to be disturbed pendente lite, unless there is some compelling reason why in the interests of the children, the parent having de facto custody should be deprived thereof. On this consideration hangs all other considerations. On motions for interim custody the most important factor in considering the best interests of the child has traditionally been the maintenance of the legal status quo. This golden rule was enunciated by Senior Master Roger in Dyment v. Dyment, 1969 544 (ON SC), [1969] 2 O.R. 631, (aff’d by Laskin J.A. at p. 748), by Laskin J.A. again in Papp v. Papp, 1969 219 (ON CA), [1970] 1 O.R. 331 at pp. 344-5 and by the Nova Scotia Court of Appeal in Lancaster v. Lancaster (1992), 1992 14032 (NS CA), 38 R.F.L. (3d) 373. By status quo is meant the primary or legal status quo, not a short-lived status quo created to gain tactical advantage. See on this issue Irwin v. Irwin (1986), 1986 6303 (ON SC), 3 R.F.L. (3d) 403 and the annotation of J.G. McLeod to Moggey v. Moggey (1990), 1990 7339 (SK QB), 28 R.F.L. (3d) 416.

Unless the courts insist that they will not disturb the existing arrangements for children on interim motions except in those cases where it is clear that the children are being exposed to danger or there is some other compelling reason, the courts will continue to be confronted with litigants demanding that the court embark upon the impossible task of attempting to assess the relative merits of parties who have filed numerous affidavits contradicting the affidavits of the other.

Costs

[29] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, confirmed that modern costs rules are designed to foster three fundamental purposes, namely to partially indemnify successful litigants for the cost of litigation, to encourage settlement and to discourage and sanction inappropriate behaviour by litigants bearing in mind that the awards should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party.

[30] In making this decision, I have considered the factors set out in r. 24 (11) of the Family Law Rules, O. Reg. 114/99 (“the Rules”), which reads as follows:

24(11) In setting the amount of costs, the court shall consider,

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party’s behaviour in the case;

(c) the lawyer’s rates;

(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

(e) expenses properly paid or payable; and

(f) any other relevant matter. O. Reg. 114/99. r. 24(11); O. Reg. 235/116, s. 4(3)

[31] Subrule 24(5) of the Rules provides criteria for determining the reasonableness of a party’s behaviour in a case (a factor in clause 24(11)(b) above). It reads as follows:

24(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept. O. Reg. 114/99, r. 24(5).

[32] Family law litigants are responsible for and accountable for the positions they take in the litigation: Heuss v. Surkos, 2004 ONCJ 141. The court in Gurley v. Gurley, 2013 ONCJ 482, observed, at para. 17:

Sub-rule 2(4) imposes a duty on parties and their lawyers to promote the primary objective of the rules to deal with cases justly (subrule 2(2)). This includes taking appropriate steps to save time and expense (subrule 2(3)). Offers to settle play an important role in saving time and expense by promoting settlements, focusing parties and often narrowing issues in dispute (See my comments in Klinkhammer v. Dolan and Tulk, 2009 ONCJ 774, [2009] O.J. No. 6370 (OCJ)). The failure to serve an offer to settle will be an adverse factor when assessing costs. Laing v. Mahmoud, 2011 ONSC 6737.

[33] I have also considered both Boucher et al. v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291, 188 O.A.C. 201 (Ont. C.A.), and Delellis v Delellis and Delellis, 2005 36447 (Ont. S.C.). Both these cases point out that when assessing costs, it is “not simply a mechanical exercise.”

[34] When a moving party is successful on a mobility case, but has put the other party in the position of having little option but to contest the case, the court should be reluctant to grant costs: Bridgeman v. Balfour, 2009 64814 (Ont. S.C.). The court in C.L.H. v. R.J.J.S., 2012 BCSC 1196, held, at para. 11:

The court may exercise its discretion to refuse an award of costs to a substantially successful litigant where the conduct of the party is deserving of rebuke. (Forzley v. Forzley (1997), 1997 1830 (BC SC), 34 R.F.L. (4th) 105 (B.C.S.C.) and Bhopal v. Bhopal, 1997 4223 (B.C.S.C.)).

Analysis

Issue one: Should the mother be required to return the children to the Toronto area?

[35] The mother insists that her move to Barrie in February 2017, was required in order to obtain a safe haven for her and the children. She contends that she was escaping a situation of ongoing abuse. According to the mother, she had no other choice. She argues that the best interests of the children required that she unilaterally move them to Barrie and obtain a restraining order against the father without notice. She argued in support of her position that the parties were not married and therefore she could not obtain an order for exclusive possession of the family home.

[36] For the following reasons I respectfully disagree with the mother:

[37] The mother had other options. She could have sought an order in Toronto for custody of the children and a restraining order against the father based upon her allegations of violence. She could have also requested an order under s. 28(1)(c)(i) of the Children's Law Reform Act, R.S.O. 1990, c. C.12, limiting the manner and location of contact or communication between the father and the mother, and between the father and the children. Such an order, in essence, would have produced similar results to an order for exclusive possession.

[38] Her allegations regarding violence were unsubstantiated. Although there was evidence that the father had issues of angry outbursts, he was addressing those concerns. The evidence supported a conclusion that both parents were involved in verbal altercations. The evidence from the police and the Children’s Aid Society did not support the contention that the father was primarily responsible for the domestic turbulence.

[39] By her actions, the mother disturbed the stability of the relationship between the children and the father. Even though the mother may have been the primary caregiver, the father was involved with parenting on a daily basis. The mother did not present compelling reasons to deprive the children of that parental relationship.

[40] The mother did not make this move primarily to pursue more lucrative employment. She continues the same job as she had in Toronto although her cost-of-living is lower in Barrie.

[41] In a nutshell, the mother has violated the golden rule as articulated by Wright J. in Kimpton v. Kimpton, 2002 2793 (Ont. S.C.), at para. 1:

There is a golden rule which implacably governs motions for interim custody: stability is a primary need for children caught in the throes of matrimonial dispute and the de facto custody of children ought not to be disturbed pendente lite, unless there is some compelling reason why in the interests of the children, the parent having de facto custody should be deprived thereof.

[42] At the time of the move in February 2017, both parties had de facto custody as they had not yet separated, and no court order for custody had yet been obtained.

[43] The great difficulty the court faces in considering the "golden rule" in this case is the passage of time. The mother and children have resided in their new location for the past eight months, and the children have become extremely well settled. The father acknowledges this fact.

[44] Unfortunately, the concern expressed by Eberhard J. regarding the mother’s self-help actions have come to fruition. The delay that has occurred in having this matter heard, for which the father cannot be held directly responsible, has resulted in a set of circumstances that impact the court’s assessment of the children's best interest.

[45] The present circumstances engage an important principle of temporary relocation cases as articulated by Sherr J. in Boudreault, at para. 26:

Courts are generally reluctant to permit relocation on a temporary basis because he decision will often have a strong influence on the final outcome of the case, particularly if the order permits relocation. The reality is that courts do not like to create disruptions in the lives of children by making an order that may have to cause further disruption later if the order has to be reversed. See: Goodship v. McMaster, 2003 53670 (ON CJ), [2003] O.J. No. 4255 (OCJ).

[46] In this case, the new location has now become the status quo. Requiring the mother to return the children to the Toronto area would be very disruptive and not in their best interest. The children have been enrolled in school since February 2017, have seen doctors and dentists, have undergone further assessments including one by the local school board (IPRC) resulting in an individual education plan for Langdon. Services to assist the mother in addressing the challenges of autism are more readily available in Barrie than Toronto.

[47] Since the move, the father has had regular and meaningful access with the children in Barrie and Toronto and is prepared to move to Barrie in order to increase the amount of time he can spend with the children.

[48] For these reasons, I will not require the mother to return the children to Toronto.

Issue two: Should a temporary order be made for custody or joint custody, and what is the residential schedule that is in the best interest of the children?

[49] The mother argued that the past conduct of the father and in particular his violence towards the mother and children, be taken into consideration in determining issues of custody, supervision of access, and the residential schedule. She contends that the father has not properly addressed his anger issues and has not educated himself regarding the special needs of Langdon.

[50] Although the parties did have a history of domestic turbulence and the father admitted to having anger issues, both parties were involved in emotional outbursts and yelling and screaming at each other. Some of these concerns were historical. The father contends that the period just prior to separation had been quite calm. It appears from the evidence that during the months prior to separation, the mother was planning the move, slowly removing items from the family home and purchasing a new home in Barrie. The father acknowledged his role in the verbal altercations and had, in fact, taken an anger management course in 2015. Mother, however, has not acknowledged any responsibility for the domestic turbulence.

[51] Since separation, the father has also engaged a therapist who provided evidence of ongoing involvement. Furthermore, the father’s access with the children has been facilitated by adult third parties who have provided positive feedback regarding his relationship with the children. The father is prepared to continue to have his access facilitated. These circumstances lead me to the conclusion that there will be no negative inference taken from the father’s past conduct.

[52] However, the mother’s past and ongoing conduct is concerning. Her decision to remove the children from the family residence unilaterally reflects a limitation in her ability to parent. The situation from which she sought a safe haven was not one of extreme violence or otherwise drastic circumstances. It did not justify a unilateral escape. In choosing to move the children without a court order or the consent of the father, it shows me that she minimized the value to the children of a healthy relationship with the father. This brings her overall judgment into question. She lost faith in her relationship with the father, and therefore her judgment became clouded such that she did not see the value to the children in having the father involved in their lives to the maximum extent possible.

[53] The evidence was clear that the mother saw fit to marginalize the children's relationship with the father and exclude him from meaningful decisions relating to the children. Since the move, the mother has unilaterally made decisions with regard to the children's school enrollment, dentist, occupational therapists, and speech assessment. She initially advised Langdon’s school and Grayson's daycare not to correspond with the father and did not list the father as an emergency contact.

[54] The father gave evidence that the mother offered gifts to the children each Sunday at the end of the access visits. This resulted in the children looking forward to ending the access visit.

[55] The mother has not acknowledged the potential negative impact on the children of marginalizing the father from their lives. Unlike the father, she has not sought out any therapeutic help to assist her in addressing these issues. I have no way to determine if the mother’s judgment is still clouded with regard to the importance of the involvement of the father in the lives of the children. Children are entitled to a healthy relationship with both parents. Such a relationship, in my view, is a "necessary of life" and required of every parent, unless circumstances clearly established that such a healthy relationship is impossible. That is not the case here. Both parents have to do everything in their power to facilitate those healthy relationships with the other parent.

[56] I have concerns about the mother's ability and willingness to facilitate the relationship between father and the children. Therefore, I have concerns about the ability and willingness of the mother to provide the children with the necessaries of life and to act as a parent. I find the mother’s conduct removing the children unilaterally from Toronto, thereby negatively impacting their relationship with the father, was unreasonable. For these reasons, I will not grant a sole custody order in favour of the mother.

[57] Apart from this concern, the mother has established that her plan for the children residing with her in Barrie does establish a degree of permanence and stability for the children. As such, their primary residence will remain with her for the time being.

[58] The mother and father will share custody of the children and will jointly make all decisions in relation to the children pending trial or settlement of this matter.

[59] The residential schedule for the children will remain as it is until the father relocates to Barrie. Upon his relocation, the residential schedule will revert to the schedule proposed by the father in his notice of motion. As such, the children will spend every Monday and Tuesday with the father, every Wednesday and Thursday with the mother and alternate weekends rotating between the parties. Changeovers during the school year will be at the school and/or daycare. This schedule will ensure maximum contact between the children and both parents.

Issues three and four: Does the father’s access continue to require supervision? Should the no-contact order be removed and the parties be permitted to communicate with one another by way of Our Family Wizard and/or their respective lawyers?

[60] Both of these issues can be addressed through a consideration of the following circumstances.

[61] The father has requested that certain individuals be approved and remain as access facilitators. He is prepared to continue to have the access facilitators in place and requests only that there be no need for a supervised access facilitator on days when he does not have overnight access with the children. This request, in my view, is reasonable and acknowledges the benefit of a gradual move toward unsupervised visits. The father continues to engage a therapist to address issues of anger, emotional regulation, relationship and communication skills, stress management, and self-care etc. His psychotherapist and his psychologist indicate that he "demonstrated high levels of interest in motivation towards changing how he responds to anger triggers as well as seeking supportive counselling and processing through difficult and painful emotions."

[62] The mother has not provided any clear and cogent evidence of danger to the children. In fact, she has provided limited evidence of any danger to herself. The allegations she has made against the father have been denied by him and she has provided no third-party corroboration. The father admitted on one occasion to having physically disciplined one of the children by holding him by his collar.

[63] Supervised access is designed to be a temporary measure to protect against conduct that presents a risk to the children. Supervision has been in place now for eight months. Notes from the access facilitators show a positive relationship between the children and the father. For these reasons the father’s request to eliminate some supervision is reasonable. He requests that the visits not involving overnights be unsupervised, and I will grant that order.

[64] Furthermore, if the father provides a positive written report from his therapist after he relocates to Barrie, it is my view that his access should become entirely unsupervised. This will require further consideration. Perhaps the parties will submit the matter to mediation if they cannot reach an agreement to avoid a further motion.

[65] For these reasons, the no-contact order will be removed and the parties will be permitted to communicate with one another by way of Our Family Wizard and/or their respective lawyers.

Costs

[66] At the completion of this long motion I invited counsel to make cost submissions on the assumption that they were completely successful. Counsel for the father indicated that he felt it was not reasonable to seek full recovery based upon all of the time spent preparing for and arguing this long motion. He said that such an award would be completely out of proportion to the end result and, as such, proposes that the mother would pay costs to the father in the amount of $15,000. He also suggested that I consider making no cost award at all should I decide that the mother not be required to return the children to Toronto. He argued that this would serve as a sanction to the mother for taking her unilateral action in removing the children from Toronto.

[67] The mother, on the other hand, argued that she should be paid costs in the amount of $30,000 if she was completely successful.

[68] My decision results in mixed success for the parties. Although the mother is successful in relation to the significant issue of mobility, and to some extent in relation to continued facilitation of father's access by third parties, the father is successful in all other respects. I also find that the mother was unreasonable in her conduct in removing the children unilaterally.

[69] As noted above, Bridgeman stands for the proposition that when a moving party is successful on a mobility case, but has put the other party in the position of having little option but to contest the case, the court should be reluctant to grant costs. Moreover, the court in C.L.H. held that the court may exercise its discretion to refuse an award of costs to a substantially successful litigant where the conduct of the party is deserving of rebuke.

[70] For these reasons, I find that the mother will pay costs to the father for this motion in the amount of $500.

Justice P. W. Nicholson

Released: October 13, 2017