Court File and Parties

COURT FILE NO.: FC-19-222 DATE: September 20, 2019 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Scott Milne, Applicant AND: Shayla Leigh Mantifel, Respondent

BEFORE: Honourable Madame Justice M. Fraser

COUNSEL: Jeremiah Kalyniak, for the Applicant Dylan Crosby, for the Respondent

HEARD: September 10, 2019

ENDORSEMENT

[1] The Applicant, (“father”), seeks a temporary order prohibiting the Respondent, (“mother”) from relocating the residence of the child of the relationship, R.M. born in 2015 (the “child”), outside of Ennismore, Ontario. The father alternatively seeks a temporary order prohibiting the mother from relocating the residence of the child outside of Barry’s Bay, Ontario. He additionally seeks a temporary order that the child reside primarily with him.

Background:

[2] The parties cohabited between 2013 and 2018. They separated toward the end of August 2018. The child is the only child of the relationship. She is presently four years old and is starting junior kindergarten.

[3] During the relationship the parties resided in Ennismore, a small town near Peterborough, Ontario.

[4] The parties did not formalize any arrangement for custody and access after they separated and as such there is no separation agreement or court order governing those issues.

Position of the Parties:

[5] The father states that prior to their separation, the parties were equally involved in the care of the child and that they were both actively involved parents. He maintains that on August 19, 2018 the mother moved the child’s residence to Barry’s Bay, Ontario without his consent.

[6] The mother maintains that the child has always been in her primary care and that the father has not contributed toward the care of the child in the significant way he presently alleges. For instance, the mother advises that following the birth of the child, she took a one-year maternity leave. The mother returned to work in September 2016. She worked evenings and nights on a full-time basis with Extendicare in Peterborough. She continued to oversee the care of the child. Her grandmother, (“grandmother”), moved in with the parties to assist with the child care when she was at work. The mother maintains that it was the grandmother who cared for the child while she was working notwithstanding the father’s availability. The mother maintains that the father was unwilling and unsuited to look after the child on his own at this point. The grandmother has also sworn an affidavit supporting this claim.

[7] It is clear that there was some conflict between the parties leading up to their separation in late August 2018. The father alleges that the mother had issues with her mental health and with alcohol. The mother alleges the father had a severe drinking problem and recounted incidents in which the father uttered threats to her and was violent. Ultimately, and concurrent with the end of the relationship, the father was charged criminally. Shortly after the mother complained to the police and the father was charged, the mother moved the child’s residence to Barry’s Bay. These charges were resolved by way of a peace bond on August 1, 2019.

[8] The father advises that he took no action to dispute the mother’s relocation of the child’s residence to Barry’s Bay because he was afraid the mother would again report him to the police. He also admits that he did not dispute her relocating the child’s residence because he recognized the importance of the mother’s relationship with the child.

[9] Since their separation, the father has exercised regular access to the child. For the first couple of months he had access to the child every weekend. For a few weeks in November 2018, his access was expanded to include every Thursday, Friday, Saturday and Sunday. Between November 26, 2018 and March 24, 2019, he maintains that the parties shared parenting. Finally, between March 24, 2019 to date, he has exercised access to the child each weekend.

[10] While in Barry’s Bay, the mother resided with the grandmother. She states that this was a temporary arrangement and that the grandmother’s house is unsuited to accommodating the child and her. The grandmother’s residence does not have a bedroom for them and is “off the grid.” Its sole source of heat is a small woodstove.

[11] The father advises that in June 2019, the mother proposed that she move with the child to Deep River, Ontario so that she could move in with her new partner. She had been dating this individual since December 2018. She claims that she has been spending fifty per cent of her time in Deep River, Ontario since February 2019 and that she and the child began living with her boyfriend on a part time basis between February and April 2019. She moved to Deep River, Ontario on a full-time basis in June 2019.

[12] The home in Deep River, Ontario has three bedrooms and as such the child has her own room there. The child has been enrolled in junior kindergarten at Mackenzie Community School and began classes there on September 3, 2019.

[13] The father’s main objection to this move is that this adds an extra 100 km each way for the child to travel for access visits with him. The distance between Ennismore and Barry’s Bay is 185 kilometers, whereas the distance between Ennismore and Deep River is 285 kilometers.

[14] The father objected to this move and while he appears to have been aware of her intentions, it was not until July 24, 2019, that the father learned that the mother had proceeded to move to Deep River, Ontario without any further consultation with him.

[15] The father maintains that this move is not in the child’s best interests. He believes that the distance is too taxing on a child of her age because of the additional travel time it requires to accommodate his access visits. He additionally claims that the child is not comfortable living in the new home in Deep River with a new male figure. He would like the child’s residence moved back to Ennismore.

Analysis:

[16] The leading case in Canada regarding the issue of mobility is the case of Gordon v. Goertz, 1996 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.

[17] 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.”

[18] 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).

[19] The Ontario Court of Appeal in Bjornson v. Creighton, (2002), 2002 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.

[20] 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.”

[21] Justice Marshman in Plumley v. Plumley, (1999), 1999 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.”

[22] 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.

[23] 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).

Should an order be made requiring the child to be returned to Ennismore or alternatively Barry’s Bay pending a trial of the issues in this matter? Should there be a temporary order placing the child in the primary care of the father?

[24] I first consider the factors set out in Gordon v. Goertz.

[25] It appears that the mother has been the principal caregiver of the child from birth and her ability to provide adequate care for the child is not questioned.

[26] To the credit of the parties, they have managed to amicably arrange the father’s ongoing access since their separation and the father’s access has been regular and weekly. This demonstrates that the father is committed to maintaining a close and loving relationship with the child and this is not questioned in this proceeding either.

[27] Based upon the affidavit evidence, it would seem likely that a court will conclude that the frequent contact between the child and both parties is consistent with her best interests.

[28] There is no compelling independent evidence available at this juncture to support the child’s views, and given her age, I would be hesitant to give them much weight in any event.

[29] The mother’s move with the child to Deep River is based upon her decision to reside with her new partner. To this extent, the reasons for the mother’s move are not very relevant to meeting the needs of the child. I do note, however, that the proposed move will provide the child with more suitable living accommodations.

[30] I conclude that the father’s proposal that the child be returned to Ennismore to his care would cause a fairly significant disruption to the child as it would involve a change in the de facto custody arrangement. It is relatively clear on the evidence that the mother has been the primary caregiver of this child from birth. She took the parental leave. She continued, it appears, to play the role of primary caregiver throughout the relationship. Upon separation, the father in his affidavit states that he did not contest her move with the child to Barry’s Bay because he concluded that it was important for the child to have a relationship with her mother.

[31] There is no doubt that the move to Deep River could pose some disruption to the child as it renders access visits with the father more difficult. It could be that as the child becomes older that regular weekly access due to the distance will become less feasible. The child will become increasingly engaged in extracurricular activities which will place demands on her time and the demands of school will become greater. It is an unknown at this point whether, as the child ages, alternative access arrangements may better fit and accommodate that distance to facilitate access.

[32] It does appear that the move to Deep River has not caused great disruption to the child due to her removal from family, schools or community in Ennismore as this happened in August 2018. I also do not conclude that the move to Deep River causes any great disruption to the child as a result of her removal from family, schools and the community in Barry’s Bay given the unsuitability and temporary nature of the residence in Barry’s Bay and given that the child was not, due to her age, engaged to any degree in that community or its schools.

[33] I next give consideration to the factors set out in Plumley v. Plumley.

[34] There are genuine issues for trial. In particular, the issue of custody and access will require a determination of the child’s best interests and this can only happen once the child’s relationship with both parties is examined more thoroughly and the proposed move, with all that it entails, is more fully considered.

[35] However, while these issues remain outstanding, I nonetheless conclude that a change in “status quo” as it existed prior to the move to Deep River, will not materially prejudice the determination of these issues. I conclude that the principal issue which needs to be determined at trial is whether it is in the child’s best interest to remain with the mother in Deep River or whether the child should be transferred to the father’s primary care in Ennismore. Given the living arrangements that existed in Barry’s Bay, I do not conclude that it is a realistic to conclude that the child should be returned to Barry’s Bay, particularly when neither party wishes to or presently resides in Barry’s Bay.

[36] Notwithstanding that there are genuine issues for trial, I must consider whether the relocation ought to be permitted notwithstanding such issues, if there is a strong probability that the mother’s position will prevail at trial. Based on the enumerated factors which I have considered as set out in Gordon v. Goertz, I conclude that there is a strong probability that the mother’s position will prevail at trial.

[37] I have come to the conclusion that the child should reside in Deep River, in the mother’s primary care, pending trial for the following reasons:

(a) I conclude that the mother has been the primary caregiver of the child to date and her ability to care for the child is not being challenged. I conclude that it is unlikely that primary custody will change following a trial;

(b) The child is young. She is not at the level of school or engaged in extracurricular activities to the extent that the father’s access will be frustrated as a result of the move pending trial. If the continued access proves difficult for the child, the schedule can be modified to provide the father with additional alternate but equivalent access pending trial;

(c) I am satisfied on the affidavit evidence before me that the mother’s intention to move has been made in good faith and is not made for the purposes of frustrating the father's access to the child. The mother has cooperated in facilitating regular access between the father and the child; and

(d) Given the child’s young age, I do not see that permitting the move on an interim basis pending trial will create a new “status quo” that will prejudice the father. It is unlikely for instance, given the child’s young age, that any engagement in school or extracurricular activities in Deep River pending trial will carry such strength or priority that such engagement will effectively predetermine the issues.

[38] Therefore, in this particular case, I have come to the conclusion that the move ought to be permitted on an interim basis. It is in the child's best interests to commence school in her new location in September. In fact, given that I conclude that it is likely that the mother will be successful following a trial in this matter, this minimizes the potential disruption of a move to a new school in the middle of the year after a trial.

[39] In these circumstances and for these reasons, the father’s motion is dismissed on an interim basis, without prejudice to his right to apply for a variation of the interim access order pending trial.

[40] This matter shall be scheduled for a case conference through the trial coordinator’s office.

[41] If the parties cannot agree on the costs of this motion, then the mother 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 father has ten days from receipt of the mother’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 20, 2019