Court File and Parties

CITATION: Tait v. Tait, 2017 ONSC 7314 CORNWALL COURT FILE NO.: 17-193 DATE: 2017/12/07

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Cassandra Tait Applicant

– and –

Christopher Tait Respondent

COUNSEL: Ann M. Bellefeuille, counsel for the Applicant Erika Young, counsel for the Respondent

HEARD at Cornwall: November 17, 2017

RULING ON MOTION

Desormeau, J.

INTRODUCTION

[1] The Respondent, Mr. Christopher Tait, brings this motion for interim determination on the issues of mobility, primary residence of the child, access, and child support.

[2] The Applicant, Ms. Cassandra Tait, brings a cross-motion for interim primary residence, access, and child support.

OVERVIEW

[3] The parties commenced a common law relationship in 2009. They were married on July 28, 2012. They have one child from their union: Alexa Tait, born February 10, 2013. The parties separated in May, 2015.

[4] During the course of their relationship, the parties, together or separately, lived in many different areas, including in Laval, Quebec, Ingleside, Prescott, Iroquois, and Morrisburg.

[5] The Father has been residing in Prescott, Ontario, since January, 2017.

[6] The Mother has been residing in Ingleside, Ontario, since April 1, 2017.

[7] The Father was recently advised by his landlord that the home where he resides is being sold, and was given until December 1^st, 2017 to move out. He has decided to move to Ottawa. This led to the necessity of the motion being heard.

[8] In his motion materials, the Father requests the following relief:

1. That Alexa’s primary residence should be with her Father, in Ottawa Ontario, commencing November 25, 2017;
2. That Alexa be enrolled at St. John XXII Catholic Elementary School commencing November 27, 2017;
3. That Alexa shall be enrolled in home daycare provided by Filomena Poulin commencing November 27, 2017;
4. That the Mother’s access with the child, commencing November 25, 2017, be as follows: i. The Mother shall have Alexa the first, third and fourth weekend of each month; ii. Access shall commence at 4:00 p.m. on Friday until Sunday at 5:00 p.m.; iii. The weekend shall be extended to Thursday at 4:00 p.m. and/or Monday at 5:00 p.m., should Friday or Monday be a statutory holiday or a PD Day; iv. That the Mother shall have access every Wednesday from 4:00 p.m. to 6:30 p.m., and v. Those exchanges shall occur at the Tim Horton’s in Embrun, Ontario.
5. That income of $40,000.00 be imputed to the Mother for the purpose of determining child support and contributions to Section 7 expenses, or alternatively income be imputed to the Mother at $29,120.00;
6. That commencing December 1, 2017, the Mother shall pay child support to the Father, for the benefit of the child, in the amount of $360.00 per month based on an imputed income of $40,000.00, or alternatively, $238.00 per month based on an imputed income of $29,120.00;
7. That commencing December 1, 2017, based on the Mother’s imputed income of $40,000.00, the parties’ contributions to Section 7 expenses, including daycare, be set at 54% payable by the Father, and 46% payable by the Mother. Alternatively, based on an imputed income of $29,120.00, then the proportional shares would be 39% for the Mother, or 61% to the Father. [note, the prayer for relief erroneously set out inverted numbers for proportional sharing];
8. That the Christmas 2017 holiday schedule be divided as follows: i. The Father shall have Alexa from 4:00 p.m. on December 22^nd to 12:00 p.m. noon on December 25^th; ii. The Mother shall have Alexa from 12:00 p.m. noon on December 25^th to January 2^nd at 12:00 p.m. noon; and iii. The Father shall have Alexa from 12:00 p.m. noon on January 2^nd to 5:00 p.m. on January 7^th.
9. In the alternative, the Father pleads the following relief: i. That the Father shall have liberal access with Alexa, with the following schedule, to commence November 25, 2017: a. The Father shall have Alexa the first, third and fourth weekend of each month; b. Access shall commence on Friday at 4:00 p.m. until Sunday at 5:00 p.m.; c. The weekend shall be extended to Thursday at 4:00 p.m. and/or Monday at 5:00 p.m., should Friday or Monday be a statutory holiday; d. The Father shall have access the second and third Wednesday from 4:00 p.m. to 6:30 p.m., and e. All exchanges shall occur at the Tim Horton’s in Embrun, Ontario ii. That the Father pays child support to the Mother and incurs a greater amount of driving to exercise access, the Father seeks that the child support amount be reduced under s.10(2) of the Federal Child Support Guidelines;
10. That the Mother pay the Father’s costs on a substantial indemnity basis, inclusive of H.S.T. and disbursements; and
11. Such further and other relief as this Honourable Court deems necessary and just.

[9] The Mother is also seeking her own relief. Her Notice of Motion sets out the following requests:

1. That Alexa reside primarily with the Mother, and that the Father exercise access to Alexa every second weekend from Friday until Sunday, to be extended to Monday, should Monday be a statutory holiday, and every Wednesday from 4:45 p.m. to 6:45 p.m.;
2. That the Father pay child support pursuant to the Federal Child Support Guidelines, based on his 2016 income being $48,100.00, or $434.00 per month.

[10] At the outset of the motion, the parties resolved the issue of imputed income to the Mother. As such, this is not a topic I will discuss. Subject to addressing the issue of transportation and costs for same, child support will flow from the custodial arrangements.

[11] Additionally, the parties have also agreed to the Christmas access schedule, which is set out in the disposition portion, below.

[12] In support of his motion, briefly summarized, the Father’s evidence is as follows:

1. The parties first resided together in Laval, Quebec in late 2009. They moved to Ingleside, Ontario, in September 2013 after Mr. Tait secured a job in Prescott, Ontario, and after Alexa was born. In November, 2013, the parties purchased a home in Iroquois;
2. When the parties separated on May 2, 2015, and the Mother moved into her Father’s home. In September, 2015, the Mother moved back into the matrimonial home, and while the parties continued to reside separate and apart, they were under the same roof. During this time, they co-parented Alexa;
3. On December 16, 2015, the Father asked Ms. Tait to move out of the home. Ms. Tait moved to Morrisburg, and on April 1, 2017, she moved to Ingleside;
4. Mr. Tait remained in the home in Iroquois until it was sold in January, 2017. He then moved to Prescott to be closer to his work. Mr. Tait was advised by the landlords that they intended to sell the home that he had been renting, and gave him until December 1, 2017 to vacate. As such, effective November 25, 2017, he is moving to Ottawa to reside with his partner: Teresa Cuffari, and her four year old son, Tobias;
5. The Father works from 7:00 a.m. to 3:30 p.m., in Prescott. He is intending to secure employment in the City of Ottawa;
6. The Mother commenced her photography business after Alexa was born. She was working all hours of the day, and into the night, with the photography business, and did not make time for their family;
7. Historically speaking, both parents were equally involved in Alexa’s care prior to separation. Mr. Tait took six months paternity leave when she was born. Thereafter, the parties shared the parental responsibilities based on their work schedules. Mr. Tait worked during the day, and Ms. Tait more frequently worked evenings and weekends;
8. When the parties separated, Alexa was two years old. From separation in May, 2015, until September, 2015, the parties had an ad hoc parenting schedule, whereby Alexa would spend most weekends with her Father, as well as two days during the week. During the weekdays, he would pick up Alexa after work, and she would stay overnight at his home;
9. The parties attended mediation in December, 2015 to January, 2016. They came to a Parenting Agreement with financial provisions. At the heart of the agreement both parents acknowledged that it was in the best interest of Alexa to have a close relationship with both of them, and they agreed to shared parenting;
10. Since January, 2016, the parties followed the mediated parenting arrangements, which based on the schedule, provided for Alexa spending roughly equal time with each parent. The schedule was the following:

	Sun	Mon	Tues	Wed	Thurs	Fri	Sat
Week 1	Chris/Cass 5pm	Cass	Cass	Cass/Chris 4pm	Chris/Cass 5pm	Cass	Cass
Week 2	Cass	Cass	Cass/Chris 4pm	Chris	Chris	Chris	Chris

11. The parties agreed that when Alexa was in her Father’s care, she would spend the daytime at Ms. Tait’s home rather than sending her to daycare. Occasionally, Ms. Tait put Alexa in daycare when she claimed she had to work;
12. Until October, 2016, Ms. Tait offered Mr. Tait extra time with Alexa when she had to work;
13. During the first few months following separation, when Ms. Tait resided in Morrisburg, she insisted on picking up and dropping off Alexa. Thereafter, Mr. Tait did all of the travelling, until Ms. Tait moved to Ingleside. At that point in time, they agreed to meet in Morrisburg for all exchanges, being 40 kilometers from his home, and 20 kilometers from Ms. Tait’s home;
14. In the summer of 2017, the Father enrolled Alexa into daycare to permit her to adjust to a new routine ahead of starting school. For the summer, he would wake Alexa up at 5:50 a.m. and drop her off at daycare at approximately 6:30 a.m. At approximately 4:00 p.m., he would pick her up from daycare and they would arrive home at 4:30 p.m. She was typically in bed between 7:00 p.m. and 8:00 p.m. Alexa adjusted successful to the new schedule. She is used to having to wake up early when in Mr. Tait’s care, and has done so since the parties separated;
15. On September 5, 2017, Alexa commenced school in Ingleside at Our Lady of Good Counsel Catholic School. She is in school from 8:10 a.m. to 2:40 p.m. The parties were unable to agree to enroll Alexa in before and after school daycare for the Father’s days, and therefore, no changes were made to the access schedule. When Alexa is in school on his days, Mr. Tait picks her up at 4:00 p.m., and drops her off at 6:30 a.m. at the Morrisburg Tim Horton’s. On Sundays, he drops her off at 5:00 p.m. Alexa travels well between Prescott and Ingleside, and has been doing this since April, 2017;
16. Mr. Tait has attended Alexa’s open house at school, has met her teachers and principal. Despite the time she spends travelling, there was no mention by them that Alexa is too tired in class. She is doing well in school;
17. Mr. Tait is the parent responsible for taking Alexa to her annual checkups;
18. There has never been any Children’s Aid Society or police involvement;
19. Mr. Tait vehemently denies all allegations of abuse which are advanced by Ms. Tait. He denies being controlling or having control issues;
20. There have been areas of concern raised by Mr. Tait, based on poor judgement calls by Ms. Tait, such as: i. when Ms. Tait broached the issue of schooling in the presence of the child, which led to Ms. Tait making a unilateral decision on that issue; ii. Ms. Tait has involved Alexa in the litigation, and has spoken negatively about Mr. Tait to her. This has led to Alexa making comments such as not liking Tobias, or “mommy says you wake me up too early”, or that this was going to be her last weekend with her Father; and iii. Ms. Tait picking Alexa up from daycare early without first consulting him, or providing him notice of her intentions.
21. Mr. Tait finds it difficult to co-parent with Ms. Tait, particularly when she takes unilateral actions without consulting him, or when she fails to advise him of important issues or deadlines;
22. Mr. Tait did not anticipate that he would be moving to Ottawa until the Court Application was finalized, and parenting arrangements had been put in place. As such, he did not bring an urgent motion regarding Alexa’s school;
23. Mr. Tait is committed to being equally involved in Alexa’s life, and feels both parents should have maximum contact. He recognizes the importance of Ms. Tait being in Alexa’s life, but feels the reverse is not true;
24. Mr. Tait is an extremely loving and caring Father, who has a great relationship with Alexa. She is very affectionate towards him. He has played an important part in her life. His relationship with Teresa Cuffari is long term. He and Teresa plan on being married. Tobias and Alexa have a great relationship. Alexa has been to Ottawa during weekends with her Father;
25. Mr. Tait sets out a detailed plan of care for Alexa to reside with him in Ottawa, as well as a fulsome access proposal for Ms. Tait which will maximize contact. It is his evidence that Alexa is an adaptive little girl, and she is only in Kindergarten. He indicates that Alexa would have access to many more programs and activities in Ottawa than what is available in Ingleside. Ultimately, he is seeking primary residence of Alexa;
26. Mr. Tait raises concerns about Ms. Tait’s level of stability, multiple boyfriends, the level of care Ms. Tait is able to provide Alexa, and her unpredictable work schedule;
27. In response to Ms. Tait’s affidavit: i. While Ms. Tait’s business started slowly, her efforts to find new clients became an around the clock mission. She felt the need to immediately respond to client requests, checking her phone constantly at every waking moment; ii. Basement renovations did not take place, and the house was sold with an unfinished basement; iii. Mr. Tait would often bottle feed Alexa while she was still being breastfed. Further, he was involved with getting Alexa ready for bath and bed. Bedtime routine was primarily his responsibility; iv. Most times, Ms. Tait would only give short notice of a request for Mr. Tait to care for Alexa when she was in her care. He nonetheless welcomed the opportunity. He only turned down two last minute requests as he was attending a charity event, or had plans in Ottawa. At that time, he offered for Ms. Tait to pick Alexa up from Ottawa, which she refused. On no occasion did he ever discuss his dating life with the Mother; v. Alexa has plenty of play time at his home after school, as they arrive home by around 4:30 p.m., and her bed time is 7:00 p.m. Though she has fallen asleep in the car, this does not interfere with her bedtime routine. vi. While the parties had previously agreed that Alexa would attend school in Morrisburg, the Mother enrolled Alexa into school in Ingleside; vii. He denies the accusation that he becomes enraged when they have disagreements. While he admits that he did not call Ms. Tait on the way to the hospital when Alexa broke her teeth, he provided Ms. Tait with the dental clinic information, which was where they attended following the hospital. Ms. Tait however did not attend the dental clinic; viii. Mr. Tait disputes Ms. Tait’s version of events from the “I hate Tobias” comment; ix. Mr. Tait denies Ms. Tait’s version of events regarding where Alexa should reside and about attempting to influence her; x. Ms. Tait asserts that the Facebook posting was as a joke, though he admits it was in poor taste; xi. Mr. Tait’s relationship with Alexa should not be minimized because he is moving 90 kilometres away, particularly as he has played an important and equal role in Alexa’s life to date. Maximum contact is feasible, as set out in his two proposed parenting plans. He has always put Alexa’s best interests ahead of his own. The parenting plans are in no way based on financial motives, and he has always paid support. Alexa will have two homes, two families and two sets of friends. If access to him were every second weekend, then the amount of time with him would be limited, and Alexa would miss out on an important time for her bond with her Father to grow. Extra-curricular activities should be scheduled during the week.

[13] The essence of the Mother’s evidence is as follows:

1. Since April, 2017, Ms. Tait has resided in Ingleside;
2. She carries on a photography business under the name “Tender Moments Photography”. For the past four years, Mr. Tait has worked at “Measurements International” in Prescott;
3. Neither party have a criminal record, nor have they ever been involved with the Children’s Aid Society;
4. The parties’ access schedule is as follows: Mr. Tait has Alexa every Wednesday evening during Week 1; and from Tuesday evening to Sunday at 4:00 p.m. during Week 2. Ms. Tait cares for Alexa during the days, and they exchange either in the morning, or at 4:00 p.m. in Morrisburg. She believes the parenting time is 65/35 per cent, in her favour, as opposed to the 60/40 split advanced by Mr. Tait;
5. Alexa attends school full time at Our Lady of Good Counsel Catholic School in Ingleside. At the end of the school day, Alexa is tired and frequently falls asleep on the trip between Ingleside and Prescott. She is also woken up very early to be brought to Morrisburg for the exchanges. Mr. Tait does not seem to realize how hard it is for Alexa to travel, particularly during the week, before and after school;
6. If Mr. Tait is permitted to move to Ottawa with Alexa, this will change everything in her life, including her home, family, friends, and school. It would also remove her from Ms. Tait’s primary care. This is not in Alexa’s best interests. Mr. Tait knows that Ms. Tait is a good Mother, and that Alexa has a close bond with her;
7. The relationship with Mr. Tait broke down due to his controlling and manipulative behaviours;
8. Ms. Tait disputes Mr. Tait’s statements regarding the following: i. Alexa did not spend two extra days during the week with Mr. Tait, but evenings for 3 to 4 hours; ii. Mr. Tait was not equally involved in Alexa’s care, particularly as Ms. Tait was breastfeeding her, and she was cluster-fed for the first two months of her life. Alexa was breastfed until she was two years old, which resulted in a very strong bond between her and Ms. Tait; iii. Ms. Tait did not start her business until Alexa was approximately seven months old, therefore she could not have been working most evenings and weekends. Further, it took a while for business to build, and she was away from the home infrequently. During this time, Mr. Tait was renovating the basement, which consumed him completely. He would become upset if he had to care for Alexa during this time. Ms. Tait prioritized one-on-one time with Alexa, but worked when she was napping in the afternoon, or after she went to bed. She denies that Mr. Tait was responsible for Alexa from the time he was home until she went to bed; iv. While Ms. Tait originally was asking that Mr. Tait care for Alexa when she was working, she stopped asking due to his refusals or his insistence that Ms. Tait pick up Alexa in Ottawa. Therefore, she relied on her Father and grandmother to assist, with whom Alexa has a good relationship. The extra visits stopped in October, 2016, because the Father consistently advised he wanted to spend more time with his girlfriend; v. With the Father moving to Ottawa, shared parenting is not feasible, nor is it in Alexa’s best interests. Mr. Tait fails to recognize that it is not possible to have shared parenting and live in two different communities. This is an example of Mr. Tait prioritizing his own needs over Alexa’s. Ms. Tait also disagrees with the request for the reduced amount of support due to the move; vi. Ms. Tait disagrees that the new schedule with the travelling is going well. Her evidence is that Alexa cries when it’s time to see her Father as she has no play time there, and she is only there to sleep. When Alexa falls asleep in the car, it throws off her night time sleep pattern; vii. Travelling from Ingleside to Prescott was too much during the school year; viii. Mr. Tait has been making doctor’s appointments for Alexa without information Ms. Tait beforehand, and without her consent; ix. When Ms. Tait advised Mr. Tait that she was moving to Ingleside, she suggested that they set up a time to discuss it. Mr. Tait became enraged and demanded answers, all in the presence of Alexa. It was only a 13 minute move from Morrisburg. Further, Mr. Tait moved from Iroquois to Prescott without advising Ms. Tait; x. Ms. Tait never told Alexa that she would never see her Father again;
9. Ms. Tait has also been involved with Alexa’s school. Alexa has adjusted to the new school, and is doing extremely well. She questions why Mr. Tait now wishes to change Alexa’s school, where she does not know anyone;
10. The parties are unable to co-parent due to Mr. Tait becoming enraged if she disagrees with him. Mr. Tait has made unilateral decisions such as taking Alexa to the hospital when she knocked out her two front teeth;
11. Ms. Tait denies speaking negatively to Alexa about her Father. She encourages her to get excited about seeing her Father;
12. Regarding Tobias, Alexa did say that she does not like him, as he is not nice to her, would not keep his hands to himself, and has shown her his penis. This was not denied by the Father;
13. Ms. Tait indicates that Mr. Tait yells and screams to get his way when dealing with adversity;
14. Ms. Tait’s evidence is that Mr. Tait involves Alexa in the court matters and in adult conversations. She completely agrees that Alexa should not be involved in court discussions;
15. Ms. Tait denies the Father’s allegations about her parenting abilities;
16. Alexa is Ms. Tait’s primary concern. She is dressed appropriately for the weather, though sometimes the weather is unpredictable;
17. Ms. Tait advances that her schedule is more child friendly; she has flexibility in her work, and can do a lot of her work while Alexa is asleep. Ms. Tait is a capable, caring and loving Mother to Alexa. She advances that it is in Alexa’s best interest to maintain the status quo. Her actions have demonstrated that she would never deny the Father access to Alexa. A relationship between Alexa and her Father is of extreme importance; however, he has chosen to move to Ottawa. This choice does not automatically entitle him to primary care and control, or even a majority of the weekends;
18. Ms. Tait is concerned that if Alexa were in Ottawa for the majority of the weekends, she would not be able to be enrolled in many extracurricular activities, most of which take place over the weekend. She would also miss time away from friends and family and the Ingleside community, including her grandfather. She suggests an equal sharing of weekends, holidays and special occasions.

THE LAW

ISSUES: MOBILITY, PRIMARY RESIDENCE, ACCESS, TRANSPORTATION

[14] Pursuant to Section 16(8) of the Divorce Act (“the Act”), and Section 24(1) of the Children’s Law Reform Act (“CLRA”), an order for custody of or access to a child must be made in the “best interests of the child”, as determined by reference to the conditions, means, needs and other circumstances of the child.

[15] This means that parental preferences and “rights” play no role: Young v. Young, 1993 SCC 34, 4 S.C.R. 3, at para. 210.

[16] Section 24(2) CLRA sets out the considerations which are relevant in assessing the best interests of a child. The court must also apply Section 16(10) from the Divorce Act in promoting maximum contact with each spouse.

[17] The custody issue must be determined before considering the proposed relocation: see Gordon v. Goertz, 1996 SCC 191, [1996] 2 S.C.R. 27 (S.C.C.), and Bjornson v. Creighton (2001), 2002 ONCA 45125, 62 O.R. (3d) 236 (S.C.J.); F.J.N. v. J.L.N., 2004 ONSC 6247, at para. 23.

[18] Comparable to the case of F.J.N. v. J.L.N., in the case at bar, there is no prior custody order, however, the Court of Appeal in Bjornson v. Creighton confirms that the guiding principles set out by the Supreme Court of Canada in Gordon v. Goertz still apply, namely:

1. The judge must embark on a fresh inquiry into what is in the best interests of the children, having regard to all relevant circumstances relating to the children’s needs and the ability of their respective parents to satisfy them.

2. 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 and the most serious consideration.

3. Each case turns on its own unique circumstances. The only issue is the best interest of the children in the particular circumstances of the case.

4. The focus is on the best interests of the children, not the interest and rights of the parent.

5. More particularly, the judge should consider, inter alia: (a) the existing custody arrangement and relationship between the children and the custodial parent; (b) the existing access arrangement and the relationship between the children and the access parent; (c) the desirability of maximizing contact between the children and both parents; (d) the views of the children; (e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the children; (f) the disruption to the children of a change in custody; and, (g) the disruption of the children consequent on removal from the family, schools and the community they have come to know:

   F.J.N. v. J.L.N, 2004 ONSC 6247, at para. 33

Gordon v. Goertz, supra

Bjornson v. Creighton, supra

[19] The ultimate test is whether relocation is in the child’s best interest: F.J.N. v. J.L.N, supra, at para. 36.

[20] As stated in Cosentino v. Cosentino, the status quo, and avoiding reckless creation of a new status quo, are important considerations. The onus is on the party seeking to impose a change to a child’s situation or plan: Cosentino v. Cosentino, 2016 ONSC 5621.

[21] In Davies v. Davies, based on a review of the case law, Justice Laliberté provided a number of guiding principles:

The merit of a motion dealing with custody and access of a child is determined on the basis of the best interests of the child as articulated under paragraph 24(2) of the Children’s Law Reform Act and Section 16 of the Divorce Act.

The law is well settled that on a motion for interim custody, the status quo of the children should not be disturbed in the absence of compelling reasons where a change is needed to meet the children’s best interests and this would include a situation where there is evidence that maintaining status quo will be harmful to the children: Currie v. Maudsley, [2011] O.J. No. 3294 (Ont. S.C.J.)

Stability is a primary need for children caught in the throes of matrimonial dispute and de facto custody of children ought not to be disturbed pendent lite, unless there is some compelling reason why such change would be in the child’s best interests. Kimpton v. Kimpton, [2002] O.J. No. 5367 (Ont. S.C.J.)

Such a significant decision should not be made on the basis of competing, contradictory and untested affidavit evidence; trial judges are in a better position to fully investigate the conflicting positions and make findings of credibility and fact to determine what is in a children’s best interests; issues and concerns should be fully canvassed by a trial Judge on the basis of evidence and cross-examination of witnesses. Leblue v. Leblue, [1997] A.J. No. 1186 (Alta. C.A.); Bruneau v. Wark, [2014] O.J. No. 4578 (Ont. S.C.J.); Collins v. Collins, [2011] O.J. No. 2085 (Ont. S.C.J.)

Davies v. Davies, 2017 ONSC 3667, at para. 14

[22] Sider v. Sider was a mobility case of a 12 and a half year old child, who wished to live with her Father, 2.5 hours away. In the endorsement, Justice Wildman stated:

[5] The “safe” decision, from a legal standpoint, is to leave things as they are until the trial. The case law overwhelmingly supports the very sensible proposition that temporary orders should not be changed right before a trial. Decisions about a child’s residence are so important that they should generally be made by a trial judge with full benefit of hearing all the available evidence. Temporary custody motions should not be used to circumvent the trial process and there must be a pressing need to uproot a child from her present home environment and school. See Steers v. Monk, 1992 ONCJ 7156, [1992] O.J. No. 2701 (OCJ) citing Dunning v. Dunning and Gallard, [1987] WDFL 2(Ont HC).

[6] The need for stability for a child is also tremendously important. Multiple moves, particularly over a short period of time, are to be avoided. As Dubin J.A. states in Cropper v. Cropper (1974), 16 RFL 113 (Ont. C.A) at p. 115:

In most cases where a trial is close at hand, and where the child is being well taken care of, it is preferable that one must seek to avoid the shunting of a child from parent to parent because of the unsettling effect which such changes may have on the infant.

Sider v. Sider, 2004 ONSC 7575, at paras. 5 and 6

[23] Justice Thompson echoed the same opinion at paragraph 33 of Kalaitzakis v. Kalaitzakis: A change in the child’s interim care arrangements, living circumstances and environment (perhaps to be followed, after trial, by yet another change) should be avoided.

Kalaitzakis v. Kalaitzakis, 2008 MBQB 198, at para. 33.

[24] A temporary order is intended to stabilize the parties until a trial can be conducted to permit a full and complete consideration of the issues.

Holland v. Fower, 2011 ONSC 4545, at para. 24

[25] Parents should share the responsibilities of parenting. As part of the responsibility of parenting, generally, parents should share the responsibility of access transportation. Usually, when one parent unilaterally moves any considerable distance away from the other, thereby imperiling the health of the relationship between the child and the parents, the parent who removes themselves pay for the transportation costs of access; however, many factors may affect the general rule. Such factors include the financial circumstances of the parents, one parent’s lack of means of transportation, the visual impairment of one of the parents, etc.: Brown v. Brown, 2004 ABQB 62, at para. 2.

ANALYSIS OF ISSUES: MOBILITY, PRIMARY RESIDENCE, ACCESS, TRANSPORTATION

[26] Section 20(1) CLRA sets out that both Mr. Tait and Ms. Tait are equally entitled to custody of Alexa.

[27] The evidence shows that the parties agreed at mediation to a parenting plan. That Parenting Plan states that it is not intended to be a legally binding contract, but merely a statement of intention of the parties. That being said, in that agreement, it was the intention of the parties that Alexa spend equal time with both of her parents.

[28] To preserve the status quo, it must first be identified: Kalaitzakis v. Kalaitzakis, supra, at para. 36.

[29] In identifying the status quo, I have considered that it has been almost two years since the parties have been exercising the same parenting regime as established through mediation. However, notwithstanding the schedule set out in the mediated agreement, rather than sending Alexa to daycare, she was principally in Ms. Tait’s care during the day. This effectively shifted 36 hours from Mr. Tait’s time, to Ms. Tait’s time, as she would have been responsible for Alexa during these 36 hours. Consequently, the status quo, until Alexa started school, was that she was with her Mother approximately 224 hours per two weeks, and with her Father approximately 110 hours per two weeks. This works out to being a 66% to 33% split rather than 57% to 43% split. This occurred principally based on both parents work schedules, and is of benefit the child. The end effect was that Ms. Tait has had more time with Alexa. This in no way is meant to be a punishment to Mr. Tait. In fact, it has been to Alexa’s benefit to have parents who have been able to prioritize her, rather than fighting over hours. They are both commended for this decision.

[30] Since starting school, the parties have tried to continue to comply with the parenting schedule to the best of their abilities. Both parents therefore have substantial time with Alexa, and the evidence shows that they were both significantly involved in parenting.

[31] On a balance of probabilities, I find that the status quo is that Alexa resides primarily with Ms. Tait.

[32] As set out in Kalaitzakis v. Kalaitzakis, I must now determine if there is a compelling reason to alter that status quo on an interim basis.

Kalaitzakis v. Kalaitzakis, supra, at para. 42

[33] Given Mr. Tait’s move from Prescott to Ottawa, preserving the status quo is not an option. For the time being, Mr. Tait’s employment continues to be in Prescott. While the home he was renting in Prescott is no longer available to him, the decision to move to Ottawa is a choice, and is not necessitated for any work purposes. This choice necessarily requires revisiting the status quo.

[34] Mr. Tait, in his own affidavit materials at paragraph 143, recognizes that Ottawa is too far for Alexa to travel during the week.

[35] As set out in his counsel’s submissions, Mr. Tait acknowledges that the evidentiary burden is on him.

[36] I am alert to the fact that regardless of the outcome, this will be a big change for Alexa. The primary consideration is what is in Alexa’s best interest, not what her parents interests or rights may be. Alexa requires stability. Both parents play an important role in Alexa’s life.

[37] In considering Alexa’s best interest, I am mindful that I do not have Alexa’s views and preferences before me at this motion. I am also alert to the principle of maximum contact. Given that there is no current court order, both parents are equally entitled to custody.

[38] Alexa has been residing in Prescott since January, 2017 and in Ingleside since April, 2017.

[39] Alexa has been attending school in Ingleside since September, 2017. By all accounts, she is doing well in school. While the location of the school was not on consent of the Father, he did not take any steps prior to this motion to have the school changed. I find that he acquiesced to Alexa attending school in Ingleside.

[40] After considering the factors set out in s. 24(2) CLRA, and the case law above, I have not been persuaded that a move to Ottawa is in Alexa’s best interest. She has attachments to the community of Ingleside, where her both Mother and grandfather reside. While I recognize that Alexa has been building attachments in Ottawa with her Father, his partner, and his partner’s son, Mr. Tait’s proposed move is untested. Further, a move to Ottawa would be a significant disruption to Alexa, which I am not prepared to do based on competing affidavit evidence.

[41] I find, on a balance of probabilities that it is in Alexa’s best interest to be in the Mother’s primary care. I also find the access to the Father, three weekends per month, is appropriate to maximize contact and maintain the bond between Alexa and her Father. The order will extend access to the Father for PD days or statutory holidays. I will also provide for bi-weekly evening access to the Father.

[42] I have also considered that relocation impacts on access expense. The evidence presented is that the cost of transportation, if the Father was to be solely responsible for same, would be significant. Since April, 2017, the status quo has been that both parties have been responsible for part of the transportation. I find it is reasonable that this continue. Further, while I recognize that Ms. Tait would prefer exchanges take place in Morrisburg, I find that a truer midpoint would be in Embrun.

ISSUE: COSTS

[43] After having determined the issues above, I now turn my mind to the issue of costs.

[44] Rule 24 of the Family Law Rules (“FLR”) addresses the issue of costs. Rule 24(1) FLR states that there is a presumption that a successful party is entitled to the costs of a motion.

[45] Rule 24(11) outlines the factors to be considered in quantifying costs:

(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.

[46] Modern costs rules are designed to foster three fundamental purposes:

1. to partially indemnify successful litigants for the cost of litigation;
2. to encourage settlement; and
3. to discourage and sanction inappropriate behaviour by litigants:

Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905 (Ont. C.A.), at para. 8; Sickinger v. Sickinger, 2017 ONSC 2612, at para. 11.

[47] Rule 2(2) of the FLR adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met - that cases are dealt with justly. This provision needs to be read in conjunction with Rule 24 of the rules: Sambasivam v. Pulendrarajah, 2012 ONCJ 711, [2012] O.J. No. 5404 (Ont. C.J.); Lawrence v. Lawrence, 2017 ONCJ 431, at para. 28.

[48] The justice system is a precious public resource. Access to the justice system by individuals must be balanced with the need to ensure that the resource is available for all those who need it. This is one of the purposes of Rule 2: Lawrence v. Lawrence, supra, at para. 52.

[49] Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly for the purposes of this case, oblivious to the mounting costs of the litigation: Lawrence v. Lawrence, supra, at para. 54.

[50] Modern costs rules accomplish various purposes in addition to the traditional objective of indemnification. An order as to costs may be designed to penalize a party who has refused a reasonable settlement offer. Costs can also be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 (S.C.C.), para. 25; Lawrence v. Lawrence, supra, at para. 31.

[51] In Boucher v. Public Accountants Council (Ontario) (2004), 2004 ONCA 14579, 71 O.R. (3d) 291 (Ont. C.A.), the Ontario Court of Appeal indicated that a costs award should be a "fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs of the successful litigant". A "fair and reasonable amount" is that amount which the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation: Lupien v. Carmichael, 2017 ONSC 2929, at para. 9.

[52] Determining the amount of costs is not simply a mechanical exercise. Costs must be proportional to the amount in issue and the outcome: Boucher v. Public Accountants Council (Ontario), supra.; Lawrence v. Lawrence, supra, at para. 64.

[53] When awarded on a full recovery scale, costs can serve to express the court's disapproval of unreasonable conduct during the litigation: Prinzo v. Baycrest Centre for Geriatric Care, 2002 ONCA 45005, 2002 CarswellOnt 2263, 2002 C.L.L.C. 210-027, 17 C.C.E.L. (3d) 207, 161 O.A.C. 302, 60 O.R. (3d) 474, 215 D.L.R. (4th) 31(Ont. C.A.), para 76; Lawrence v. Lawrence, supra, at para. 32.

[54] In determining costs, the court must also consider, pursuant to Rule 24(5) FLR, reasonableness of the parties. 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.

[55] Success is given presumptive pre-eminence in Rule 24. While Rule 24(11)(f) does permit the consideration of ability to pay (under the umbrella of "any other relevant matter"), it is given significantly less prominence than the presumption that costs will follow success: Biant v. Sagoo, 2001 ONSC 28137, 2001 CarswellOnt 3315, [2001] O.T.C. 695, 20 R.F.L. (5th) 284 (Ont. S.C.J.): Lawrence v. Lawrence, supra, at para. 33.

[56] Ability to pay alone cannot, nor should it, over-ride the other factors in Rule 24(11): Peers v. Poupore, 2008 ONCJ 615 (Ont. C.J.), para. 42; Lawrence v. Lawrence, supra, at para. 35.

[57] The (financial) means of the unsuccessful party may not be used to shield her from liability for costs, particularly when she has acted unreasonably: Gobin v. Gobin (2009), 2009 ONCJ 278, 71 R.F.L. (6th) 209 (Ont. C.J.), para. 24; Lawrence v. Lawrence, supra, at para. 36.

[58] Moreover, as stated by Justice Blishen: “…although financial ability to pay is a factor in fixing costs, it cannot be a complete “defence” to an award of costs. If it was, a party could litigate financial immunity. This result would be inconsistent with the policy of the Family Law Rules that litigants should be responsible for the positions they take in litigations”: Hackett v. Leung, 2005 ONSC 43354, at para. 15.

[59] To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made: Lawson v. Lawson, 2008 ONSC 23496, 2008 CarswellOnt 2819, [2008] W.D.F.L. 3600, 167 A.C.W.S. (3d) 723, [2008] O.J. No. 1978 (Ont. S.C.J.). The position each party took in the case should also be examined: Lawrence v. Lawrence, supra, at para. 41.

[60] Rule 18(14) sets out the costs consequences regarding Offers to Settle:

COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER

(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

1. If the offer relates to a motion, it is made at least one day before the motion date.
2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
3. The offer does not expire and is not withdrawn before the hearing starts.
4. The offer is not accepted.
5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer. O. Reg. 114/99, r. 18 (14).

[61] A finding of bad faith is not a condition precedent to full recovery of costs by the other side under the Family Law Rules: Osmar v. Osmar, 2000 ONSC 20380, 2000 CarswellOnt 2343, 8 R.F.L. (5th) 387, [2000] W.D.F.L. 660, [2000] O.J. No. 2504, [2000] O.T.C. 979 (Ont. S.C.J.), para. 11; Lawrence v. Lawrence, supra, at para. 57.

ANALYSIS: COSTS

[62] I find that Mr. Tait is the successful party. He is therefore presumptively entitled to costs.

[63] In determining the quantum of costs, I have taken into account the factors set out in Rule 24(11):

(a) the importance, complexity or difficulty of the issues: The issues themselves were relatively complex and diverse. There were multiple issues to be determined including mobility, primary residence, access, and transportation. At the heart of the motion, was where Alexa should primarily reside. Factums were required to address the issues. (b) the reasonableness or unreasonableness of each party’s behaviour in the case: Given the nature of the motion, both parties had a vested interest. I do not find either party behaved unreasonably. (c) the lawyer’s rates: Both Ms. Bellefeuille’s and Ms. Young’s hourly rates are reasonable, as it that of Ms. Young’s assistant and articling student. (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: Ms. Young and her staff spent 38.15 hours on the motion, and Ms. Bellefeuille spent 15.6 hours on the motion. I find that Ms. Young’s total hours to be elevated, however, given success, still somewhat reasonable. (e) expenses properly paid or payable: The disbursements claimed totalling $626.50, inclusive of H.S.T., are reasonable. (f) any other relevant matter: n/a

[64] The issue of proportionality or overall reasonableness of a claim for costs must be measured against the sums at stake as well as the results: Bemrose v. Fetter, 2006 ONSC 8201 (ONSC).

[65] I have reviewed Mr. Tait’s Offer to Settle, dated November 7, 2017. Ms. Bellefeuille has not provided me with an Offer to Settle. Pursuant to subrule 18(14), in order to be entitled to full recovery of costs from the date of the offer, the party making the offer must obtain an order that is as favourable as or more favourable than the offer. In this case, Mr. Tait has met his onus.

[66] I am mindful that the Court’s role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees: Aprile v. Aprile, 2016 ONCJ 678, at para. 13.

[67] I have considered that Ms. Tait could reasonably have expected to pay costs in the event of lack of success in the litigation, particularly as Mr. Tait’s motion materials set out his request for costs based on a substantial indemnity basis.

[68] While Mr. Tait’s Offer to Settle entitles him to full recovery from the date of the offer, the bill of costs did not break down the timing of the events. Moreover, the bill of costs indicates that the offer was sent to the Applicant with the motion materials. This leads me to believe that the bulk of the work was completed prior to the Offer being served.

[69] After considering the relevant factors, I find that costs should be fixed at $7,500.00.

DISPOSITION

[70] Order to issue as follows:

1. Commencing December 6, 2017, the child, Alexa Tait, born February 10, 2013, shall reside primarily with the Mother;
2. The Father shall have liberal access with Alexa, with the following schedule, to commence December 15, 2017: a. The Father shall have Alexa the first, third and fourth weekend of each month; b. Access shall commence at 4:00 p.m. on Friday until Sunday at 5:00 p.m.; c. The weekend shall be extended to Thursday at 4:00 p.m. and/or Monday at 5:00 p.m. should Friday or Monday be a statutory holiday or PD day; d. That the Father shall have access the second and third Wednesday from 4:00 p.m. to 6:30 p.m., and e. All exchanges shall occur at the Tim Horton’s in Embrun, Ontario
3. That the Christmas 2017 holiday schedule be divided as follows: i. The Father shall have Alexa from 4:00 p.m. on December 22^nd to 12:00 p.m. noon on December 25^th; ii. The Mother shall have Alexa from 12:00 p.m. noon on December 25^th to January 2^nd at 5:00 p.m.; and iii. The Father shall have Alexa from 5:00 p.m. on January 2^nd to 5:00 p.m. on January 7^th.
4. The Respondent Father shall pay monthly child support to the Applicant Mother in the amount of $434.00, for the benefit of Alexa Tait, born February 10, 2013, based on his 2016 gross income of $48,130.00, commencing December 1, 2017.
5. The Mother’s income is imputed to be $29,120.00 for the purpose of determining contributions for Section 7 expenses.
6. Commencing December 1, 2017, based on the Mother’s imputed income of $29,120.00, and the Father’s 2016 income of $48,130.00, the parties contributions to Section 7 expenses, including daycare, are set at 39% payable by the Mother and 61% payable by the Father.
7. Neither parent is to involve the child in discussions of an adult nature, including court proceedings.
8. Neither parent shall make any disparaging remarks to the child about the other parent, or their families.
9. Costs are fixed at $ 7,500.00, inclusive of H.S.T. and disbursements, payable by the Applicant Mother to the Respondent Father.

Madam Justice Hélène C. Desormeau

Released: December 7, 2017

CITATION: Tait v. Tait, 2017 ONSC 7314 CORNWALL COURT FILE NO.: 17-193

DATE: 2017/12/07

ONTARIO SUPERIOR COURT OF JUSTICE

Cassandra Tait Applicant

– and –

Christopher Tait Respondent

Ruling on motion

Justice Hélène C. Desormeau

Released: December 7, 2017