Labine v. Labine, 2019 ONSC 4158

SIMCOE COURT FILE NO.: 6701/18

DATE: July 9, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Paul Labine

Applicant

– and –

Sarah Labine

Respondent

Gloria Antwi, for the Applicant

Justine Lyons, for the Respondent

Alison R. Macdonald, Office of the Children’s Lawyer

HEARD AT SIMCOE, ONTARIO:

June 27, 2019

The Honourable Madam Justice M. Kril

REASONS FOR DECISION

1This motion was brought by the Respondent mother for a temporary order allowing her to move the children to Pickering, joint custody, primary residence with her, access by the Applicant father and for the children to attend school full time in Pickering.

2No amended notice of motion was filed. However, it was clear from the affidavit material and argument that the Respondent mother had subsequently re-located to Toronto from Pickering and that she was seeking relief accordingly.

3At the conclusion of the argument of the motion, I advised counsel that the Respondent mother’s motion was dismissed and that written reasons would follow.

Background

4The parties married on June 21, 2002 and separated on June 24, 2018.

5There are two children of the marriage, namely, Romeo Chelsey Labine, born April 11, 2005 (now 14 years old) and Naomi Sarah Labine, born March 14, 2007 (now 12 years old).

6On June 26, 2018 the Respondent mother left the matrimonial home with the children without the prior knowledge or consent of the Applicant father. The Applicant father brought an ex parte motion on an urgent basis for an order that the children be returned.

7On June 28, 2018 Justice Arrell made an order granting the Applicant father temporary sole custody, care and control of the children of the marriage and ordering that the Respondent mother return the children forthwith to the matrimonial home in Waterford. The children were returned on June 29, 2018 and have remained primarily resident in the matrimonial home in Waterford since that date.

8This matter was before the court on July 4, 2018 (the return date of the ex parte motion) and July 19, 2018 (case conference). On July 19, 2018 an order was made referring the matter to the Office of the Children’s Lawyer and a long motion was scheduled for August 30, 2018. On August 17, 2018 the Respondent mother served her notice of motion. The Respondent mother’s motion thereafter was referred in the endorsements of the court as the “mobility motion”. Her motion was adjourned on consent from November 15, 2018 to January 24, 2019 and ultimately scheduled for hearing on June 27, 2019 following a settlement conference on May 31, 2019. On the return of the motion before me, the status quo established by the June 28, 2018 order had been in place for one year.

Preliminary Procedural Issues

9A. At the outset of the hearing of the Respondent mother’s motion, her counsel Ms. Lyons sought leave to file three additional affidavits previously served upon the Applicant father. Counsel for the Applicant father, Ms. Antwi objected on the basis that Justice Gordon had ruled on January 24, 2019 that supplementary affidavits were to have been filed by April 30, 2019. Ms. Antwi argued that Justice Gordon’s intention was to restrict further affidavit material to affidavits of the parties only for purposes of updating the evidence. She argued that Justice Gordon had intended that no further affidavit material was to have been served.

10Justice Gordon’s endorsement reads,“supplementary affidavits by 30/4/19”. There is no definition or limitation with respect to the affiants of that material contained in the endorsement. The affidavits in issue were served prior to the April 30, 2019 deadline. In order to have all potential evidence with respect to the children’s best interests available to me on the hearing of the motion, I granted leave to file the affidavits of Mudassar Ahmed Hayee, Deborah Anne Soulier and Chesley Ronald Bradbury.

11B. Counsel for the Applicant father submitted that Exhibits A, B, E and F to the Respondent mother’s affidavit sworn April 30, 2018 should be stricken from the record. The exhibits were not in affidavit form. The authors of the emails or letters from Jazz Singh (“A”), Paul Takano and Jack Boland (“B”), Chris Steinbach (“E”) and Susan Coish (“F”) had not deposed to the truth of the statements. The statements did not comply with the requirements of the Family Law Rules and were not open to cross-examination. They were submitted as proof of their contents. As such, Exhibits A, B, E and F to the affidavit of Sarah Labine sworn on April 30, 2018 were struck from the record.

Primary Substantive Issue

12On this motion the Respondent mother seeks an order which would change the primary residence of the children from the former matrimonial home in Waterdown to Toronto, pending trial.

The Law

13Established temporary primary residency orders should not be changed pending trial unless there is compelling evidence that such a change is absolutely necessary in order to meet the children’s needs in the very short term. Or, as succinctly expressed by Marshman, J. in Plumley v. Plumley 1999 CanLII 13990 (ON SC), 1999 CarswellOnt 3503 at paragraph 9(d) “Children are not yo-yos.”

14In Kimpton v. Kimpton 2002 CarswellOnt 5030 (Ont. S.C.J.) at paragraph 1 Wright, J. stated as follows:

There is a golden rule which implacably governs motions for interim custody: stability is a primary need for children caught in the throes of matrimonial dispute and the de facto custody of children ought not to be disturbed pendente lite, unless there is some compelling reason why in the interests of the children, the parent having de facto custody should be deprived thereof. On this consideration hangs all other considerations…

15As stated in Miranda v. Miranda 2013 CarswellOnt 9752, “The status quo will be maintained on an interim custody motion in the absence of compelling reasons that are indicative of the necessity of a change to meet the children’s best interests.”

Analysis

16There was no evidence before me of a compelling reason to make a change in the children’s primary residence before trial.

17Counsel for the Respondent mother submitted that the children’s wishes were such a compelling factor. Yet, the submissions made by the Children’s Lawyer supported the opposite conclusion. The children are, in fact, doing well.

18The evidence is that they are both excelling academically. Although both children have expressed a “slight preference for their mother”, Romeo has clearly expressed that his wish is to attend Simcoe Composite High School in the fall. He recognizes that his doing so is not compatible with his residing in Toronto and he sees this as a dilemma.

19Naomi’s clearest expressed wish (echoed by her brother) is that she wants to live with Romeo and be on the same parenting schedule with him.

20Neither child is prepared to state equivocally with which parent they wish to reside. They want their parents to arrive at this decision and failing that, for the court to decide.

21At this time, the evidence before the court with respect to the children’s best interests is incomplete and contradictory.

22Each party claims to have been the children’s primary caregiver before separation. The Respondent maintains that the Applicant was abusive and controlling. The Applicant denies these allegations. The Applicant deposes that the children have an established and wide social circle in their community. The Respondent’s affidavit contradicts this position. The Respondent claims that her relationship with Mr. Hayee is platonic and that they are roommates. The children have represented to the Children’s Lawyer’s clinician that Mr. Hayee is their mother’s live-in partner.

23Besides the evidence being contradictory, it is also, as yet, incomplete.

24There are a number of issues which remain to be explored. The nature of the Respondent’s relationship with Mr. Hayee and what role he will play in the lives of the children will factor heavily into any residency decision. At the present time it appears that the Respondent is significantly dependent upon Mr. Hayee for both her current residence and for transportation. The nature of the relationship and its stability remains to be determined.

25It is not prudent or reasonable for the court to change the children’s primary residence based on contradictory and incomplete evidence. The trial judge will be in a much better position to make an order based on a full evidentiary record.

Summer Access

26Both parties indicated in their material that they were amenable to an alteration in the parenting schedule for the summer months. The children also both expressed a wish for equal time over the summer although not definitely by week about, month about or combination of days. As such, I invited counsel to advise me in the event that the parties were able to agree upon the details of a shared parenting schedule for the summer months. I am advised that the parties have agreed on the following schedule:

• July 2 to July 18 with Respondent mother

• July 18 to August 3 with Applicant father

• August 3 to August 18 with Respondent mother

• August 18 to start of school with Applicant father.

• All transitions are to take place at 6:00 p.m.

Order

27For the foregoing reasons, order to go as follows:

1. Respondent mother’s motion is dismissed.

2. On consent, summer access in accordance with schedule above.

3. If the parties are unable to agree upon costs, the Applicant father shall submit brief written submissions (no more than three pages) with Bill of Costs attached by July 22, 2019 and Respondent mother shall submit similarly limited written submissions in reply by August 6, 2019. There shall be no reply submissions.

M. Kril J.