COURT FILE NO.: D15452/18 DATE: 20181127 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Ashley Hutchings-Valentim Applicant – and – Ryan Medeiros Valentim Respondent

COUNSEL: R. Richards, for the Applicant M. Vamos, for the Respondent

HEARD: October 22, 2018

THE HONOURABLE JUSTICE R. B. REID

Reasons for decision on motions

[1] The parties argued competing motions relating to the place of residence of their children and parenting time.

[2] They began cohabiting in March 2005 and were married in January 2009. They are parents of two children, ages seven and five. The separation occurred around the beginning of 2017. The divorce order including corollary relief was issued February 7, 2018.

[3] Equalization matters have been settled between the parties.

[4] Pursuant to a temporary order of May 29, 2018, made on consent at a case conference, the applicant has custody of the children. That order also dealt with child support issues. As to access, the order provided that the respondent have access to the children each Saturday from 11:00 a.m. until 6:00 p.m., supervised by his mother, with the exception of four weekends during the summer. The order further provided that access “shall be reviewed after [the respondent] has completed and passed two drug screens as required by the Brant Family and Children Services, or as [that agency] might require”.

[5] On October 5, 2018, the court made an order that the Office of the Children’s Lawyer (OCL) be requested to conduct an investigation. To date, there has been no response received to that request from the OCL, and the parties have agreed that counsel will contact the trial coordinator to set a settlement conference date once the response is known.

The Motions:

[6] In his motion returnable August 10, 2018, the respondent requested unsupervised overnight access as well as visitation at other specified times with access to include contact by electronic media. That motion was eventually adjourned to the hearing before me on October 22.

[7] The respondent brought a second motion dated September 7, 2018, reiterating his request for the removal of any access supervision and also requesting an order that the children’s residence remains in either Brantford or Hamilton. For reasons that are not completely clear, a further notice of motion requesting the identical relief was made by the respondent dated September 14, 2018. Those motions were also heard on October 22.

[8] The applicant brought a cross-motion, dated September 22, 2018, which was adjourned to October 22 requesting an order that the children’s primary place of residence be with the applicant in Sunderland, Ontario and that the children be permitted to attend St. Joseph’s Catholic School in Uxbridge, Ontario.

Location of the children’s residence:

[9] Until their separation, the parties resided in Hamilton, Ontario. The matrimonial home was sold in March 2018. During the 2017-18 school year, the applicant and children resided with the applicant’s parents in Brantford, Ontario. The respondent continued living in Hamilton where he works. The applicant operates a business cleaning offices and homes. She has major clients in Oakville, Ontario.

[10] During the summer of 2018, the applicant stayed in the residence of a new domestic partner in Sunderland, Ontario. Sunderland is a town north of Toronto about two hours driving distance from Hamilton. By contrast, the Brantford residence of the applicant’s parents is approximately 30 minutes driving distance from the respondent’s residence in Hamilton.

[11] The applicant alleges that she advised the respondent, albeit indirectly, of her intention to move and that he consented to the change. He wished her well. She states that the respondent has now changed his position in opposing the move.

[12] The applicant did move with the children to Sunderland on August 30, 2018, and enrolled them in St. Joseph’s Catholic School in nearby Uxbridge. In her motion dated September 22, 2018, as I have noted, she sought a temporary order that the children’s primary place of residence be with her in Sunderland, and she be permitted to move to that municipality with the children and to enroll them in St. Joseph’s. That motion was apparently in response to the applicant’s motion of September 7, 2018, where he sought an order that the children’s residence remains in either Brantford or Hamilton.

[13] Because of the respondent’s objections, the applicant agreed to return the children to their previous school, namely St. Leo’s in Brantford. She deposes that the child Olivia became distressed and refused to attend. They returned to the school in Uxbridge. On September 20, 2018, the applicant returned to Brantford again, but as before, the children refused to attend school there. She states that the children are thriving in Sunderland and at school in Uxbridge and notes that she would not have moved the children to Sunderland except for her understanding that the respondent agreed.

[14] For his part, the respondent deposed in his affidavit of September 9, 2018, that he verbally discussed the applicant’s new relationship with her and wished her well but denies that she ever mentioned moving with the children to Sunderland. He was operating on the understanding that the children would continue to live and attend school in Brantford.

[15] The applicant takes the position that she can be responsible for transporting the children to a point between Hamilton and Sunderland such that the respondent’s parenting time would not be impacted when compared with the times set out in the May 29 consent order. She deposes that the move to Sunderland takes the children away from what she characterizes as the toxic environment at the school in Brantford the respondent created in the incident of May 2, 2018, which I refer to below in these reasons. As well, she states that the available school in Uxbridge is superior to that in Brantford and that the children have more spacious accommodations than were available when they were living with her parents in Brantford.

[16] In an email chain between the parties between August 21 and August 25, 2018, contact between the parties and the children was discussed. On August 25, 2018, under the subject line “re: first day of school”, the respondent asked which school the children would be attending this year, and the applicant responded: “currently registered at St. Leo’s”. No mention was made of the move or any school in Uxbridge. A letter dated August 30, 2018, was provided to the applicant’s former counsel on behalf of counsel for the respondent in part as follows: “We trust your client will not be moving the children out of the jurisdiction until such time as it has been agreed. At this time Mr. Valentim is not in agreement, and at no time has this been discussed.” In a letter dated September 4, 2018, from the applicant’s former counsel, he advised the respondent’s counsel: “Please be advised that I have spoken with my client and she has instructed me to tell you that the children will be attending St. Leo’s school in Brantford commencing Wednesday, September 5, 2018. I further confirm that I telephoned to your office immediately after receiving instructions from my client to communicate those instructions to you.”

[17] I do not accept the submission that the applicant believed she had the respondent’s permission to move to Sunderland. There is nothing specific confirming either a request or permission. The email correspondence and communication both to and from her former counsel appears to be to the contrary notwithstanding the fact that the applicant moved with the children by her admission on August 30, 2018. One does not make such a move without pre-planning. I find that the applicant was deliberately deceitful about her intentions to move with the children. She then tried to be compliant with her statements by having the children enrolled in St. Leo’s in Brantford while they were already enrolled in St. Joseph’s in Uxbridge.

[18] Although in her affidavit of October 9, 2018, the applicant states that she would never have put the children in the position to have their lives disrupted by moving them without consent to Sunderland, I believe she has done exactly that. She has indeed engaged in self-help, despite her protests to the contrary.

[19] It is important to note that these motions are not about mobility per se but rather interim mobility. Both parties are seeking temporary relief pending trial or other resolution.

[20] In Plumley v. Plumley, 1999 CarswellOnt. 3503 (S.C.) the court discussed factors relating to interim mobility at para. 7:

It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis:

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 circumstances which 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 interests 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 a trial.

[21] Dealing with interim mobility in this case can be analogized to the interim custody case of Currie v. Maudsley, 2011 ONSC 4214. There, on the issue of status quo, the court stated at paras. 15-17:

The law is well settled that on a motion for interim custody, the status quo of the children should not be disturbed in the absence of compelling reasons where a change in custody is necessary to meet the children’s best interests and this would include a situation where there is evidence that maintaining an existing status quo will be harmful to the children.

In Grant v. Turgeon, 2000 ONSC 22565, [2000] O.J. No. 970, V. Mackinnon J. stated that the “status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity of a change to meet the children’s best interests. That is so whether the existing arrangement is de facto or de jure (see para. 15).

Some of the reasons why the interim status quo should be preserved were succinctly stated by J. Wright J. in Kimpton v. Kimpton, [2002] O.J. No. 5367 as follows in paras. 1 and 2:

There is a golden rule which implacably governs motions for interim custody: stability is a primary need for children caught in the throes of matrimonial dispute and the de facto custody of children ought not to be disturbed pendente lite, unless there is some compelling reason why in the interests of the children, the parent having de facto custody should be deprived thereof. On this consideration hangs all other considerations. On motions for interim custody the most important factor in considering the best interests of the child has traditionally been the maintenance of the legal status quo. … By status quo is meant the primary or legal status quo, not a short lived status quo created to gain tactical advantage. [Emphasis in original. Citations omitted].

Unless the courts insist that they will not disturb the existing arrangements for children on interim motions except in those cases where it is clear that the children are being exposed to danger or there is some other compelling reason, the courts will continue to be confronted with litigants demanding that the court embark upon the impossible task of attempting to assess the relative merits of parties who have filed numerous affidavits contradicting the affidavits of the other.

[22] The law as regards mobility cases was set out by the Supreme Court of Canada in Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.). However, as I have already identified, because this matter comes before the court as a motion based on competing affidavits, and not a trial, it is not possible to complete the necessary inquiry and analysis as discussed in that case. That is something that can be done at trial.

[23] Until the applicant’s move to Sunderland, the children had lived in Hamilton and Brantford, with relatively close proximity to the respondent. They had attended St. Leo’s School in Brantford during the 2017-18 academic year. The children were apparently in receipt of proper care from the applicant in her parents’ residence, presumably with grandparental assistance. The financial interests of the family were being maintained on the applicant’s part as she continued her business in the Toronto-Hamilton corridor. Distance did not impede the respondent’s ability to spend time with the children. There was no danger to the children. That situation represented stability for the children.

[24] Under the proposed change to accommodate the applicant’s move to Sunderland, the children must change schools, neighborhoods, groups of friends, etc. They will not be in close proximity to their maternal grandparents. There are no familial ties on the applicant’s part to the Sunderland area. While it may be that accommodation is more spacious and the Uxbridge school more highly rated, those would not typically be factors sufficient to justify a significant change in primary residence location.

[25] It is not helpful to consider the impact of the proposed move on the children’s relationship with the respondent by looking only at the few months of the respondent’s visiting time prior to the motions, particularly given that the restrictions on access were being contested by him. Likewise, custody remains a live issue for trial.

[26] It is obvious that the parties are involved in a conflict arising from the breakdown of the relationship. Given the conflicting affidavits, it would not be surprising to find that the children are being influenced by the conflict and are not being insulated sufficiently from it. Observations by Brant Family and Children Services (FACS) include concerns about the involvement of children in the adult conflict. In a letter the applicant filed, a counsellor for Olivia indicated a similar concern. The applicant alleges that the respondent has anger management issues and that he inappropriately involves the children in the adult conflict. A counter-allegation is made by the respondent. The applicant deposes that the respondent behaved inappropriately at the children’s school and in their presence on May 2, 2018, but again, those allegations are denied. As should be obvious, regardless of the outcome of this motion, both parties must make every effort possible to minimize the children’s involvement in the conflict. However, I do not accept the applicant’s position that removal of the children to Sunderland is an appropriate way of accomplishing that goal, and I do not consider that maintaining the status quo with residence in the Hamilton-Brantford area would be harmful to the children on an interim basis.

[27] Therefore, I conclude that it is in the children’s best interest that the applicant not be permitted to relocate with the children to Sunderland pending the outcome of this application. Acknowledging that in the circumstances there will be some disruption to the children in moving back to the Brantford-Hamilton area, the applicant will not be required to do so until the December school break, which will occur in less than a month. Ideally, the children can be prepared properly for their return, including re-enrollment at school in Brantford etc. Similarly, the change will take place at an appropriate break in the school year.

Supervised access:

[28] The applicant alleges that the respondent is not able to care for the children due to alcohol, drug, and sex addiction; allegations the respondent denies. She submits that any parenting time exercised by the respondent should continue to be supervised as previously ordered.

[29] As a result of the applicant’s allegations, which were reported to and investigated by Brant FACS, the parties signed a three-month Collaborative Service Agreement in January 2018. Amongst other things, the agreement provided for counselling and drug testing pursuant to which the applicant agreed to commit to a nail analysis for drug testing, and the respondent agreed to complete a nail analysis for drug and alcohol testing.

[30] By letter dated May 9, 2018, Brant FACS proposed that if the respondent completed two random urine screens during his access visits that came back clean, the Society would be willing to arrange for a few hours of unsupervised access. The plan was that a further complete nail analysis should be performed in late July which, if clean, would likely remove any Society concerns about the respondent having unsupervised access.

[31] On July 14 and August 18, 2018, the respondent submitted to a breath test and an oral fluid test, respectively. The results were negative for drugs and alcohol. By letter dated September 6, 2018, Brant FACS confirmed that the respondent had engaged in therapy and had been able to demonstrate his ability to maintain sobriety. In the same letter, the Society confirmed that the children had expressed to Society representatives their wish that they spend more time with their father. The Society concluded that it did not require supervised access.

[32] Despite the contents of the September 6 letter, the applicant relies on the Society’s earlier direction and takes the position that the respondent has not qualified himself for unsupervised access pursuant to the May 29, 2018 order. She questions the reliability of the tests the respondent took. I have already noted both the applicant’s allegation that the respondent inappropriately involves the children in the adult conflict and the respondent’s counter-allegation.

[33] As is, unfortunately, not unusual in motions to the court when there are parental conflicts regarding children, each of the parties has filed multiple affidavits (two by the applicant and five by the respondent), with competing allegations. It is not possible to make findings of fact that are definitive of the access issue at this point in the litigation. That said, the court must take seriously allegations which relate to the safety and well-being of children.

[34] However, legal principles do apply, including the provisions of section 16 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), which requires in subsection 8 that the court take into account only the best interests of the children of the marriage as determined by reference to the conditions, means, needs, and other circumstances of the children. As well, in subsection 10, the court must give effect to the principle that a child of the marriage should have as much contact with each parent as is consistent with the best interests of the child.

[35] The respondent requests overnight access with the children and frequent access by electronic means.

[36] I consider, based on the facts now before the court, that the existing order for seven hours of daytime access on one weekend day per week is inadequate parenting time. It is in the children’s best interest that they be able to maintain a strong relationship with both parents, and parenting time is necessary to enhance that relationship.

[37] In her affidavits of September 22 and October 9, 2018, the applicant made no mention of her email correspondence with the respondent dated August 10, 2018, where she set out a specific schedule for weekend overnight visits on three weekends per month through to the end of December 2018. It appears that the applicant was contemplating that the sleepovers would occur at the residence of the respondent’s parents. There are no alleged facts that significantly militate against overnight access.

[38] The respondent has made no detailed proposal for an overnight access schedule in his notices of motion or affidavit material. This makes it difficult for the court to fashion a remedy which suits the specific circumstances of the parties and the children. However, as is obvious, any order at this stage will be of a temporary nature and subject to adjustment by agreement of the parties or further court order.

[39] In the interests of the children, given their views as expressed through Brant FACS, the legal principles to which I have referred, and the fact that the applicant contemplated an overnight regime, there will be a temporary order that the respondent have weekend parenting time with the children on alternate Fridays from 6:00 p.m. to Sundays at 7:00 p.m. with the weekend being extended to Monday if Monday is not a school day. The first weekend access will occur beginning Friday, December 7, 2018. To ensure a smooth transition for the children to this expanded parenting time, and in part to allay safety concerns on the applicant’s part, the children will sleep at the home of the respondent’s parents for the first three occasions of overnight weekend access. It is not contemplated that this order will be adequate to deal with the Christmas school break and other holidays. Therefore, the parties either will need to come to an agreement or return to the court for a decision on further motion.

[40] It is not in the children’s interest to have no face-to-face contact with the respondent between the alternate weekend access times. Had I received submissions on the point, I would have been inclined to order that the respondent have regular midweek access to the children. In the absence of those submissions, I make no order but suggest that the parties discuss the matter.

[41] There are no facts that provide convincing evidence of the need for ongoing supervision during access. Brant FACS has indicated no requirement for ongoing supervision. The respondent has taken measures since the consent order of May 29, 2018, including testing and counselling, which indicate his commitment to exercise access without any need for supervision. Therefore, there will be no requirement for supervised access.

Summary:

[42] There will be a temporary order granting the relief requested in the respondent’s motion that the children’s residence remain in either Brantford or Hamilton subject to the respondent’s consent or further court order. There will be no requirement for the respondent to have access supervised. Access will occur on alternate Fridays from 6:00 p.m. to Sundays at 7:00 p.m. commencing December 7, 2018. The first three incidents of weekend access are to occur at the premises of the children’s paternal grandparents.

[43] The applicant’s motion is dismissed.

[44] Once the position of the OCL is known as to its involvement in the matter, counsel are to contact the trial co-ordinator to arrange a settlement conference date.

Costs:

[45] I encourage the parties to resolve the issue of costs consensually. In the event that they are not able to do so, I am prepared to receive written submissions according to the following timetable:

• The respondent is to serve the applicant with written costs submissions and a Bill of Costs on or before December 10, 2018.
• The applicant is to serve the respondent with written costs submissions and a Bill of Costs on or before December 17, 2018.
• The respondent is to serve the applicant with any responding submissions on or before December 24, 2018.

[46] All submissions are to be filed with the court no later than December 31, 2018. If submissions are not received by that date, or any agreed extension, the matter of costs will be deemed settled.

Reid J. Released: November 27, 2018