Court File and Parties

COURT FILE NO.: FC-19-132

DATE: September 6, 2019

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sean Fitzgerald, Applicant

AND:

Kelly Walsh, Respondent

BEFORE: Honourable Madame Justice M. Fraser

COUNSEL: Carol Craig, for the Applicant

Shawn Duguay, for the Respondent

HEARD: August 13, 2019

ENDORSEMENT

[1] The parties have two motions before the court. The Applicant, Sean Fitzgerald (the “father”), seeks a temporary order prohibiting the Respondent, Kelly Walsh (the “mother”) from relocating the residence of the child of the marriage, namely Clare Pearly Fitzgerald born February 15, 2011 (the “child”), outside of Petawawa, Ontario. The father also seeks an order confirming a joint custody arrangement with a shared parenting schedule. Alternatively, and in the event the mother insists on relocating to Stittsville, Ontario, he seeks an order that the child reside primarily with him Petawawa.

[2] In turn, the mother, by cross-motion, seeks a temporary order permitting the child to relocate to Stittsville, Ontario with her pending a trial of the issues in this application.

[3] Both motions are before this Court as “urgent” motions brought prior to a case conference.

Background:

[4] The parties were married on April 26, 2008. They separated on November 2, 2013. The child is the only child of the marriage. She is presently eight years old and is scheduled to start grade 3 in September, 2019.

[5] The parties entered into a Separation Agreement dated July 7, 2016 which provided as follows:

4.1 Kelly and Sean will have joint custody of Clare, with primary residence for Clare to be with Kelly.

4.2 Sean will have access to Clare every second weekend, from Friday after school until Sunday evenings....

4.3 If Sean’s access weekend lands on a long weekend, his access visit will be extended by 1 overnight.

4.4 The parties will share holiday time equally, including Easter, Thanksgiving and Christmas....

4.5 The parties will implement a week-about access schedule during Clare’s school summer holidays....

4.6 Kelly and Sean agree that it is in Clare’s best interest to spend time with the other party rather than with a third party. Accordingly, if a party with whom Clare is scheduled to be according to the schedule above cannot care for Clare overnight, that party will notify the other party and give the other party the opportunity to do so....

4.7 The parent residing with Clare at the relevant time will make the daily decisions affecting her welfare.

4.8 Kelly and Sean will make important decisions about Clare’s welfare together, including decisions about Clare’s:

a) education;

b) major non-emergency health care;

c) major recreational activities; and

d) religious activities.

If the parties cannot agree, they will attempt to negotiate or mediate their differences prior to commencing a court application. If after 30 days the parties are unable to agree, Kelly will have final decision making ability. . . .

5. Mobility

5.1 If either party intend to relocate out of the Renfrew County area, they will provide the other party with 90 days notice of the intention to move. The parties will first attempt to negotiate any change in Clare’s access schedule or residency before litigating the issue.

Position of the Parties:

[6] The father states that prior to this agreement, the parties had been enjoying a shared parenting regime with the child (from the summer 2015 to the fall 2016). The Agreement came about and was signed at a time when concerns had arisen respecting the father’s alcohol addiction. Certainly, the Agreement specifically addresses and seems to contemplate this circumstance.

[7] The father states that notwithstanding the terms of the Agreement, his access with the child continued to be increased and that since the fall of 2016, he has had the child in his care one night during the week (originally Tuesday and later changed to Thursday), every second weekend from Friday after school until Monday morning as part of the regular schedule. He states that further weekend and midweek overnights were additionally arranged on a more informal schedule. Also, for the past two summers the child has been in the father’s care for five out of the nine weeks of summer holidays on a week-about schedule. As such, he maintains that for the years 2017 and 2018, the child was in his care for over 40% of the time and that this will be the case for the 2019 year as well.

[8] The mother agrees that the father’s access time has been over and above the specific time contemplated by the agreement. She suggests, however, that the father’s access time more approximated 32 to 35%.

[9] She points out that notwithstanding the father’s access time with the child, she alone has been the principal caregiver of the child in the sense that she alone has overseen arrangements for the child’s schooling, medical and dental appointments and the like. She claims that, if the child is permitted to move to Stittsville with her, the father’s access time can be modified so that even if his regular access schedule can not happen as it has, additional time with the child can be made up to compensate for this by adding additional time during the summer holidays and long weekends. She maintains therefore that no negative impact would be caused by the proposed move as alternative access time would be substituted that provides the equivalent time substantively to the father.

[10] The suggestion that the father has had minimal involvement in the child’s daily care is disputed by him. He admits that he has not been permitted to have input into the child’s medical needs due to the fact the mother is a nurse given she feels she is best able to make such decisions. However, he claims to have participated in many decisions regarding the child’s extra curricular activities, and that sometimes he has been solely responsible for such activities. He claims to have regularly assisted the child with her homework, school projects and activities, attended school field trips and parent teacher interviews. He maintains that he has engaged with the school on an ongoing basis.

[11] The father appears to be particularly engaged and supportive of the child’s involvement in competitive swimming. The child has excelled at this activity competing against older children and she received the award for top swimmer in her age group from her swim club. The child has four practices on average per week and the father assists with bringing her to practices.

[12] Both parties and the child have been resident in Petawawa, Ontario since 2014. As such, the child has lived in Petawawa since she was a toddler.

[13] On May 21, 2019, the mother informed the father that she intended to relocate to Stittsville, Ontario with the child before the commencement of the school year in 2019. The mother had, without providing advance warning to the father, obtained a new job, sold her home in Petawawa and purchased a new home in Stittsville. The child later revealed to her father that she has known about the move for a period of time and that she had been instructed by the mother not to tell him of the plan to relocate.

[14] This is not the first time the mother has attempted to relocate the child’s residence. On prior occasions her intentions were communicated in advance. On these occasions the father refused to consent to such requests taking the position that relocating the child’s residence was not in her best interests. On January 31, 2018, the mother advised the father of her wish to relocate with the child to the Ottawa area. On this occasion, the mother ultimately agreed that she would not relocate the residence of the child to Ottawa but asked to change the father’s midweek overnight access from Tuesday evenings to Thursday evenings as this would allow her to accommodate her professional commitments in Ottawa while continuing to reside in Petawawa. The father agreed to this.

[15] When the parties last attempted to address a request by the mother to relocate, the father, through counsel, again made it clear that the father was not agreeable to such a move.

[16] In response, the mother’s counsel, Mr. Duguay, by letter dated November 12, 2018 advised that the mother would not be pursuing relocation with the child at that time. Mr. Duguay’s correspondence expressly stated: “I can further confirm that Ms. Walsh will not take any steps to relocate to Ottawa with Clare without Mr. Fitzgerald’s consent or a Court Order.”

[17] Notwithstanding this correspondence, the mother has, without prior notice to the father of her intention to do so, sold her home in Petawawa and purchased a home in Stittsville.

[18] The mother now asks the court to permit the child to be relocated to Stittsville on an urgent basis, prior to a case conference being held, and based upon affidavit evidence alone. The “urgency” arises as a result of the commencement of the 2019-2020 school year for the child and her desire to enrol the child in a school in Stittsville.

[19] Both parties agree that the child has expressed a desire to move with the mother. That said, the father is concerned that the child’s views are not independent nor properly informed. He questions the wisdom of the mother discussing the issue with the child. He feels that the child has been unfairly put in the middle of what ought to have been an adult issue. He feels that the child was quietly “sold” on the idea while the mother’s plans were being carried out and were all the while hidden from him. He points out that the mother has apparently promised the child a “pool” in the new backyard. That is quite an enticement for a child involved in competitive swimming. The father is also concerned because of the “reasons” the child gives for her desire to move. She has stated that, “I’m not happy in Petawawa”, “people are talking about me,” and “I’ve done everything there is to do in Petawawa.” The father feels these statements have likely been ideas formed as the result of the mother’s influence and is concerned about such puzzling statements coming from the child. Certainly, these do not seem to be reasons one would expect to hear from an 8-year-old child.

Analysis:

[20] The leading case in Canada regarding the issue of mobility is the case of Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.) in which the Supreme Court of Canada stated that the focus is on the best interests of the child, not the interests and rights of the parents. The Court also stated that each case turns on its own unique circumstances.

[21] Justice McLachlin in Gordon v. Goertz set out a non-exhaustive list of factors which the Court should consider in mobility cases, as follows:

“7. 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.”

[22] Ultimately, the question in a mobility case is what is in the best interests of the child in all of the circumstances (Gordon v. Goertz, para. 50).

[23] The Ontario Court of Appeal in Bjornson v. Creighton, (2002), 2002 CanLII 45125 (ON CA), 62 O.R. (3d) 236 (Ont. C.A.) held that the principles of Gordon v. Goertz, which concerned the variation of an existing Court order, also apply to first instance custody cases.

[24] Interim motions requesting a move of the residence of children pending a trial on the issues of custody and mobility pose their own unique challenges and problems. Justice McSorley in Kennedy v. Hull, 2005 ONCJ 275 (Ont. C.J.) at paragraph 9 stated:

“The problem is that it is difficult, if not impossible, in many cases to complete the extensive child-focussed inquiry required under Gordon v Goertz on the conflicting and incomplete affidavit evidence that is often available on interim motions. The courts’ general reluctance to effect fundamental changes in a child’s lifestyle on interim motions has resulted in a slightly more restrictive approach to interim mobility cases that recognize the short-term nature of interim orders and the summary nature of interim motions.”

[25] Justice Marshman in Plumley v. Plumley, (1999), 1999 CanLII 13990 (ON SC), 90 A.C.W.S. (3d) 740, [1999] O.J. No. 3234, at paragraph 7, stated that the following considerations apply to interim motions regarding mobility pending trial:

“It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis:

1. A 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.

2. 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 unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.

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 a trial.”

[26] As stated in Kennedy v. Hull, where there is incomplete and/or conflicting evidence, courts are generally reluctant to sanction fundamental changes to a child’s lifestyle and circumstances on an interim basis.

[27] Further, although both parties in a dispute concerning care and custody of a child bears an evidentiary burden in connection with the best interests of the child, the burden is on the moving party who seeks to change the status quo on an interim mobility motion to establish compelling reasons to grant the motion (see: Hazelwood v. Hazelwood 2012 ONSC 5069).

Is it in the child’s best interests to move to Stittsville or should she remain in Petawawa pending a trial of the issues in this matter?

[28] I must first consider the extent to which the request to move the child will upset the status quo. In this respect, I do not agree with the argument made by counsel for the mother that the status quo is actually best preserved by permitting the child to move with the mother, given the mother has been the primary caregiver for the child.

[29] The fact that the child has resided primarily with her mother is but one component of the status quo. The status quo involves a multiplicity of factors that combine to establish the child’s accustomed routine (see: Weeres v. Weeres, 2016 ONSC 861 at para. 43-44). I consider it important therefore to give regard additionally to the nature of the relationship the child has enjoyed with her father, including the father’s involvement in the child’s routines, the child’s ties to the Petawawa community, including her connection to extended family, and the child’s school and extracurricular activities.

[30] In doing so, I conclude that in this case it is the mother who seeks to change the status quo by moving the child’s residence to Stittsville. She therefore bears the evidentiary burden in connection with the best interests of the child by establishing compelling reasons to grant her motion.

[31] As stated, there is no dispute in this instance that the mother has been the primary caregiver of the child. It is also not disputed that she has a close and loving relationship with the child. There is no question of her capacity and desire to care for the child and to meet the child’s needs.

[32] That said, the mother’s proposed relocation of the child to Stittsville is based upon her decision to accept employment in the Ottawa area. The mother views this employment opportunity as a career advancement and also as a solution to her present discomfort with working in a small community where contact with clients/patients in the community has presented a challenge. While these are legitimate reasons for the mother’s decision to make changes to her career path, these reasons do not seem to be relevant to the mother’s ability to care for the child. There has been no compelling evidence led to suggest that the employment change will provide greater financial security for the child or that the circumstances which cause the mother discomfort has had a direct negative impact on the child. This career change was optional for the mother. This is not a situation where the mother had no choice but to accept a position elsewhere. I cannot conclude therefore that the reasons for the mother’s move are relevant to meeting the needs of the child.

[33] The father has not been the primary caregiver of the child but has been a committed parent to the child nonetheless and he has exercised frequent and regular access with the child. As such, both parents have been actively involved in the upbringing of the child.

[34] With respect to the father’s involvement with the child’s routine, I have no reason to reject the father’s evidence at this juncture. The father maintains that he has had regular quality interaction with the child and involvement in many of the child’s extracurricular activities. He maintains that the proposed move will negatively impact the nature of the interactions he has had with the child. He believes that alternative vacation time with the child over the summer and on long weekends is no substitute for the regular contact he has had with the child as this has allowed him to be involved and supportive of the child’s regular routine, assisting her with homework and supporting her involvement in activities.

[35] It is clear that a move to Stittsville will disrupt the child’s relationship with her extended family and friends. Further, the child will not be able to continue with the present swim club or her involvement in her present extracurricular activities in Petawawa. The child would have to familiarize herself with a new school environment and meet new friends. I conclude that the proposed move will cause a significant disruption to a status quo that has been a successful, positive force in this child’s upbringing.

[36] I cannot give much weight to the child’s views at this point in this proceeding given it is impossible to conclude, given the father’s evidence, whether her present views are independent and properly informed.

[37] There is every possibility, if the mother’s evidence is accepted at a trial, that the child’s best interests lie in relocating to Stittsville with her mother. However, because of the conflicting evidence before me, I am presently unable to determine that this will be the case.

[38] I find that the following issues, in particular, cannot be decided at this time because of the conflicting evidence and I conclude that they are genuine issues for trial:

1. The nature and extent of the father’s participation in the child’s daily routine and the extent therefore that this disruption will negatively impact the child; and

2. The child’s views and the weight to be given to them by giving regard to whether her views are independent and properly informed.

[39] Notwithstanding my conclusion that there are genuine issues for trial, I must nevertheless consider whether the relocation ought to be permitted if there is a strong probability that the mother’s position will prevail at trial. Given the father’s evidence of his present involvement in the child’s routine, the relationship this child has with the paternal grandmother, and the disruption that will be caused by requiring the child to attend a new school, make new friends, join a different swim club and engage in new extracurricular activities with persons and associations unknown to her at this time, I do not conclude that there is a strong probability that the mother’s position will prevail at trial.

[40] As such, I am not prepared to allow the child to move from Petawawa to Stittsville until there has been an opportunity to determine her best interests following a complete and full hearing on all the relevant evidence. I do not find that the mother has discharged the onus she bears to prove that it would be in the child’s best interests to relocate on an interim basis before trial.

[41] Allowing the mother to move the child’s residence immediately and notwithstanding the conflicting evidence would drastically disrupt the status quo by removing the child from her regular routine, changing her school and placing her into other extracurricular activities outside of the community she has been raised in. This would have the practical result of pre-determining the issues without a trial when I cannot at this point conclude that there is a strong probability that the mother would be successful at trial such that the proposed move should be allowed on an interim basis pending trial.

[42] It is clear on the evidence that the mother has contemplated a move for some time. I note that in this instance, any hardship that may arise by virtue of the court not permitting the child to relocate to Stittsville on an interim basis is the direct result of her own decision to act without consultation when the father’s views on the issue were known to her and she expressly reneged on her earlier assurance that a move would not occur without his consent or a court order permitting same.

[43] The following temporary order shall issue:

1. The mother shall be prohibited from relocating the residence of the child outside of Petawawa, Ontario;

2. In the event the mother chooses to reside outside of Petawawa, Ontario, then the child’s primary residence shall be with the father. The mother shall, in that event, have reasonable and generous access to the child which access can be determined on a further motion, if the parties are not able to agree on a schedule for regular and liberal access.

3. If the mother relocates to Petawawa, Ontario, the child will remain in her primary care pending a trial in this proceeding and the father shall continue to exercise access according to the schedule which had been exercised by him prior to the commencement of this proceeding;

4. If the mother needs time to relocate to Petawawa, Ontario so that the child will remain in her primary care pending trial, then the child shall reside with the father until such arrangements have been made so that the child can commence her school year at the school she attended last year;

5. This matter shall be scheduled for a case conference through the trial coordinator’s office;

6. If the parties cannot agree on the costs of this motion, then the father may make written submissions as to costs, no more than three pages in length, double-spaced, in addition to any pertinent offers and draft bill of costs, within twenty days of the release of this endorsement. The mother has ten days from receipt of the father’s submissions to respond on the same basis. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

Fraser J.

Date: September 6, 2019