McGowan v. McGowan, 2018 ONSC 5950

Court File and Parties

COURT FILE NO.: FS-17-0046-00 DATE: 2018-10-05

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Jason McGowan Ms. M. Petryshyn, for the Applicant Applicant

• and -

Chelsy McGowan Mr. T. Matthews, for the Respondent Ms. S. Filipovic for the Office of the Children’s Lawyer Respondent

HEARD: September 27, 2018, at Thunder Bay, Ontario

Madam Justice H. M Pierce

Reasons On Motion

Introduction

1The principal issue that brings these parties to court is the mother’s motion for leave to move the children’s residence from Thunder Bay, Ontario to Whitehorse, Yukon Territory. The father, who lives in Cambridge, Ontario, objects to the proposed move. He fears that the children will be so far removed from him that their relationship will essentially be terminated. The court must determine whether the move is in the best interests of the children.

2Related to the mobility issue are questions concerning the father’s access to the children.

3While there are other ancillary issues, the pivotal point around which the other issues turn is the children’s residence.

The Parties’ Circumstances

4The parties cohabited from 2007, married in 2010 and separated on September 17, 2016. The mother is the biological mother of Keyrah McGowan, born December 6, 2004 to whom the father stands in loco parentis. Keyrah’s biological father is deceased.

5As well, the parties have three children together: Keyahnna McGowan, born April 4, 2007, Keylinah McGowan, born June 28, 2008, and Keytisha McGowan born July 9, 2009.

6The mother is a registered nurse and works full-time in Thunder Bay as a respiratory nurse with Medigas. Her annual earnings are about $56,000 per year.

7The father lives in Cambridge, Ontario. He also works full-time as a facilities maintenance technician for Septodont. His current earnings are between $82,000 and $98,813.

8The parties lived in Terrace Bay before separation. When they separated, the mother moved with the children to Thunder Bay where she found work.

The History of the Litigation

9In February of 2017, the father commenced an application claiming divorce, custody, access, child support, and equalization of net family property. A temporary order for access was made in March of 2017. Interim child support was ordered in April of 2017.

10On June 30, 2017, the parties executed minutes of settlement drafted by the mother’s counsel. The father was unrepresented at that time. On July 3, 2017, he signed a waiver of independent legal advice. Subsequently, he approved a draft order.

11For reasons that are not clear, the minutes of settlement were never filed with the court and a final order pursuant to the agreement was never obtained. Each party now seeks a variation or a clarification of the minutes of settlement.

12In general, the minutes of settlement provided that the mother would have sole custody of the children. The father’s access to the children was to be in the mother’s discretion. Supervision of his access was not mentioned in the agreement.

13The agreement also provided that the mother was entitled to move the children’s residence without the consent of the father. The only real elaboration of the father’s right to access is contained in paragraph 9 of the agreement. It states:

9. Each party shall have the right to communicate with the children at any reasonable time by telephone, letter, e-mail, or such other reasonable method and the children shall have the right to communicate with their parents whenever they wish.

14The mother says that at the time the minutes of settlement were negotiated, the father represented that he would continue to live and work in Terrace Bay and travel to Thunder Bay twice a month to see the children. She states that the parties agreed that the father’s child support payment would be less than the table amount under the Child Support Guidelines to account for his expenses travelling back and forth.

15The mother indicated that after the minutes of settlement were signed, she learned that the father had accepted a job in Cambridge, Ontario for significantly more income than the agreement specified. She added that not only was the father earning more income, he would be spending less to visit the children, as he would fly, rather than drive, and presumably would only come a few times a year. The mother gave notice of her intention to vary the terms of the agreement with respect to child support. The father refused her request for variation.

16The father gives a different account of the events leading to negotiation of the agreement. He indicates that when he launched his court application, the mother advised him that she intended to move with the children to Sudbury. The father sought and obtained employment in the Sudbury area. When the mother admitted that she changed her mind about moving, the father moved from Terrace Bay to Thunder Bay. He says that the mother promised him that they could divide their time with the children equally.

17The father states that in May of 2017, the mother signaled her intention to move to Ingersoll, Ontario, planning to live there with her mother. The mother denies that she decided to move to Ingersoll. She says that before Mr. McGowan signed the minutes of settlement, she told him that she would not move to Ingersoll because she had no job there.

18With the agreement finalized, the father says he sought employment in southern Ontario, planning to be closer to his children once the mother relocated. In August of 2017, he moved to Cambridge where he accepted employment. The children enjoyed summer access with the father and his family in 2017.

19After the agreement was made, the eldest child, Keyrah, alleged that the father had touched her sexually. Delico and the police launched an investigation, the results of which were presented to the Crown Attorney in March of 2018. No charges have been laid to date. The father says that Keyrah made one such allegation previously when she was angry with him and then recanted.

20A restraining order was granted by Mr. Justice J. Fregeau on November 17, 2017, barring the father from having contact with the mother or any of the children. Justice Fregeau extended the restraining order on May 24, 2018, but varied it to provide that the father could have supervised telephone access to the children. The father has done so on a weekly basis since that time.

21On May 24, 2018, Mr. Justice Fregeau ordered the Children’s Lawyer to provide services to all four McGowan children. It is not clear whether this order was made on consent. Both parties were represented at the time the order was made.

The Father’s Position

22Mr. McGowan requests the following orders:

(a) a declaration that the minutes of settlement be set aside and declared to be of no force and effect; (b) that the mother may not relocate the residence of the children to the Yukon Territory; (c) termination or modification of the existing restraining order; (d) interim specified unsupervised access to the children with a corresponding reduction in child support; and (e) interim joint custody, including sole care of the three youngest children if the mother’s move to the Yukon is authorized; (f) amending his child support obligation.

The Mother’s Position

23The mother seeks the following orders:

(a) that the terms of the minutes of settlement be embodied in a final order; (b) granting leave to move the children’s residence to Whitehorse, Yukon Territory without the father’s consent; (c) extending the ex parte restraining order granted by Mr. Justice Fregeau on November 17, 2017 indefinitely; (d) adjusting child support commencing January 1, 2018; (e) severing the divorce from the corollary relief and (f) fixing the amount of legal fees payable by the father to the mother as agreed by the parties in their minutes of settlement, a request to which the father also objects.

Mobility

24The central and pressing issue that brings this matter to court is the mother’s desire to relocate with the children to Whitehorse, Yukon Territory. Her request for leave to move the children also triggers questions about custody and access arrangements for them. Presently, the children reside with their mother in Thunder Bay where they attend school.

25The mother recently accepted a nursing job at Whitehorse in the Yukon Territory and, subject to court approval, proposes to move with the children on October 12, 2018. The offer of employment is effective October 15, 2018. However, counsel indicates her first day of work is October 29, 2018. Her annual salary will be $82,500.

26The father objects to the children moving further away from him and asks that his access be specified. He wants the parties’ agreement that gave the mother sole custody of the children and the right to relocate to be set aside.

27Following the court’s request for services for the children, the Children’s Lawyer accepted this case. Ms. Filipovic was appointed in August, 2018 to act as the children’s counsel. However, she indicates that she has not had sufficient time to complete her inquiries such that she can reflect the children’s views and preferences to the court.

28In determining the children’s residence, the court is obliged to consider the best interests of the children. The minutes of settlement executed by the parties are but one aspect of that consideration.

29In my view, it would be premature to consider the mobility issue without hearing from the Children’s Lawyer. Presumably both parents thought input from the children would be important when the order was made requesting counsel for them. While the mother has deposed as to the children’s views and preferences, there is no independent evidence before the court in that regard.

30Further, the children’s residence is the pivot point around which issues such as child support and access will turn. The minutes of settlement between the parties made provision for the reduction in child support to account for costs of access.

31Accordingly, the mother’s motion for leave to relocate the children to Whitehorse, Yukon Territory is adjourned to a date to be fixed by the trial coordinator once the inquiries by the Children’s Lawyer are complete. The Children’s Lawyer is requested to expedite her inquiries. A special date to argue the motion is required.

Should the Restraining Order be Vacated?

32The father asks that the restraining order be vacated, arguing that it served its purpose during the investigation of Keyrah’s disclosure, but it now interferes with his access to the children.

33When the father and his mother were present in Thunder Bay for the hearing of this motion, I ordered that the father have access to the children from 4:00 p.m. to 7:00 p.m. on September 28, 2018, supervised by the paternal grandmother, with the caveat that Keyrah was not obliged to attend. Aside from this visit, Mr. McGowan has not seen his children in a year. During part of that time, he had no access of any description. Since May 24, 2018, his access was enlarged when the restraining order was varied to include supervised telephone access.

34The test for a restraining order is found under s. 46(1) of the Family Law Act, R.S.O. 1990, c. F.3, as am. and s. 35(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as am. The court must determine whether the party seeking the restraining order “has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.” See: Fuda v. Fuda, 2011 ONSC 154 at para. 31.

35At para. 31 of Fuda, the court cited with approval the following remarks of Justice P.W. Dunn in Khara v. McManus, 2007 ONCJ 223 , 2007 Carswell Ont 3159 (Ont. C.J.) at para. 33:

… an applicant’s fear of harassment must not be entirely subjective, comprehended only by the applicant. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words. A court must be able to connect or associate a respondent’s actions or words with an applicant’s fears.

36There is no evidence before me that the father has not complied with terms of the restraining order. The father lives in a community in southern Ontario while the children and their mother live in Thunder Bay.

37The mother’s fears do not appear to be related to the father’s actions or words. As well, there is no evidence that the three younger children have made any complaint about the father’s conduct towards them.

38While the test for granting a restraining order is both subjective and objective, there is no objective evidence of conduct of the father giving rise to the continuing need for a restraining order. The restraining order is therefore vacated. Should circumstances change, the mother is at liberty to renew her motion for a restraining order.

Severing the Divorce from the Corollary Issues

39The mother asks that the divorce be severed from the corollary issue; the father objects, saying that there is no urgency.

40As Mr. McGowan sought a divorce when he commenced his application, his objection appears to be more strategic than substantial. Order to issue severing the divorce from the corollary issues.

Remaining Issues

41In my view, determination of the remaining issues will turn on the court’s decision on the mobility question and the father’s access. There is no urgency with respect to the remaining issues. They are therefore adjourned for argument to a date following the court’s determination of the mobility and access issues.

Costs

42Costs of the motions before me are reserved to the judge disposing of the mobility and access issues.