Court File and Parties

Ottawa Court File No.: FC-17-2051-1 Date: 2018/08/02 Superior Court of Justice - Ontario

Re: Mary Hawes, Applicant And Jason Hawes, Respondent

Before: Justice Engelking

Counsel: Wade L. Smith, Counsel for the Applicant Timothy N. Sullivan, Counsel for the Respondent Stephen Pender, Counsel for the Children

Heard at Ottawa: July 31, 2018

Endorsement

[1] This is a motion brought by the Applicant mother, Ms. Hawes, seeking a temporary order permitting her to move the primary residence of the parties’ two children, Jonah and Callie, from Ottawa, Ontario to Brockville, Ontario and an order setting out specific parenting time for the Respondent father, Mr. Hawes. Ms. Hawes also seeks an order for child support commencing December 4, 2016, and an order permitting the children to be enrolled in counselling, although this latter relief was not specifically claimed as part of her relief requested in her Notice of Motion. Ms. Hawes relies upon her request that the court make such further order as it deems just to support such an order being made.

[2] Mr. Hawes opposes the motion and seeks an order dismissing it.

[3] For the reasons given below, there shall be a temporary order permitting the move and varying Mr. Hawes’ parenting time. There shall also be an order for child support effective August 1, 2018.

Background Facts

[4] The parties met while Mr. Hawes was playing junior hockey and being billeted in the home of Ms. Hawes’ parents in Brockville, Ontario in 1999. They began cohabiting in 2003 and married in 2005. Two children were born of the marriage, Jonah on September 20, 2008 and Callie on September 18, 2009.

[5] Over the course of the relationship, the couple moved a number of times, first for Mr. Hawes hockey career and later for his career with Pepsi Co. and Kraft. The sequence is as follows:

• The couple lived in Texas during the hockey season in 2003, where Mr. Hawes was playing professional hockey;
• From August of 2005 to November of 2007, they lived in Edmonton, Alberta, where Mr. Hawes was employed by Pepsi Co;
• From November of 2007 to the end of 2010, they lived in London, Ontario, to which Mr. Hawes had been transferred and promoted; and,
• In late 2010, Mr. Hawes was once again promoted and he transferred to Ottawa, Ontario. For three months, Ms. Hawes and the children lived with her parents in Brockville while they awaited their house in Stittsville and Mr. Hawes lived in a condominium in Ottawa provided by his employer.

[6] During those moves, Ms. Hawes worked as a nurse, and the parties do not appear to dispute that she generally support Mr. Hawes’ career trajectory, and as a result lost seniority in her own career path. Once in Ottawa, Ms. Hawes found work nursing part-time at the Queensway Carleton Hospital doing two shifts a week. The parties separated in Ottawa on January 17, 2014.

[7] The parties entered into a separation agreement dated October 20, 2014. In it they agreed, inter alia, to the following:

• 1.4 Mary is employed as part-time nurse at the Queensway Carleton Hospital. She is currently enrolled in a Master’s program with an expected completion date of June 2015. Due to the family’s moves to accommodate Jason’s career, Mary lacks seniority at her place of employment and is required to work overnight shifts and shifts on minimal notice…;
• 3.1 Mary and Jason shall have joint custody of the children;
• 3.2 Mary and Jason shall make important decisions about the children’s welfare together, including decisions about the children’s: (a) education; (b) major non-emergency healthcare; (c) major recreational (extracurricular) activities; and (d) religious activities;
• 3.3 If the parties cannot agree, they shall use the section of this Agreement entitled “Dispute Resolution & Review” to reach agreement;
• 4.1 The children shall reside primarily with Mary and will reside with Jason approximately 40% of the time;
• 4.6 As the children shall reside primarily with their mother: …(c) Mary shall be responsible for and shall have the authority to enroll the children in school and make any arrangements with the school and regarding the children’s health, such as scheduling dental and medical appointments, and making any special arrangements that the best interests of the children may require, or providing the school with any information regarding the children, including a parenting schedule, if necessary; and (d) The children shall be enrolled in the public school nearest to where Mary lives, unless the parties agree otherwise;
• 4.12 Mary and Jason shall live near each other so that the children shall have frequent contact with both parties. Neither party shall move from the City of Ottawa without the other’s written consent or a court order; and,
• 5.2 Commencing September 1, 2014, Jason will pay Mary $500 per month as child support. In determining the amount of child support, the parties have considered the Table amounts for each parent, each parent’s income, the increased cost of this shared custody arrangement (including appropriate housing, transportation, and the duplication of toys, equipment and clothes,), and the condition, means, needs and other circumstances of each parent and the children.

[8] In the fall of 2016, Ms. Hawes completed her Master’s degree and became fully qualified as a Nurse Practitioner. Thereafter, she began to search for fulltime work as a Nurse Practitioner in Ottawa and the surrounding area. Her evidence is that there was a dearth of such employment opportunities in Ottawa, and in May of 2017, she was successful in obtaining a part-time position as a Nurse Practitioner in Brockville, Ontario. Ms. Hawes commuted (and continues to commute) from Ottawa to Brockville for her job. In February of 2018, her position became a permanent fulltime one, which she submits affords her security, benefits and stability.

[9] Mr. Hawes lives and works in Ottawa for Kraft. His former employment as a regional manager with Pepsi Co., as well as his work with Kraft, have required him to travel fairly frequently. In fact, the parties kept the particulars of time spent with each parent flexible in their separation agreement to precisely accommodate Mr. Hawes’ travel and Ms. Hawes’ shiftwork. When neither parent was available to care for the children, Ms. Hawes’ parents would come from Brockville to assist with school pick-ups or sick days. Mr. Hawes, however, now indicates in his affidavit that his position with Kraft has changed as July 15, 2018, and he will no longer be required to travel for work in the same manner as he has in the past.

[10] Currently, Ms. Hawes lives in the Westboro neighbourhood of Ottawa and Mr. Hawes lives in Kanata.

[11] Ms. Hawes’ parents and sister and brother-in-law and their children all live in Brockville. Ms. Hawes evidence, which is not disputed by Mr. Hawes, is that they have all been extremely involved with the children essentially since they were each born. This is particularly so for her parents, who came to London to assist Ms. Hawes when Jonah and Callie were born and with whom she and the children lived for several months in 2010/11. In addition, Mr. and Mrs. Hungerford have been very involved with the children since the family moved to Ottawa. They have provided support to Ms. Hawes (and at times, Mr. Hawes), and cared for the children whenever necessary due to either Ms. Hawes work or Mr. Hawes travel. Ms. Hawes and her parents’ evidence is that their support would be even more readily available to her in Brockville, and that the children would benefit from what they offer.

[12] Ms. Hawes’ sister, Melissa Tyler and her husband and children also live in Brockville and offer a similar level of support to Ms. Hawes and the children. The Tylers actually lived in Ottawa at or around the time the separation of the Hawes, and as a result they spent a great deal of time with Ms. Hawes and the children, and they all became very close. One year later, the Tylers moved to Brockville, and they have immensely benefitted from the support of Ms. Tyler’s parents.

[13] The evidence is that Jonah and Callie are very close with their grandparents, aunt and uncle and cousin, and that they spend significant time in Brockville enjoying their company.

[14] Ms. Hawes came to hold the view that notwithstanding the terms of the parties’ separation agreement, Mr. Hawes was not actually spending 40% of the time with Jonah and Callie. In May of 2016, she alerted Mr. Hawes to the fact that she wanted to revisit the issues of child support. Pursuant to their agreement, the parties entered into negotiations and attended mediation. Mr. Hawes says that it was at the mediation that the idea of Ms. Hawes moving the primary residence to Brockville was first raised. They were unable to resolve the issues, and in September of 2017 Ms. Hawes brought her Motion to Change the separation agreement.

Positions of the Parties

[15] It is Ms. Hawes’ position that the completion of her Master’s degree and her having obtained a permanent fulltime job in her chosen field in Brockville constitute a material change in circumstances, not to mention the separation agreement which states that a party can only move from Ottawa with consent or a court order. It is her further position that based on all the evidence before the court, she should be permitted to change the primary residence of the children to Brockville and adjust Mr. Hawes’ parenting time with the children accordingly. It is her further position that Mr. Hawes did not exercise parenting time 40% of the time, and that he ought to have been paying Federal Child Support Guidelines table support for the children since December of 2016. She seeks an order for retroactive table support from December 2016 to August of 2017, and on-going table support from the filing of her application forward.

[16] Mr. Hawes’ position is that nothing has changed just because Ms. Hawes has found fulltime work in Brockville. He states that she can continue to commute to her job as she has since May of 2017, and that the children’s primary residence should remain in Ottawa. In his view, the children’s relationships with their grandparents, aunt, uncle and cousins can continue to be just as strong with former living in Ottawa and the latter living in Brockville, as they always have. It is his position there has been no material change in circumstances since the separation agreement was entered into. It is Mr. Hawes’ further position that Ms. Hawes’ calculation of his time spent with the children is not accurate, and that he has indeed spent 40% of the time with the children since separation, if not more. It is his further position that his relationship with the children should supersede that of the extended family, and in order for that to happen, the children must remain in Ottawa.

Position of the Children

[17] Mr. Pender was appointed pursuant to s. 89 of the Courts of Justice Act to represent the children in this matter and to provide their views and preferences to the court. Mr. Pender indicated that when interviewing children, the Office of the Children’s Lawyer looks to three criteria: 1) consistency of the children’s views and preferences (internally and over time); 2) strength of those views and preferences; and, 3) independence (whether the children’s views and preferences have been subject to parental influence). Mr. Pender met with each child independently on three occasions, June 8 at the home of Ms. Hawes, June 21 at the home of Mr. Hawes and June 29 at his office, each time accompanied by a social worker from the OCL. Mr. Pender advised the court that Jonah and Callie’s strongly held position is that they wish to move to Brockville with their mother and continue to exercise parenting time with their father in Ottawa. According to Mr. Pender, they were aware of and understood that their position on the move would mean that time with their father would be lessened. They nevertheless continued to express a strong preference to move to Brockville. Mr. Pender’s submission was that the children’s views and preferences were consistent and strongly held, and that there was no indication of parental influence affecting them. On behalf of the children, Mr. Pender submitted that Ms. Hawes’ request to relocate the primary residence of the children to Brockville should be allowed on a temporary basis.

Change of Primary Residence to Brockville

Analysis

[18] The leading case on mobility issues remains Gordon v. Goertz. In paragraph 49 of the case, McLachlin J., as she then was, writing for the majority, stated:

49. The law is summarized as follows:

50. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change of circumstances affecting the child.

51. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and ability of the respective parents to satisfy them.

52. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

53. 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.

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

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

56. More particularly the judge should consider, inter alia: a. The existing custody arrangement and relationship between the child and the custodial parent; b. The existing access arrangement and the relationship between the child and the access parent; c. The desirability of maximizing contact between the child and both parents; d. The views of the child; 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 child; f. Disruption to the child of a change in custody; g. Disruption to the child consequent on the removal from family, schools, and the community he or she had come to know.

[19] Marshman J. stated in Plumley v. Plumley at paragraph 7 that the important factors in deciding a mobility issue on an interim basis are:

1. A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.
2. There can be compelling circumstance that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interest of the children might dictate that they commence school at a new location.
3. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at trial.

[20] In this case, I find that Ms. Hawes has made out the threshold requirement of demonstrating that there has been a material change of circumstances affecting the children. This is not so because Ms. Hawes has found work in Brockville, though finishing her Master’s degree and doing so are certainly circumstances to be taken into consideration. Rather, I find that there is a material change of circumstances because paragraph 4.12 of the parties’ separation agreement contemplated it. Clearly, the parents thought that a move outside of Ottawa was of such import that it could not be done without the other’s consent or leave of the court. This stipulation, in my view, in and of itself renders any proposed move from the City of Ottawa a material change.

[21] Having made out a material change, the question becomes whether the court should grant the relief requested on a temporary basis. As was indicated by Justice Marshman in Plumley, the court will be more reluctant to permit a move on a temporary basis where there is a genuine issue for trial. While there is a genuine issue for trial in this case, I am of the view that there is a strong possibility that Ms. Hawes’ position will prevail at trial. Thus, I find that the third criteria of Plumley is met.

[22] Having regard to the factors to be considered in “a fresh inquiry into what is in the best interests of the child[ren]” I find that Ms. Hawes should be permitted to change the children’s primary residence to Brockville. First, although Mr. and Ms. Hawes are joint custodians, Ms. Hawes, by their own identification, is the primary parent to the children and her view is “entitled to great respect”. Second, the evidence of the new circumstances are that a) Ms. Hawes has a new fulltime permanent job in Brockville; b) the children’s grandparents, who have been very involved in their care from the time they were both born, live in Brockville and are available to support and assist Ms. Hawes whenever necessary, c) the children’s aunt and uncle and their cousins, to whom they are very close, also live in Brockville and are available to provide support and assistance to Ms. Hawes and the children whenever it is necessary, and d) perhaps most significantly, Brockville is the place where Jonah, who will be ten in September, and Callie, who will be nine the same month, unreservedly want to be.

[23] In determining the children’s best interests pursuant particularly to paragraph 49, number 7, (a) through (g), of Gordon, I find that the only significant disruption to the children of the proposed move to Brockville is to the time they currently spend with their father. In all other aspects, the disruption of a move to Brockville will be minimal. Indeed, it is otherwise of benefit to the children. Jonah and Callie already spend significant time in Brockville with family, to the extent that they have also made friends there. They have been patients of the same Brockville dentist since age three, and they will have immediate access to a new family physician there. They will no longer be required to wake up early on school days with Ms. Hawes due to her requirement to commute for an hour for work. They will, additionally, be at school ten minutes away from Ms. Hawes work, as opposed to one hour. Although Jonah is subject to an IEP at his current school, I have no evidence to suggest it would not follow him to his new school, or that he needs would not otherwise be met. Additionally, it would potentially disruptive to the children to start school in Ottawa, only to risk it later being disrupted.

[24] Mr. Hawes currently exercises at or around 40% parenting time with Jonah and Callie. Mr. Hawes submitted that Ms. Hawes did nothing to promote it remaining at 40% or increasing beyond that mark. However, the only real evidence he presented in support of that assertion was an exchange between his and Ms. Hawes’ lawyer where he proposed to help out Ms. Hawes by picking up the children earlier at their after-school care during her days, and she responded that it wasn’t necessary as they enjoyed their time with their friends at the after-school care until her arrival. Although he is a joint custodial parent, I was presented with no evidence that Mr. Hawes took any steps beyond this exchange to assert any interest he may have had in spending more time with the children. His other complaint appeared to be that Ms. Hawes’ relied on her parents when she was unavailable rather than him. However, Ms. Hawes’ evidence was that she relied heavily on her parents when neither of them were available. While it is possible that Ms. Hawes may have not relied on Mr. Hawes as her back up plan from time to time when she was not available, I do not find that amounts to her attempting to limit Mr. Hawes time with the children to 40% or less. The parties clearly had a very flexible arrangement which saw them both relying on each other, as well as on Ms. Hawes’ family members when they were not available. Nothing could or should be read into Ms. Hawes indicating the children enjoyed their time at their after-school care.

[25] Ms. Hawes proposes that Mr. Hawes have “reasonable and generous” parenting time with the children, including alternate weekends from Friday to Monday morning, extended to Thursday and Tuesday when holidays or PD days fall on Friday or Monday, as well as one midweek overnight on the off week. Little else would change; the parties’ holiday schedule would continue in accordance with their separation agreement, and Mr. Hawes would be as entitled as he is now to attend and/or participate in any of the children’s activities or special events. According to Mr. Pender, the children appreciate that a move to Brockville would affect somewhat the time that they spend with their father, but that they nevertheless wish to make the move.

[26] While I recognize that the nature of Mr. Hawes’ time with the children will change, I find that Ms. Hawes proposal maximizes Mr. Hawes’ parenting time with the children to the extent possible under the circumstances of a move to Brockville.

[27] For all of the reasons stated above, I find that a relocation of the children’s primary residence to Brockville is in their best interests and it is permitted on a temporary basis.

Child Support

[28] Ms. Hawes seeks FCSG table child support retroactive to December 2016 for both children. I am of the view that there is a significant triable issue with respect to child support payable between December 2016 and July 2018. While Ms. Hawes is of the view that Mr. Hawes has not exercised 40% parenting time, notwithstanding that he was entitled to it pursuant to the separation agreement, Mr. Hawes adamantly disputes both the assertion and Ms. Hawes’ method or methods of calculating the time, which he asserts are inconsistent. Whether or not the children have been in the care of Mr. Hawes 40% of the time since December 2016 is factually based and will depend entirely on the evidence led by each of the parents (and possibly others) at trial. I am unable to determine that issue on a temporary basis and on the conflicting evidence before me. Having however permitted the move of the children’s primary residence to Brockville, which will reduce his parenting time to less than 40%, I am prepared to make a temporary order for Mr. Hawes to pay table support for the children commencing August 1, 2018. Mr. Hawes has sworn an affidavit dated July 23, 2018, to which is attached as Exhibit “B” his 2017 Notice of Assessment indicating that his Line 150 income for 2017 was $115,792.14. Child support will thus be based on that amount.

Counselling for the Children

[29] Ms. Hawes seeks an order that the children shall receive counselling with one Helen Bienert. She asserts that it was recommended by one Dr. Ferguson in order to “help the children cope with stress and anxiety relation to the separation of their parents.” Mr. Pender supports that the order be made on a temporary basis. Mr. Hawes indicates that while he is not necessary opposed to the children engaging in counselling, he does not recognize the need for it. His evidence is that he spoke with the children’s teachers to ascertain whether they had seen any changes of behaviour in the children or any indicia of anxiety and stress, which, according to him, they had not. I did not have any independent evidence from Dr. Ferguson or Jonah and Callie’s teachers. Given that this issue is one that goes to the heart of the parties’ joint decision making authority as set out in their separation agreement, and given that I too am unclear as to the necessity of counselling for the children in the immediate sense, I decline to order it on a temporary basis.

Order

[30] Based on all of the above, there shall be a temporary order as follows:

1. The Applicant is entitled to change the primary residence of the children of the marriage, namely Jonah Edward Hawes, born September 20, 2008, and Callie Joan Hawes, born September 18, 2009, to Brockville, Ontario;
2. The Respondent shall have reasonable and generous parenting time with the children, which shall include but is not be limited to: a. Alternate weekends from Friday afternoon to Monday morning at school in Brockville; b. The Respondent’s alternate weekend parenting time shall be extended to Thursday afternoon in the event of a holiday or PD day on Friday, and/or Tuesday morning in the event there is a holiday or PD day on Monday; c. The Respondent shall have the children one overnight on the week he is not scheduled to have the children on the weekend; d. The parties shall continue their holiday schedule in accordance with paragraph 4.5 of their Separation Agreement dated October 20, 2014;
3. Commencing August 1, 2018, the Respondent shall pay to the Applicant child support of $1665 per month, being the FCSG table amount for two children on an annual income of $115,792.14, in support of the children of the marriage, Jonah Edward Hawes, born September 20, 2008, and Callie Joan Hawes, born September 18, 2009.

Costs

[31] Failing agreement as to the liability for costs of this motion by August 15, 2018, counsel will make written submissions of no more than three pages, along with copies of their bills of costs and offers to settle, to me at intervals of 10 days from that date and I will make an order.

Madam Justice Tracy Engelking Date: August 2, 2018