KINGSTON COURT FILE NO.: 514/16
DATE: 20180201
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Stephanie Marie Diane Corbeil
Applicant
– and –
Kyle William Albert Wesley St. John
Respondent
Danielle Russell, for the Applicant
Self-Represented
HEARD: January 15, 16, 17, and 18, 2018
REASONS FOR JUDGMENT
MINNEMA J.
[1] This is a relocation or mobility case where the question is whether the child should live with her father in Kingston, Ontario, or with her mother in Windsor, Ontario, during the school year.
Background Facts/Procedural History/Agreements
[2] The basic facts are best summarized by the parties themselves in their Statement of Agreed Facts (“SAF”):
The Applicant, Stephanie Marie Diane Corbeil (hereinafter the “Mother”) and the Respondent, Kyle William Albert Wesley St. John (hereinafter the “Father”) began cohabiting in September 2011 and were married on May 18, 2013.
The parties separated on July 2, 2015.
The parties are both members of the Canadian Armed Forces.
The parties have one child together, Emily … currently aged 5.
The Mother has a child from a prior marriage, Nathan Daigle … (hereinafter “Nathan”). The Mother shares joint custody of Nathan with his father, Dany Daigle. Nathan resides primarily with the mother and has access with Mr. Daigle. Nathan is currently 7 years of age.
[3] For the sake of consistency I will refer to the parties as “mother” and father” in keeping with their SAF. The mother is currently 29 years old and the father is 33.
[4] The only evidence about parenting prior to separation came from the mother, and was not disputed. Both the parties worked full-time and she concedes that the father was a “hands-on” parent. They readily agreed on all major decisions, and there were no parenting issues. However, she notes that she took the twelve month maternity leave and partly overlapping that the husband was away on training and work commitments for significant periods. These periods were mid-January until May 2013 in Borden, Ontario, May to November 2013 in Moncton, New Brunswick, followed by his being stationed back in Borden until February of 2014. When the father was in Borden he came home every weekend, but when he was in Moncton he was only able to come home once a month.
[5] The breakdown of the marriage was caused by the mother having a short affair. She apologized and tried to salvage the relationship, but that was refused. As a result for a short period both parties were upset and behaved poorly. Notwithstanding that, they were able to effectively jointly parent Emily following separation. The following excerpt is from their SAF:
At the time of separation both parties were posted to Canadian Forces Base Kingston (hereinafter “CFB Kingston”) and the parties adopted a shared parenting schedule whereby Emily resided, in alternate weeks, at the Mother’s residence at 705 Margaret Way and at the Father’s residence at 21B Sicily Drive.
When the Mother attended a two week training course in October 2015, Emily stayed with the Father.
From January 15, 2016 to May 17, 2016, the Father attended training in Borden, Ontario. During this period of time, Emily resided with the Mother and spent alternate weekends in the Father’s care. The parties resumed an alternating week parenting schedule for Emily upon the Father’s return to Kingston, Ontario.
From January 9, 2017 to March 1, 2017, the Father attended training in Borden, Ontario. During this period of time, Emily resided with the Mother and spent alternate weekends in the Father’s care. When the Father completed his training and returned to Kingston, the parties resumed a week-about parenting schedule.
[6] The mother began a new relationship in late 2015 and shortly afterwards was diagnosed with cancer. The chronicle of this relationship, her significant health challenges, and her decision to move is set out in the following excerpts from the parties’ SAF:
The Mother’s partner, Brandon Taggart began residing with the Mother, Emily and Nathan in November 2015.
On January 18, 2016, the Mother was diagnosed with breast cancer. The Mother`s work-load was reduced to ½ days on January 29, 2017 to allow her to attend treatments and other medical appointments.
On February 2, 2016, the Mother met with her assigned career manager through the Canadian Armed Forces. At this meeting, the Mother`s career manager informed her that she was likely to be posted to a new Canadian Forces Base (hereinafter “CFB”) in July 2016. The Mother informed her career manager of her recent diagnosis and current treatment and asked not to be posted while she underwent treatment. The Mother’s career manager advised a temporary deferral of her posting would be recommended.
The Mother commenced her first round of chemotherapy on February 29, 2016.
In August 15, 2016, Mr. Taggart was posted from CFB Kingston to CFB Windsor, Ontario.
When Mr. Taggart was posted to Windsor, Ontario, the Mother lost her primary source of emotional support in Kingston, Ontario.
The Mother underwent a bi-lateral mastectomy and reconstruction and lymphadenectomy on September 22, 2016.
Between November 7, 2016 and December 9, 2016, the Mother underwent 25 radiation therapy treatments.
On February 13, 2017, the Mother was advised by her military physician that she was being recommended for a medical release from the Canadian Armed Forces. On February 28, 2017, the recommendation for medical release was approved by the Mother’s base Sargent and sent to national headquarters for approval.
On June 30, 2017, the Mother underwent bi-lateral breast reconstruction surgery.
The Mother is now officially in remission.
The Mother requested and willingly relocated to Windsor, Ontario through JPSU [Joint Personnel Support Unit] Kingston, Ontario.
The Mother was required to report for duty at her posting in Windsor, Ontario on August 23, 2017.
Emily did not relocate with the Mother and Nathan and she has resided with the Father since August 22, 2017.
The Mother has had care of Emily on the following dates:
a. Thursday September 21, 2017 at approximately 8:35 p.m. until Sunday September 24, 2017 at approximately 3:07 p.m.
b. October 6, 2017 at approximately 7:45 p.m. until Monday October 9, 2017 at approximately 3:00 p.m.
c. Thursday November 16, 2017 at approximately 7:00 p.m. until Sunday November 19, 2017 at approximately 3:35 p.m.
Since September 1, 2017, the Mother, Nathan and Mr. Taggart have resided in newly constructed home owned by the Mother and located at 7 Joaney Lane, in Cottam/Kingsville, Ontario. Kingsville is a small town with a population of roughly 25,000 located on the shores of Lake Erie.
Nathan is attending school the French program at École élémentaire catholique Monseigneur-Jean-Noël in Windsor, Ontario. The school is approximately 20 minutes from the Mother’s home and 10 minutes from the Mother’s place of employment. There is a before and after school program as well as an afterschool homework club offered at the school.
On October 16, 2017, the Applicant’s partner, Brandon Taggart, completed his services contract with the Canadian Armed forces and elected to release from service. Mr. Taggart commenced full-time civilian employment in the Windsor area on October 30, 2017, as a Damage Prevention Technician.
Mr. Taggart’s family including his mother, Caroline Taggart, his father, Rick Taggart and his sister, Brianne Taggart. All reside in the Windsor-Essex area (sic).
[7] At the time of trial Mr. Taggart was leaving his job as a Damage Prevention Technician and about to start a new job in a greenhouse, still in the Windsor area.
[8] Regarding Nathan, his father Mr. Daigle is also military, posted in Ottawa. His parents initially had shared physical custody until September 2014 when Nathan started Kindergarten. After that Nathan lived primarily with the mother in this case, and his father had access every other weekend. They also split the school Christmas holiday, and Mr. Daigle had every March break and 6 weeks during the summer. There is no doubt that the father in this case, Mr. St. John, was very involved with Nathan given their resulting significant time together as a family. Initially following the separation he had regular access to Nathan, which meant that in the weeks that he had Emily some of the days also included her brother. However, the mother and Nathan’s father somewhat abruptly stopped that access and relationship in June of 2016, based on their belief that it would be confusing for the child. Mr. St. John initially sought continued access in this proceeding, but has since withdrawn that claim. When the mother moved to Windsor, Mr. Daigle’s every other weekend access to Nathan ended.
[9] The mother brought her application in October of 2016 claiming a variety of heads of family law relief. Although at the time the parties were still sharing time equally with Emily, work postings were on the horizon and the mother therefore sought primary residence of Emily “in the event of a relocation”. The father in his Answer similarly sought primary residence of Emily in the event of either parent relocating, and addressed the other various heads of relief.
[10] The parties settled their property issues by way of Partial Minutes of Settlement dated August 28, 2017.
[11] On the date the mother moved to Windsor, August 22, 2017, she brought an interim motion to permit Emily to leave with her. It was first returnable on August 30, 2017, and on that appearance the court set a long motion date for October 31, 2017. On September 8, 2017, this trial date was set. There is no dispute that with the motion scheduled only a few months before the trial, the mother decided not to proceed and the parties agreed that Emily would remain with the father in Kingston on a “without prejudice” basis pending a final decision. The interim consent order to that effect was signed on October 30, 2017.
[12] On the morning of the trial the parties executed Partial Minutes of Settlement (dated January 15, 2018) wherein they agreed to joint custody, electronic communications with the child, counselling for the child, life insurance, and extended health coverage. Those Minutes also set out what the child support and parenting arrangements will be in the event either party is granted primary residence of the child.
Issues
[13] Given the above, there are only two issues for me to decide. The first is primary residence of Emily, and more specifically whether during the school year she will live with her father in Kingston or with her mother in Windsor. The second is relatively minor, namely how the driving for access exchanges is to be shared.
Law
[14] As the parties were married, custody and access is governed by section 16 of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) as amended. Subsection 16(8) indicates that in making an order I am to only take into account the best interests of the child as determined by reference to her condition, means, needs and other circumstances. Per subsection 16(10), I am to give effect to the principle that the child should have as much contact with each spouse as is consistent with her best interests, and take into consideration the willingness of the person for whom custody is sought to facilitate such contact. Factors for me to consider regarding best interests include those referred to at subsection 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c.C.12, which are obviously relevant in a Divorce Act proceeding; see MacIntosh v. MacIntosh, [2007] O.J. No. 5695 (S.C.J.) at paragraphs 64 to 67.
[15] Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 is the leading case on mobility. It dealt with a variation under section 17 of the Divorce Act. The principles are summarized at paragraph 49 and, with the exception of the first three subparagraphs related to a material change in circumstances, it is reproduced below. Those principles also apply to an original application: see Ryall v. Ryall, 2009 ONCJ 687 at paragraph 85, Nunweiler v. Nunweiler, 2000 BCCA 300, [2000] B.C.J. No. 935 (B.C.C.A.) at paragraph 27, and Bjornson v. Creighton, 2002 CanLII 45125 (ON CA), [2002] O.J. No. 4364 (Ont. C.A.) at paragraph 18.
The law can be summarized as follows:
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.
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.
The focus is on the best interests of the child, not the interests and rights of the parents.
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 removal from family, schools, and the community he or she has come to know.
- In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?
[16] Paragraph 49-4 above relating to the views of the parents is a summary of paragraph 48 which is reproduced in full below:
- While a legal presumption in favour of the custodial parent must be rejected, the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent's parenting ability. [Emphasis added.]
[17] It is therefore the views of the “primary caregiver” rather than a person with “the legal status of joint and shared custody” that is afforded special consideration: see Porter v. Bryan, 2017 ONCA 677 at paragraph 16.
[18] It follows from the above that the court must first determine custody/primary care before conducting the mobility analysis: see Bjornson v. Creighton at paragraph 39, Prokopchuk v. Borowski, 2010 ONSC 3833 at paragraphs 20 and 21, MacDonald v. Robinson, 2013 ONSC 86 at paragraph 9, and Hatcher v. Golding, 2017 ONSC 785 at paragraphs 150 and 157. As noted in Woodhouse v. Woodhouse (1996), 1996 CanLII 902 (ON CA), 20 R.F.L. (4th) 337 (Ont. C.A.) at paragraph 19 and Terris v. Terris, 2003 CanLII 2040 (ON SC), 2003 CarswellOnt 2685 (Ont. S.C.J.) at paragraphs 7, 12, and 13, while there will be considerable overlap, these are two distinct considerations. Determining custody (or primary care) is not the same as determining whether a relocation will be permitted. The example given is that regardless of custody or primary care, the court might still refuse to vary access to permit the child to move. “[T]he determination of one issue is not necessarily determinative of the other”: Terris v. Terris at paragraph 13.
Analysis
[19] The parties have agreed on joint custody, and they agree that if the parties were living in close proximity the alternate week schedule would continue. Indeed, they expect that it would resume regardless of my decision should either of them subsequently move close to the other. The only remaining custody issue to be decided of residency is therefore the same as the mobility issue. In the unique facts of this case it would be artificial to treat them separately. Below I examine all the applicable custody/access and mobility factors that are relevant to determining residency in Emily’s best interests.
Primary Caregiver/Existing Arrangements
[20] Per Porter v. Bryan, notwithstanding that they have joint and shared custody can one of these parties be said to be the primary caregiver?
[21] As noted Emily was born in 2012 and the parties separated about three years later in 2015. Prior to separation, with her maternity leave and because of the father’s work commitments, the mother had the child in her primary care for about half of the time, from roughly August of 2012 to February of 2014. Other than that the parents shared responsibilities.
[22] Since the separation the shared parenting schedule had Emily residing with each of the parents on alternate weeks with the following exceptions: the mother was away for two weeks in October of 2015 and Emily stayed with her father, and the father was away for four months in early 2016 and about two months in early 2017 and Emily stayed with her mother. The mother points out that as a result she has had primary care of Emily for approximately two of the five years from her birth to around the time she relocated to Windsor, with the rest of it being shared.
[23] While the mother had the child more overall, for the most part this additional time was during the marriage over two years ago. Although a variation case, Gordon v. Goertz emphasised the need for a “fresh” inquiry (paragraph 47) looking at the existing arrangements (paragraphs 49-7 (a) and (b)) and cautioned against undervaluing changes (paragraph 45). For the two years since the separation the parties have shared a week about custody arrangement except for six months when the father was on courses, and except for the past four or so months since the mother left for Windsor. In my view, neither the mother’s additional time with the child since separation nor the father’s time since the mother moved would give either a better perspective on what is in the child’s best interests. I do not see how a mathematical calculation of who has had more time in this true shared custody situation would establish a single primary caregiver. I do not find that the views of one parent is entitled to more weight or respect than the other.
Plans/Stability/Disruption/Reasons for Moving
[24] The father’s plan is to stay in Kingston and, except for the alternating weekly parenting schedule, maintain the current arrangements for the child including school, day-care, health services, and activities including gymnastics. The mother’s plan, sufficiently detailed and well thought out, is to essentially duplicate the father’s plan in almost all respects, but in Windsor. Both are very good plans. As confirmed by the evidence from all the witnesses who know her, the child is bright, of good disposition, sociable and adaptable, and high functioning. The parents in particular are very proud. There is no doubt that she will continue to flourish under either plan.
[25] Disruption to the child of a change in residence is an important consideration, although it cannot be assumed; in some cases a change may even benefit the child. There will of course be some disruption to Emily if her school, after-school care, and activities were to change. It is difficult to measure the extent. While it would be immediate, the fact is that Emily is five years old and in Kindergarten. Even if she remains in the same community her teachers, gymnastics and swimming instructors, etc. will likely change as she grows and develops. A change for Emily that could be seen as a positive is that in Windsor she would go to the same school as her brother Nathan as part of the mother’s plan. If she moves her dentist and doctor would need to change, although at her young age and with no unusual health concerns she does not appear to require specific service providers.
[26] Both parties noted that Emily makes friends very easily. While moving would take her away from her current friends, it is apparent that this is something Emily has experienced before and can handle. The father in his evidence about her friends in Kingston referred to two of her good friends (Willow and Olivia), both of whom have already left the area with their families as a result of military transfers. Being in Kingston does not appear to guarantee that Emily will be able to maintain her closest friends.
[27] The mother speaks French to Emily in her home, and the father does not. This was raised by the mother as a plus for the child living with her. However, Emily would be in a French school in both locations, and if she remained in Kingston there would still be regular exposure to the mother both during face-to-face time and regular video conferencing communications. There is no evidence that the mother’s move in August has impaired the child’s French language development, which by all accounts is very good.
[28] Much of the evidence in this trial addressed the future stability of the parties regarding where they plan to live and the options available to them.
[29] The mother has a new partner; he was her most important support through her experience with cancer. However, he was posted to Windsor before the bulk of her treatments and surgery, and it was the mother who was going to Windsor to be with him, usually once a month and sometimes with both children, rather than him coming to Kingston. Mr. Taggart has a supportive family in Windsor. He and the mother are engaged to be married. The mother has purchased a very nice home near Windsor in a very nice community. She is near the conclusion of a medical discharge process from the military. It may retain her for an additional two years, which although not certain appears likely as her job is in “critical shortage”. Following that, or even if that does not occur, she is guaranteed essentially her full salary for another 2½ years after her release for “vocational rehab” to allow her to transition into civilian life. Regardless of when she gets released and stops receiving assistance from the military, the mother will choose to be released into the Windsor area. She is completely confident that with her skills she will have no difficulty finding civilian employment with commensurate pay, noting that ex-military get priority hiring in the federal public service for five years after their release. When she brought this court application she saw this future stability as a big plus, as the father was still planning to remain in the service and likely to be posted to bases unknown. Nothing is ever certain, as her previous relationships and cancer diagnosis would suggest, but her expectation is that she will be the stable placement for Emily as she grows into adulthood compared to the father.
[30] The father did not dispute the military reality that its members change residences or are generally deployed every several years. Requests to a specific base can be made but are not granted as of right, and the success of such an application can depend on a number of factors. Indeed, the wife’s evidence was that the parties had discussed parallel postings since separation before the cancer diagnosis, and she applied for deployment to Ottawa with an expectation that the father would follow, but her request was denied.
[31] The father’s Answer contained a plan to attend the Royal Military College in Kingston which he maintained would guarantee no posting or transfer for the next four years. However, he did not take that full-time education path. His next plan was to stay in the military but have a ‘family plan’ with various people assisting in the event of deployment or distant training assignments. That subsequently changed to his long-term girlfriend being his alternate caregiver, referred to by the mother as his “third plan”. That relationship has since ended. His most recent plan is related to his discovery in June of 2017 of fairly significant back problems. He believes this will eventually lead to his medical release although, unlike the mother, he acknowledges being at the beginning of the somewhat lengthy process to determine that. His medical evidence considered in light of the military’s Universality of Service requirement seems to support his and his supervisor’s view that a discharge seems likely, but whether it happens will depend not only on medical approval but also on subsequent administrative approval within the military process. The father and his supervisor were confident that he is unlikely to be posted while his medical condition and options are being assessed. Like the mother’s expectation for herself, he expected that if released he would be retained in the military for two years in his current position. However, the evidence from his military supervisor was challenged on this point in cross-examination and she conceded that in fact his retention currently appears to be less likely. He would still have the same 2½ years of vocational rehab available to him from the date of receiving his release decision. The father said his plan, regardless, was to be released into the Kingston area and to find work here, and that he would do all that was possible to remain in the area. However, there was some cloudiness about that plan.
[32] The first uncertainty is that, unlike the mother, the father does not appear to have a firm sense as to what he would do if granted a medical release. As a medic, the usual related occupations such as a firefighter -- he has some experience as a volunteer -- or an ambulance attendant seem to be foreclosed by his back issues. He indicated that he was considering vocational training by returning to school. He had not yet explored job opportunities in Kingston or elsewhere.
[33] The second uncertainty arose from the father’s acknowledgement that he recently spoke to Emily about relocating to Windsor in order to reunite her with Nathan. He indicated that given the distance, someone would have to move, and that in voicing that plan he was only thinking about her best interests. While I have no doubt that was the reason, he went on to indicate that when he learned in January 2018 that the mother still had an option available to return to Kingston within the military as it is her actual posting location and Windsor is just her “attached” or temporary posting, he no longer considered that move. It was not clear why that recent information made a difference, as the mother had been saying since 2016 that Windsor was her plan.
[34] There are some subtleties about timing related to the parties’ respective plans. In the face of the military posting reality, they initially discussed trying to post together and as noted the mother even applied to Ottawa and was refused. The mother seems to acknowledge that the move to Windsor might at first seem somewhat self-serving given that it is tied to her new partner and physically further away from Emily’s father, Nathan’s father, and her own family. However, she stressed that hers is not a short-term plan. Factoring significantly into her deliberations was the reality that both of her children’s fathers were subject to required postings, meaning that their future geographical locations could not be predicted. A home base was required, and making Kingston the home base long-term did not make sense if the father was not here and she had no ties here. She determined that her and the children’s best chance for stability would be in Windsor with her fiancé where he has roots. Their relationship is already two years old and has survived some very significant personal trauma on her part. On the other hand, the husband’s first plan of attending the Royal Military College was the only one of four that tied him to Kingston. The next ones did not rule out postings, and the current one of a medical discharge, if it comes to fruition, would allow him to choose his place of release.
[35] The mother is seeking an order that, regardless of who is awarded principal residence, Emily not move more than 40 kilometres further away from the other parties’ residence unless on consent or by Court order, and that if either party moves 200 kilometres closer to Emily’s residence there will be a review of the parenting schedule to maximize her contact with each parent. The father appears to agree with those provisions, or at least did not oppose them, and they are in keeping with the general view of both parties that but for the physical distance their shared parenting arrangement would continue.
Child’s Relationships
[36] There is no dispute that Emily loves both her parents and they love her. There is no contest about who loves who more.
[37] I have touched on some of the evidence about Emily’s friends above. She has friends at school and in the neighbourhood, and has also made friends in the mother’s neighbourhood. The only evidence about her really close friends involved the children from Kingston who have since moved away.
[38] Emily gets along well with Mr. Taggart. They lived together for four months in Kingston during the mother’s parenting time, and she has seen him during visits to Windsor both before and after the mother moved. He is “more of a friend”, as the mother described it, given that she is the one who primarily parents by dealing with matters such as discipline and routines. His parents are taken with both Emily and Nathan, and include them as part of their extended family.
[39] Regarding the involved extended family of the parents, on the father’s side this only includes his own father who lives in Brockville, Ontario. The father has made important efforts to facilitate his relationship with Emily, given his father’s very significant health and mobility limitations. The mother’s parents live in Montreal. They used to see Emily more regularly when the mother lived in Kingston, but less so since the mother moved to Windsor. The mother has two brothers, one of whom at least lives in Montreal. The child has good relationships with and is loved by all of her biological extended family. What’s more, all the extended family treat the other spouse and are treated by the other spouse with kindness and respect. Including the parents, these are all very nice and decent people.
[40] Lastly, and other than the parents most importantly, there is Emily’s brother Nathan. They are two years apart. They play and get along very well together and have what has been described as an especially close bond. By all accounts, and most of the witnesses gave evidence on this point, they have a close and loving relationship. It is very important to them, and was seen as important by all family members, including both parents.
Child’s Views and Preferences
[41] Emily is too young to give her views and preferences, and these parents have been very wise and child focused in keeping her away from adult discussions or issues relating to this litigation. The one perhaps inadvertent exception was the father talking to the child about his moving to Windsor when he is now seeking a different result.
Maximizing Contact/Willingness to Facilitate Contact
[42] The wife’s position is that the court should not unduly focus on the contact that would be lost resulting from a relocation but also on the contact that would be lost if the move were not permitted. I agree that this is a two way street. There is no dispute that maximizing the contact between the child and both parents is in her best interests, and the parties in their second Partial Minutes of Settlement have already agreed on what the residency arrangements will be in the event of either possible outcome from this trial.
[43] The willingness of each parent to foster the child’s relationship and to promote and accommodate an access schedule with the non-resident parent is always a critical factor in a mobility case: see the Divorce Act section 16(10) and Zanewycz v. Manryk, 2010 ONSC 726 at paragraph 118.
[44] No one has really denied the other access. The mother was critical of the father relating to several instances when he could have been more accommodating to her, although at some inconvenience to himself, in the face of unexpected hiccups in the access exchanges. There is no suggestion that he ever contravened the interim court order or any specific agreement. However, what is clear is that the mother has been very accommodating in her relationship with the father, as with Nathan’s father. Except for some early incidents noted below, she has shown a clear and sustained willingness to foster the parent/child relationships, including facilitating additional contact where appropriate and available beyond set or expected schedules. There is no reason to doubt that would be any different going forward. Perhaps it is not surprising that she became upset when her spirit of generosity was not reciprocated. Indeed, I was a little disappointed to learn that the father refused small blocks of requested extra time just before the mother left for Windsor and when the mother was in town for this trial, and that he ignored her request for an extra week this past November for a trip with the maternal grandmother. I did not hear a good explanation why those could not occur.
[45] In their second Partial Minutes of Settlement the parties agreed to take advantage of modern day technology in facilitating long distance contact. There has been good use of this already, not only between the child and her parents, but also between the child and extended family.
Ability of Each Parent
[46] It is conceded and the facts clearly support that each party has the ability to adequately parent the child. That being said, in a family law trial litigants are almost forced by its adversarial design to take some issue with the other parent’s ability in order to support their own position. These parties here, to their credit, did so almost reluctantly.
[47] Without going into detail, I would just say that some of the behaviour of the mother was questionable early on, such as when she denied the car seats for both children, refused the father taking the child to a planned barbeque, threatened to cancel access when the father was in Borden if he was late for an access exchange, and when she insisted that the father not participate in the child’s introduction to the school bus. These few instances occurred shortly after the separation, and are readily acknowledged with regret by the mother who put them into context related to the breakup and her cancer. She indicated that she voluntarily took a conflict resolution program though the military as well as engaged in personal therapy. As noted in paragraph 44 above, she has behaved exemplary since then in her co-parenting and access decisions, and I have no current or future concerns.
[48] The mother criticized the child’s eating habits while at the father’s home and suggested that her home provided more structure. However, the father at her request took the child to the doctor in relation to her weight, and in my view the mother’s issues were mostly conjecture without clear evidence to establish legitimate parenting concerns.
Conclusions
[49] In my view, it would be in Emily’s best interests to reside with her mother in Windsor. While I have considered and weighed all the noted factors for and against this move, Emily’s relationship with Nathan in particular and the father’s unknown long-term plan, which still could include a geographical move in that direction, were important to my decision. Further, I am very confident that the mother will support the father’s relationship and will readily facilitate additional access when circumstances permit. While I have no doubt that these two for the most part excellent parents will revisit the arrangements upon the geographic parameters changing, I include in my order the related provisions as requested by the mother.
[50] The father referred me to the decision of Watt v. Howe, 2017 ONSC 5556 (Div. Ct.), arguing that it should be applied because of the similarities. It also involved a Canadian Forces father, and the mother’s move from Kingston to Ottawa with the child was refused by this court. That decision was upheld on appeal to the Divisional Court. While there is no disputing the law and analysis, in my view the facts here are different. I only address three of the more obvious points. The child in Watt was nine years old, and her school, friends, and activities appear to have been very important to her, described by the court at paragraph 51 as her “vital interests” (see also paragraph 56). Second, there were important issues with the mother’s past conduct relating to her parenting ability, in particular her failure to adequately communicate with the father about custodial matters. A finding was made that she virtually renounced their joint custody and joint parenting arrangement (see paragraphs 61 and 62). Lastly, and most importantly, while mention was made in Watt of the mother having another child (at paragraph 11), the importance, continuity and possible disruption to that relationship was not addressed, nor does it appear to have been a factor in the court’s decision. As noted in Gordon v. Goertz at paragraph 49-6, each case turns on its own unique circumstances, and I distinguish the Watt decision for those reasons.
[51] The parties have known for some time that eventually a relocation decision would have to be faced; they both asked the court in their pleadings to address it. It is apparent to me that the father has struggled in good faith to arrive at a plan that is best for the child. I was not surprised by his admission that he discussed moving to Windsor with Emily nor that he subsequently changed his mind. It can be difficult for an equally good and competent parent who has contributed to his child’s growth and watched her flourish to assess a child’s best interest from a completely detached position. Further, it seems unfair in a sense that the mother as the one moving away can ask for a resolution that only significantly impacts his important relationship with the child. However, the court’s focus cannot be on that perception, but rather solely and squarely on Emily’s best interests in all the circumstances.
Driving
[52] The parties have agreed that it is a six hour drive of 610 kilometres between their residences and that Milton, Ontario, is the approximate halfway point. The mother proposes that the exchanges take place at the Toronto Premium Outlets located at 13850 Steeles Avenue West, Halton Hills, Ontario, which is close to Milton. The benefits she sees are that the location is near the Express Toll Route (Highway 407) if needed, and involves roughly equal driving.
[53] I have the authority to make the requested order if I find it to be “fit and just” (pursuant to the Divorce Act subsection 16(6)), and in particular if it relates to Emily’s best interests (subsection 16(8)).
[54] The father did little to directly address the best location for the access exchange. While he may have wanted to argue that the mother in choosing to move should do all the driving, I see her plan as practical and sensible. In particular I see the safety risks in requiring one parent to shoulder all the driving, namely approximately twelve hours versus the six hours each if split equally. I would also note that driving with a child in a car is still access, and if properly managed can be quality time. Order to go as requested.
Decision
[55] The mother’s counsel provided a draft order which included both the agreed upon terms and the residence, travel, and future relocations orders I have made above. Therefore, order to go as set out in Schedule “A” except for paragraph 14 (costs). On consent, the parties are hereby divorced.
[56] I understand that the parties want to address me on costs. I will accept brief written submissions from each provided that they are received within twenty days. Both parties are also permitted to make a two page costs reply within five days after receiving the other’s submissions.
Mr. Justice Timothy Minnema
Released: February 1, 2018
KINGSTON COURT FILE NO.: 514/16
DATE: 20180201
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Stephanie Marie Diane Corbeil
Applicant
– and –
Kyle William Albert Wesley St. John
Respondent
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Danielle Russell, for the Applicant
Kyle William Albert Wesley St. John, Self-Represented
REASONS FOR JUDGMENT
Mr. Justice Timothy Minnema
Released: February 1, 2018