CITATION: D.M. v. C.W., 2017 ONSC 7070
COURT FILE NO.: 16-034
DATE: 20171129
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
D.M.
Mr. A. Wilford, for the Applicant
Applicant
- and -
C.W.
Ms. E. Samli, for the Respondent
Respondent
HEARD:
November 14, 15, 16, 17, 20 & 27, 2017
REASONS FOR JUDGMENT
Conlan J.
I. INTRODUCTION
[1] Should mother and child be permitted to move from the Miller Lake area, located between Wiarton and Tobermory, Northern Bruce Peninsula, to Downingtown, Pennsylvania, U.S.A.?
[2] That is the issue for this Court to decide.
The Parties and the Child
[3] The Applicant father, D.M., is 40 years old. He lives with his parents in the Miller Lake area. He works at a daycare in Tobermory.
[4] The Respondent mother, C.W., is 41 years old. She lives with the child in Wiarton, Ontario, just south of the Miller Lake area. She is a massage practitioner. She is a widow as her husband died in an accident in 2008. She still owns the property in Miller Lake that she shared with her deceased husband, a home and 100-acre farm.
[5] C.W. has no other children besides the one that she shares with D.M. The father has two older children who live in the United States.
[6] The parties were never married. They were in a relationship together and lived with the child as a family until February 2016, when they separated.
[7] The child, B.J.M., a boy, is two years old.
The Litigation
[8] D.M. commenced the within Application in May 2016. Among other matters, he sought joint custody of the child but with him having sole decision-making authority on all medical matters, primary residency of the child with him, access with C.W., an Order that the child receive all age-appropriate vaccinations, and an Order that the mother pay child support.
[9] In her Answer, C.W. sought, among other items, custody and primary residency of the child, access with D.M., and an Order that the father pay child support.
[10] In April 2017, an Order was made to involve the Office of the Children’s Lawyer (“OCL”).
[11] Recently, Fitzpatrick J. ordered a trial on the narrow issue of the mother’s proposed move to Pennsylvania.
The Mother’s Proposed Relocation
[12] C.W. has family in Pennsylvania (her parents, her siblings, and others), about a twelve-hour drive away from Miller Lake. Thus, she wants to move there with B.J.M. She, in fact, grew up in Downingtown, Pennsylvania. Although she has resided in Bruce County for some 17 years or so, she has no family in that area.
[13] C.W. has been offered employment as a teaching assistant at a private Montessori school in the area where she intends to move, a facility that the child can also attend at no cost (besides some reduction to her salary).
[14] For at least some period of time after the move, C.W. would live with her parents. The child would have his own bedroom.
[15] C.W. also foresees more opportunities to practice massage in Pennsylvania because she has family to care for B.J.M. in her absence.
[16] Finally, C.W. may do some work for her family’s landscaping business located in Pennsylvania.
[17] The mother now supports a joint custody Order, primary residency of the child with her in Pennsylvania, access with D.M., and the other recommendations made by the OCL to be implemented.
[18] D.M. adamantly opposes the proposed move. He is worried that it will unduly hamper his relationship with his son.
The OCL Report
[19] Sarah Martyn (“Martyn”), clinician, is the author of the OCL report dated October 2, 2017 (Exhibit 21).
[20] Now in private practice, Martyn has a wealth of experience working for child welfare agencies in Bruce County. She has a Bachelor of Social Work Degree and a Master of Social Work Degree.
[21] This case marks the first time that she testified in Court in the role that she fulfilled here, authoring a report commissioned by the OCL, as she has been on the OCL panel only since September 2016.
[22] There was no challenge at trial to Martyn’s expertise or to the admissibility of her opinion evidence.
[23] In a nutshell, Martyn supports the mother’s position: joint custody, primary residency of the child with C.W., no restriction on where the mother may reside (she can move to Downingtown, Pennsylvania), and access with D.M.
[24] The details of the access recommended between the child and D.M., starting in 2018, are as follows (while the mother and the child are presumed to be residing in Pennsylvania):
(i) Family Day weekend or Presidential Day weekend in February, from Saturday until Monday, with the visit occurring in Rochester (where the father will be visiting his other children);
(ii) Easter, from Saturday until Monday, at D.M.’s home or in that area, with C.W. being responsible for transportation of the child;
(iii) May long weekend, from Saturday until Monday, at D.M.’s home or in that area, with C.W. being responsible for transportation;
(iv) during the summer, from the weekend following Canada Day through to and including the weekend prior to Labour Day, every weekend from Friday until Sunday, at D.M.’s home or in that area;
(v) during the same summer period, every Wednesday evening, at D.M.’s home or in that area;
(vi) Canadian Thanksgiving in October, from Saturday until Monday, with the visit occurring in Rochester (where the father will be visiting his other children);
(vii) American Thanksgiving in November, from Friday until Sunday, at D.M.’s home or in that area, with C.W. being responsible for transportation; and
(viii) during the Christmas season, from December 27th through to December 31st, at D.M.’s home or in that area.
[25] It is anticipated that there would also be some electronic access between father and child.
[26] Compared to the status quo, described below, this proposal amounts to increased contact between D.M. and his son during the summer, but it amounts to a dramatic decrease in contact during the remaining ten months of the year.
The Status Quo
[27] There is currently no custody Order in place.
[28] The child lives with C.W. That has been the case since separation in early 2016.
[29] The child has access with D.M. every Wednesday evening and two weekends per month, Friday through Sunday. That arrangement was ordered by Miller J. on August 19, 2016 (Exhibit 43), per Minutes of Settlement signed by the parties and their counsel.
[30] There had been Temporary Orders in place prior to the August 2016 Order, however, their detail is unimportant except to say two things. First, that D.M. has enjoyed access with his son ever since the month of separation, February 2016. Second, that C.W. has, although likely unknowingly, repeatedly contravened a Court Order about travelling with the child to the United States, specifically, the clause that relates to how long they can visit there at any one time. The second point will be returned to later in these Reasons.
[31] Everyone currently lives in the same general area of Bruce County – C.W. and the child in Wiarton, and D.M. just north in Miller Lake.
The Trial
[32] A trial was held in Owen Sound over five days in November 2017. Closing arguments were delivered by counsel on November 27th.
[33] Each side filed some Affidavit evidence.
[34] Testimony was received from (i) the father, D.M., (ii) Martyn, and (iii) the mother, C.W.
The Voir Dire
[35] During the testimony of D.M., there was mention of some audio recordings that he made of things said during access exchanges.
[36] Mother’s counsel objected to the admissibility of that evidence. A voir dire was held. Only D.M. testified on the voir dire. He stated that C.W. was aware that he was recording the access exchanges, however, he never specifically told her that he was. He testified that the recordings prove that the mother has a negative attitude towards him and his relationship with his son, something that will only worsen if she is permitted to take the boy south of the border, it is argued.
[37] This Court delivered fairly lengthy oral reasons for admitting the said audio recordings, with certain conditions (including a stipulation that the father would not be permitted to “cherry-pick” what the Court heard, but rather all of the recordings would be played in their entirety in open Court, at least those portions where voices could be heard).
[38] To summarize, I concluded that the audio recordings met the test for admissibility in that they were relevant to whether it would be in the best interests of the child to move with C.W. to Pennsylvania, more specifically, whether that proposed move would frustrate the positive access between the child and D.M.; that the probative value (or benefit) of the evidence outweighed its prejudicial effect (or cost); and that the evidence was not inadmissible by reason of any law or public policy.
[39] On the latter, I was very concerned about the surreptitious manner of the father’s conduct. Such behaviour ought to be strongly discouraged by the Courts.
[40] In the end, however, in light of the other evidence that this Court had already received, on the unique facts of this case, I was persuaded that the recordings had significant probative value in terms of assessing the mother’s general attitude towards D.M., his parenting, his relationship with the child, and the degree of her commitment to ensure that the said relationship would not be hampered by the move to Pennsylvania.
[41] The father had already testified that C.W. has a history of violating Court Orders in terms of taking the child to Pennsylvania.
[42] It is common sense that a parent who allegedly has little respect for the other’s relationship with the child will likely only harden those views if access becomes even more of a practical challenge in that the parties live twelve hours apart, separated by a border between two nations.
II. ANALYSIS
The Issue
[43] The mother’s proposed move to Pennsylvania will only be permitted if this Court is satisfied that it would not be contrary to the child’s best interests.
[44] Put in positive terms, would the proposed relocation be in the best interests of B.J.M.? That is the question for this Court to decide.
The Affidavit Evidence
[45] As mentioned above, some of the evidence at trial was adduced by way of affidavit. None of the deponents testified or was cross-examined prior to trial. What follows is a brief summary of the most salient portions of those affidavits.
[46] Karen (Exhibit 1), supervisor at D.M.’s Tobermory daycare employer, confirms that the father has worked there for four years. He has passed all of the facility’s security and police checks.
[47] D.M. cooks, cleans and helps with the daycare’s preschool and toddler programs. He works with children from 14 months to thirteen years old.
[48] There has never been an allegation or complaint made about D.M. with regard to his work at the daycare. All of the reviews have been very positive.
[49] Andrea (Exhibit 2), Registered Child Educator at the daycare facility, describes D.M. as friendly, professional, kind, patient, and very helpful with the young children who attend the facility. He does everything from changing diapers to potty training to assisting with children’s activities.
[50] M.M. (Exhibit 3), D.M.’s mother, is a personal support worker. She disputes C.W.’s allegations about the father having an alcohol problem. And she describes numerous attempts to reach out to C.W. to arrange for access between the child and his paternal grandparents, to no avail. Those contacts were often just plain ignored by C.W.
[51] L.M. (Exhibit 4), D.M.’s father, is a retired carpenter and businessman. He denies C.W.’s allegations about heavy consumption of alcohol on the part of D.M., M.M. and L.M. himself. He describes the frustration of being alienated from his grandson because of the actions of C.W.
[52] P.L. (Exhibit 5) is a long-time family friend of D.M. As someone who has been invited many times over the past fifteen years to assist with student programs at a school in Lion’s Head, he is aghast at C.W.’s attempts to smear his reputation in the community. He alleges that C.W. has accused him of being a pedophile, something that he strongly denies.
[53] Gerald (Exhibit 6), retired Director of an outpatient counselling clinic, retired Director of a withdrawal management center, former counsellor and psychotherapist and former adjunct faculty member at Queen’s University’s Department of Psychiatry, knows D.M. and has seen him with the child on many occasions. He speaks very positively about his observations.
[54] Angela (Exhibit 7), C.W.’s sister-in-law, is an attorney who lives in Downingtown, Pennsylvania. She offers herself as an assist with the facilitation of electronic access between the child and D.M., as well as with physical access in the United States, should C.W. be permitted to move to Pennsylvania.
[55] D.V.R. (Exhibit 8), a friend of C.W., has often been present during access exchanges. He has not observed any problems with the behaviour or language of either C.W. or D.M.
The Viva Voce and the Exhibit Evidence
[56] The recommendations of Martyn, the expert who authored the OCL report, are summarized above.
[57] During her testimony at trial, she did not waver from those recommendations.
[58] C.W. struggled at trial to explain why the proposed move to Pennsylvania would be best for the child. Ultimately, she offered several justifications: it has been tough for her as a single mother, separated from her family, and dealing with constant conflict with D.M.; she fears the father; she is struggling financially and has good employment prospects in Pennsylvania; the child would receive a terrific education from a private Montessori school in Pennsylvania; and access between the child and his father would not be significantly compromised if the proposed move was permitted by this Court.
[59] D.M. testified that he can do no right in the eyes of C.W. She continuously complains about haircuts being given to the child, certain foods being given to the child, antibiotics being given to the child, and so on. He intimated that C.W. does not respect his relationship with his son, and that will only harden if she and the boy are living twelve hours away in the United States.
[60] In terms of the Exhibits, far too many were filed throughout the trial. Most of them were unnecessary. In any event, for our purposes, they illustrate a few important points.
[61] First, the recordings of the access exchanges (Exhibit 34) reveal some callousness on the part of the mother towards D.M. As examples, referring to D.M. as a “jackass” and his house as a “silly place” is irresponsible.
[62] Second, these two adults simply cannot co-parent. The Communication Book is replete with snarky and unnecessary messages on the part of the father, on the one hand, and overly curt and uninformative messages on the part of the mother, on the other hand.
[63] I agree with one of the physicians who observed that these adults cannot seem to cooperate on anything when it comes to their child.
[64] Third, there is indeed proof of employment for C.W. as a teaching assistant at the Montessori school in Pennsylvania (Exhibit 64), and there is proof that the child can attend there at no extra cost (although the mother’s salary would be reduced accordingly).
Assessment of the Evidence at Trial
[65] I accept the unchallenged evidence of Karen and Andrea. I find as facts that D.M. is an excellent employee of the daycare facility, with no concerns about his performance, and with plenty of experience working with young children.
[66] On the alcohol issue, I accept the evidence of D.M., his mother and his father. I find as a fact that D.M. consumes alcohol fairly regularly but not to the degree alleged by C.W. and not to the extent of interfering with his employment or his childcare responsibilities.
[67] It follows that I prefer the evidence of D.M. and his parents over that of C.W. My concerns, generally, about the mother’s evidence are elaborated upon below.
[68] I accept the evidence of D.M.’s mother that C.W. has, on occasion, outright ignored requests to facilitate contact between the child and his paternal grandparents. That evidence was not contradicted by C.W.
[69] I accept the evidence of D.M. that, similarly, C.W. has, on occasion, refused his requests to have increased contact with his son, for example, the fairly recent proposal for Wednesday access because of a change in the father’s work schedule. That evidence, at least with regard to the most recent request for more access, was not contradicted by the mother.
[70] I am unsure as to whether C.W. has gone around the community accusing P.L. of being a pedophile. I make no finding of fact in that regard.
[71] I accept the unchallenged evidence of Gerald about his very positive observations of D.M. and the child.
[72] I accept that Angela is willing to help however she can with access between the father and the child.
[73] I accept the evidence of D.V.R. that he has not seen or heard anything concerning during access exchanges, putting aside the haircuts issue. Having said that, the recordings speak for themselves.
[74] In terms of the evidence of Martyn, with respect, I found it to be unreasonably slanted in favour of C.W. and unduly harsh towards the father.
[75] For example, Martyn stated that D.M. has a tendency to resist direction from authority. She referenced the incident where he consumed a beer prior to an access visit with his son. A look at the police records, however, does not support that the father tried to thwart direction from authority. There was no prohibition on drinking alcohol before access, although that type of conduct is certainly a bad idea. The child welfare agency had been made aware of the matter and had no problem with the access occurring that day. Not content with that, C.W. involved the police. The police also made no mandatory directive to the father but rather merely suggested that he not drink alcohol before access visits with the child.
[76] As another example, there was an incident where the police describe C.W. as having illegally entered the father’s home and rummaged through a closet, yet Martyn was unwilling to say that C.W. was the instigator or the person primarily to blame for the conflict that ensued on that day between her and D.M. She clearly was.
[77] Further, there was an incident where the police describe C.W. complaining about a truck being hidden by D.M. when the said motor vehicle was in fact discovered on the mother’s own property. Martyn testified that she could not comment on where the truck was found, yet the police records clearly state that information.
[78] In addition, Martyn testified that there was nothing unusual about the mother contacting the police after being served with Court papers on behalf of the father. This Court certainly finds that unusual. There was no threat to the safety of C.W. or the child. The father was looking simply for an Order to prohibit the mother from altering the child’s residence. That is no reason to contact the police.
[79] I would not conclude that Martyn is biased, however, she appeared to be somewhat of an advocate for C.W.
[80] I also found Martyn’s investigation to have been less than exhaustive. For instance, she did not speak to D.M.’s parents, whom he lives with, and who are generally present when D.M. sees his son, and who allege very importantly that the mother is not cooperative with their efforts to play a greater part of their grandson’s life.
[81] In addition, there are aspects of Martyn’s evidence that, through no fault of hers but rather because of her unfamiliarity with the law, are just plain wrong. For example, she testified that the mother has not violated any Court Order previously made in this proceeding. Although unknowingly, the mother clearly has. The February 26, 2016 Order of Thompson J., clause 5 (Exhibit 11), was not rescinded or varied by the subsequent Order of Justice Price (Exhibit 12). Clause 5 restricted C.W.’s trips to the United States, with the child, to no more than ten days at a time. Unfortunately, there were several trips made by C.W. and the child that contravened that clause.
[82] Also, with respect, I found some of Martyn’s evidence to be perplexing. For instance, she testified that neither the mother’s employment nor her family was a significant factor in Martyn’s recommendations. Then why support the move to Pennsylvania? That is especially curious given Martyn’s own evidence that the mother is strongly connected to Bruce County.
[83] Finally, I found parts of Martyn’s evidence to be rather irreconcilable. For example, she emphasizes the degree of conflict between the parties. At the same time, however, she recommends joint custody. It appears unclear to this Court how that could ever be a workable solution for this family.
[84] Martyn is a well-educated professional who, I am sure, acted in good faith throughout her involvement in this case. This was her first time testifying in the capacity of the author of an OCL report.
[85] In the end, I reject Martyn’s recommendation as far as it relates to the proposed move of mother and child to Pennsylvania.
[86] As between D.M. and C.W., the father was a much more impressive witness at trial.
[87] To be clear, this Court is under no illusion that D.M. is without any warts. The Communication Book reveals a certain degree of intransigence on the part of the father, for example, his refusal to entertain certain suggestions made by the mother for places to exchange the child for access purposes. Further, he has been prone at times to causing unnecessary mischief for C.W., for example, his inquiries about whether she is entitled to call herself a Registered Massage Therapist.
[88] Of the two parents, however, D.M. is much more willing to see the bright side of his former partner. At trial, he said many positive things about C.W. – she is a good mother, she is generous, she is community-minded, and so on.
[89] When C.W. was asked a similar question about the positive characteristics of D.M., she struggled to admit anything. After some reflection, the first thing that she could offer is that he is “creative”.
[90] Of the two parents, D.M.’s position at trial makes more common sense. He is worried that his relationship with his son, already looked upon somewhat suspiciously by the mother, will only grow increasingly tangential with C.W. and the child living in Pennsylvania. That is understandable.
[91] What is not understandable is the mother’s position at trial. She supports unsupervised access between the father and the child, including overnights, yet she describes D.M. in terms that suggest he is dangerous. He drinks and drives. He stalks and harasses her. He is prone to violence.
[92] When this Court asked C.W. to reconcile those two things, she had no good answer. At one point, she stated that she could not thwart a Court Order. But that ignores that the very Court Order that expanded access between the father and the child, that made by Miller J. in August 2016, was made on consent of the mother.
[93] The logical conclusion is that C.W. has exaggerated the father’s difficulties in order to strengthen the case for her proposed move with the child to the United States. That is the finding that this Court makes.
[94] There are other serious concerns about C.W. The following are just some of them.
[95] First, she has not always adhered to Court Orders. She moved the child’s residence to Wiarton, out of Northern Bruce Peninsula, despite a Court Order made on February 19, 2016, which Order was never rescinded, that the child’s residence not be changed from Northern Bruce Peninsula. In addition, as alluded to above, she has frequently travelled with the child to the United States for more than ten days at a time, despite a Court Order made on February 26, 2016 that stipulated otherwise. The relevant clause of that Order was never varied or rescinded.
[96] Second, she has been less than forthright about her residency status. All of her Court documents up to and including filings at trial indicate an address in Miller Lake. Only after the trial commenced did this Court realize that she lived in Wiarton.
[97] Third, she has done very little to foster a closer relationship between the father and the child. In fact, she admitted at trial to never having even considered asking D.M. to look after the child so that she can take massage jobs, even though she complains about slow business and bad finances. She admits that she has said negative things about D.M. at access exchanges, such as calling him a “jackass”. She recently denied the father’s request to see the child on Wednesdays due to a change in his work schedule. During her trial testimony, she frequently made derogatory comments about the father, such as “D.M. has never had a good relationship in his life”. Because she was “very busy”, she has outright ignored requests by the paternal grandparents to see their grandson.
[98] Fourth, the mother has credibility problems. For example, at one point in her trial testimony, she stated that “being in Wiarton has provided me and [the child] with a really healthy, positive lifestyle”. Then why move to Pennsylvania?
[99] She was very difficult with counsel for the father on a straightforward point, whether she is a Registered Massage Therapist. She clearly is not.
[100] She played a part in her counsel’s letter dated August 14, 2017, which letter was to be given to a professional who was being engaged to assess the mental health of D.M., something urged by the mother. That letter contains wild and totally unsupported allegations against D.M., some of which C.W. had to admit at trial she has no evidence of, such as the father having allegedly assaulted a paramedic in the United States.
[101] She is susceptible to hyperbole. For example, she testified that, after the separation, she initially refused to allow any contact between the father and/or his parents and the child because she honestly believed that they would keep the child, essentially abduct him, and she would never see him again. I do not see that concern as a rational one.
[102] She is careless in what she says in the Courtroom. For example, she testified that she does not get to see her family in the United States that often, thus, that is one reason for the proposed move. Then it was revealed in cross-examination that, with all of the trips that she and the child have taken to the United States over the past year, she spent approximately three months south of the border. This Court doubts that many adults see their parents and siblings that much when everyone lives within a couple of hours of each other, never mind in another country.
[103] She has been inconsistent in her evidence on some material points. For example, she testified at trial that she has not worked that much in the last year or so and struggles financially, hence, the proposed relocation to Pennsylvania would be beneficial. In May 2017, however, during a professional assessment (Exhibit 69), she told the assessor (Ms. Foster) that she had worked 36 of the 90 days leading up to that month. As another example, her trial testimony was replete with references to her grave concerns about the father’s drinking and driving, yet she admitted that she uttered not a word of that in any of her Court filings leading up to the trial.
[104] Fifth, C.W.’s evidence in many respects makes no common sense. For instance, before the child was born, well after C.W. claims that there were problems in the relationship due primarily to D.M.’s drinking, she signed a document stating that her wish was for the father to raise the child should anything happen to her during childbirth. Given D.M.’s monstrous character, as alleged, and C.W.’s deep connection to her family in the United States, that choice is surprising, even accounting for the stressful circumstances at the time. As another example, at trial, C.W. could not be moved off of her insistence that the father was opposed to her views about the child’s diet, specifically milk and meat, yet there is nothing in the entire Communication Book to support that. The mother pointed to a comment made by D.M. in the Book that “we have our own routines here”, which C.W. believes implies that the father ignored her wishes about the child’s diet. In my view, that evidence is weak. As a last example, C.W. often used the term “co-parenting” in her trial evidence, as if that is the objective that is being frustrated by the conflict between the parties. The mother never explained, however, how moving with the child to Pennsylvania would in any way encourage the goal of co-parenting. Of course, it would not.
[105] Finally, as for her demeanour while in the witness box, the mother had to be repeatedly cautioned by this Court to not interrupt counsel for D.M. She was combative at times. Near the conclusion of the cross-examination, when asked by counsel for the father whether she would be content with the father and the child moving to Pennsylvania and her being in Bruce County, she paused for an inordinately long period of time. I thought that she was going to refuse to answer the question. Eventually, to her credit, she did respond. She stated that she would not be content with that, although she went on to draw a distinction on the basis that she is the child’s primary caregiver. Frankly, there is some merit to that argument.
Conclusion
[106] This is not a particularly difficult mobility rights case.
[107] It is clear to this Court that the mother loves the child. She cares for him well. She has been his primary caregiver since he was born. She is a good mother.
[108] At the same time, however, the access between the father and the child has been regular, unsupervised, and by all accounts, very positive.
[109] I do not accept the recommendations of Martyn, for the reasons outlined above.
[110] I place very little weight on the evidence of C.W., for the reasons described above.
[111] I find that there is nothing to suggest that moving the child to Pennsylvania to live with his mother, with the father residing in Miller Lake (twelve hours away), would be in the best interests of B.J.M., two years old. In fact, I find that the proposed move would be contrary to the child’s best interests.
[112] To reiterate the mother’s expressed reasons for the move, they are: it has been tough for her as a single mother, separated from her family, and dealing with constant conflict with D.M.; she fears the father; she is struggling financially and has good employment prospects in Pennsylvania; the child would receive a terrific education from a private Montessori school in Pennsylvania; and access between the child and his father would not be significantly compromised if the proposed move was permitted by this Court.
[113] I accept that the mother would be happier in Pennsylvania, and I accept that her happiness, as the child’s primary caregiver, and her wishes, are significant factors in the overall assessment of the child’s best interests. But I find that her unhappiness is largely of her own creation. She has not taken advantage of overtures from D.M. and his parents to help with child care.
[114] I find that the mother’s fear of the father is not objectively reasonable. I reject that he stalks or harasses her.
[115] I do not believe that the mother is struggling financially to the extent that she claims. I think that her family supports her, something admitted to by C.W. in cross-examination at trial. Besides, she could work more often if she had any faith in the father and his parents to care for the child.
[116] I accept that the child would receive an excellent education in Pennsylvania. I think that he could receive a good education in Bruce County, as well.
[117] Most important, I am not at all confident that access between the father and the child would not be significantly compromised if the move was permitted to occur. The father would see the child a handful of times for ten months of the year. There would be no opportunity for spontaneous or unscheduled access. The father, who appears dedicated to his son and who enjoys frequent and very positive time with him, would essentially be relegated to the role of a distant relative.
[118] This Court is assisted greatly by the binding, very recent and highly germane decision of the Court of Appeal for Ontario in Porter v. Bryan, 2017 ONCA 677. To understand that case, set out below are the following paragraphs: 1 (for the background), 10 and 14 (for the law), and 17 (for the principle that drove the Court’s ultimate conclusion).
[1] This appeal concerns the proposed relocation of a five year old child from Cochrane, Ontario to Thunder Bay. The parties, the child’s father and mother, separated in November 2015. By a consent order dated September 16, 2016, they agreed to joint custody and a shared parenting schedule. That order was made without prejudice to the appellant mother bringing a mobility motion to move their son to Thunder Bay. That motion, heard on January 9, 2017, was dismissed. The mother appeals.
[10] In dismissing the motion, the motion judge correctly applied the proposition from this court in Berry v. Berry, 2011 ONCA 705, 285 O.A.C. 366 that the “superordinate consideration” in a mobility case is the best interests of the child, determined from a child-centred perspective (para. 10). Accordingly, in assessing the mother’s reasons for moving, the motion judge correctly held that the only reasons relevant to the analysis were those that related to her ability to meet the needs of her son.
[14] The Supreme Court of Canada held in Goertz, at para. 48, that where assessing a motion to relocate:
…the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent’s parenting ability.
[17] There is, in our view, a valid and compelling parenting-based reason for the move: it is necessary to enable the primary caregiver to remain financially viable while providing care for the child. The mother has done all she can be expected to do to secure employment in Cochrane. It has not worked out, and there is no good reason for her and her son to live in poverty when she has secured employment in Thunder Bay that will allow her both to parent her son and to provide economically for him.
[119] The facts in the case cited above were significantly different than ours. There, but for the proposed move, the mother and the young child would be living a life of poverty. That is not our situation. Further, the driving distance between Thunder Bay and Cochrane, although far, is much shorter than the distance between the Bruce Peninsula and Downingtown, Pennsylvania. In addition, the available modes of transportation between Thunder Bay and Cochrane (or near Cochrane) are more plentiful than between Downingtown, Pennsylvania and the Bruce Peninsula. The only practical way to get from Pennsylvania to Miller Lake is to drive. Finally, the serious concerns that this Court has about C.W.’s willingness, or lack thereof, to facilitate access between D.M. and the child were not present in the case cited.
[120] In our case, there is no “valid and compelling parenting-based reason for the move”. It boils down to that.
[121] It should be noted that neither counsel provided this Court with the decision cited, nor was this Court provided with any of the decisions referred to therein at paragraphs 10 and 14.
[122] Counsel for C.W. filed one Court decision. Counsel for D.M. filed none.
[123] The one Court decision filed, Boudreault v. Charles, 2014 ONCJ 273, is relied upon by the mother for three propositions (see page 6), all of which this Court agrees with. First, the financial security of C.W. is a relevant consideration. Second, requiring C.W. to remain in an isolated community in difficult financial circumstances will likely adversely impact the child. And third, the mother’s happiness is a factor to consider as her being more happy will likely benefit the child.
[124] On the first item, I reject the evidence of the mother as to the degree of her financial problems. I find that she told the assessor, Ms. Foster, the truth about how often she worked leading up to the date of that assessment. I also find that she could work even more often if she trusted D.M. and/or his parents to care for the child in her absence. Further, I find that she receives financial support from her family in Pennsylvania. Finally, she may, in the near future, be entitled to more child support depending on the outcome of the custody dispute.
[125] On the second item, I find that the mother’s life in Wiarton is not an isolated one. She has been in this area for nearly two decades. She owns property north of Wiarton. She has friends in the area. She has clients in the area. Moreover, when one looks carefully at what she would earn at the job in Pennsylvania, after reductions to her salary to pay for the child’s schooling, it becomes evident that the proposed relocation would not materially improve her financial situation as compared to her working in Bruce County at least to the extent that she told Ms. Foster she works.
[126] On the third item, I accept that C.W. would likely be happier in Pennsylvania, although that is not determinative. Some of her stated unhappiness currently is due to her own unreasonable distrust of D.M. and his parents.
[127] Counsel for the mother argues that the move to Pennsylvania will benefit the child because it will decrease the level of conflict between the parents. I disagree. The current conflict does not arise because of the proximity of where the parents live but rather from, in the main, the father’s intransigence on certain things and the mother’s chronic distrust of him. There is no reason to think that putting twelve hours between these adults will help them get along.
[128] As reasons are written primarily for the unsuccessful side of the litigation, I have now dealt with the main submissions made by Ms. Samli at Court at the conclusion of the trial.
[129] I make no determination about custody, as that issue is not before this Court. Counsel and the parties have my comments, however, about the lack of cooperation between these parents, something relevant to whether joint custody would be appropriate. In addition, the mother has been the child’s primary caregiver since birth; that should also be taken into account by the parties and their counsel. My hope would be that the remaining issues can be settled out of Court.
III. ORDER
[130] The narrow issue for trial was whether the mother and the child are permitted to move to Pennsylvania. The answer is no. The move shall not occur.
IV. COSTS
[131] As the successful litigant, D.M. would normally be entitled to an award of costs.
[132] If the parties are unable to settle the issue of costs, they may file written submissions. I will accept written submissions from D.M. up until 4:00 p.m. on December 8, 2017. I will accept written submissions on behalf of C.W. up until 4:00 p.m. on December 22, 2017. There shall be no reply submissions entertained.
[133] In each instance, the written costs submissions shall not exceed two pages, excluding supporting documents such as a Costs Outline, Bill of Costs and Offer(s) to Settle.
Conlan J.
Released: November 29, 2017
CITATION: D.M. v. C.W., 2017 ONSC 7070
COURT FILE NO.: 16-034
DATE: 20171129
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
D.M.
Applicant
- and -
C.W.
Respondent
REASONS FOR JUDGMENT
Conlan J.
Released: November 29, 2017