Court File and Parties

COURT FILE NO.: FD773/15 DATE: July 2, 2019

ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

BETWEE N:

Cortnie Krystine Wauthier, Applicant (Andrea C. Cooley for the applicant)

- and -

Ryan Bruce McAuliff, Respondent (Ryan Bruce McAuliff in person)

HEARD: April 26, 2019; written submissions received by May 30, 2019

MITROW J.

Introduction

[1] The parties are the father and mother of two young children. The sole issue for trial was mobility.

[2] The parties consented to a final order dated July 30, 2018 (“final order”) that resolved all issues in this proceeding, with the exception of the applicant’s request to relocate with the children from London, Ontario to Woodstock, Ontario.

[3] At the time of the final order, the respondent had elected to be self-represented and filed a notice to that effect.

[4] The final order included a provision that the divorce shall proceed on an uncontested basis. Hence, all provisions in the final order that relate to custody and access are made pursuant to the Children's Law Reform Act, R.S.O. 1990, c. C.12. A final order for corollary relief under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) can only be made where a divorce has been granted under the Divorce Act. [^1]

[5] There is no evidence that a divorce order has been granted; in any event, the granting of a divorce simpliciter would not preclude dealing with the mobility issue pursuant to the Children's Law Reform Act.

[6] Pursuant to an order of this court, the trial on the mobility issue proceeded in a summary way via affidavit evidence with cross-examination on the affidavits at trial.

[7] There were three affidavits filed: two affidavits were from the applicant and one affidavit was from the respondent. The applicant’s second affidavit was a reply affidavit.

[8] The applicant chose not to cross-examine the respondent; however, the respondent did cross-examine the applicant on her affidavits.

[9] The evidentiary record at trial consists of the three affidavits (that were marked as exhibits) and the applicant’s oral testimony.

[10] Due to time constraints, closing argument was ordered to be made in writing.

[11] The respondent elected to put his closing argument in affidavit form. The applicant, rightfully, complains that in doing so, the respondent has adduced some additional evidence.

[12] The respondent was not at liberty to file additional evidence. No motion was served by the respondent to seek leave to file additional evidence.

[13] Accordingly, this affidavit does not form part of the evidentiary record and its contents are treated as written argument. No weight is accorded to any portion of the written argument that is based on facts not established in the evidence.

[14] The respondent resides in London, Ontario. He opposes the applicant’s request to relocate with the children to Woodstock.

[15] For reasons that follow, the applicant’s request to relocate to Woodstock with the children is granted.

Background

[16] The parties separated in January 2015 after close to five years of cohabitation. They began living together in April 2010 and were married in September 2011.

[17] The parties have two children: Peyton, born July 22, 2013, and Logan, born September 22, 2014. At the time of the trial, both children were in school; Peyton was in senior kindergarten and Logan was in junior kindergarten.

[18] There is no dispute between the parties that the children have remained in the applicant’s primary care since separation in January 2015.

[19] The applicant’s evidence as to the reason for separation, and the respondent’s access since separation, is not disputed by the respondent.

[20] The applicant deposes that the separation was precipitated by the respondent’s statement to her that he wanted to shake Logan, who was at the time approximately four months old, “… so hard that he would injure him …” and that “… he wanted to shake Logan until he stopped crying.”

[21] Thereafter, the respondent was admitted to hospital for over a month due to mental health issues.

[22] Given the respondent’s own expressed fear that he might harm Logan, it was the applicant’s evidence that she proceeded “very cautiously” with access; that increases in access occurred on consent and were incremental as access transitioned from supervised to unsupervised.

[23] The applicant’s uncontradicted evidence as to the transition regarding access can be summarized as follows:

(a) the respondent did not see the children for the first year following separation;

(b) the respondent had supervised visits at Merrymount Family Support and Crisis Centre from February 2016 until August 2016;

(c) pursuant to a consent order, the respondent had unsupervised access starting August 2016 for durations of approximately three or four hours, and approximately six times per month;

(d) pursuant to a consent order made in December 2016, the respondent’s access was increased to a duration of four hours, six times per month;

(e) in April 2017, pursuant to a further order, the respondent’s access increased to six visits per month, with each visit having a duration of seven hours; and

(f) in August 2017, more than 2 and a half years after separation, the respondent had his first overnight visit, for a duration of 12 hours; this was pursuant to a consent order made July 25, 2017 that provided the respondent with three, 12-hour, overnight access visits per month.

[24] The aforesaid orders were all temporary orders and were made on a without prejudice basis. Some of those temporary orders also dealt with the children’s residence and/or custody. The order made December 8, 2015 provided that the children’s residence shall be with the applicant; the order dated July 25, 2016 provided that the applicant shall have custody of the children.

Discussion

[25] The final order does not refer to the applicant having custody of the children but, rather, provides that the children shall reside primarily with the applicant.

[26] Despite some cross-examination of the applicant as to whether she is prepared to co-parent the children with the respondent, the final order is not an order that provides for co-parenting. The final order provides that the respondent has access to the children on alternate weekends and that the regular access schedule is suspended to allow the children to be with the respondent during holidays and special occasions as detailed in that order.

[27] The respondent does not challenge the applicant’s evidence that she has made all major decisions related to the children and that she has always been the children’s primary caregiver.

[28] Pursuant to the final order, the applicant is required to update the respondent as to the children’s professional and healthcare providers, and to advise the respondent as to the children’s appointments as they are scheduled.

[29] Pursuant to the final order, the respondent was required not to consume alcohol or non-prescription drugs 24 hours prior to and while he is in a caregiving role with the children.

[30] The applicant’s plan is to move to Woodstock to reside with her parents. She plans to enroll the children in school in Woodstock in September 2019. The children will attend grade 1 and senior kindergarten; the school is located across the street from the applicant’s parents’ home.

[31] The applicant is trained as a baker, but has had difficulty securing employment in that area, particularly fulltime, because of the early morning work hours and lack of childcare. At the time of trial, the applicant was working some part-time hours in retail employment and the applicant also continued to be supported by Ontario Works.

[32] The applicant and children spent significant time staying with the applicant’s parents subsequent to separation and especially during the initial years following separation.

[33] It was the applicant’s evidence that living with her parents is a plan that will most enable her to transition to fulltime employment, with her parents being available where necessary for childcare. This will assist the applicant in saving more money and achieving better financial security. The applicant hopes eventually to be able to buy a home.

[34] The applicant has other relatives in the Woodstock area. It was the applicant’s evidence that she felt isolated in London.

[35] The children are familiar with the applicant’s parents’ home. They each have their own bedrooms. The home is described as a four bedroom, two bathroom, residence with a large backyard, with a pool and a playroom for the children.

[36] Although the respondent points to the interim order of Raikes J. dated June 28, 2017, dismissing the applicant’s motion to move to Woodstock with the children on an interim basis, it is noted that, in his reasons, Raikes J. stated as follows at para. 23 [^2]:

There is a genuine issue for trial as to custody and access. A move to Woodstock, even pursuant to a without prejudice order, will impact ongoing and future access by the respondent father and the potential outcome of the trial of these issues.

[37] It is salient that, subsequent to this interim order, custody and access issues (except mobility) were resolved as set out in the final order.

[38] In Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.), it was noted that a custodial parent’s views are entitled to great respect: para. 49, cl. 4.

[39] Unlike Gordon v. Goertz, the present case does not involve a variation of an existing final order. However, the present case does raise mobility issues and, hence, the factors to be considered, as discussed in Gordon v. Goertz in para. 49, are relevant:

49. …

50. 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.

[40] A consideration of the factors listed above in Gordon v. Goertz yields the following findings, which I make, in the present case: (a) the applicant is the undisputed primary caregiving parent, who has made all major decisions regarding the children; (b) the final order does not provide for midweek access; (c) the proposed move to Woodstock will not affect the respondent’s ability to exercise access as set out in the final order given the reasonably close proximity of Woodstock to London; and (d) the proposed move will enable the applicant to improve her employability and financial security.

[41] During cross-examination, the applicant testified that her happiness was a reason for the proposed move. In Bjornson v. Creighton, 2002 CarswellOnt 3866 (Ont. C.A.), relied on by the applicant, the Court of Appeal for Ontario allowed an appeal by the mother from the trial judge’s refusal to permit the mother to move from Ontario to Alberta with the parties’ child, stating that the trial judge erred in reducing the issue of the child’s best interests to one dealing only with employment:

21 I recognize that as an appellate court we have only a narrow scope of judicial review (Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014 (S.C.C.), at 1021-1026). In my view, however, the trial judge erred in reducing the issue of the child's best interests to one that deals only with employment. In doing so, the trial judge overlooked or disregarded the social, psychological and emotional aspects of the mother's desire to return to Alberta with the child. Bjornson wishes to return to Alberta to regain the general stability, control and independence that she enjoyed in her emotional, professional, psychological and social life there.

[42] The respondent questioned why the applicant had to move to Woodstock to pursue employment there, rather than London. However, the analysis in Bjornson supports the conclusion that the applicant’s desire to remove herself from feelings of isolation, and her desire to regain the emotional and psychological support that she had in Woodstock, are relevant factors in assessing the children’s best interests.

[43] Regarding a custodial parent’s views, the Court of Appeal for Ontario in Bjornson stated:

45 The views of the custodial parent, despite the Supreme Court's rejection of a legal presumption in their favour, remain a very important consideration in any analysis of the best interests of the child. Moreover, the views of the custodial parent are a factor which the Supreme Court of Canada considered significant enough to single out as being worthy of "great respect" and "the most serious consideration." …

[44] In assessing the children’s best interests, I have considered the factors set out in s. 24(2) of the Children's Law Reform Act.

[45] The applicant’s evidence in support of her proposed move was not shaken in any material way, if at all, during cross-examination. As the children’s primary caregiver, her views are worthy of “great respect.”

[46] I am satisfied on the evidentiary record that the order sought by the applicant to permit her to reside with the children in Woodstock is in the children’s best interests. Also, I would have arrived at the same conclusion if this case had to be decided under the Divorce Act and, particularly, the provisions of s. 16 of the Divorce Act.

[47] The final order specifies that the alternate weekend access is from 5 p.m. Friday to 6 p.m. Sunday, with the access to start at 5 p.m. Thursday if Friday is a holiday or a “PA day,” and extended to 6 p.m. if Monday is a holiday.

[48] The applicant, in her evidence, indicated that she is agreeable to being responsible for half of the transportation if the move to Woodstock is permitted and, further, that she would be agreeable to extend the return times on the respondent’s weekend by an hour. The final order provides that the respondent shall be responsible for all transportation associated with access while the applicant resides with the children in London.

[49] I find that the applicant should share half of the transportation, given that the move is at her request. It was the applicant’s evidence that she can use her parents’ vehicle and that she anticipated having her final driver’s licence by May 2019.

[50] I find that the respondent’s access time should be extended by one hour at the end of his weekend access and also at the end of his other specified access times on special occasions (other than Christmas) as currently set out in the final order. This will permit the respondent to spend his usual access time with the children and then will allow him an hour to return the children from his home to Woodstock, which is more than sufficient to drive from London to Woodstock as set out in the evidence.

[51] I make the following final order:

1. The applicant is permitted to relocate with the children to Woodstock, Ontario.
2. The children’s principal place of residence shall not be changed from Woodstock, Ontario except on written agreement of the parties or order of the court.
3. Unless the parties agree otherwise, the applicant shall deliver the children to the respondent’s residence at the beginning of all access visits and the respondent shall return the children to the applicant’s residence at the conclusion of all access visits.
4. The respondent’s access visits shall conclude at 7 p.m., rather than 6 p.m., for all weekend access visits, Father’s Day access, Easter access, Thanksgiving access and May 24th weekend, and paragraphs 2(a), 3(c), 3(d), 3(f) and 3(i) of the final order of Henderson J. dated July 30, 2018 are varied accordingly.
5. This final order is made pursuant to the Children's Law Reform Act.
6. If the parties are unable to settle the issue of costs, the parties may make written submissions on costs, to be filed with the trial coordinator no later than July 31, 2019, limited to two-typed pages, double-spaced, together with copies of any offers, time dockets, bills of costs and authorities.

“Justice Victor Mitrow” Justice Victor Mitrow Released: July 2, 2019

Footnotes

[^1]: See Rothgiesser v. Rothgiesser, 2000 CarswellOnt 50 (Ont. C.A.) and Okmyanski v. Okmyanski, 2007 ONCA 427 (Ont. C.A.). [^2]: Wauthier v. McAuliff, 2017 ONSC 4100 (Ont. S.C.J.), London docket FD773/15