Court File and Parties

Barrie Court File No.: FC-18-1080-00 Date: 2018-12-19 Superior Court of Justice - Ontario

Re: Timothy Aaron Currier, Applicant And: Danielle Lynn Jenkinson, Respondent

Before: The Honourable Madam Justice M.E. Vallee

Counsel: Joseph Powers, Counsel for the Applicant Michael J. Ruhl, Counsel, for the Respondent

Heard: November 27 and 28, 2018

Endorsement

Nature of the Motions

[1] Mr. Currier, the father, brings a motion for a temporary order that that Ms. Jenkinson, the mother, return their child, Owen Jeremy Currier, born September 9, 2014, to his habitual residence in Barrie. The father requests other related orders, depending on the success of his motion.

[2] Ms. Jenkinson brings a motion for a temporary order that Owen shall reside primarily with her in Guelph. The mother asks for an order requesting the assistance of the Office of the Children’s Lawyer as well as other related orders, depending on the success of her motion.

Background

[3] The parties began living together in 2011. They are not married. Initially, they lived in a small northern community, Nakina. Upon learning that the mother was pregnant, the parties moved to Barrie and lived in the father’s parents’ finished basement. They shared the upstairs kitchen with the father’s parents. The parties lived there with Owen until separation on August 16, 2018, when the mother took him and moved to her parents’ home in Guelph. Owen has started junior kindergarten at a school in Guelph where his maternal grandmother works.

History of the Proceedings

[4] On August 30, 2018, the father brought an urgent motion, before a case conference, for Owen’s return and an order that he be registered in a school in Barrie. The mother then filed a motion requesting that the father’s motion be adjourned. In the alternative, she sought primary residence of Owen and an order that she be permitted to enrol the child in Guelph, among other things. For several reasons, Quinlan J. determined that the matter did not have the degree of urgency required for it to be heard before a case conference. Furthermore, the mother had not had an opportunity to respond to the father’s affidavit. Quinlan J. noted that Owen was safe in the mother’s care and was not at a disadvantage if he was enrolled in junior kindergarten in Guelph. The matter was adjourned to a case conference. On October 9, 2018, the case conference proceeded. The matter could not be settled. It was adjourned to the regular motions list on November 15, 2018 for one hour.

[5] On November 15, 2018, the motions could not be heard. Graham J. determined that they required a long motion date. They were adjourned to the fall trial sittings. The parties did agree on upcoming school vacation parenting time in December and March, and transportation of Owen between their residences.

Issues

[6] Does the mother’s self-help disentitle her to the relief that she seeks?

[7] What is in Owen’s best interests?

Applicable Legislation

[8] The applicable provisions of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended, are as follows:

s. 19 The purposes of this Part are,

(c) to discourage the abduction of children as an alternative to the determination of custody rights by due process.

s. 24 (1) The merits of an application under this Part in respect of custody or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

24 (2) The court shall consider all the child’s needs and circumstances including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can be reasonably ascertained;

(c) the length of time the child has lived in a stable environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and,

(h) any familial relationship between the child and each person who is a party to the application.

24 (4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(b) the parent of the child to whom the application relates.

Applicable Legal Principles

[9] On an interim motion, the court should rely upon evidence that is largely uncontested; the court cannot rely upon conflicting affidavits or evidence requiring a finding of credibility. (See Lonsdale v. Smart, 2018 ONSC 3991, para. 12.)

[10] Where there is a genuine issue for trial, a court will be more reluctant to upset the status quo on an interim basis. Even though there may be a genuine issue for trial, a move may be permitted on an interim basis if there is a strong possibility that the custodial parent’s position will prevail at trial. (See Plumley v. Plumley, [1990] O.J. No. 3234 (Ont. S.C.J.))

[11] On an interim basis, there must be a pressing or compelling reason for the move; otherwise, allowing a parent to relocate can have a significant effect on the final outcome of a custody case. (See Whitfield v. Wakem, 2017 ONSC 3330, para. 7, citing Crewson v. Crewson, 2014 ONSC 4372 (Ont. S.C.J.))

[12] The overriding test that must be applied in determining mobility issues is the best interests of the child, not the interests and rights of the parents. (See Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.))

Does the mother’s self-help disentitle her to the relief that she seeks?

The Father’s Position

[13] The father states that the mother’s moving Owen to Guelph is unlawful self-help. It amounts to an abduction. The father states that self-help deprives the court of proper evidence to assess and determine the best interests of the child regarding his circumstances before the move. It makes the evidence more dubious.

[14] The move was made without the father’s consent. The mother did not seek the court’s permission. The mother’s evidence reflects a plan that she executed without the father’s knowledge. This was done for strategic purposes. Prior to moving to Guelph, the mother received advice. She spoke to the police and people at a women’s shelter. When she moved, she left a letter for the father. The mother’s position that there is no post-separation status quo takes advantage of her self-help action.

[15] Her evidence that she had to leave the father because of abuse, that the father never really parented and that he was constantly smoking marijuana is inconsistent with her immediate offer that the father have parenting time three out of four weekends from Friday evening to Sunday evening. She is doing direct exchanges with the father. The mother has been in the house which indicates that she is not afraid of him.

[16] Although the mother’s evidence is that she could not financially afford to stay in Barrie in separate accommodations, she has not provided any evidence of job searches. Prior to her leaving, she was working in a restaurant. Now, she has a job in a factory in Guelph. The mother could easily have obtained factory work in Barrie and could have earned more than what she earned in the restaurant where she had been working. The mother has come up with funds to retain counsel and engage in litigation. She is now driving a different car. The court should take this into consideration.

[17] The father states that if the mother returned to Barrie, he would be willing to help her with expenses in finding new accommodation. For example, he would pay her first month’s rent. The mother’s claim with respect to financial difficulties is self-imposed. She created it with her self-help action. The court should give little-to-no weight to the mother’s claim that she wanted to live in Guelph for financial reasons.

[18] The mother states that she and Owen are staying with her parents on an interim basis. She plans to stay in Guelph but there is no evidence of how she will have a place of her own. Since she plans to have a place of her own, she could have accomplished this in Barrie.

[19] The starting point in the analysis is the status quo. Owen was living with both of his parents in his paternal grandparents’ basement. The mother’s unilaterally removing him does not change that. The onus is on the mother to show that she has substantial reasons for the move. We do not know what would have happened if the mother had proceeded in the proper way, that is to say if she had brought an application requesting permission to move to Guelph. The mother was clearly contemplating the move before she did it. She gave two weeks’ notice to her employer in Barrie. She should have known when she retained counsel that she had no right to keep Owen in Guelph. She ought to have brought a motion on an urgent basis. On August 18, 2018, the mother sent the father two texts in which she stated “I’m sorry for just taking off” and “I know it wasn’t the right thing to do but I felt overwhelmed and panicked. I just pictured my whole life living in your parents’ basement being miserable and fighting.”

The Mother’s Position

[20] The mother states that there was considerable conflict in the parties’ relationship. Some of the father’s conduct was abusive including verbal abuse and some specific instances of physical violence. This conduct was not directed at Owen. [1]

[21] The mother states that when the parties were living in the father’s parents’ basement, they had very little money. The father has a net worth of approximately negative $10,000. The mother has assets of approximately $3,000. They were living paycheck to paycheck.

[22] The mother states that this is not an abduction case. On Thursday, August 16, 2018, she left the father a note stating where she was going. She said that she would be at her parents’ home in Guelph and provided the address. She stated that the father was more than welcome to come and visit Owen in Guelph any time. She retained counsel quickly. Then four days later, on Monday, August 20, 2018, counsel sent a letter to the father requesting that a parenting schedule be put in place. The father had access on the following weekend. The mother states that she had to move because she could no longer stay in the relationship. In addition to the issues that she had with the father, the father’s parents were controlling and undermined her parenting efforts. She has no support in the Barrie area. She had nowhere else to go.

Analysis

[23] Many of the cases involving self-help address situations where the parties have already separated and there is a parenting schedule in place by court order or agreement. The post-separation situation is referred to as the status quo. Here, there is no similar status quo.

[24] The father relies on Hayman v. Maticiw, 2017 ONSC 5725, and states that it is most similar to the facts in this matter. The parties were in a common-law relationship and had two children. The mother moved from Toronto to Barrie with the children without the father’s consent or court order. The father had anger issues. She stated that she had to find a safe haven for herself and the children. She was escaping a situation of ongoing abuse. She could not request an order for exclusive possession because there was no matrimonial home. She stated that her aunt in Barrie supported her. She could not afford to live separately in Toronto. She stated that she thought she did not need a custody order prior to the move because she had always had primary care and control of the children.

[25] The court stated that the mother had other options. She could have sought an order in Toronto for custody and a restraining order. She could have requested an order under section 28(1)(c)(i) of the Children’s Law Reform Act to limit the manner and location of contact or communication. The court stated that this type of order would have produced a similar result to an order for exclusive possession.

[26] The significant distinguishing factor between Hayman and this matter is that these parties were not living in accommodation that would lend itself to a s. 28(1)(c)(i) order. As noted earlier, they were living in the father’s parents’ basement. The notion that the mother should have remained in the basement and sought an order to limit the location of the father’s contact between them is completely unrealistic. The mother could not have continued to live in the father’s parents’ basement with the father and share the kitchen with his parents while commencing legal proceedings against him. Even if the father had moved out, the mother’s remaining in the basement and sharing the kitchen with his parents was not tenable.

[27] The father’s suggestion that if the mother had come to him first, he would have helped the mother financially to find new accommodation is convenient after the fact. The note that she left suggests that she tried to discuss her feelings earlier but the father became angry. Even if the father had been willing to help financially, given his circumstances, he would not have been able to help her in any meaningful way. His offer to pay first month’s rent combined with the mother’s low income would not have been adequate to cover rent, utilities, and the necessities of life for the mother to live separately in Barrie.

[28] I accept the mother’s position that in order for her to separate from the father, she had to go to her parents’ house in Guelph. She took Owen with her for many reasons which will be discussed below. At the time, the father was working shifts from 2:30 p.m. to 11 p.m. and was not available to care for Owen after he came home from daycare and for the rest of the evening.

[29] Although self-help is not to be condoned, given the unique circumstances in this matter, I find that the mother’s leaving Barrie with Owen to live in her parents’ house in Guelph does not disentitle her to the orders that she requests.

What is in Owen’s best interests?

The Father’s Position

[30] The father states that Owen’s living in Barrie is the status quo. He acknowledges that most cases upon which he relies concern parties who have come to court for an order granting permission to move. For the past two years, Owen has been in daycare full-time. Both the father and the mother have been working. Prior to that, he was in daycare part-time.

[31] The father states that although at the time of separation he was working a shift from 2:30 p.m. to 11 p.m., several months earlier, the parties had discussed the possibility that the father could have his shifts changed to 10:30 p.m. to 7:00 a.m. This would allow him to be more active in caring for Owen. Shortly after separation, the father’s employer did allow the shift change. He states that he is now available to look after Owen in the morning and walk him to school. The Barrie school property is immediately behind his parents’ house. He is also available to pick up Owen after school and care for him for the rest of the evening until he leaves for his 10:30 p.m. shift.

[32] Prior to separation, Owen attended the daycare that was affiliated with the school. Even though the parties are not religious, they wanted Owen to attend Catholic school. Owen was not baptized but an exception was made for him to attend. Many of the children from the daycare, who Owen already knows, are attending the junior kindergarten class at the school. If the court orders Owen to be returned to Barrie, Owen would not be going to a new school with children who are strangers. Prior to separation, Owen was excited about attending the school.

[33] The father states that Owen has lived his entire life in the paternal grandparents’ basement. It has two bedrooms, a bathroom, a living room, and a walk-out. The mother has acknowledged that the grandparents were very involved in Owen’s life. Regardless of whether they were overbearing, they were doing a lot of parenting. The mother’s restaurant work required her to work in the evenings. The father states that for a time, his brother and wife also lived in the house. They stayed until 2016. The brother has been called a second father to Owen. He visited three times a week and is a very involved uncle. In addition, Owen has three cousins in the Barrie area.

[34] The father raises concerns about the mother’s parenting. He states that she yells at Owen and has an anger issue. She has acknowledged that she yells but states that she does not do it at the first instance. It occurs when she is frustrated that Owen has not complied with her directions and the father and his parents do not back her up. Prior to separation, the mother wrote in a text to the father that Owen was becoming spoiled and entitled, “the kind of person she did not want to be around”. The mother explained this by saying she was frustrated at the time because the father and the grandparents would not support her parenting.

[35] The father states that all of Owen’s doctors and professionals are in Barrie. After separation, he had his tonsils removed. The mother drove him to Barrie for the surgery. The father states that his living arrangements are stable. There is a four-year history of Owen and his father living with his parents. The mother has no history in Guelph. He questions whether her living with her parents is a stable arrangement.

[36] The mother does not state that the father is an inappropriate parent. Rather, she states that she is the better parent. She is the primary care parent. This is why she chose to take Owen with her. The father states that this is a triable issue. He asks, “How does living in Guelph benefit Owen?”

[37] The mother states that prior to separation, the father did not have Owen in his care all that much because he was always smoking marijuana. Nevertheless, after separation, the mother immediately offered the father parenting time on three out of four weekends. This suggests that the mother is not concerned about the father’s ability to care for Owen. The father acknowledges that he occasionally smokes marijuana recreationally.

[38] The father states that the reason for moving is irrelevant unless it impacts on Owen’s best interests. Owen’s community is here in Barrie. It is in his best interests for him to move back to Barrie because the father’s work schedule has been adjusted so that he can be available for parenting. He would have to sleep while Owen is at school. Relying on his parents for some assistance is not a change because they been actively involved since Owen was born. The mother’s plan involves assistance from her parents. It is not clear that the mother will be successful at trial.

[39] The father opposes an order requesting the assistance of the Office of the Children’s Lawyer because if the OCL were to become involved, it would result in a delay in the proceedings. If the court granted primary residence to the father, he would not oppose the appointment of the OCL.

The Mother’s Position

[40] The mother states that before separation, when the parties were living in the paternal grandparents’ basement, the father worked afternoon shifts. They were from 2:30 p.m. to 11:00 p.m. Monday to Friday. The mother worked primarily during the day. Owen was in daycare. Owen was mostly in his mother’s care during the week. The father did not see Owen when he came home from daycare nor in the evening. Most of the father’s time with Owen occurred on weekends.

[41] The mother states that this is not a true mobility case. Even if she had moved to different accommodation in Barrie, she would still say that she is the primary care parent. Her move to Guelph does not fundamentally alter the father’s relationship with Owen. He continues to see Owen on three out of four weekends. Nothing much has changed. The mother states that the term status quo is not appropriate in this matter. The parties never had a post separation period in Barrie when they were sharing parenting. There is no status quo to preserve.

[42] This is not an abduction case. The mother left a note stating where she was going and invited the father to visit Owen. The father had access the following weekend. This has continued three or four weekends per month. The mother supports the relationship between Owen and his father. She is agreeable to generous access including time that the father can reasonably spend with Owen. She states that the weekend access has been extended to include statutory holidays or professional development days.

[43] The mother states that the father’s plan is not sustainable. He proposes to sleep five hours a day which requires him to fall asleep promptly right after taking Owen to school, and wake up mid-afternoon to pick up Owen. In contrast, the mother states that she works from 7:45 a.m. to 4:15 p.m. She relies on her mother to walk Owen to and from school which is appropriate because her mother works there. The mother states that her care proposal should be favoured because it serves Owen’s best interests. He remains in the care of a parent who has primarily cared for him. Her work hours are more or less the same as Owen’s school hours. She is available to care for Owen from 4:30 p.m. to 7:30 a.m., allowing for travel to work and return. In contrast, the father’s care proposal relies heavily on assistance from his parents. The father mentions in his affidavit that his father is seriously ill.

[44] The mother states that she continues to facilitate FaceTime calls between Owen and his father daily. The move does not prevent access. It does not make much difference in the time that the father had been spending with Owen. The father works overnight. It is not practical for Owen to be in his care.

Cases Relied Upon by the Parties

[45] The father states that according to Whitfield v. Wakem, 2017 ONSC 3330, on an interim basis, a party needs a pressing or compelling reason for a move. The mother’s stating that she could not afford to live in Barrie is insufficient. In Gordon, the court stated that when a parent uses self-help, it can reflect poorly on his or her parenting. This abduction does reflect poorly on the mother’s parenting.

[46] The mother states that the facts in Whitfield are significantly different from this matter. That case concerned a five-hour drive one way and would require the father to stay in a motel during his parenting time. This matter concerns approximately a two-hour drive which is shared by the parties.

[47] In McDonald v. McDonald, 2006 CarswellOnt 1755, the status quo was primary residence with the mother on consent. The parties lived in Sudbury. The mother wanted to move to Toronto with the child who was in junior kindergarten. Even though a move to Toronto would mean disruption for the child because he would go to a new school, live in a new neighbourhood and lose frequent contact with his father and the paternal extended family, in para. 36, the court commented,

To a great extent, the life of a preschool child is defined by his or her parents and family. The more significant disruption to the child’s life would be a change of primary residence away from his mother. The termination of daily or weekly contact between him and his mother would be an enormous loss for him. He does not have a significant or independent life in the community.

[48] The court concluded that the child’s best interests were served by moving with his mother.

[49] The mother states that while the court in McDonald allowed the mother to move her to pursue employment opportunity, she was the primary caregiver. There is a direct analogy to this case. The character of Owen’s relationship with his father will not be fundamentally changed if he continues to reside with his mother in Guelph. Owen’s contact with his father will be on weekends which is not much of a change from the circumstances prior to separation.

[50] In Miller v. Young, 2016 ONSC 4481, there was a previous order for a nesting arrangement. The mother was a stay-at-home parent and therefore the primary caregiver. The father had admitted drinking problems. The Children’s Aid Society was involved so the court had the benefit of a third-party investigation. The litigation was precipitated by the mother’s unilateral removal of the children. She justified her actions based on allegations of abuse. The court held that self-help was not appropriate. Nevertheless, the mother was permitted to move to a different city with the children. There was a significant financial advantage to her. The move would not have any impact on the father’s access.

[51] In Baxter v. Cameron, 2016 ONSC 4501, the mother was a stay-at-home primary caregiver. She wanted to move after the case conference. She had a job opportunity in Fort McMurray, Alberta, which was vastly superior to any job that she could obtain in Ontario. The court permitted the move. The father states that this case can be distinguished because here, the mother did not move for an economic advantage. While she has in fact obtained a job that pays more, she did not move for that reason.

[52] The mother notes that in Baxter, the mother wanted to move to location which was a four-hour drive away. The mother was supportive of the father’s access. The court allowed the move. It stated that the principle of maximum contact does not mean equal contact. In the absence of a custody determination, the primary parent is the custodial parent. An important factor is maintaining the care arrangement for the child. In this matter, the mother’s proposal does maximize Owen’s contact with his father even though it is not an equal amount of time.

[53] In Yousuf v. Shoaib, 2007 ONCJ 80, the court heard a motion for summary judgment. There was no request for an order to return the child. The father had been convicted of assault. There was no contact with the child for eight months. There was a consent order to this status quo. The court found that the mother had a strong probability of success at trial and allowed her to move.

[54] In Cosentino v. Cosentino, 2016 ONSC 5621, the parties had successfully shared equal parenting time in Hamilton since separation. The mother decided to move to Niagara-on-the-Lake which was one hour away. She had a new partner and a baby. She brought a motion requesting, among other things, that the child be enrolled in school in Niagara-on-the-Lake. The court was reluctant to upset the status quo. It denied the mother’s motion, finding that the child was born and raised in Hamilton, had extensive family supports there and all of his medical, dental, and professional connections were in Hamilton. The school issue was intertwined with custody and mobility issues.

[55] The father states that in Gordon v. Goertz, [1996] 2 R.C.S., para. 23, the court commented,

Usually, the reasons or motives for moving will not be relevant to the custodial parent’s parenting ability. Occasionally, however, the motive may reflect adversely on the parent’s perception of the needs of the child or the parent’s judgment about how they may be best fulfilled.

[56] The father states that M.P.A.C. v. S.L.B. is factually the most similar to this case. The parties and their child, (who was four years old when the matter was heard) had lived with the father’s parents. The mother moved out to her own apartment in the same city. The father and his family continue to have regular contact with the child. Then, the mother removed the child from daycare and moved to another city, approximately 85 km away, where her own mother lived. This upset the status quo. The court determined that the child’s primary residence ought to be with his father. The father was more supportive of the child’s relationship with his mother than the reverse. The child had a lifelong relationship the paternal grandmother in contrast to the mother’s new fiancé. The only really stable place that the child had in his life was in the home of his father’s extended family.

[57] The mother notes that this case can be distinguished because the mother had not been forthright about her living arrangements with her fiancé. She had done some other things without the father’s consent. There was shared parenting time post-separation when the parties were in the same city. The father was more supportive of the mother’s parenting time than the reverse. That is not the situation here.

[58] The mother relies on Bjornson v. Creighton, 2002 CarswellOnt 386 (ONCA), in which the mother wanted to move from Kitchener to Calgary. This was refused at trial but reversed on appeal. The court stated that,

The trial judge had failed to “give due regard to the relationship between the quality of the custodial parent’s emotional, psychological, social and economic well-being and quality of the child’s primary caregiving environment.” The learned trial judge failed to appreciate the multifaceted nature of the mother’s desire to return to Alberta with the child and the concomitant positive effects on the child’s best interests in being cared for by a well-functioning and happy custodial parent.

[59] In Rifai v. Green, 2014 ONSC 1377, the parties were never married. Their relationship ended prior to the child’s birth. The father saw the child only a “handful of times” in the first two months. He questioned paternity. The mother took the child on an extended holiday to Alberta to visit relatives and stayed there. Discussions about DNA testing dragged on until it was finally done six months later. Paternity was confirmed. No support was paid during this time. The father then brought an application to have the child returned to Ontario five months after the mother and child had left Ontario. The child was one year old when the application was heard.

[60] In para. 35, the court stated,

I have little doubt that had the applicant brought these issues to court in a timely way, his position in relation to both habitual residence and status quo would likely have prevailed. He almost certainly would have been successful in obtaining an order for some of the relief he now seeks - compelling the respondent mother to return the child to this jurisdiction; and at the very least establishing some access to this very young child.

[61] The court set out a number of factors which would have supported an earlier motion including the fact that “[t]he proposed relocation would have enormous - and likely permanent - impact on custody and access determinations.”

[62] The mother notes that a move to Alberta is vastly different from a move to Guelph.

[63] In Nyari v. Velasco, 2008 ONCJ 272, when the parties separated, the mother moved from Toronto to Ottawa with the child to be with her parents. The father brought an application for an order requiring the mother to return the child to Toronto, among other things. The court determined that although the mother improperly removed the child to Ottawa, it was in the child’s best interest to remain in the mother’s care in Ottawa temporarily until the return of the motion. She was the primary caregiver of the child who did well in her care. She put forward a better short-term plan for the child. The disruption to the child’s relationship with the father could be minimized by an appropriate access order.

[64] The mother states that even though the court disapproved of self-help, it ultimately allowed the mother in this case to stay in Ottawa. The court set out six compelling reasons for this. Several of them apply here. Briefly summarized they are the following:

(a) The mother did not have any source of financial or emotional support. This was not in the child’s best interests.

(b) The mother would be under considerable stress to find suitable housing and financially support herself in Toronto. She would be psychologically isolated. This would likely have a negative impact on the child’s emotional well-being.

(c) The mother’s parents lived in Ottawa and were best suited to provide the necessary financial, emotional and practical support for her. The evidence did not indicate that the mother moved to Ottawa for the purpose of frustrating the father’s relationship with the child.

(d) The mother would be much happier and settled in Ottawa. The primary caregiver’s happiness is a relevant factor in mobility cases as it will have a considerable impact on the child. Financial security is also a relevant factor.

[65] The father states that this court should pay particular attention to para. 16 of Nyari. It states:

On motions for temporary custody, serious consideration must be given to the status quo compelling reasons are required to support any change, with the best interests of the child being determinative… This is particularly applicable in cases such as this one, were not much time has elapsed between the child’s removal and the hearing of the temporary motion. This can be distinguished from cases where the status quo has been in effect for a long time before the hearing is held. The decision must ultimately be about the child’s best interests, not about parental rights… [Emphasis in original.]

Analysis

[66] This is a difficult case. Both the mother and the father love Owen very much and what to do what they believe is best for him. I agree with the court’s comment in paragraph nine of McDonald that the life of a preschool child is defined by the parents. Living in a new location is less disruptive for a young child than an older one.

[67] Many of the cases set out above involve parents who were separated and had an existing parenting arrangement. Then a parent wanted to move. The move would result in a change to the status quo. That is not the case here. I do not find these cases to be particularly helpful. Similarly, cases that involve international moves are also not helpful because they inevitably lead to a significant curtailment of one parent’s access. In this matter, the father currently has Owen three out of four weekends.

[68] The facts in Nyari most closely resemble this matter. The parties had lived with the father’s parents until five months prior to separation. For that brief period, they lived in their own home. Nevertheless, the mother was only 18. The father was 22. The child was very young, approximately eight months old when the matter was heard. I note that here, the mother is 24 and Owen is not a baby. In para. 16, the court stated, “The decision must ultimately be about the best interests of the child, not about parental rights.”

[69] In order to determine what is in Owen’s best interests, I will now turn to s. 24 of the Children’s Law Reform Act and consider the various factors.

(a) The evidence shows that both of Owen’s parents treat him with love and affection. He has significant ties to them.

(b) Owen is only four years old so his views and preferences cannot be taken into account.

(c) Up until separation, Owen had lived for his entire life with his parents in his paternal grandparents’ home. This was a very stable environment for him.

(d) Both parents have the ability and willingness to provide Owen with guidance, education and the necessaries of life.

(f) The father can easily demonstrate the permanence and stability of his family unit; however, there is nothing to suggest that there is anything unstable about Owen and his mother’s living arrangement with her parents. They have been there since August. The mother has stated that she does not expect to stay at her parents’ house permanently. She hopes to have her own accommodation when she can afford it. That may not be for some time.

(g) Both parents have an equal ability to act as a parent.

(e) The one factor that distinguishes the parties is their proposed parenting plans. As noted above, the mother’s day job work hours essentially mirror Owen’s school hours. She is available to care for him almost the entire time when he is not at school. The father’s hours are the reverse. He works a night shift. His proposal is based on sleeping approximately five hours a day when Owen is in school. In response to the mother’s raising this issue in her affidavit, the father stated,

I do not require eight hours of sleep each night. This is simply impossible given I wake up by 1:00 p.m. in order to be at Danielle’s residence in Guelph to pick up Owen on Fridays by 3:30 p.m. after school. If I return home from work around 7:30 a.m. to 8:00 a.m. and sleep until 1:00 p.m., that is only 5 to 5.5 hours of sleep. Yet Danielle trusts me enough to make a 4 hour round trip trek to Guelph regardless of this lack of sleep every single week.

[70] The father does not seem to appreciate that while he may function on 5 to 5.5 hours of sleep on Fridays, his parenting plan requires this for all of the weekdays. In my view, this is not sustainable. The father may be able to come home by 7:30 a.m. and take Owen to school; however, it is very likely that his parents will have to bring Owen home from school and look after him until the father has slept for eight hours. While this would still allow the father to be with Owen for dinner and put him to bed, the grandparents will be responsible for him each night after the father leaves for work.

[71] I find that the mother did not move in order to thwart the father’s access. She moved because she needed to separate from the father and had no realistic alternative but to live with her parents. Although it is not the same as seeing Owen every day, the father has Owen three out of four weekends.

[72] Given that the mother is available to look after Owen almost all the time that he is not in school and the father has significant weekend parenting time, I find that Owen’s best interests are served by residing on a temporary basis with his mother in Guelph.

[73] The following temporary orders requested by the mother are also granted:

(a) Owen shall attend junior kindergarten at Mitchell Woods Public School in Guelph, Ontario.

(b) The father shall have access to Owen on the first 3 out of 4 weekends of each month (Friday must be the first or later of the month in question), from Friday at 4:30 p.m. until Sunday at 5:00 p.m.

(c) The father’s access with Owen shall be extended 24 hours to Thursday at 4:30 p.m. in the event that Owen is scheduled to have a P.D. day at school on the Friday commencing on the father’s access weekend.

(d) The father’s access with Owen shall be extended by 24 hours to Monday at 5:00 p.m. in the event that a Monday is a statutory holiday at the conclusion of the father’s access weekend.

(e) The party commencing care of Owen shall pick him up from the other party’s residence unless otherwise agreed upon in advance, in writing. The father shall pay to the mother temporary guideline child support for Owen in the amount of $449 per month in accordance with his T4 2017 income commencing on September 1, 2018 and on the first day of each subsequent month. [2]

(f) This matter shall be referred to the Office of the Children’s Lawyer to provide such services under s. 89(3.1) and section 112 of the Courts of Justice Act as they deem appropriate for the child.

Costs

[74] The successful party is presumptively entitled to costs. Rule 24 of the Family Law Rules and the relevant case law focus on success and reasonableness. Reasonableness has two components: the reasonableness of each party’s behaviour and a reasonable amount of costs to award.

[75] Counsel agreed that a range of $10,000 to $15,000 would be appropriate for the successful party. The materials filed were extensive. Although there was dispute as to whether this was a true mobility case, in Bridgeman v. Balfour, 2009 CarswellOnt 7214 (Ont. S.C.J.), the court stated that when a moving party is successful on a mobility case, but has put the other party in the position of having little option but to contest the case, the court should be reluctant to grant costs. Even though the father was unsuccessful, he did not bring the motion unreasonably. Any parent in his position would have brought the motion. This is not a matter in which there could be compromise and resolution. Accordingly, I decline to grant costs.

VALLEE J. Date: December 19, 2018

[1] The father denies any abusive conduct. The parties did not carry out cross examinations on the affidavits supporting these motions. I cannot make a credibility finding on this issue.

[2] The mother requested child support in her motion. The parties did not make submissions on the issue. The father did not oppose it in his materials. Accordingly, I assume that the amount is correct. If it is not, the parties may contact my assistant at Jennifer.Beattie@ontario.ca.