CITATION: K.D. v. C.T., 2017 ONSC 6660
COURT FILE NO.: FS-16-0555
DATE: 2017-11-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
K.D.
Applicant
- and -
C.T.
Respondent
Counsel:
G. Welch, for the Applicant
J.R. Labossiere, for the Respondent
HEARD: October 11, 12 and 13, 2017, at Kenora, Ontario
Mr. Justice W.D. Newton
Reasons on Judgment
Overview
[1] The parties[^1] were married in 2008. Their daughter was born in 2009. Their son was born in 2011. The parties separated in March 2015. Between March and November 2015 they shared care of the children equally, one week on/one week off, in the small community in Northwestern Ontario where they resided.
[2] In November 2015, the mother secured employment in Winnipeg, over 400 kilometres away. Since then, the children have remained in the primary care and control of the father with access to the mother.
[3] The issue for me to determine is whether I should order that the children, now eight and six, should reside primarily with their mother in Winnipeg or with their father in the community where they reside currently.
[4] I heard testimony from the mother, her new partner, her mother, the father and his pastor.
The Evidence
The Mother
[5] The mother testified that she met the father while both were in attendance at a church affiliated college in Michigan. Prior to attending college she lived with her parents in southern Ontario. The father was born and raised in the United States. Initially, both were in a civil engineering program. The mother transferred and graduated with a degree in art history in 2008, intending to study architecture. The father remained in civil engineering and graduated in 2008. The mother testified that the father always intended to become qualified as a professional engineer.
[6] However, there were not a lot of jobs for recent graduates in the recession years in Michigan. The father worked as an engineer in training until he was laid off in 2010. He did find another engineering job but it did not last and he was unemployed again in the fall of 2010. The mother had worked for a construction company. Their daughter was born in 2009.
[7] The mother’s grandparents told them about an engineering job in a small town in Northwestern Ontario where the grandparents resided. With no other prospects, the father accepted that job and moved there in early 2011. At that time, the mother was pregnant with their son so she and their daughter lived with her parents in southern Ontario until their son was born in the summer of 2011. She and the children then moved to the same community. Her parents also moved to the same community in 2013. Her father was retired and her mother found a job locally.
[8] The father’s engineering job required him to be away from home frequently, so he left the engineering company to work with the local municipality. The mother returned to work in 2012 and found employment with a local company. At the time she left the community she was earning approximately $43,000 a year. The father’s employment with the municipality was terminated in February 2017. He has not been able to secure full-time employment since then.
[9] Upon separation the mother moved in with her parents. The parties continued the equal sharing of the children – one week on /one week off with the “handover” on Fridays. For the most part, they have handled the breakup of their marriage reasonably. Financial issues were resolved prior to trial. The mother is not opposed to the father continuing to have equal time with the children.
[10] Although not directly related to the best interest of the children, considerable evidence was led about the parties’ involvement with a local church which was seen as a factor leading up to the mother’s move to Winnipeg. Both parents were involved with the church two to three times a week. The mother held a deacon position as the music coordinator. The father was also active in music and with the youth group. Post-separation the mother felt pressure from the church community. She testified that the pastor met with her just prior to separation and told her that, if she went forward with separation, the congregation would not be very accepting and that she should step down from her position as a deacon. She felt shunned by the church community after her separation. Most of her friends were from the church community.
[11] Her separation also caused problems at work. The owner of the company was also an elder at the church and she felt that he and other coworkers were not treating her appropriately. She testified about her raise being withheld. She experienced so much stress at work that she had chest pain. She went to emergency and went on stress leave.
[12] Her current partner was a cofounder of the company and her direct supervisor. He had separated earlier. He left the company and secured other employment in Winnipeg in a similar industry. The mother was offered employment in a related company in Winnipeg in the fall of 2015. Since then she has been promoted and received several raises. Her starting salary was $55,000 annually and she currently earns $75,000. She expects a further promotion with a likely raise to $90,000.
[13] Since moving to Winnipeg the father has been, for the most part, cooperative with access, until the fall of 2016 when he wanted to reduce her access to two weekends per month. He also would not allow her parents to assist with access visits. Sometimes the children would fly to Winnipeg to see her and other times she would fly to them. Her parents would pick up the children at school and take them to the airport. The father preferred to take the children to the airport himself consequently reducing the grandparent’s time with the children – time which was the mother’s access time.
[14] In addition to her access visits, the mother continued to be involved with the children. Her mother would attend school once or twice per week at lunchtime so that she (the grandmother) and the granddaughter could FaceTime with the mother. Sometimes when the mother flew in for access she attended a day earlier and, with the teacher’s permission, would be a class helper, allowing her to spend the school day with her daughter.
[15] She testified that the children are healthy. She has arranged all of the children’s dental care in Winnipeg. The children also get their hair cut in Winnipeg.
[16] The mother resides in Winnipeg with her current partner in a four bedroom house which is located near schools and recreational locations, and which is a 10 minute commute from their workplaces. He has two children similar in age and he has joint custody with his former spouse. He has regular access. The children from both families spend time together at the new house in Winnipeg. The children knew each other before because they grew up together in the same church and community. Sometimes, all four children are together in Winnipeg and they do activities together.
[17] The advantages of life in Winnipeg were discussed including access to medical care, sports, recreation, and education. The mother testified that it was always their intention to move to a bigger centre. She testified that she had asked the father to consider moving to Winnipeg but he indicated that he wanted to stay where he is because he has support from the church community.
[18] If the children resided with her, both she and her current partner have flexible hours to allow pick up and drop off at school.
[19] Her employment benefits include free airfare for family members so there is no cost for her or the children to travel by air.
The Mother’s New Partner
[20] The mother’s new partner began a romantic relationship with her in August 2015 and she joined him in Winnipeg in November 2015. Prior to that he had been her direct supervisor and was an elder in the same church. Prior to deciding on his current career, he attended a seminary for two years.
[21] He has two children and has weekend access from Thursday afternoon to Sunday afternoon.
[22] He has a senior management position earning $160,000 annually. He gave his testimony in a very forthright manner and appeared earnest, capable, and caring. He testified about the advantage of raising children in Winnipeg as opposed to the other community where he had resided since 2009. The advantages include family connections, ease of travel, access to medical care and many more options for education.
The Maternal Grandmother
[23] The maternal grandmother obviously has had a very close relationship with her grandchildren. She and her retired husband moved to the same community in September 2013 and her daughter lived with her post-separation. Her relationship with her daughter’s husband and his family was positive until separation. She testified that her daughter’s husband told her that she should show “tough love” and “send her back to him”. Her relationship with her son-in-law became strained in the fall of 2016 when he began, from her perspective, to interfere with her role in picking up the children after school and taking them to the airport to transfer to her daughter. She viewed that time as her time with the grandchildren and her son-in-law’s behaviour made her very uncomfortable. Since then she has had little contact with him and she has had less contact with the children.
[24] She felt her daughter’s treatment by the church community was wrong and did not fit with her religious teaching.
The Father
[25] The father attended the same religious affiliated college as his parents, and that is where he met his wife. They dated for about a year and then married. His plan was to pursue engineering and work in Third World development. His wife became pregnant and the plans, as they do, changed.
[26] When he became unemployed he looked for a job in both the United States and Canada. The job that his wife’s grandparents told him about was in environmental engineering, which interested him. He was hired as an engineer in training. Because he was a temporary resident at that time, he was not eligible to apply for professional engineering certification. That program requires four years work experience plus a law and ethics exam which involves self-study. He testified that his employer would support him pursuing his professional designation but indicated that there would be no significant change in his salary.
[27] He said that his employer was happy with his work and even considered moving him to Thunder Bay. He said that they declined that move because they wanted to remain where they were. His job required some travel to remote northern communities and, therefore, he was not always at home. He received an employment offer from the municipality that allowed him to be home more often. The new job paid a similar salary and was within a walking distance to work. His wife had returned to work and he says that she agreed with this change as it would ease her childcare burden.
[28] His job with the municipality ended in February 2017. Since then, he has worked part time as a supply teacher and part-time as a surveyor, and he is pursuing the possibility of becoming an entrepreneur. He is attempting to secure a dealership for the supply and installation of solar panels. He also has ideas for developing a commercial greenhouse to grow vegetables. His part-time work has allowed him to look after the children and he testified that he works around the children’s schedule.
[29] When his former spouse moved to Winnipeg she invited him to move also. He felt that this would be too great a change for the children so he decided to remain where he was notwithstanding that he did not have any family or secure employment there. He said that he applied for 15 to 20 jobs in Winnipeg but did not receive any response. No documentation to support that assertion was provided. He testified that he also applied for other jobs near to where he currently resides but has not been able to secure anything. He says that it was important for him to remain in the community because of his engineering contacts and his support system in the church which he described as important to him.
[30] He testified that the children are resilient and are doing well. He says that they are engaging socially and building friendships. There are no discipline or education issues.
[31] Activities for the daughter include participating in the Brownies program for the second year. The son is involved in karate two nights per week. The father said that their house is on a crescent with neighbours who have children. The backyards are the common playground.
[32] In cross-examination, he testified that he is a permanent resident as of 2013 and that if he thought it was beneficial to him, he would have pursued the professional engineering designation. He confirmed that he is eligible for employment insurance to August 2018. Surprisingly, he could not give evidence about his part-time earnings from surveying.
[33] Significantly, he testified that while he did not want to go to Winnipeg, he would likely follow and establish a residence there if I ordered that the children reside with their mother. He said that he would do anything to be with his children.
The Pastor
[34] The pastor moved to the community in late 2012, first as associate pastor. He became senior pastor in July 2015.
[35] He testified that he asked the mother to step down from her role as deacon so she could focus on her marriage. He offered her counselling which she declined. No evidence was offered with respect to his expertise in counselling.
[36] He testified that the father was a wonderful and nurturing parent who always placed his children first. With respect to the mother, he said that it was harder to speak to her parenting because she left the community almost two years ago. He testified that he knows that she is close to her children and is a good mother.
The School Records
[37] The school records were filed on consent and confirm that both children are doing well academically and socially.
Positions of the Parties
[38] Simply stated, the positions revolve around stability and no disruption versus financial uncertainty and certainty. The father argued that the current needs are being met and there is no good reason to justify disruption to the children’s lives. The mother offered not only financial stability but relationship stability and pointed out the economic uncertainty facing her former spouse. The father argued that his life choice, working around the child care needs, is in the children’s best interests.
The Law
[39] The legal principles applicable to custody and access are succinctly and simply set out in the Divorce Act and the Children’s Law Reform Act (“CLRA”).
[40] The Divorce Act, R.S.C. 1985, c. 3 (2nd supp.) provides:
- (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.
Terms and conditions
(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.
Factors
(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
Past conduct
(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.
Maximum contact
(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [Emphasis added.]
[41] The application of the “best interests” test in the context of access was carefully considered by the Supreme Court of Canada in Young v. Young, 1993 (SCC), [1993] 4 S.C.R. 3. McLachlin J. (as she then was) stated that the “best interests” test is the only test and the test is, necessarily, broad. The only additional specific factor that the judge must consider is the “maximum contact” principle set out s.16 (10) (Young, at paras. 201 to 204).
[42] Section 24(2) of the Children's Law Reform Act, R.S.O. 1990, c. C.12, also provides helpful guidance:
Best interests of child
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 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.
[43] As Gordon R.S.J said at para. 1 of Porter v. Bryan, 2017 ONSC 756; reversed on appeal in 2017 ONCA 677, “few cases are more vexing for judges than those involving the proposed move of the child”.
[44] According to Gordon v. Goertz, 1996 (SCC), [1996] 2 S.C.R. 27 at para. 50, “the ultimate question is in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?”
[45] Following Gordon v. Goertz, the Ontario Court of Appeal in Berry v. Berry, 2011 ONCA 705 stated:
[10] In Goertz, the Supreme Court emphasized that the superordinate consideration in a mobility case is the best interests of the child determined from a child-centered perspective. The court set out, at para. 14, a number of factors to be considered. Taking into account that this case involves two custodial parents, those factors can be stated as follows:
• the existing custody arrangement and relationship between the child and each of the custodial parents;
• the desirability of maximizing contact between the child and both parents;
• the views of the child (when applicable);
• the 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
• disruption to the child consequent on removal from family, schools, and the community the child has come to know. [Emphasis in original.]
Analysis and Disposition
[46] As Gordon R.S.J. stated, these are difficult and vexing cases.
[47] As I indicated to the parties during argument, economic superiority does not necessarily equate to a superior parenting arrangement. The test is best interests of the children in all the circumstances, “old as well as new.”
[48] Maximum parental contact is difficult because of geography. FaceTime and Skype assist but are not substitutes for physical presence.
[49] Considering the best interest factors enumerated in s. 24(2) of the CLRA, I find that emotional ties and parenting abilities are equal. No evidence was led, understandably given the children’s ages, of their preferences. Past conduct is not a factor.
[50] The children spent most of their lives, the last almost six years, where they currently reside. The last two years have been with their father. They are in school, participate in activities and, no doubt, have friends in the community.
[51] The key factors involve a consideration of the parenting plans and permanence, certainty and stability of the family units going forward.
[52] Both the mother and her new partner of two years have established and successful careers. They appear to be successful in dealing with a blended family for his children. Their plan for integrating her children appears sound. I was impressed with the new partner’s testimony. As indicated, he appeared earnest, capable and caring. I have no difficulty in accepting the evidence of the mother and her new partner.
[53] On the other hand, the father is on his own. He has no local family. He testified that he has support from the church community. His employment prospects are unknown. His economic future is uncertain. I am troubled to some extent by his failure to know what his part-time income was. Without verification of his Winnipeg job searches it is difficult to assess how sincere his attempts have been. These two aspects of his testimony caused me some concern. I accept that his employment prospects are better in Winnipeg.
[54] I am also satisfied that the motivation for the mother’s move was not to frustrate the children’s relationship with their father and that the ability of the mother to provide free air travel assists in ensuring that there can still be meaningful contact with the father if the move is ordered.
[55] As is set out in Goertz and Berry, disruption to the child on removal from family, schools and community is one of a number of factors to be considered and, in this case, a very important factor.
[56] Although no expert evidence was received I accept the father’s assessment that the children are resilient. At their current ages of eight and six, the children are not as established in their schools and communities as they would have been at older ages. Although the maternal grandparents reside in the same community, they are, for the most part, estranged from the father.
[57] I also accept that the education opportunities available in Winnipeg, both primary, secondary, and postsecondary, are better for the children. I accept that the access to medical services is superior in Winnipeg but acknowledge that there is no suggestion that specialized medical care is required or will be required. That is not the say that there are no advantages to being raised in a smaller town. There is much to be said for the fact that the children can play in communal backyards without safety concerns.
[58] After consideration of all relevant factors, including the negative impact of disruption, I conclude that it is in the best interests of the children to reside with their mother in Winnipeg. Central to my conclusion is the permanence, certainty and stability of the family units going forward.
[59] Although the children have been with their father for two years, his future is uncertain. He does not have any local family support except for his church family. Despite his education and experience, he has not been able to secure full-time employment.
[60] On the other hand, the mother’s new relationship has been stable for two years. She and her new partner are financially secure. The evidence supports the conclusion that the future of this family unit is certain and stable.
[61] I accept that educational, recreational and healthcare opportunities are more varied and advantageous to the children in Winnipeg. I acknowledge that the children will lose forever the advantages of growing up in a small town.
[62] I do not doubt the father’s capacity to be a good parent. His admission that he would likely move to Winnipeg confirms this and confirms his love for the children. But, failing an agreement by the parties, I must decide and I conclude that the children’s best interests favour the move to Winnipeg to reside with their mother. There will be a disruption to the lives of the children but I trust that the parents will endeavor to work together to limit this disruption.
[63] Therefore, I order the following:
The children shall reside with their mother in Winnipeg. The children shall be relocated to Winnipeg no later than December 28, 2017 so that they can begin school in Winnipeg in January 2018. The parties may agree to an earlier relocation date. The current access schedule shall continue until relocation.
The mother shall have primary care and control of the children as well as final decision making capability on important issues regarding the children after consultation with the father.
The father shall have the following periods of care and control with the children:
a. During the school year every second weekend from Friday at 3:30 p.m. until 6:00 p.m. on Sunday. If such a weekend falls on either a statutory holiday or professional development day then the weekend will be extended to include that extra day.
b. Each summer vacation from school dismissal in June of each year until August 31st during which period of time the mother shall have care and control of the children every second weekend from Friday at 3:00 p.m. until Sunday at 8:00 p.m. with the weekend time to be increased to include any statutory holiday that coincides with that particular weekend and subject to the mother having the children for a one week period for vacation purposes during the summer vacation.
c. Christmas school vacation shall be shared equally on an alternating yearly basis.
d. Each school spring break.
- If the father relocates his residence to Winnipeg, the children will be in the care of each parent for 50% of the time according to the following schedule:
a. Week on/week off on an alternating basis with the turnabout time for exchange of the children being 3:30 p.m. on each Friday afternoon at school. When school is not in attendance the custodial parent shall deliver the children to the non-custodial parent’s home at 3:30 p.m.
b. Each party shall have a 2 week uninterrupted summer vacation period with the children. This 2 week period will consist of the one week of regular care and control as well as one additional week after which the week on/week off schedule shall resume as of the date of the end of the vacation period.
c. The parties shall provide notice to the other party by email notice not later than May 1/May 15 of each year. In the even years the mother shall advise the period of her intended 2 week vacation no later than May 1 and father shall advise no later than May 15. This arrangement shall continue on a yearly alternating basis.
d. Christmas school vacation shall be divided equally on a yearly alternating basis between the parties with the exchange of the children taking place at 2:00p.m. on Christmas Day. The mother shall have the 1st week of the Christmas vacation in 2017 and the father shall have the last week in 2017 with the arrangement alternating on a yearly basis thereafter. Both parties recognize that the father’s family resides in the United States and he may wish to make alternate arrangements in any given year which the mother shall reasonably consider, but in the event the parties are unable to agree to a satisfactory change of the arrangement then this order shall prevail. During the Christmas vacation, the normal schedule of week on/week off shall be suspended, but shall resume as of the date of the end of Christmas vacation period.
e. The children will be in the care of the mother for the children’s school March Break in odd numbered years and in the care of the father for the children’s school March Break in even numbered years. The March Break begins at the end of the school day on the Friday before the break and ends on the children being returned to school on the Monday following the break. Should the situation arise that a parent have the children for the March Break would, as a result, have the children in their care for three straight weeks, the other parent will have the children from the end of the school day on the Wednesday before the March Break until the start of the March Break and from the end of the school day on the Monday following the March Break until return to school on the Wednesday following the march Break so that the children will not be away from either parent for a three week period of time.
The day to day decisions about the children will be made by the parent whose care the children are in at the time.
Each parent shall notify the other immediately in the event of a serious injury or illness of the child(ren).
The parents shall discuss and attempt to agree upon decisions relating to the children regarding health, education and the extracurricular activities in which the children will participate. If after discussion and negotiation, the parties are unable to agree on such an issue the mother will have final decision making authority.
Each parent is entitled to access information and records about the children directly from the children’s professional providers.
Each parent may take the children out of the country for a vacation on their parenting time and the other party will sign any and all documentation required to permit the children to cross an international border. The party travelling with the children will be provided with the children’s passports and any other identification or documentation required for the trip. The parent taking the children on the trip will, at least 48 hours before leaving on the trip, provide the other parent with the trip itinerary and a contact telephone number at which the travelling parent can be reached in case of an emergency.
Each parent shall maintain extended health and dental coverage for the children through their employment until the children are no long dependent as defined in the Family Law Act.
All other claims of both parties are dismissed.
Costs
[64] If costs are sought, the mother will serve and file her costs submissions and costs outline within 30 days of the release of these reasons and the father may serve and file responding submissions within 15 days thereafter. Any reply submissions by the mother shall be served and filed within 10 days thereafter. Without prejudging the issue I acknowledge the father’s financial circumstances, that he has been the custodial parent for two years and that it is the mother who elected to move from the community.
[65] If clarification is required to enable the implementation of this decision the parties may arrange a teleconference before me with the trial coordinator.
“Original signed by”____
The Hon. Mr. Justice W.D. Newton
Released: November 6, 2017
CITATION: K.D. v. C.T., 2017 ONSC 6660
COURT FILE NO.: FS-16-0555
DATE: 2017-11-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
K.D.
Applicant
- and -
C.T.
Respondent
REASONS FOR JUDGMENT
Newton J.
Released: November 6, 2017
/sab
[^1]: In this decision I will use generic descriptors to the extent possible so that the privacy of the parties, their children and their families are respected.