Citation: Porter v. Bryan, 2017 ONSC 756

Court File No.: 19929/16 Date: 2017-02-01

Ontario Superior Court of Justice

Between: Chad Porter, Applicant – and – Brooke Bryan, Respondent

Counsel: Thomas K. Mann, for the Applicant. Paul Mongenais, for the Respondent.

Heard: January 9, 2017

Before: R. D. Gordon, R. S. J.

Overview

[1] Few cases are more vexing for judges than those involving the proposed move of a child. Without fail the decisions in such cases have significant long term consequences for the parties and the child involved.

[2] This decision deals with Brooke Bryan’s (the Mother’s) request for an order allowing her to move the residence of her son Evan from Cochrane to Thunder Bay.

Background Facts

General

[3] The parties began living together in November of 2008 and married on April 4, 2010. They have one child, Evan, who was born on September 25, 2012.

[4] Following their separation on November 8, 2015 the parties initially contemplated a joint and shared custody arrangement. However, the Mother’s views on such an arrangement changed following an unhappy incident that resulted in criminal charges against the Father. Those charges were eventually resolved by way of the Father’s conditional discharge. Although the Mother remained somewhat wary of the Father’s behaviour, regular access was afforded to him until a motion for temporary custody was argued on July 8, 2016. On that date Justice R. Riopelle ordered a temporary parenting arrangement by which the child was to alternate weeks with each of the Father and Mother.

[5] With the assistance of counsel, the parties subsequently entered into minutes of settlement on August 16, 2016. Those minutes of settlement formed the basis of the final order of Justice C. MacDonald dated September 16, 2016 and provided, among other things, as follows:

a) The Parties would have joint custody of their son.

b) During the fire season (when the Father’s 7 day work schedule begins) the Father would be responsible for Evan’s care each month during his 8 to 10 days off and the Mother would be responsible for Evan’s care otherwise.

c) During the balance of the year the Mother and Father would share parenting on a “2-2-3” alternating schedule (with the Father having care of the child Monday and Tuesday, the Mother having care of the child Wednesday and Thursday, and the Father having care of the child from Friday to Sunday, alternating thereafter).

d) It was required that the Father maintain his residence with his parents.

e) The parties would have the first right to replace the other in caring for Evan.

f) The order was without prejudice to the Mother’s right to request the move of Evan to another location and provided that she may do so by way of a motion under Rule 14 without starting a new application or bringing a motion to change.

The Mother

[6] Until August of 2016, the Mother was employed as a full-time special constable with the Nishnawbe-Aski Police Services (“NAPS”). From the time she returned to work following her maternity leave until March of 2016, NAPS accommodated her parenting of Evan by allowing her to work in an administrative position with a regular day shift of 8:30 a.m. to 4:30 p.m. On February 2, 2016, her employer required her to return to prisoner transport duties but made allowances in her schedule so that it would coincide with Evan’s daycare hours. On March 24, 2016, NAPS indicated that it could no longer provide accommodation and she was required to accept prisoner transport duties as assigned.

[7] It is the Mother’s position that the regular duties of a special constable responsible for prisoner transport were completely incompatible with parenting Evan. Shifts would regularly start as early as 6:00 a.m. and often would not end until after 8:00 in the evening, and there would be little or no notice of the required additional hours. Overtime was not optional. Extensive travel was required between distant and remote communities with various time-related vagaries due to paperwork, weather, decisions of Crown Attorneys and Judges. These vagaries, she says, made making alternate arrangements for Evan next to impossible and prevented her from parenting Evan effectively during the week. She had no immediate family residing in the Cochrane area who could assist her and has always had a strained relationship with the Father’s family.

[8] The Mother continued in her position until August 4, using vacation weeks, sick days, assistance from family and the goodwill of co-workers to cover for her either at work or in caring for Evan. Eventually NAPS placed her on an attendance program because of her absences from work. She applied to her employer for sick leave but was declined. She obtained disability benefits from Employment Insurance from August 4 until November 18 and then told NAPS that she would not be returning to work.

[9] In short, the Mother’s preference was to raise Evan herself rather than working in a job that effectively prevented her from parenting him.

[10] She was unable to find alternate employment in Cochrane. On November 18, she was approached by the Thunder Bay Police Service about a special constable’s position opening there. She met the requirements for the job and accepted the position with a start date of January 23, 2017, a probationary period of 12 months, and an annual salary of about $61,000. Although she would be required to work three different shifts, all are day shifts with reasonably predictable hours scheduled to begin no earlier than 8:00 a.m. and end no later than 5:30 p.m. Overtime would be limited and manageable.

[11] The Mother became engaged to Mr. Chris Eisenbock in August 2016. She had been seeing him since January. Somewhat coincidentally, he is a sergeant with the Thunder Bay Police Service. He has two young children of his own with whom he has regular visitation.

[12] The evidence is clear that the Mother does not intend to relocate without Evan.

The Father

[13] The Father is a fire crew leader for the Ministry of Natural Resources in the months of April through September. During those months he is typically on a seven day work schedule and has 8 to 10 days off per month. If the fire season is particularly bad, or assistance is requested from other jurisdictions, the amount of time off can be less.

[14] During the winter months the Father has employment as a snow plow operator. He also serves as a volunteer firefighter for the Municipality of Cochrane and provides guiding services for moose hunters for a week or two each year.

[15] The Father currently resides with his parents as required by the Final Order. He is in a new relationship that appears at this time to be stable. His parents have quite a close relationship with Evan.

The Child

[16] Evan is now in his fifth year. He began kindergarten in September of 2016 at Cochrane Public School and seems to be doing reasonably well there. Although there is no medical or educational assessment of him, the materials seem to indicate that he has some difficulty staying on task. Otherwise the evidence indicates that he is a healthy and happy little boy.

[17] Evan enjoys a close relationship with both of his parents. He is also close to extended family members on both sides of the family but perhaps somewhat closer to the Father’s parents given that they live in Cochrane and that the Father lives with them and cares for Evan at their home.

[18] To their credit, the Mother and Father both recognize the other as a responsible and capable parent.

The Law

[19] The seminal case dealing with the issue of mobility in the context of custody and access is Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, a case dealing with an application by the Mother, who had court ordered permanent custody of the child subject to the Father’s generous access, to move from Saskatoon to Australia.

[20] In the case of Berry v. Berry, 2011 ONCA 705, a case in which there was a temporary order of shared custody but a trial over where the child should reside, the Ontario Court of Appeal held that where both parties are custodial parents and there is no previous custody order to vary, the legal test for mobility set out in Goertz is still applicable, albeit with no threshold issue of whether there has been a material change in circumstances since a previous custody order, and no relationship between the child and an access parent to consider. The Court recognized that the “superordinate consideration” in a mobility case is the best interests of the child determined from a child-centered perspective and held that where there are two custodial parents, the factors for consideration are as follows:

a) The existing custody arrangement and relationship between the child and each of the custodial parents.

b) The desirability of maximizing contact between the child and both parents.

c) The views of the child (when applicable).

d) 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.

e) Disruption to the child of a change in custody.

f) Disruption to the child consequent on removal from family, friends, schools, and the community the child has come to know.

[21] In my view, the approach taken in Berry is applicable in this case. The minutes of settlement entered into by the parties contained the following provision: “The parenting aspects of these Minutes of Settlement are without prejudice in all respects, and the parties reserve all their rights. Neither party wishes any parenting provision of these Minutes to be considered an admission. The parties have decided to settle the parenting matters for now, without prejudice, rather than continuing to litigate them, hoping that future developments will assist them in determining Evan’s best interests”.

[22] Although termed a “Final Order”, the order of Justice MacDonald, insofar as parenting is concerned, must be considered temporary. Accordingly, the situation is very similar to the legal situation in Berry, and as the court in that case noted, the issue is most appropriately framed as whether the mother’s application to relocate to Thunder Bay with the child should be granted as in the child’s best interests.

[23] Counsel for the Mother seized upon the statement of the Supreme Court of Canada in Goertz that “…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”; he argued that his client had, since separation, been the primary caregiver for the child and should therefore have her views given great respect and the most serious consideration. As authority for that proposition he referenced the case of Burns v. Burns, 2000 NSCA 1, a case out of the Nova Scotia Court of Appeal. In that case, the Mother sought to vary an order for joint custody under which she had day-to-day care of the children, and the father had access for part of every weekend and one weekday in addition to holidays and vacation periods.

[24] Counsel was unable to provide me with an Ontario case in which this general principle has been adopted. In any event, the case is distinguishable from the case before me because I am dealing not just with a situation of joint custody, but joint and shared custody. In such circumstances, I am of the view that neither parent’s view is to be given any greater respect or more serious consideration than the other.

Analysis

The Existing Custody Arrangement and the Relationship of the Child and Each of the Custodial Parents

[25] The existing custody arrangement is joint and shared on the terms hereinbefore set out. With the exception of having the Mother responsible for arranging bussing of Evan to school neither party is given primacy with respect to day to day decision making or significant issues relative to the child (as was explained during the motion, the bussing issue was reserved to the Mother only because bussing is not required when the child is with the Father). Each has the right to parent the child when the other is unavailable.

[26] Over the course of the year, the child will spend somewhat less time with the Father than with the Mother depending on the Father’s work commitments during fire season.

[27] Evan enjoys a close and loving relationship with both his mother and father. He spends a significant amount of time with each of them. Both take an active interest in his health, education, recreational pursuits and general well-being. Both actively fulfill their role as his parent.

The Desirability of Maximizing Contact between the Child and Both Parents

[28] Section 16(10) of the Divorce Act provides as follows:

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.

[29] As stated in Goertz, by this provision Parliament has indicated that maximum contact with both parents is generally in the best interests of the child.

[30] The existing order maximizes contact with both parents by dividing Evan’s care equally between them when it is feasible to do so (having regard to the Father’s work schedule) and giving each of them the first right to replace the other in the event the other is unavailable to care for Evan during his or her scheduled time. Each is free to participate in Evan’s school functions and extra-curricular activities.

[31] I am satisfied that the Mother will make reasonable efforts to maximize contact between Evan and his father in the event the move to Thunder Bay ensues. She has generally been amenable to changes in scheduling in the past to accommodate the Father and has acted reasonably to ensure that regular contact took place even when there were court ordered restrictions on their ability to communicate directly.

[32] However, it is clear that such contact will fall significantly short of what is now enjoyed by the child. Although electronic access via Facetime or Skype is likely to be facilitated on a regular basis, personal time together will often not occur for several weeks at a time. Because of Evan’s school during the winter months and the Father’s work schedule during the summer months, it will be difficult, if not impossible, to arrange extended periods of time together. In addition, Evan would not have the benefit of his father attending his school events, participating regularly in his education, or regularly attending extra-curricular activities. It is likely that Evan will at some point become involved in organized sport, but will not have the opportunity to have his father involved in his team or watch his games.

[33] Counsel for the Mother argued that the move to Thunder Bay would actually serve to maximize her time with Evan because of the regular hours of employment she would enjoy. However, given her decision to forego employment that has unpredictable overtime hours, there is unlikely to be any significant change in the time she spends with the child.

The Views of the Child

[34] Given his age, the views of the child are of very limited value and have not been ascertained.

[35] To the credit of the parents, they have not involved Evan in this process. Indeed, it does not appear that the subject of a move has even been raised with him.

The Parent’s Reason for Moving

[36] As indicated above, because the central inquiry is the best interests of the child, the parent’s reason for moving is to be considered only where and to the extent it is relevant to the parent’s ability to meet the needs of the child.

[37] The Mother says that the proposed move is driven primarily by the economic reality that she has no job prospects in Cochrane, has no income other than minimal child support, has depleted her savings and is now relying on borrowing to provide for Evan while he is in her care. Accordingly, the reason for the move is very relevant to her ability to meet Evan’s needs. In addition to this primary reason for the move, it is her view that the move would provide her with additional supports in the care of Evan through her fiancé, his family, and friends that she has in Thunder Bay. Furthermore, she anticipates it being easier for her parents to offer her support because her mother can work out of Thunder Bay on occasion. Lastly, she points out that Evan is likely to be happier with a parent who is happy and engaged in her chosen occupation.

[38] The Father is of the view that the Mother’s real reason for the move is her desire to pursue her relationship with Mr. Eisenbock and that it bears no relevance to her ability to meet Evan’s needs. That position is belied by the Mother’s acceptance of a job offered to her by Cochrane NAPS in October of 2016. Notwithstanding that the offer of employment was subsequently revoked, her acceptance of the job offer was an unequivocal indication of her willingness to remain in Cochrane if an appropriate job opportunity presented itself. If her desire to move to Thunder Bay is based primarily upon her relationship with Mr. Eisenbock she would not have accepted that offer.

[39] Counsel for the Father also argued that even if the reason for the move is financial, it should be given little consideration because her bleak financial situation is self-imposed and she has not undertaken any meaningful search for employment in the Cochrane area.

[40] I agree that the Mother’s financial difficulties are self-imposed. As late as November 18 she had the option of returning to her work as a special constable with NAPS. However, I also accept that returning to work there would have required her to undertake prisoner transport duties as assigned and that such job duties are often incompatible with having the regular care of a young child. Although the decision to sacrifice her financial security and that of her child in favour of remaining a custodial parent was certainly hers to make, its seems to have been made with little consideration for the eventual impact it might have on Evan and his relationship with his father.

[41] It is also my view that her search for employment in the Cochrane area has been less than thorough. Although I accept that she has applied for positions which she perceives to be within “her spectrum of education and experience” (engaging duties similar to that of a special constable or related to law enforcement) she has not made significant efforts to find any other type of work and has made no efforts to obtain additional qualifications or improve her French language skills.

Disruption to the Child of a Change in Custody

[42] There would be significant disruption to Evan if the Mother’s request for a change in custody was to be granted.

[43] Custody of Evan is currently shared by two parents with whom he has a close and loving relationship. If custody is changed and he moves to Thunder Bay, Evan’s relationship with his father will be disrupted. Their relationship would transition from one of regular parent/child engagement to one of access which can be neither regular nor extended. This represents a significant disruption to Evan’s relationship with his Father.

Disruption to the Child Consequent to being removed from Family and Community

[44] At four years of age, Evan does not have particularly close ties to the community of Cochrane. He is not yet involved in organized sport. He has been attending school for only a few months. Although he has friends, and some to whom he is particularly close, there is unlikely to be significant disruption to his life if he was separated from them.

[45] However, as I have already noted, Evan is quite close to his paternal grandparents and the move would serve to severely limit the amount of time he would be able to spend with them.

Conclusion

[46] Stripped to its essentials, the decision in this case boils down to whether the additional economic benefits Evan will enjoy if he is allowed to move with his mother to Thunder Bay outweigh the benefits to Evan of his remaining in Cochrane and maintaining a close father/son relationship with Mr. Porter.

[47] Given that Ms. Bryan has not exhausted her search for employment in the Cochrane area, the economic benefit of moving to Thunder Bay, although significant, is not likely to be as great as has been portrayed. Although she may not secure employment with the same wage being offered in Thunder Bay, she is a healthy, intelligent, trainable and trustworthy individual who is likely to secure some form of employment in the area of Cochrane within a reasonable amount of time.

[48] If the move were permitted, the disruption to Evan’s relationship with his father would be significant and it would be permanent. It would leave him without meaningful parental influence from his father.

[49] Having regard to all of the facts, it is in Evan’s best interests to remain in Cochrane where he can continue to forge a meaningful relationship with both of his parents.

[50] If the parties are unable to agree on costs they may make written submissions to me, not to exceed five pages plus attachments each, within 45 days.

R. D. Gordon, R.S.J.

Released: February 1, 2017