Court File and Parties

Court File No.: 17-681 Date: August 16, 2018

Superior Court of Justice - Ontario

Re: Davidson v Davidson Between: Anthony Davidson, Applicant and Heather Davidson, Respondent

Before: Honourable Mr Justice Martin James

Counsel: Thomas R. Hunter for the Applicant Duncan Crosby for the Respondent

Date Heard: August 10, 2018

Endorsement

Introduction

[1] There are two motions before the court. The first was brought by the applicant on June 8th. The second was brought by the respondent on June 11th. They both relate, among other things, to the question of whether or not the respondent should be permitted to relocate with the children from Eganville to Ottawa.

[2] Both parties are about 30 years old. They were married in 2011 and separated in 2017. They have two children, Adelaide, aged 5 and Sutton aged 3.

[3] The various affidavits filed by the parties allege conflicting facts and are irreconcilable on numerous material points.

[4] The respondent has been the primary parent since separation. She is a qualified yoga instructor, has worked as a nanny and waitress and is about 5 credits away from a university degree.

[5] The applicant owns and operates a heating repair business. He currently resides with his parents. Two bedrooms have been set up in that residence to accommodate the children when they stay overnight.

[6] The matrimonial home was recently sold. There was little, if any, equity in the home. Since July, the respondent has resided in the west end of Ottawa. She is on Ontario Works. She hopes to finish her university degree. She recently obtained part time employment (about 1 day per week) at a yoga studio.

[7] Adelaide is about to commence senior kindergarten. She had been receiving counselling at the Phoenix Centre in Pembroke. The respondent says that the counsellor terminated or suspended providing services to Adelaide because the applicant broke the rules respecting the terms of service at the Phoenix Centre.

[8] Adelaide is reported to be a bright but somewhat difficult child who has been prone to angry outbursts that are difficult to control. Her behavioural issues have likely been exacerbated by the current state of acrimonious relations between her parents. The applicant suggests that the respondent has failed to isolate and protect Adelaide from the adult issues engulfing her parents.

[9] Sutton was in a local daycare facility until the respondent moved to Ottawa and the respondent has pursued subsidized daycare in Ottawa.

[10] The respondent says that the applicant was not a very engaged parent before separation and that he utilized inappropriate discipline methods. The applicant enrolled in and completed a 7 week parenting course that was recommended to him. He says the course gave him a “totally different outlook on several aspects of parenting”. While the respondent is to be commended on his desire to improve his parenting skills, the fact that a relatively short program gave him so many new insights suggests that he had much to learn about being an engaged and knowledgeable parent. The isolated incidents involving inappropriate discipline are likely not going to be repeated but he would probably benefit from additional parenting courses.

Issues

[11] The core issues are: i) Is the relocation to Ottawa in the children’s best interests? ii) Can or should this question be determined on a temporary motion before trial? iii) If the answer to either of the above questions is no, should a temporary shared parenting regime be implemented pending trial?

Discussion and Analysis

[12] The status quo prior to the respondent’s recent unilateral move to Ottawa was that the children resided in the primary care of the respondent in Eganville, in relatively close proximity to where the applicant resides. The evidence suggests that the applicant is taking full advantage of his access opportunities.

[13] The respondent says that there is neither work nor educational opportunities available for her in Eganville but she has not provided any evidence of her unsuccessful job search activities in support of this contention other than to say she can’t make a living teaching yoga or being a nanny. Additionally, she has not provided any evidence why online or correspondence education is not feasible.

[14] While it may be true that the respondent has valid reasons to relocate to Ottawa, the “superordinate consideration” is whether this is also in the best interests of the Adelaide and Sutton (see Berry v. Berry, 2011 ONCA 705, paras. 10, 12). Do the benefits that will accrue to them by remaining in Ottawa exceed the benefits associated with a return to the setting with which they are the most familiar? Can this be determined at this stage?

[15] The respondent indicated through counsel that if the children are ordered back to Eganville, the respondent wishes to remain their primary caregiver and will move back with them rather than remain in Ottawa.

[16] The applicant says that the children should be returned so that a shared parenting regime can be implemented and has proposed a two day- three day rotation rather than week-about.

[17] Relocation to a new community may be permitted on a temporary basis if there is a strong possibility that the custodial parent will prevail at trial. At present, there is no custody order in place. For the purposes of this motion, I regard “custody” as including the parent with primary parenting responsibility (see Porter v. Bryan, 2017 ONCA 677, para. 16). Therefore, a high probability that the respondent will be granted custody following a trial is a factor to consider. In my view, however, the evidence is not so clear cut at this time that a shared parenting regime is outside the range of reasonable possibilities.

[18] Similarly, as the party with primary parenting responsibility, the respondent’s reasons for moving bear special consideration and may constitute the basis of a “best interests” finding. On the record before me, I am of the view that a “valid and compelling parent-based reason for the move” has not been made out. The usual factors in support of a mobility request such as employment, partner relocation, education and training, medical issues and family supports, are missing here. I acknowledge that the respondent indicated that she hopes to finish her degree in Ottawa but there is no evidence that she has registered for any courses even though this has been part of her plan since March, 2018.

[19] There are, however, identifiable benefits for the children to remain in Eganville or nearby that community. In addition to the obvious benefit of more and easier contact with their father and their paternal grandparents, it seems probable that Adelaide will do better at a school and in a community she is familiar with, especially considering her current challenges and the disruptions she is already dealing with. I would suggest that these considerations align more closely with the factors enumerated in the leading case of Gordon v. Goertz, [1996] 2 S.C.R. 27 when compared to a relocation to Ottawa that may be temporary.

[20] The parties unsuccessfully requested O.C.L. involvement in February, 2018. On consent this request was renewed by an order granted at the hearing of these motions. Counsel indicated that they have found that a second request is sometimes successful.

Disposition

[21] The respondent is ordered to re-establish her residency within a 25 kilometer radius of the catchment area of St. James Catholic School (or such other distance as the parties may agree) within a reasonable time not to exceed 60 days, failing which the children shall reside with applicant as primary parent subject to generous access to the respondent.

[22] Upon the respondent resuming residency in the Eganville area, the parenting arrangement shall be on a shared parenting basis in accordance with the schedule proposed by the applicant.

[23] Telephone access shall be as proposed by the applicant.

[24] The respondent’s unilateral decision to move to Ottawa without a viable source of income presents serious practical difficulties. As a recipient of Ontario Works, it is difficult to see how she will be able to pay moving expenses. In addition, she may be required to provide first and last months’ rent when renting a new apartment. Accordingly, the applicant shall pay a reasonable amount towards the respondent’s moving costs and one half of a reasonable amount for the deposit required for the respondent to rent a new apartment, without prejudice to the applicant to claim re-imbursement at trial.

[25] Also, I attach a high priority to Adelaide beginning the new school year at her old school. A temporary enrollment in Ottawa pending the move back is not in her best interests and will not be permitted. This means that Adelaide may need to relocate in advance of her mother and live with the applicant as primary parent, subject to generous access to the respondent, until the respondent secures a new residence in the area.

[26] The applicant shall pay guideline child support until the relocation occurs. After September 1st the support shall be for Sutton only. After the shared parenting regime is established, the child support shall be governed by section 9 of the Guidelines.

[27] The parties shall take all available steps to restore Adelaide’s counselling sessions at the Phoenix Centre.

[28] The applicant’s financial disclosure is incomplete. If not already provided, he shall disclose his complete personal income tax returns for the last 3 years and the year-end financial statements for any company in which he has a beneficial controlling interest, including a statement of income and expenses. He shall also provide a list of any personal expenses paid by the corporation on his behalf.

[29] The respondent shall keep a record of her job search activities.

[30] The parties are prohibited from involving their children in their dispute or discussing adult issues in their presence. Communications between the parties shall be business-like and respectful.

[31] If costs cannot be agreed to, the applicant may deliver his costs submission and a proposed bill of costs within 10 days and the respondent shall have 10 days to reply.

James, J. Date: August 16, 2018

COURT FILE NO.: 17-681 DATE: August 16, 2018 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Davidson and Davidson BETWEEN: Anthony Davidson, Applicant and Heather Davidson, Respondent BEFORE: Honourable Mr Justice Martin James COUNSEL: Thomas R. Hunter for the Applicant Duncan Crosby for the Respondent ENDORSEMENT James, J. DATE: August 16, 2018