Court File and Parties

COURT FILE NO.: FC-17-681 DATE: 2019/04/24

COURT OF ONTARIO, SUPERIOR COURT OF JUSTICE

RE: Anthony Davidson, Applicant AND: Heather Alysse Davidson, Respondent

BEFORE: Mr. Justice Calum MacLeod

COUNSEL: Thomas R. Hunter, for the Applicant Duncan Crosby, for the Respondent

HEARD: April 23, 2019

REASONS FOR DECISION

[1] This was a motion by the applicant to find the respondent in breach of an order of Justice James dated August 9th, 2018 or alternatively to clarify and amend the order. In addition, there were requests for disclosure of third party records, which are not opposed.

[2] The decision of James J. is set out in an endorsement released on August 16th, 2018 (2018 ONSC 4924) and in a costs award dated September 27, 2018 (2018 ONSC 5738). In simplest terms, the respondent had unilaterally attempted to relocate from Eganville to Ottawa with the children, Adelaide, aged 5, and Sutton, aged 3. She enrolled the children in activities and schools in Ottawa.

[3] Following the motion, the court ordered the respondent to return the children to the Eganville area and in particular to return Adelaide to St. James Catholic School. The court also imposed a shared parenting schedule and directed that if the respondent failed to return the children within 60 days of the order, the children would be placed in the primary care of the applicant.

[4] The shared parenting schedule went into effect and Adelaide has been attending St. James Catholic School but the applicant believes the respondent has not fully complied with the order and is in reality continuing to maintain a residence in Ottawa. Even her declared local residence (a cabin owned by her mother) is closer to Renfrew than Eganville. The applicant argues that this is a breach of the spirit and intention of the order if not the wording. He seeks either a sanction or a further order or both.

[5] There is no doubt about the general intention of the order. The children were to be brought back to the area, to be jointly parented and, in the case of Adelaide, returned to her school. The question is whether the respondent has complied with the paragraph of the order reading as follows:

“The Respondent is ordered to re-establish her residency within a 25-km radius of the catchment area of St. James Catholic School, or such other distance as the parties may agree …”

[6] Read literally, this appears to require the respondent to reside no more than 25 km outside the catchment area of St. James Catholic School in Eganville. This was not a condition invented by the judge. It tracks the the relief sought by the applicant in his notice of motion (see tab 4, Vol. 2 C.R.). In the notice of motion, the applicant sought an order preventing the respondent from moving “more than 25km from the catchment area of St. James Catholic School in Eganville”.

[7] The “catchment area” is not defined in any of the notices of motion nor in any of the evidence. It is not a legal term. School boards normally establish school area boundaries for different purposes, to determine which students are eligible to attend a school and who is eligible for bussing. The only evidence on this point is hearsay suggesting (for the first time) that the school principal says there is no defined catchment area for St. James and that some children travel as much as 42 Km to get to the school. There is evidence from each of the parents expressing the view that bussing is not available for the children from the address where the other is residing.

[8] The issue of bussing is a distraction because there is nothing in the order that requires the children be bussed to school. Each parent is required to ensure the children get to school during the time that parent has the child. If school busses are available, that is a benefit and if not then each parent must make the appropriate arrangements.

[9] The cabin owned by the respondent’s mother is 37 km from Eganville. While it may not be ideal to have to drive that distance each day, it cannot be said that living 37 km from Eganville is more than 25 km from the catchment area. The order cannot be construed to mean 25 km from Eganville or 25 km from the school. Residing at the cabin is not in breach of the order providing the shared parenting time is respected and Adelaide attends school in Eganville.

[10] The applicant expresses the view that the cabin is not a suitable residence because the children would have to share a bedroom. The cabin has been visited by a child protection worker and in any event there is no evidence that sharing a room is problematic although the respondent herself apparently made an issue of this with respect to the applicant’s residence earlier in this proceeding. There is no other evidence concerning the suitability of the accommodation which is accommodation owned by the respondent’s mother and available for her use. The respondent has no significant income at the moment other than child support and this in part was one of the reasons she wanted to move to Ottawa. In any event the issue before me is whether the respondent has complied with the order and not whether there are problems with living at the cabin.

[11] A more significant concern is the suggestion that the cabin is actually a sham and the respondent is in reality continuing to live in Ottawa for at least some of the time. The evidence in support of this is the applicant’s evidence that he has been told by his daughter (now 6) that her mother has driven her to school from Ottawa on several occasions not only on Monday morning but on Wednesday morning as well. Maintaining a residence in Ottawa and having the children regularly commute over 130 km to school would be a breach of the order.

[12] There is little doubt the respondent continues to have access to an Ottawa residence. Apparently she rented accommodation in Ottawa when she was intending to live there. According to her evidence, she arranged for her mother to take over the lease. She denies regularly commuting from that address but she undoubtedly makes use of it on some weekends when she has the children in her care. There is evidence that she signed up one of the children for indoor soccer in Ottawa. Her evidence that she only had to bring Adelaide to school from Ottawa on two occasions is difficult to believe given what appears to be a propensity to underestimate numbers when it supports her position (for example her evidence on the question of phone calls).

[13] The applicant’s suspicions were not allayed by the stubborn refusal of the respondent to disclose her place of residence to the respondent, his counsel or to other authorities such as the child protection worker. She now alleges that the applicant has been “stalking” her but there is no evidence to substantiate this nor has the respondent ever sought a restraining order. Both parents have the right to know where the children are when they are not in their care. Except in unusual circumstances proven to the satisfaction of the court with appropriate evidence, there is no justification for withholding that information.

[14] In conclusion, while I am satisfied that living at the cabin 37 km from Eganville is not a breach of the order, it would be a breach of the order to continue to live in Ottawa and to keep the children enrolled in Ottawa based activities. I am not prepared to invoke the sanction envisioned by James J. at this time because the evidence does not support a finding that the respondent has blatantly breached the order. She has complied with the order by returning the children to the area and by ensuring Adelaide gets to school. She also deposes that the children continue to be involved in activities in Eganville and to see friends there.

[15] On the other hand the evidence does persuade me that the respondent has been less than forthright about her circumstances. I am persuaded that she has been clandestine in having the children in Ottawa more than she pretends. While there is no harm in occasionally taking the children to Ottawa on the weekends when the respondent has the children, there is no justification for doing so without the knowledge of the applicant or to have this occurring during the school week during the school year. I am prepared to give supplementary direction to give effect to the order of James J. given the evidence that is now before the court.

[16] I therefore make the following findings and directions:

a. Residing with the children at 897 English Rd., Renfrew during the respondent’s parenting time appears to comply with the terms of the order.

b. If the accommodation at 897 English Rd., Renfrew is not meeting the needs of the children, that may be the subject of a separate motion on proper evidence.

c. The respondent is not prohibited from taking the children to Ottawa or any other reasonable destination during her weekend time or during times in the summer when she has care of the children but she may not do so without informing the applicant of where the children are and ensuring he has contact information.

d. Both parties shall ensure the other parent is aware of where they are taking the children overnight if is not their regular residence and they shall ensure the other parent has emergency contact information.

e. As I am told the Office of the Children’s Lawyer has refused service, the parties may consider employing a social worker or other appropriate professional to prepare a Voice of the Child Report or they may seek a custody access assessment.

f. Both parties are to complete the financial disclosure required by the Rules and the Forms and the Child Support Guidelines within the next 60 days.

g. The parties are to seek agreement on a summer parenting schedule before the end of the school year.

h. The order of James J. as supplemented by this order shall remain in effect until further order or agreement.

i. The parties and their counsel are to schedule this matter for a Settlement Conference no later than the end of August, 2019.

[17] Counsel have agreed to the order for the release of information from the School Board, OPP and child protection authorities. Those matter may be included in the order or may be the subject of a separate order. As those entities were not put on notice, the order should be an order directing the parties to sign the necessary authorizations and authorizing those entities to release the information but not compelling them to do so if any of those entities wish to make submissions.

[18] I consider success on this motion to have been divided and I am not inclined to order costs but as I did not hear submissions on the matter and as there may have been offers to settle, counsel may arrange to speak to costs should they believe it is appropriate. Alternatively they may arrange to address costs in writing.

Mr. Justice C. MacLeod

Date: April 24, 2019