COURT FILE NO.: FC-19-930
DATE: October 8, 2019
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Charles Moubarak, Applicant
AND:
Amanda Blakely, Respondent
BEFORE: Honourable Madame Justice M. Fraser
COUNSEL: Joseph A. Di Iorio, for the Applicant
John E. Summers, for the Respondent
Julie I. Guindon, for the children
HEARD: October 1, 2019
ENDORSEMENT
[1] The Applicant father, (the “Applicant”), seeks a temporary order prohibiting the Respondent mother (the “Respondent”) from relocating the residence of the children M.B., born in 2018 and E.M., born in 2010 to Nova Scotia pending trial. The Respondent seeks a temporary order permitting her to relocate the residence of the M.B. and E.M. to Nova Scotia pending trial. She additionally seeks a temporary order for child support.
Background:
[2] The parties began to cohabit in 2009, married in May 2010 and separated on May 13, 2019. The Respondent’s child, M.B. was born as a result of a prior relationship. The Respondent has sole custody of M.B. vis-à-vis the child’s biological father. The Respondent acknowledges, however, that the Applicant has stood in the place of a parent for M.B. The parties additionally have a child together, E.M. During the relationship the parties resided in the City of Ottawa.
Position of the Parties:
[3] The Applicant states that prior to their separation, the parties were both involved with the care of the children and that they were both actively involved parents.
[4] After a heated dispute between the parties, the Respondent left the matrimonial home with the children on May 13, 2019 and she took the children to reside in Nova Scotia.
[5] The Applicant brought a motion which was heard on an urgent notice basis on May 29, 2019 and at that time an order was made requiring the Respondent to return to the City of Ottawa with the children.
[6] The Respondent maintains that the children have always been in her primary care and that the Applicant has not contributed toward the care of the child in the significant way he presently alleges.
[7] She claims that the relationship with the Applicant had become increasingly volatile and abusive and that after an altercation in which the Applicant became physically aggressive with the Respondent on May 13, 2019, she left the home to escape the Applicant and she went with the children to Nova Scotia where she had secured employment. A number of other affiants claim to have witnessed past instances of aggressive behaviours by the Applicant.
[8] The Respondent additional claims that the Applicant is an alcoholic and a cocaine addict, that he was admitted to a 7-day detox program but left the program early.
[9] The Respondent’s evidence is that the parties had previously decided to move, as a family, to Nova Scotia and that, as part of that plan, she had obtained employment there. They had contemplated moving once she secured employment anticipating that, following the move, the Applicant would also find employment once there.
[10] On this basis, the Respondent states, she found and accepted employment. The move to Nova Scotia was then accelerated due to the parties’ separation following their altercation on May 13, 2019.
[11] The parties through counsel consented to the filing of a report which included a summary of the views and preferences of the children prepared by Ms. Guindon. The children have both reported that prior to the parties’ separation, they witnessed a lot of fighting between the Applicant and the Respondent. E.M., the youngest child, reported witnessing his father hitting his older brother and reported that he gets angry and is disrespectful. M.B. told Ms. Guindon that he has been pushed, shoved and yelled at by his father.
[12] Both children report to Ms. Guindon that they wish to remain resident with the Respondent, whether that is in Ottawa or Nova Scotia. Both children are amenable to moving with the Respondent to Nova Scotia. They understand that they would be initially residing with the maternal grandmother and her partner and report having a positive relationship with them.
[13] Since the Order of Justice MacLeod on July 4, 2019, the father has not maximized the opportunities he has been given to exercise access to the children. He has dismissed the possibility of exercising access at a supervised access centre in Smith Falls, notwithstanding the fact that access visits could have taken place.
[14] The Applicant’s main objection to this move is that this will interrupt his ability to build upon and maintain his relationship with the children. This move, he states, would significantly disrupt the quality of relationship he enjoys with the children.
[15] The Respondent, on the other hand, believes that this move is in the child’s best interests. It would allow her to commence her new employment opportunity, which would ultimately be beneficial, over the long term, to the children. The Respondent takes the position that with modern technology, the distance between the Applicant and the children that would be caused by the move can be bridged through technology by employing such applications as Skype.
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:
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.
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.
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 bear 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).
[24] There is a connection between the quality of the parent’s emotional, psychological and social and economic well-being and the quality of a child’s primary caregiving environment. As stated in Ryall v. Ryall, an “improvement in her physical, emotional and financial circumstances” can only benefit the children and therefore be in the children’s best interests (see: Ryall v. Ryall, 2009 ONCJ 687 (OCJ) at paragraph 95).
Should an order be made requiring the child to be remain in Ottawa pending a trial of the issues in this matter? Or should an Order issue allowing the Respondent to move the children’s residence to Nova Scotia pending trial?
[25] I first consider the factors set out in Gordon v. Goertz.
[26] Taking a hard look at the evidence, I conclude that the mother has been the principal caregiver of both children from birth and her ability to provide adequate care for the child is not in issue.
[27] While it seems that the Applicant is committed to maintaining a close and loving relationship with the children, there have been issues reported by the children arising from his anger and his disciplining of them. The children claim to have witnessed conflict between the Applicant and the Respondent. They both claim that the Applicant has pushed and shoved M.B. They report that the Applicant gets angry and is disrespectful. These disclosures are corroborated by a number of affiants whose evidence was filed for the purposes of this motion.
[28] Notwithstanding this and pending the ultimate determination of this issue at trial, access to the father needs to continue and the children are amenable to same. This access to the Applicant needs to happen in a manner consistent with the children’s comfort level. Ms. Guindon reports that the children wish access visits with the Applicant to take place while both brothers are present and they wish to have a third party adult present during visits who is not the Respondent.
[29] Given the conflict which has been alleged and the children’s present views and their disclosures, the Applicant’s proposal that he assume the care of the children or a shared parenting regime at this time is unrealistic.
[30] Both children had believed they were moving as a family to Nova Scotia as this had been the original plan. They are very open, as a result, to the proposed move. They are clear in their view that if the Respondent moves, they wish to move with her. The children have advised Ms. Guindon that if they move, the three of them would initially reside with the maternal grandmother and her partner until the Respondent can afford a place of her own. They report that they have a good relationship with the maternal grandmother and her partner.
[31] The Respondent’s move to Nova Scotia is based upon the family’s earlier decision to move to Nova Scotia and her decision to pursue the employment she had been offered there. This employment opportunity was initially sought out by her when both parties had decided to move to Nova Scotia. The Respondent maintains that the employment position offers greater long-term growth than what was promised by the position she held in Ottawa and that even though the new position offers less income initially, this is compensated for by the reduced cost of living in Nova Scotia. The proposed move offers the children the support of extended family as they adjust and work through the issues that have recently arisen in their lives.
[32] There is no doubt that the move to Nova Scotia could pose some disruption to the children as it renders access visits with the Applicant more difficult. That said, however, the ability to exercise access could easily be enhanced through the use of technology.
[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 children’s best interests and this can best be determined once the children’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” by permitting a move to Nova Scotia, will not materially prejudice the determination of these issues. Given that the Respondent no longer has employment in Ottawa, which situation occurred prior to the separation, no changes are presently being sought which would materially prejudice the principal issue by, for instance, seeing her quit employment available to her in Ottawa. Indeed, if I were to order that she was to keep the residence of the children in Ottawa, I would effectively be requiring her to give up the employment she had recently obtained in Nova Scotia without any guarantee that she would be able to get her old job in Ottawa back or secure alternative employment. This consideration bears even greater importance when the Applicant has claimed to have, without explanation, recently lost his job and maintains he has only secured new employment for the end of October, 2019.
[36] There is no doubt that the proposed move would entail the children changing their school and will disrupt their present activities and social circles. However, the children have reported that they are agreeable to making this change.
[37] 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 Respondent’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 Respondent’s position will prevail at trial.
[38] I have come to the conclusion therefore that it would be in the children’s best interests to reside in Nova Scotia, in the Respondent’s primary care, pending trial for the following reasons:
(a) I conclude that the Respondent has been the primary caregiver of the children to date and her ability to care for the children is not being challenged. I conclude that it is unlikely that primary custody will change following a trial;
(b) I am satisfied on the affidavit evidence before me that the Respondent’s intention to move has been made in good faith. The Respondent had accepted the employment position in Nova Scotia when it was anticipated that the family as a unit would move there. She has now left what was a high conflict marriage and her family resides in Nova Scotia and can provide the support and stability she and the children need as they move forward; and
(c) The children are firm in their view that they wish to reside with the Respondent and are amenable to moving to Nova Scotia.
(d) The difficulties posed by the distance in facilitating the Applicant’s access can be addressed through technology. Given the limited access that has occurred with the Applicant since the date of separation between the children and the Applicant and given their views, allowing more frequent contact through the use of Skype or similar applications might actually provide the children with an opportunity to maintain contact and increase communication with the Applicant in a setting comfortable to them.
Child Support:
[39] The Applicant has been employed as working construction for Premiere Construction Ltd. He had been earning $1668.00 biweekly. His most recent sworn financial statement attached a Record of Employment and at the motion his counsel advised that he is no longer employed by that company. This was not stated or explained in the Applicant’s affidavit. His counsel went on to represent that the Applicant has recently found alternative employment earning $18.00 per hour starting October 28, 2019. It is unknown what hours will be available to him. None of this is attested to in the affidavit sworn by the Applicant nor has any supporting documentation been provided. For the purpose of determining the appropriate child support payable at this time, I am not prepared to accept any representations which have been made without adequate supporting documentation. As such I am ordering that the child support for two children based upon the only income information for the Applicant that has been provided to date. That income information would indicate that the Applicant’s gross annual income approximates $43,000.00 per annum based upon a biweekly income of $1,668.00. Under the Child Support Guidelines the monthly child support payable for two children would be $639.00 per month.
The Orders:
[40] There will be a temporary order allowing the Respondent to relocate with the children to Nova Scotia pending trial;
[41] The Applicant shall have access to the children, which access shall include frequent telephone and if possible, Skype and/or Facetime a minimum of three times per week and more frequently if agreed upon by the parties and the children wish same. The Respondent shall not be present or monitor these conversations. If the children wish, they may have another adult present with them during these communications, at their option;
[42] The Applicant shall have such further access visits, either in Nova Scotia or in Ontario, which access shall be arranged during school vacation times such as Christmas and March break. Such access shall occur with the children together, and with an agreed upon third party adult who is not the Respondent. Access visits shall occur for two hours at a time and should accommodate a number of visits over the course of the holiday time. The visits in length should be expanded upon if the parties agree to same. If the parties are unable to work out the arrangements for such access visits, either party may bring a motion to the court to address same;
[43] The Applicant shall pay child support to the Respondent in the amount of $639.00 per month commencing November 1, 2019 and payable on the 1st day of each month. This Order is without prejudice to either party seeking to vary the amount payable once up-to-date disclosure of the Applicant’s income information has been provided to the Respondent. This Order is also without prejudice to any claim the Respondent may make at trial for retroactive child support;
[44] This matter shall be scheduled for a case conference through the trial coordinator’s office; and
[45] If the parties cannot agree on the costs of this motion, then the Respondent 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 Applicant has ten days from receipt of the Respondent’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: October 8, 2019