Court File and Parties

COURT FILE NO.: FC-15-1562-1 DATE: 2018/09/04 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Brennan Cameron Applicant – and – Leanne Cameron Respondent

Counsel: Sarah Kennedy, Counsel for the Applicant Rodney Cross, Counsel for the Respondent

HEARD: August 31, 2018

REASONS FOR JUDGMENT

Justice Engelking

[1] This is a Motion to Change brought by the Applicant father, Mr. Cameron in respect of the nesting arrangement regarding the parties’ two children, Makayla Cameron, born June 29, 2009 and Kinley Cameron, born September 10, 2012. Mr. Cameron seeks an order of primary residence of the children with him, with parenting time with the Respondent mother, Ms. Cameron, three weekends a month and shared holiday time. Ms. Cameron seeks to vary the primary residence of the children to her home, with parenting time with Mr. Cameron three weekends per month and shared holidays.

[2] This matter was first before me on August 9, 2018, at which time I determined that any proposed change in the nesting arrangement, and indeed the provision contained in the Arbitrator’s Award of December 18, 2015, and in the resulting Divorce Order of Justice Corthorn dated September 2, 2016, which required a review of the residential arrangements at the conclusion of the 2016-17 school year, constituted a material change of circumstances such that the court would have to undertake a “fresh inquiry” into what order would now be in the best interests of the children.

Background Facts

[3] The parties began cohabiting in 2006, married on March 14, 2007 and separated on January 1, 2015. The two above-noted children were born of the marriage. At the time of separation, Ms. Cameron was working as a police officer with the Ontario Provincial Police out of the Napanee, Ontario detachment, and was commuting from Ottawa. Mr. Cameron was working as a teacher at Ashbury College in Ottawa, though his long term employment status was uncertain at that time.

[4] Ms. Cameron subsequently moved to Amherstview, Ontario (in the Kingston area). In or about February of 2015, the parents put in place a nesting arrangement whereby the children would remain in what was then the matrimonial home (which would later become solely owned by Mr. Cameron) at 936 Markwick Crescent in Orleans, and each parent would reside in the home during their respective parenting times to the exclusion of the other. The parenting time was consistent with Ms. Cameron’s employment schedule of four days on/four days off, followed by five days on/five days off. In other words, the children were with Mr. Cameron in the Markwick home when Ms. Cameron was working, and they were with Ms. Cameron in the Markwick home when she was not working.

[5] In or about November of 2015, the parties attended an arbitration with Arbitrator Carol Cochrane. The parties could not agree at that time on the primary residence of the children, i.e. whether it was to remain in Ottawa (essentially with both parents) or whether it was to move to Amherstview with Ms. Cameron. Arbitrator Cochrane released her Arbitration Award on December 18, 2015. In her Award, Arbitrator Cochrane came to the conclusion on page 19 that Makayla and Kinley “shall maintain their primary residence at the home located at 936 Markwick Crescent in Orleans and they shall reside there with the parties under a shared custody arrangement.” The nesting arrangement was essentially maintained according to Ms. Cameron’s work schedule. Ms. Cameron was free to take the children to Amherstview on weekends during her parenting time with them. Holiday time with the children was to be shared equally. On page 20 of her Award, Arbitrator Cochrane provided that: “The residential arrangements prescribed herein shall be subject to review at the conclusion of the 2016-2017 academic year in or about July, 2017”, and “These residential arrangements shall also be subject to review in the event of a material change in circumstances which shall include, but not be limited to, a relocation of one parent to the home jurisdiction of the other parent.” Set-off child support was also awarded to be paid by Mr. Cameron to Ms. Cameron in the sum of $325.00 per month.

[6] Arbitrator Cochrane found at that time that: “A move to Amherstview would include a change in caregiver, a change of school (including school program from French language to French Immersion), and a distancing from paternal family and neighbourhood friends. Such a move is not in the best interests of Makayla and Kinley.”

[7] The nesting arrangement and shared parenting regime thus remained in place as per the Arbitration Award of December 18, 2015, which was incorporated into the parties Divorce Order dated September 2, 2016. It has proven exceedingly difficult for both parents: for Ms. Cameron as she has had to uncomfortably continue to insert herself into what has become Mr. Cameron’s home, and for Mr. Cameron as he has had to consistently vacate his own home to the exclusive possession of Ms. Cameron during her parenting time, even when she was exercising it in Amherstview or now, Thomasburg. In November of 2016, Mr. Cameron filed his original Motion to Change, at that time seeking “that the Respondent vacate the home identified above on a permanent basis, and that the Respondent parent the children of the marriage in accordance with the existing schedule, in Ottawa, in her own residence.” In December of 2016, Ms. Cameron filed her Response to the Motion to Change, disputing it on the basis that it was premature given the review provision for the summer of 2017. She also pled: “in the event that the matter proceeds I propose that what may be best for the children at this time is that the children remain in the Applicant’s home in Orleans for the school week and That I have the children with me at my home in Amherstview Ontario for three weekends each month…” along with other extended and holiday time. In response to this, Mr. Cameron amended his Motion to request that Justice Corthorn’s order be changed to one of primary residence of the children with him, with access to Ms. Cameron every second weekend, along with some extended and holiday time. He also sought a change to child support in the event that a change to primary residence was made.

[8] The Motion to Change was scheduled to proceed on October 24, 2017, but Ms. Cameron brought a motion for an order appointing the Office of the Children’s Lawyer to conduct a clinical investigation pursuant to section 112 of the Courts of Justice Act, which she was successful in obtaining. In granting the order, Justice MacLeod stated: “This [a change in the nesting arrangement] would also entail a change in parenting time and that has now been articulated in the amended motion to change.” He also stated: “Accordingly I anticipate that the children’s wishes and views will be a significant concern for the court.”

[9] Kristina Durnin was assigned by the Office of the Children’s Lawyer to conduct the clinical investigation and make recommendations to the parties and the court. In her report dated April 3, 2018, Ms. Durnin recommended that the parents continue to share joint custody of the children; that their primary residence during the school year be with their mother, Ms. Cameron, in Thomasburg, Ontario as of the commencement of the 2018/19 school year; that Mr. Cameron have the children for three weekends per month during the school year; and, that the parents share physical custody during the summer and for other holidays during the year.

[10] Mr. Cameron filed a Dispute with the Office of the Children’s Lawyer in respect of the OCL report, and but for two minor factual changes, the OCL has stood by the contents of the report. Mr. Cameron sought to cross-examine Ms. Durnin on her investigation and report, and was granted the opportunity to do so viva voce during the motion.

Position of the Parties

[11] As a result of the report of the OCL, Ms. Cameron changed her position from one of seeking three weekends a month “in the event the matter proceeds” to one of seeking to have the recommendations of the OCL implemented. She has since the completion of the report (though it was contemplated during the investigation) moved into a new home she and her partner, Shawn Trudeau, have built in Thomasburg.

[12] Mr. Cameron opposes the report, submits that it is faulty and/or biased and states that the court should not rely on it at all. However, at the motion, he did change his position from one of Ms. Cameron having the children for two weekends a month to one of her having the children for three weekends a month, along with other extended and holiday time.

Analysis

[13] This is, or has become, essentially a mobility case, which puts it squarely within the purview of Gordon v. Goertz, [1996] 2 S.C.R. 27. In paragraph 49 of the Gordon, 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.

[14] Having found on August 9, 2018, that the threshold requirement of demonstrating a material change of circumstances affecting the children was made out, I must then embark on a fresh inquiry into what is now in the best interests of Makayla and Kinley, having regard to all the relevant circumstances in relation to their needs and the ability of their respective parents to satisfy them. While such inquiry is based on the findings of, in this case, Arbitrator Cochrane, and evidence of the new circumstances, I cannot ignore that Arbitrator Cochrane was deciding between a status quo of a nesting arrangement and shared parenting (and she was doing so in the short term, based on her own requirement for a review) and a move of the children to Amherstview with Ms. Cameron. Some of her findings may, thus, not be relevant to choice between the children having their primary residence in Ottawa with Mr. Cameron or in Thomasburg with Ms. Cameron.

[15] When I consider the factors listed in paragraph 49, #7 of Gordon, I find that in this case, those that are of particular relevance are “d” (the views of the child) and “g” (disruption to the children). With respect to the remaining factors, all of the evidence before me, including that of the OCL, is that Mr. and Ms. Cameron are equally capable and dedicated parents. The existing regime has been one of shared custody and shared time, thus, one that maximizes time with both parents. To the parents’ credit, the children’s relationships with each of them are stellar – warm, loving and secure. There is no question that either parent can satisfy the needs of the children.

[16] With respect to the views of the children, Ms. Durnin came to the conclusion in her report, which she confirmed in her testimony, that it is the wish of Makayla, who was eight at the time of the interviews, but is now nine, to live with Ms. Cameron in Thomasburg. She did so based on her interviews with Makayla on February 3, 2018 at the home of Ms. Cameron and on February 5, 2018 at the home of Mr. Cameron. On February 3, 2018, Makayla stated to Ms. Durnin that she would really like to live with mom, that they “do more stuff” with mom, that she can sleep in at mom’s (or not have to get up early), that mom’s home is less dirty because she and Kinley play less there, and because mom has lots of stuff. At the same time, Makayla stated to Ms. Durnin that she wanted to stay in her school. She then stated that she wanted to move to mom’s even if it [the school] changes. Immediately after this statement, Makayla stated that she ‘likes it how it is though” and that she didn’t want to change schools. She then reverted to talking about her mom and that she does their hair in braids while their dad only brushes it or puts it in a ponytail.

[17] At the February 5, 2018 interview in the home of Mr. Cameron, Makayla told Ms. Durnin that she has lots of friends, that Mia is her best friend, that she likes her teachers and is doing good in gym, and that she is happy at school.

[18] Ms. Durnin’s evidence with respect to Kinley, who was five at the time of her interviews, is that she wants to live with both parents (as she is doing now), and that she didn’t want anything to change.

[19] Counsel for Mr. Cameron pointed the court to the Ontario Court of Appeal case of Decaen v. Decaen, 2013 ONCA 218, 2013 CarswellOnt 3922 in respect of the court’s assessment of a child’s wishes. Specifically, at paragraph 42, the Court of Appeal said:

42. In assessing the significance of a child’s wishes, the following are relevant: (i) whether both parents are able to provide adequate care; (ii) how clear and ambivalent the wishes are; (iii) how informed the expression is; (iv) the age of the child; (v) the maturity level; (vi) the strength of the wish; (vii) the length of time the preference has been expressed for; (viii) practicalities; (ix) the influence of the parents(s) on the expressed wish or preference; (x) the overall context; and (xi) the circumstances of the preferences from the child’s point of view.

[20] Counsel for Mr. Cameron submitted that the wishes of Makayla, as set out by Ms. Durnin based on her interviews with the child, are not particularly clear or unambivalent. Rather, she characterized them as highly ambivalent, in that Makayla was stating that she likes things as they are and doesn’t want to change schools while at the same time stating that she wants to live with her mom even if it means a change in schools. Ms. Kennedy also described Makayla’s expressed views as not being particularly well-informed. She had at that point, to Ms. Durnin’s knowledge, never been to Thomasburg or seen the school or the new house Ms. Cameron and Mr. Trudeau were going to live in. It was submitted that Makayla, moreover, could not know what moving from an urban centre and a French language school she had always been in to a rural center and an English/French emersion school she had never seen would be like. Makayla was, of course, only eight at the time of the interviews, and the court has no evidence to suggest that she is mature beyond her years. The court additionally has no information as to the length of time the preference has been expressed, but Ms. Kennedy questioned the strength of the wish, again based on Makayla’s seeming ambivalence. She also questioned whether Ms. Cameron had any influence over the expressed wish in that Makayla’s reasons for saying she wanted to live with her mom appeared to Mr. Cameron to be markedly similar to the reasons Ms. Cameron gave Ms. Durnin for wanting the children to live with her. With respect to the practicalities, Ms. Kennedy submitted that the children have already started school in Ottawa, and it would be impractical to require that to change. Finally, it was submitted that the circumstances of the preferences from Makayla’s point of view were that she would have made a fleeting remark to a near stranger that she had met for a total of a couple of hours in her life. From Mr. Cameron’s point of view, Ms. Durnin’s conclusion with respect to Makayla’s expressed views and preferences should not be relied upon by the court.

[21] I do not think that Makayla was influenced unduly by her mother. Nor do I find that Ms. Durnin displayed any kind of bias in favour of Ms. Cameron or against Mr. Cameron. Having said that, while I appreciate that Ms. Durnin felt confident that Makayla ultimately wants to live with her mom, I cannot find the latter’s views to be unequivocal or well-informed based on the evidence before me. I am, thus, not prepared to place much weight on them.

[22] Additionally, Makayla is young, and her views and preferences, even if I could find that they are clear, which I do not, are but one factor for the court to consider in making a determination as to what is in her best interests. Other factors are as laid out in paragraph 49 of Gordon above.

[23] These factors include disruption to the children consequent on the removal from family, schools, and the community they have come to know. On page 13 of her report, Ms. Durnin indicated that: “In order to best ensure the stability and consistency for the children, it is recommended that Makayla and Kinley have primary residency with their mother, Leanne Cameron, during the school year”, which, on its face, seems completely contrary to the fact that, essentially, everything that Makayla and Kinley know and to which they are accustomed would be disrupted by a move of their primary residence to Thomasburg.

[24] Makayla and Kinley have always lived at 936 Markwick Crescent in Orleans (but for when Makayla was a baby). They (or Makayla) have always gone to Ecole de la Decouverte. They have friends in their neighbourhood and at school. They have relationships with their paternal aunt, Carolyn, who was interviewed by Ms. Durnin, and with paternal grandparents. Again to the credit of Mr. and Ms. Cameron, Makayla and Kinley are doing very well, indeed thriving, in their current arrangement.

[25] In her viva voce testimony, Ms. Durnin stated that in the end, the benefits of moving the children’s primary residence to Thomasburg outweighed the detriments. The main benefit identified by Ms. Durnin appeared to be Ms. Cameron and/or Mr. Trudeau being available before and after school such that daycare would not be required. However, although Makayla stated she didn’t like before school daycare, she did indicate that she liked after school daycare because her friends go, and Kinley appears to like daycare for the same reason.

[26] With respect to the children leaving their French language school, Ms. Durnin indicated that Ms. Cameron is French speaking whereas Mr. Cameron is not, and the former would therefore be in the better position to assist the children with French. However, Ms. Durnin did not really address the issue of the children leaving their French language school, which in my view is a distinct one having to do not with which parent can more ably assist them in French, but with the environment in which they, or Makalya, has functioned for several years.

[27] Finally, Ms. Durnin found the relationship between Mr. Trudeau and the children to be a positive one, and found that Ms. Cameron would have at her disposal significant support from Mr. Trudeau’s extended family members in the Thomasburg area. While this may very well be the case, I am not of the view that it is a factor of such significance that all of the children’s norms should be disrupted.

[28] Ms. Durnin’s recommendation in regard to the primary residence of the children, moreover, appears to ultimately be influenced by what she considered to be Makayla’s stated wish, upon which I have found little weight can be placed, given her age, level of maturity, knowledge and understanding.

[29] Based on all of the above, I find that it is the best interests of Makayla and Kinley to remain living in the home of their father, Mr. Cameron, in the city of Ottawa, as they have always done.

Order

[30] For all of the reasons given above, the Divorce Order of Justice Corthorn dated September 2, 2016, shall be varied as follows:

1. Paragraph # 2 under the heading “Parenting” is deleted and replaced with: “The parties’ children Makayla and Kinley shall maintain their primary residence at the home of the Applicant located at 936 Markwick Crescent during the school year.”
2. Paragraph #3 under the heading “Parenting” shall be deleted and replaced with: “Commencing September 7, 2018, the Respondent shall have parenting time with the children for three weekends out of four during the school year. Such parenting time shall be from the end of the school day on Friday until Sunday at 5:00 pm.”
3. Paragraph #4 under the heading “Parenting” shall be deleted and replaced with: “Should a statutory holiday or a P.D. day fall on a Friday preceding the Respondent’s regularly scheduled parenting time, she shall have the children from the end of the school day on Thursday until Sunday at 5:00 pm. Should a statutory holiday or a P.D. day fall on a Monday after the Respondent’s regularly scheduled parenting time, she shall have the children from the end of the school day on Friday until Monday at 5:00 pm.
4. Paragraph #5 under the heading “Parenting” shall be deleted and replaced with: “The children shall share holiday time, with the exception of summer holidays, and dates of special significance with both of the parents on an alternating or shared basis.”
5. Paragraphs #6, #7 and #8 under the heading “Parenting” shall be deleted.
6. A new paragraph #6 shall be inserted which reads: “The Respondent shall have six weeks of parenting time during the children’s summer holidays from school, either consecutively or in blocks as agreed upon between the parties.”
7. A new paragraph #7 shall be inserted which reads: “Transportation of the children for the parties’ parenting time shall be shared. The parent who is about to commence his or her parenting time with the children shall pick them up from school or the other parent.”

Child Support

[31] The parties have not provided the court with information/confirmation of their current incomes for support purposes. I am prepared to receive submissions in writing, limited to two pages each and including proof of income, with respect to the issue of child support. If the above-noted changes to the parenting regime result in Ms. Cameron having the children 40% of the time or more, the set-off support will continue. If they result in Ms. Cameron having the children less than 40% of the time, table support will be ordered.

Costs

[32] The issue of costs for the August 31, 2018 motion shall be dealt with after the issue of child support is resolved.

Madam Justice Tracy Engelking Released: September 4, 2018