COURT FILE NO.: FC-12-1633

DATE: 20190828

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DANIEL TRUDEL, Applicant

-and-

MELISSA WARD, Respondent

BEFORE: Madam Justice Julie Audet

COUNSEL: Applicant, Self-represented

Annemarie Roodal, for the Respondent

HEARD: August 27, 2019

ENDORSEMENT

1This is a motion brought by the applicant father seeking to preclude the respondent mother from relocating with the parties’ child to Fergus, Ontario. The mother brings a cross-motion by which she seeks leave to move with the child to Fergus.

Background

2The parties are the biological parents of Kierlyn Alexandra Trudel, born August 10, 2010. Kierlyn is nine years old and was diagnosed with autism when she was approximately two years old. She has very special needs and requires specialized care and services from a medical and educational perspective. Both parents reside in the Ottawa region.

3On October 21, 2014, the parties consented to a final order that provided the following:

a) The mother was to have sole custody of Kierlyn;

b) The father was to have access to Kierlyn on alternate weekends, only when he had his other daughter Bella in his care, from Friday at 7:00 p.m. to Sunday at 7:00 p.m., as well as any other time at the mother’s discretion;

c) The father was to pay child support in the amount of $250 per month based on an imputed income of $30,400;

d) Contact between the parties was to be in writing only and was to be limited to arrangements relating to access between Kierlyn and her father;

e) The father was to complete an anger management program by April 30, 2015.

4The mother alleges that she ended her relationship with the father because he was emotionally and verbally abusive to her. At the time the final order was made, she says that the father had difficulty managing his anger and she was concerned about his ability to care for Kierlyn. As a result, she insisted that his access to Kierlyn take place while he also had access to Bella, his daughter from another relationship who was eight or nine at the time. The mother felt that Bella would be able to verbalize to her and to her own mother if there were any problems with the access. At the time of the order, Kierlyn was around four years old and she was not verbal.

5The father takes the position that the mother’s wish to move to Fergus with Kierlyn is just another way in which she continues to try and undermine his relationship with his daughter and alienate her from him. He is also of the view that the mother is unable to properly care for Kierlyn on a full-time basis and that she should remain near Ottawa to ensure that he is available if she is ever in need of assistance, as has been the case on at least two occasions in the past.

6The mother states that she wishes to relocate to Fergus for two reasons. First, she has secured more autism support services in Fergus for Kierlyn. Second, her cousin, who also has an autistic child, resides in Fergus and has offered to provide her with support in caring for Kierlyn.

Relocation

7No motion to change was filed by the father. This is an urgent motion brought on a temporary basis before the filing of proper pleadings. The main issue for determination is whether, on a temporary basis, the court should permit the mother to move with the child to Fergus, Ontario.

8In Gordon v. Geortz, 1996 CanLII 191 (SCC), [1996], 2 S.C.R. 27, the Supreme Court of Canada established the relevant legal principles to take into consideration in a mobility case. The focus of the inquiry is on the child’s best interests and requires a full and sensitive inquiry taking into account the following considerations:

a) there is no legal presumption in favour of the de facto custodial parent;

b) the focus is on the best interests of the child and not the wishes of the parent;

c) the court should consider the existing parenting arrangement;

d) it is desirable to maximizing contact with both parents;

e) the views of the child;

f) a custodial parent’s wishes to move are only considered if they are relevant to their ability to meet the needs of the children;

g) the disruption to the child by changes in school, community and family they have come to know.

9In N.D.L. v. M.S.L., 2010 NSSC 68, 289 N.S.R. (2d) 8 at paras. 9 and 10, the court listed a very helpful list of additional factors that courts have considered when applying the framework in Gordon. While I will not repeat them all here, I have also considered many of those additional factors.

10I am also mindful of the fact that my decision, which is interim in nature, is likely to establish a status quo which will be very difficult to change in the context of a trial that might only take place in several months or even a year from now (assuming that it will be pursued by the parties). For that reason, at the interim stage, the following considerations are also relevant in deciding a mobility issue:

• The court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial;

• There can be compelling circumstances that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family, which will be lost if the matter awaits a trial or the best interests of the children might dictate that he commences school at a new location;

• Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong possibility that the custodial parent’s position will prevail at trial (Plumley v. Plumley, 1999 CanLII 13990 (ON SC)).

11Having looked at all these factors and considerations, I come to the conclusion that the mother should be permitted to move to Fergus with Kierlyn, on a temporary basis, for the following reasons.

12It is not denied that since the final order was made, the mother has been Kierlyn’s primary caregiver. It is not disputed that she is the parent who ensured that Kierlyn received speech therapy and occupational therapy to assist her, who constantly advocated for Kierlyn at her school to arrange necessary supports for her, and that she has been responsible for all her medical needs and her overall development. It is not denied that Kierlyn is closely attached and bonded to her mother.

13It is equally not difficult for me to conclude that the father deeply loves his daughter and that he wants to be part of her life. However, the relationship between the parties has been extremely difficult over the years and there is very little communication between them. While the father attributes this lack of cooperation to the mother’s attempt to alienate their daughter from him, the mother asserts that it is necessary for her to minimize her contact with the father as much as possible because of his abusive behaviour. It is not disputed that the father did not complete the anger management program he was required to complete in accordance with the consent final order.

14While the father has had regular access to Kierlyn, his access was often reduced as a result of work commitments, sickness, lack of proper accommodations, his daughter Bella not attending access, and because of many other reasons. Voluntarily, the father’s access was eventually reduced to every second Saturday (instead of Friday) with the time varying between early morning to later in the day, to Sunday around 7:30 p.m. or earlier. For various reasons, Kierlyn has often been returned home early.

15It appears that Bella no longer spends overnights at the father’s home. She is now around 13 or 14 years old and her access to her father is on a casual basis, takes place one day during any given weekend, and only if Bella wants the access to proceed. The mother’s insistence that Bella be present when the father has access to Kierlyn, as required by the order, appears to have contributed to the diminished access between Kierlyn and her father, and to have created some conflict between the parties.

16The mother has health issues due to her type I diabetes. She is in receipt of Ontario disability benefits and is not working outside of the home. When she is ill and must go to the hospital, she has had to rely on the father (while they were still together), her former boyfriend or her parents, who live in Timmins, to temporarily care for Kierlyn. According to the father, on two occasions the Children’s Aid Society intervened to place Kierlyn in his temporary care because of the mother’s hospitalization (prior to the final order being made).

17The mother’s cousin, Natalie Provost, and her partner reside in Fergus with their three children. Natalie and her partner are also Kierlyn’s godparents. One of their children is autistic and they are well aware of all the services available in the area for autistic children and their families. As the mother is no longer in a relationship, and since she has no family support in Ottawa, her being able to rely on her cousin to care for Kierlyn if she needs urgent medical care is very important. The mother states that the father has been unreliable and cannot be counted on to offer support.

18If she moves to Fergus, the mother will be living within five minutes walking distance of her cousin’s home. Kierlyn will be able to interact with her cousin’s children and spend more meaningful time with her autistic second cousin with whom she gets along well. In Ottawa, Kierlyn has struggled to make friends and to connect with people. Her difficulties in establishing friendships with other children has been very difficult for her, especially as she is getting older.

19Kierlyn’s family doctor, Dr. Heather Davern, is aware of the mother’s plan to relocate to Fergus and has provided a referral for Kierlyn to obtain a family doctor and pediatrician in Fergus. She is supportive of the move.

20If permitted to relocate to Fergus, Kierlyn will be attending Victoria Terrace Public School. In Ottawa, she has been attending South March Public School and is in a class with children much younger than her, who are functioning at a lower developmental level. Her classmates are all autistic and range from 4 to 5 years old. She shares a teacher and an educational assistant with her classmates.

21It is suggested by the mother that Victoria Terrace Public School will offer Kierlyn more challenges than she is currently being offered in Ottawa. Kierlyn’s educational assistant at South March Public School, Ms. Donaldson, has written a letter which was attached to the mother’s evidence and in which she confirms that Kierlyn’s learning at her current placement is impacted by the needs of her low functioning classmates. She notes that Kierlyn would benefit from learning with age-appropriate peers and individual support.

22At Victoria Terrace Public School in Fergus, Kierlyn will have an educational assistant assigned specifically to her, instead of having to share one with her classmates. The school’s plan is to work towards helping Kierlyn reach her full potential including the goal of integrating her into a regular classroom instead of keeping her at a lower level, as is the case in Ottawa. There are also applied behavioural analysis therapy services immediately available in Fergus, while there is a wait list for the services in Ottawa.

23The mother states that she informed the father by text message on June 22, 2019, of her plan to relocate to Fergus. At the end of June, she confirmed, again, by way of a letter sent to him and provided him with two proposals to continue his access to Kierlyn. She says that the father was not cooperative and advised that he would not consent to her proposed move. At that time, the mother also informed the father that she would be taking Kierlyn to Timmins for three weeks to visit her parents as she normally does during the summer. As a result of unexpected difficulties in her travel plans, she returned to Ottawa only much later than anticipated. She says that she kept the father informed of this delay.

24On August 14, the father came to the mother’s home to serve her with his urgent motion. She alleges that he banged on the door and constantly rang her doorbell until she answered the door, at which point he barged into her home, he yelled at her and demanded to see his daughter. This led to some pushing and shoving. The police were called, and the father was charged with breaching the final order.

25These events, as recounted by the mother in her evidence, were not addressed by the father in his evidence (he only stated “I approached the home to serve Melissa court documents and ask to see my child which resulted in me being charged with failing to follow a court order”). This gives credence to the mother’s allegation that the father can be abusive to her and that he has not yet addressed his anger management issues. The mother says that Kierlyn witnessed this incident, was frightened by it and expressed resistance in going back on access visits with her father as a result.

26Although required to pay child support in the amount of $250 per month, the father has not paid any support for Kierlyn since October 2016. He is currently in arrears of child support in the amount of $10,367. The father claims that he intends to bring a motion to vary his child support retroactively due to the fact that during the vast majority of those years he was in receipt of employment insurance and social assistance benefits and did not earn an income. However, in his representations to the court, he justified the need to constantly change his visits with Kierlyn based on his long work hours which often require him to work six days a week. While the father may very well be entitled to a reduction in his child support arrears, the reality is that the mother has been solely responsible for the needs of this young child for the past four years.

27Considering all of the above, I am of the view that there is a strong possibility that the mother’s position will prevail at trial and that there are compelling circumstances that support the mother’s wish to relocate to Fergus with Kierlyn on a temporary basis. Based on all the circumstances of this case, I find that it is in Kierlyn’s best interest to move to Fergus.

28It is also in Kierlyn’s best interests to maintain and foster her relationship with her father. While the distance between Fergus and Ottawa is significant (a 6-hour drive), I find that the mother has offered reasonable alternatives to ensure that Kierlyn’s relationship with her father and his family is maintained. While the visits will be less frequent, they will be more meaningful in that Kierlyn will get to spend longer periods of time (in terms of consecutive days) with her father every month. In addition, given the distance between the parties’ respective homes, this new access regime will require a much stricter adherence by the parties which will hopefully reduce the conflict between the parents.

29The mother has proposed each of the father’s weekend visits, as set out below, to accord with long weekends available to Kierlyn because of PD days in her new school. This is reasonable.

30Therefore, the following temporary order shall issue:

1. The respondent mother is hereby permitted to move to Fergus, Ontario, with the child, Kierlyn Alexandra Trudel, born August 10, 2010.

2. The applicant father shall have access to Kierlyn in Ottawa as follows in 2019-2020:

   1. from September 26 to September 29;
   2. from October 10 to October 14;
   3. from November 1 (at 10 AM) to November 3 (shorter visit due to Halloween);
   4. from December 20 to December 27;
   5. from January 30 to February 2;
   6. from March 13 to March 16;
   7. from April 23 to April 26;
   8. from May 15 to May 18;
   9. from June 26 to June 28.

3. Except for November 1, the father’s access will commence at 6:00 p.m. on the first day and will end at 4:00 p.m. on the last day, unless agreed to otherwise in writing between the parties. Failing agreement, the parties must follow this order.

4. Kierlyn shall be picked up by her father at the beginning of his visit in Peterborough, at a location to be agreed to by the parties and returned at that same location at the end of his visit to be picked up by the mother.

5. On notice to, and with the consent of, the other parent, a designate may be sent by a parent to pick up or drop off Kierlyn.

6. To account for the father’s requirement to travel to and from Peterborough, and at the suggestion and on consent of the mother, his ongoing child support payments shall be reduced to $125 for each month that he exercises a visit with Kierlyn.

7. The father’s access to Kierlyn this coming weekend (Labour Day Weekend) shall remain as per the former access schedule. As Kierlyn will start school in her new school in Fergus on Tuesday, September 3, she is to be returned to her mother on Sunday no later than 4:00 p.m.

8. There shall no longer be a requirement that Bella be present for access to occur between Kierlyn and her father.

9. The father shall have telephone access or video calls to Kierlyn a minimum of twice per week.

10. In the event that the father does not serve and file a proper motion to change within the next 60 days, the above order shall be deemed a final order which varies the final order of Justice Lalonde dated October 21, 2014, in accordance with the following directions:

    1. The father’s weekend access in the school year 2020-2021 and any subsequent years shall be picked based on long weekends available to Kierlyn because of PD days or holidays;
    2. The father’s access during the Christmas Holidays will be for seven days and will alternate from year to year between the first week after the end of school and the last week before Kierlyn’s return to school.