Court File and Parties

Court File No.: F1104/18 Date: 2019-04-05 Superior Court of Justice – Ontario Family Court

Re: A.D., Applicant And: C.K., Respondent

Before: Tranquilli J.

Counsel: D. Darlene Daley, counsel for the Applicant Genevieve Samuels, counsel for the Respondent

Heard: April 3, 2019

Endorsement

[1] The applicant mother brings this motion for an order allowing the applicant to relocate from London, Ontario to a town north of Oshawa, Ontario with the two children of the relationship, ages three and six, on an interim basis. The respondent father opposes the motion.

[2] In addition to hearing submissions from counsel for both parties, I have reviewed the Continuing Record to date (Tabs 1-25), which contains numerous affidavits by the applicant and respondent, members of the respondent’s extended family and an affidavit of the applicant and Form 13 Financial Statement of the applicant, both sworn on March 29, 2019 and to be added to the Continuing Record. Counsel also agreed that I could review a brief of records of the Children’s Aid Society filed by the respondent on March 27, 2019.

[3] Through the Application issued August 29, 2018, the mother seeks, among other relief, sole custody of the two children, P. K. (six years of age) and N. K. (three years of age), with no access by the respondent father.

[4] The application arose following the respondent’s arrest on May 31, 2018, when he was charged with several criminal offences including possession of child pornography, accessing child pornography and unlawful possession of a scheduled substance. The respondent was released on recognizance of bail, with various conditions, including non-association regarding the applicant, restrictions on association with persons under the age of 16 and with the respondent’s father acting as surety. He did not return to the family home after this arrest.

[5] The mother amended her application on November 13, 2018, seeking an order permitting the applicant to relocate the children’s residence from London to a town just north of Oshawa. The respondent’s Answer filed November 29, 2018 seeks sole custody and child support.

[6] The respondent and applicant each brought motions returnable on December 19, 2018. The applicant sought interim custody with no access by the respondent, amongst other relief. The respondent sought interim access on an urgent basis, noting he had not seen the two children since his arrest in May 2018. The respondent advised that he intended to plead guilty to some of the criminal charges and expected sentencing to follow. Mitrow J. ordered modest access on an interim basis, with supervision by the respondent’s surety and instructed that the remaining issues required a special appointment at a later date. The matter returned before Mitrow J. on January 16, 2019, at which time a special appointment was set for May 17, 2019 to address the custody and access issues. The interim access order for the respondent was amended to expand supervised access.

[7] The respondent pled guilty to certain of the drug possession and pornography offences on January 9, 2019 and sentencing was expected in the next several weeks. The parties agree that it was expected that the disposition of the criminal charges would include a custodial sentence.

[8] However, on February 6, 2019, the respondent was arrested and charged with several additional criminal offences. He has remained in custody since his arrest on the new charges and has yet to be sentenced on the initial charges to which he entered a guilty plea in January 2019. The circumstances of these charges are such that the respondent has no contact with either the applicant or their children.

[9] In the meantime, this matter came forward to a case conference on February 15, 2019. On the consent endorsement request of the parties, Leitch J. ordered that the applicant shall have interim sole custody of the children and varied the order of the Mitrow J. to order that on an interim, without prejudice basis, all access between the respondent and children be suspended pending further order. The respondent remains entitled to access information related to the education, health and general welfare of the children as well as the contact information of all health care and other professionals providing care for the children.

Motion to Relocate

[10] The applicant then brought this motion, seeking an interim order allowing her to relocate with the two children from London. The applicant intends to reside with the children at her parents’ home.

[11] The applicant maintains that she brought this motion after being served with notice that her landlord had initiated eviction proceedings from the residence in which the applicant and children currently live in London due to non-payment of rent. She claims that she has been unable to pay the full rent due to her expenses and reduced income since the respondent’s arrest. The landlords are the respondent’s father and stepmother, paternal grandparents of the children.

[12] The eviction hearing proceeded on April 1, 2019. Counsel for both parties advised that the applicant was ordered to pay arrears of $2900 on or by April 30, 2019, failing which the applicant and children will be evicted from their residence. According to respondent’s counsel, the paternal grandparents advise they will not enforce the order on the arrears if the applicant continues to pay full rent going forward on a monthly basis. The applicant maintains that this is not possible on her current income and that due to her financial and isolated circumstances, it is in the children’s best interests that she relocate to live with the children’s maternal grandparents.

[13] The applicant has not been employed since 2016. The applicant, respondent and children resided in Oshawa and Oakville between 2013 and 2017. The respondent’s affidavit evidence outlines difficulties in maintaining secure employment during these years due to various circumstances. The applicant and respondent moved to London in or about October 2017 as the respondent secured employment through his father’s business. The respondent’s father and stepmother also purchased a condominium unit in London in which the applicant and respondent could live with the children in exchange for paying rent. The respondent’s evidence is that he worked for approximately the next three months until January 2018, at which time he went on assistance. The applicant and respondent applied for Ontario Works in February 2018. After his criminal charges in May 2018, the respondent applied for his portion of social assistance to be split from the benefits that had previously been paid to the family as a benefit unit.

Applicant’s Position

[14] It is the applicant’s position that she cannot afford to pay the rent to the paternal grandparents on her current income. She is an unemployed single caregiver, relying on her reduced Ontario Works assistance and Canada Child Benefits as her source of income to support herself and the children. She has paid a portion of the rent owing from December 2018 to March 2019. The respondent has not provided support to the family since his arrest. The applicant’s evidence is that she is isolated in London and has been struggling emotionally and financially as a result of the criminal charges. The respondent does not currently have access and the length and location of any custodial sentence as a result of the criminal charges remains to be determined. The applicant’s relocation plan to live with her parents would allow her more social and financial stability. She plans to return to school as she needs to independently support her children due to the respondent’s circumstances. The maternal grandmother is able to provide childcare and the extended maternal family lives nearby. The children have spent time regularly at their maternal grandparents’ home since birth and would each have their own bedrooms.

Respondent’s Position

[15] The respondent opposes the applicant’s relocation plan as premature, based upon insufficient and unreliable evidence. The relocation should not be permitted pending a final determination of the respondent’s parenting time, which would turn on disposition of the criminal charges and any consequences of the disposition. Allowing relocation at this time would disrupt the status quo of the pre-separation family unit that was in place before the criminal charges. Ultimately, there will come a time where the respondent will be released from custody and the issue of his parenting time will need to be addressed. There is too much that is unknown about the future disposition of the criminal charges and the potential impact on parenting time such that it would be improper to allow the relocation on an interim basis.

[16] The respondent contends that the applicant’s evidence on issues such as the couple’s cohabitation history, parenting roles, her finances and reasons for relocating contain numerous inconsistencies that need to be tested at trial. He argues there is evidence the applicant intentionally withheld rent to trigger eviction proceedings as a strategy to allow her to relocate. The applicant failed to demonstrate that she investigated or attempted other reasonable steps to mitigate her difficulties and preserve her residency in London, such as seeking financial assistance from the maternal grandparents, reducing expenses, using a shelter, applying for subsidized housing, applying to community agencies for housing or financial support, declaring bankruptcy and seeking employment.

Applicable Law

[17] I accept that courts are generally reluctant to permit a parent to relocate prior to trial without the benefit of a full hearing to determine what parenting arrangements are in a child’s best interests, particularly as courts need to be very cautious in permitting temporary moves in mobility cases as the necessary child-focused inquiry is limited to conflicting affidavits. The burden is on the parent seeking the change to prove compelling circumstances exist that are sufficient to justify the move [See Cox v. Darling, 2008 ONCJ 91, MacKenzie v. Newby, 2013 ONCJ 541].

[18] Gordon v. Goertz, [1996] 2 S.C.R. 27 is the guiding authority on the matter of mobility. Gordon dealt with mobility within the context of an application to vary an order. In this motion, the issue of mobility is raised on an interim basis, following two interim orders made on consent pertaining to custody and access. However, as noted in Bjornson v. Creighton, the guiding principles set out in Gordon and which remain applicable on this motion are:

1. The judge must embark on a fresh inquiry into what is in the best interest of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.
2. 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 and the most serious consideration.
3. 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.
4. The focus is on the best interests of the child, not the interest and rights of the parents.
5. 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 reasons for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child; (f) the disruption to the child of a change in custody; and (g) the disruption to the child consequent on removal from family, schools and the community he has come to know.

[19] Plumley v. Plumley, [1999] O.J. No. 3234 (S.C.J.) sets out additional principles for determining if a relocation of children should be permitted on a temporary basis:

1. A court will be more reluctant to upset the status quo on an interim motion and permit the move when there is a genuine issue for trial;
2. There can be compelling circumstances which might dictate that a justice 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 of the best interests of the children might dictate that they commence school at a new location; and
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 trial.

Analysis

[20] I conclude that it is in the best interest of the children to permit the applicant to relocate to Port Perry on an interim basis for the following reasons:

1. The applicant has been the de facto custodial parent and sole caregiver to the children since the respondent’s arrest on May 30, 2018 and on consent, has sole custody on an interim basis pursuant to the order of February 15, 2019;
2. There is no existing access arrangement with the respondent due to his detention since February 6, 2019, which is currently of an unknown duration, although there is consensus that a custodial sentence will in all likelihood be involved for at least those charges to which he pled guilty in January 2019. On consent, the respondent’s access was suspended on an interim without prejudice basis pursuant to the order of February 15, 2019. His detention on several additional criminal offences appears to have delayed sentencing on the first set of offences in the short term. I acknowledge the affidavit evidence that the respondent was a caring and attentive parent to the children; however, the fact is that the criminal charges are currently a significant barrier to that child-parent relationship;
3. Consideration of the status quo is therefore materially affected by the respondent’s criminal charges, guilty plea, detention and anticipated custodial sentence. After his initial arrest on May 30, 2018, the respondent enjoyed limited supervised access on six occasions following the interim order in December 2018, until his further arrest in February and suspension of his access. This is the status quo and on the evidence at the motion, is anticipated to continue for an unknown period of time. The proposed relocation on an interim basis is not going to alter the non-access that the children have with their father;
4. Similarly, while the principle of maximum contact between each child and their father is a mandatory consideration, the ability of the children to enjoy contact with their father is barred by the respondent’s detention. There is no contact between the children and their father and on the evidence this is expected to continue for an unknown period of time;
5. I find that there are compelling circumstances in favour of the relocation on an interim basis as a result of the instability created by the imminent risk of eviction of the applicant and children from their home by the paternal grandparents. I acknowledge there is conflicting evidence in the affidavits raising questions about the applicant’s finances, reasons for falling into arrears and efforts to find alternative housing. However, the Financial Statement demonstrates the significance of the rent in the context of her limited and fixed income. It is undisputed that the respondent has not supported the children since his initial arrest. It is undisputed that paternal grandparents now have a right to act on an eviction of the applicant after April 30, 2019. The respondent argues that his father has little option but to initiate eviction proceedings as the paternal grandfather has been struggling to finance the property through his CPP pension as a result of the applicant’s default. I note the landlord and the tenant appear to face similar challenges in this situation as a result of fixed incomes;
6. I accept that the applicant’s plans, if permitted to relocate, are not set out in great detail. However, her financial situation and lack of stable housing for the children and isolation in London remain a compelling circumstance. In my view, these circumstances meet the requirement in Gordon v. Goertz, supra at para. 50: this is the exceptional case where the parent’s reason for moving is relevant to that parent’s ability to meet the needs of the child. The plan is sufficiently outlined for me to find it is in the best interest of each child. She deposed that relocation to her parents’ home would provide her and the children with stable housing and social support. She would have the support of her parents and extended family, as well as ready access to child care so that she would have the opportunity to go back to school so that she can plan to independently support her children. This is particularly important given the unknown prospects for the respondent. The respondent acknowledged that the children regularly visited their maternal grandparents. The connections to London are less compelling. The family had moved to London approximately seven months prior to the respondent’s initial arrest. The respondent is in detention, unavailable for access/parenting time and providing no financial support. The only extended family support in London for the children appears to be the paternal grandparents, with whom the relationship is strained;
7. I agree with the reasoning of Zisman J. in MacKenzie v. Newby, 2013 ONSC 541 at paras. 53 and 54, requiring a parent to remain in a community isolated from her family and supports and in difficult financial circumstances cannot but impact on a child. The economic and financial benefits of moving to a community where the applicant will have supports, financial security and the ability to pursue education and employment are properly considered in assessing whether the relocation is in the child’s best interests.
8. Although there is always the concern about the disruption an interim relocation could cause to the children in this case, the record supports that the children have already been experiencing disruption in other important aspects of their lives as a result of their father’s sudden and unexplained disappearance due to his arrest and detention. In particular, it is accepted by both parties that there are concerns about their son as a result of his separation from his father. Again, this separation relates to the arrest and detention on serious criminal charges. Requiring the applicant and children to remain in London will not change that disruption. The applicant acknowledges that it is in the children’s interest to have contact with the paternal family during their father’s absence. In the respondent’s absence, the applicant has agreed to support the children’s ongoing contact with the paternal family, a number of whom reside in the Greater Toronto Area. I will address this in the order;
9. Although the respondent urged that the applicant should pursue alternatives that would allow the applicant and children to remain in London for an unknown period of time while they await the outcome of his criminal charges, I find this impractical and untenable when considering the best interest of the children. To suggest that the applicant and children remain in London for an indefinite period of time, on a limited income, economize and explore options such as sheltered or assisted housing or even file for bankruptcy while the respondent’s future remains in limbo is not in the children’s best interest but rather seems to be focused on the respondent’s interests.
10. I conclude that on the record presented on this motion there is no genuine issue for trial regarding the applicant’s custody of the children. She has held de facto sole custody since the respondent’s initial arrest and interim sole custody since his further arrest in February 2019. The respondent urged that determining the mobility motion now would limit the options on the custody and access motions to be heard on May 17, 2019. In light of the respondent’s guilty plea on some of the charges and anticipated custodial sentence, there is a strong probability that the applicant’s custodial position will prevail.

Order

[21] There will therefore be an interim order as follows:

1. The applicant, A. D., shall be permitted to relocate the residence of the children, P. K. (born […], 2013) and N. K. (born […], 2016) to the town identified in the motion;
2. The applicant shall advise the respondent’s family immediately of her contact information including her address, telephone number and email address and shall advise the respondent’s family of any change in this information within seven days of such change. The applicant’s contact on behalf of the respondent’s family for the purpose of communicating this information shall be the respondent’s sister, M. K. J. or such other member of the respondent’s family as may be agreed upon between the applicant and respondent’s family.
3. The applicant, A.D. shall advised the respondent, C.K. immediately of her new contact information including, her address, telephone number and email address and shall advise him of any change in this information within 24 hours of such change. These requirements are satisfied by communicating the information to the respondent’s counsel in this proceeding.

[22] If the parties are unable to agree upon costs they may make brief written submissions of no more than two pages within 15 days of the release of this decision.

Justice K. Tranquilli Date: April 5, 2019