COURT FILE NO.: 28-2012 (Goderich)
DATE: 20191217
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Dustin Daniel John Kaufman
Applicant
– and –
Tammy Leanne House
Respondent
J. McMillan, Counsel for the Applicant
D. Reid, Counsel for the Respondent
HEARD: October 30, 2019
McARTHUR, M.D. J.
The Child
[1] Nevaeh Lynn Kaufman will be twelve. She is an intelligent, well-adjusted and articulate person who has done well academically and socially. She is confident and active physically and enjoys the outdoors. Her development is the result largely of the sustained, positive efforts actions of both the applicant and the respondent as well as other family members. Nevaeh enjoys very good relationships with the applicant, respondent and her other immediate and extended family members. Nevaeh, her parents and circumstances are a rare combination and an admirable example of positive child development and adjustment.
[2] Nevaeh has expressed a considered, consistent, genuine interest and desire for some time to primarily reside with the applicant who lives in British Columbia during the school year and with the respondent-mother in the summers and other periods. The applicant-father is willing and prepared to have Nevaeh reside with him and his family. His motion requests the change the primary residence of the child to him in British Columbia from the respondent in Ontario.
The Issue
[3] The issue is whether the primary residence of the Nevaeh remains with the respondent in Ontario or is permitted to be with the applicant in British Columbia.
The Law and Legal Principles
[4] Section 29 of the Children’s Law Reform Act directs that the court shall not make an order that varies an order in respect of custody and access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.
[5] The Supreme Court of Canada in Gordon v. Goetz, 1996 191 (SCC), [1996] 2 S.C.R. 27 (paras 10 to 13) established that the court must first assume the correctness of the decision and consider only the change in circumstances since the order was issued. The test established whether the previous order might have been different had the circumstances now existing prevailed earlier. The court basically is seeking to isolate the factors which were not likely to occur at the time the earlier proceeding took place that resulted in the previous order. The judge must be satisfied of:
a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs;
which materially affects the child; and
which was either not foreseen or could not have reasonably been contemplated by the judge who made the initial order.
[6] As to the best interests of the child, the court is required to consider the provisions outlined in Section 24(2) of the Children’s Law Reform Act in relation to sole or interim custody. Additional considerations are contained in Section 24(3) CLRA. Those provisions are as follows:
24 (2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application.
[7] I have also considered other cases provided to me by counsel including Roloson v. Clyde, [2017] ONSC 264 in relation to the weight to attach to the child’s expressed wishes. The court indicated that this depends on the numerous factors, including the child’s age, intelligence, maturity, overall development status, capacity to form and articulate preferences and the clarity and consistency of those wishes over time. The court should give little weight to the child’s expressed wishes if the evidence indicates that the wishes have been tainted by negative influence, inducements or alienation exerted by the parent or others.
[8] I have also considered Bjornson . v. Creighton, 2002 45125 (ON CA), [2002] O.J. No. 4364 where the Court of Appeal found the trial judge overlooked and disregarded the social, psychological and emotional aspects of the mother’s desire to return to Alberta from Ontario with a three year old child. The trial judge had erroneously focussed on access to father to the exclusion of the mother’s views resulting in a less than complete consideration of the impact of the move on the child’s best interest where the custody determination already had been made. The court rejected a legal presumption in favour of the custodial parent but asserted that the views of the custodial parent who has made the decisions on a day-to-day basis are entitled to great respect and most serious consideration.
[9] The court recognizes that a child’s best interest must be ascertained from the lens of the child rather than the parents’ perspectives. The statutory factors are to be considered in relation to the needs of the child, cognizant that a child’s development is not a static process. The focus must be on the individual child where relationships are stable and will positively advance the child’s development.
[10] If a material change in circumstance threshold is met, the further inquiry should not begin with a legal presumption in favour of the custodial parent or the current arrangement under the initial order.
Position of Applicant
[11] The applicant submits that a material change has occurred since the consent order of July 5, 2012 was made and, that in view of the wishes of Nevaeh and other factors, a change of the primary residence of the child should be permitted for Nevaeh to reside with the applicant in British Columbia and flip to mirror the current arrangement.
Position of the Respondent
[12] The respondent opposes the request and seeks to maintain the current residential/access arrangement and has expressed concerns as to influences upon the child.
Background
[13] The applicant-father is 35 years of age. The respondent-mother is 37 years of age.
[14] The applicant and respondent were in a common law relationship from May of 2007 to January 2010. Nevaeh was born February 26, 2008. She is the only child together from the applicant and respondent’s relationship. Both parties were generally steadily employed throughout their relationship.
[15] After separation, the parties resolved matters on consent that was the basis for the Order of Justice Bondy dated July 6, 2012. The parties agreed to share joint custody of Nevaeh with regular access to the applicant on alternate weekends and overnights once a week. This arrangement continued until the time the applicant moved to British Columbia in July 2017.
[16] The applicant has been in a relationship with Cassie Kaufman since July 2012. They married August 15, 2015. The applicant also has a child, age 15, who was adopted in an open adoption with whom he continues to have some contact. Nevaeh has known Cassie Kaufman since she was 3 years of age and they have developed a good relationship.
[17] The respondent has been Nevaeh’s primary caregiver. She has been responsible for the needs of the child including shelter, meals, clothing, medical and dental appointments, educational and other activities, registrations and related duties.
[18] After the applicant’s move to British Columbia, Nevaeh continued to frequently see and communicate with the applicant. This included most of the summers in 2018 and 2019 at the applicant’s residence in Beaverdell, B.C., half of the Christmas break when the applicant returned to Ontario, March school break when she would travel to the applicant’s residence, as well as by telephone and Facetime. The respondent encouraged and co-operated to facilitate all access arrangements.
[19] The parties have largely cooperatively parented over a number of years. This cooperation has not been without some minor issues and irritants. However, the conduct of the parties has largely been perceived as friendly and civil.
[20] This motion to change was first before the court on August 14, 2019. Then, among other things, an order was made to appoint counsel to complete a voice of the child report. Reports have been received and will be referred to.
Analysis and Discussion
[21] I have reviewed the affidavit materials and documentation filed by the parties in addition to the written oral submissions of lawyers for both parties. It is understandable that emotions and sensitivities would run high in these circumstances for many reasons. In this situation, the issue was specifically raised in July of 2019 by the parties and the child during when the respondent was dealing with a high-risk pregnancy, hospitalizations and premature birth of Madisyn on September 9, 2019. I take this into account when considering the content in the subsequent responding affidavits that sought to clarify the respective positions but often was a volley of competing perspectives and interpretations, largely of the past matters.
Material Change
[22] I find there is a material change since the July 2012 Order. The move of the applicant to British Columbia and subsequent changes certainly constitute a change in the condition and circumstances of the child that materially affected the child and could not have been reasonably contemplated by the judge who made the initial order. Not even the parties contemplated this situation arising at that time.
The Child
[23] Nevaeh resides with the respondent in a comfortable home purchased in 2015 in Clinton, Ontario. The child has her own room that was renovated in 2017. The applicant and his mother assisted in the renovation.
[24] Nevaeh has developed close and loving relationships with both of her parents. He maternal grandparents reside in Sarnia, Ontario, and have likewise assisted the respondent. She has a particularly close relationship with her grandmother, the applicant’s mother, Carol Hazen who lives close by in Nile, Ontario.
[25] Nevaeh currently attends Clinton Public School and is in Grade 6. The applicant also works at this school as an assistant. Nevaeh’s teacher has reported that Navaeh has always done well in school and is interested in learning. The applicant has assisted her with schoolwork when required. Nevaeh also participates in horseback riding and has a YMCA membership where she is in swimming lessons.
[26] Nevaeh sees an orthodontist for braces and regular appointments. She also has annual optometric appointments and sees a family doctor/nurse practitioner who monitor her asthma. She has an inhaler that she uses as needed.
[27] Nevaeh had expressed to the applicant since his move to B.C., her desire to move to reside with the applicant. On her arrival to B.C. in the summer of 2019, Nevaeh once again expressed clearly to the applicant her determined desire to reside the applicant in British Columbia. The respondent submitted that the child’s wishes may been influenced by the applicant.
Voice of the child reports
[28] There was a preliminary and a final voice of the child report. These were prepared by Janet King by an email on September 26, 2019 and in a written report dated October 24, 2019.
[29] The email report was made after two, one hour appointments with the child. Nevaeh was described as well spoken, talkative with a happy disposition and was at ease when discussing matters. She appeared to be quite intelligent, well-adjusted, good level of confidence, appropriately mature for her age, and thoughtful. It was abundantly clear to Janet King that the child was surrounded by loving and caring immediate and extended family members and that there was no evidence of conflict.
[30] Nevaeh’s wishes were described as quite clear and very consistent in that she wanted to flip the current arrangement to stay with her father during the school year and with her mother in the summer, over March Break and have both sides together over the Christmas holidays in Ontario. She expressed her desire to start any new arrangement after this Christmas holiday period. The child was sensitive to her mother not being happy with a move to her father’s.
[31] Of significance, Janet King had no concerns that the child had been influenced in her wishes or her views of wanting to reside with her father. She was very confident that the child’s views and wishes are coming from her for her own reasons. The child indicated that she had started thinking about the move during the summer of 2018 and that she raised this with the applicant who was clear that she needed to speak to her mother about it. The child indicated that she attempted over the summer to initiate discussions but met with resistance by the respondent in talking about it. The child knew and was sensitive from respondent’s responses that her mother did not want her to move.
[32] Janet King also reported that, to the extent that age permits, Nevaeh appeared to understand the different impacts the move would have including a new school, new peer group, new and different extracurricular activities, more rules and chores, it would not all be fun like the summers, dad would be away for work for 1 to 1.5 months at a time, she would be in the home with the applicant’s wife during the applicant’s time away working and she would otherwise spend the summers with her mother.
[33] In the written report, many of these points are referenced and elaborated on. By then, Janet King had had a further lengthy phone conversation with the child. Ms. King commented that she found no indication that the child had been coached and was being candid and truthful. The child elaborated on background information including her schooling through the years, the access with the applicant since moving to B.C., her circumstances living with the respondent, her liking for Derek Phillips, her father being away from home for long periods for work, the positive description of the applicant’s and his wife’s relationship, the applicant’s son from an earlier relationship, her grandparents and the favourable relationship between her paternal grandmother, Carol Hazen, and her mother, the relationship between her parents and others as good friends, her room at the respondent’s residence and at the applicant’s, a tree house at her father’s, the discipline by both her mother and father and the expectations and chores at each residence.
[34] The twelve page report also details the child’s perception of her mother’s reaction to calling her mother about a move and that based on prior reactions, she did not initiate further discussions about wanting to move or the reasons. The child also mentioned that while her mother was pregnant, she would be left alone at home at least three nights a week when the mother would go out at bars or a casino. This latter point was denied and explained by the respondent. The child’s impression in this regard is inaccurate and unlikely given the respondent’s difficult and shortened pregnancy.
[35] Janet King also reviewed and confirmed with the child her statements of her wishes and views about the living arrangements to ensure accuracy.
[36] I find in these circumstances, the wishes and views of Neveah are, given her age and abilities, genuine and not the product of influence and suggestion from others. I find Nevaeh understands and appreciates the nature, consequences, expectations of a move and is not holding unrealistic or idealized beliefs about such a move.
[37] I also find that there is a substantial coherency in the content of the report and the evidence of the parties as well as Carol Hazen in relation to many of the factors to be considered.
The applicant-father, his circumstances and plan for the child
[38] In December 2018, the applicant and his wife purchased a ten acre property that includes an 1,800 square foot house, barn and horses. The applicant and his wife have had care of the applicant’s wife’s four year old nephew, Noah since May 2019. They intend to adopt this child who appears to have high needs.
[39] Beaverdell B.C. is a small community of approximately 300 people that is approximately a one hour drive southeast of Kelowna. The applicant’s father and stepmother along with the child’s great grandmother reside across the road. The applicant’s mother, Carol Hazen, and the applicant’s stepfather also own a property across the road from the applicant. They intend to stay at this property when visiting the applicant and his family.
[40] The applicant’s wife does not work outside the home. They had some marital discord between themselves prior to their move to British Columbia. There is no evidence that this has continued. They are now involved significantly with their home, the applicant’s wife’s nephew, horses, horseback riding and lessons, hiking and a number of other outdoor activities including ATV’s and travelling with a Fifth-Wheeler.
[41] The applicant is the sole income-earner. In his initial affidavit, the applicant’s statement was that he already had employment arranged when going to B.C. and is still currently employed on a schedule that allows him to work consistently for two to three months straight and then is off for two to three months. The respondent’s employment or financial ability was not commented upon in the applicant’s wife’s affidavit.
[42] The respondent raised the applicant’s indications to her after his move to B.C. that he was unemployed and not able to find work in relation to discussions about adjusting child support payments. The applicant replies that his employer continues to be the same as when he moved to B.C. and that his employer is very flexible and values family time. He also states that he had also made alternate employment arrangements with a copper mine about two hours from home that is four days on and four days off. The applicant now owns a home, has the care of a child they are looking to adopt, would have the child and a spouse who does not work outside the home. The applicant’s approach to financial obligations at first appears rather casual and marginal. However, on review of the other materials and the communications attached between the applicant and the respondent, the applicant has certainly cognizant, open and active about addressing financial matters.
[43] The applicant’s plan for Nevaeh is to attend school from Monday to Thursday as is the case at Westboundry Elementary School. This approximately a twenty minute bus ride. She also would be involved with horses at home. She has already made some friends in the community and outside the immediate area during past summers. On the evidence, it is noted that there are less than 20 children up to age 14 in Beaverdell itself. She could also pursue horseback riding lessons, swimming lesson, 4-H Club as well as soccer, baseball and school sports.
[44] As to access, the applicant proposes the current arrangement would essentially flip such that primary residence would be with him and access would be to the respondent in the manner he has exercised the past 2 years. Nevaeh would continue contact with her grandmother Carol Hazen as frequently as possible as well as with other family.
The respondent-mother and her circumstances
[45] The respondent is 37 years and works at the Clinton Public School. As a single parent, she has done an admirable job of parenting Nevaeh. She has consistently provided for all of the needs of the child. She has also gone to great lengths and costs to ensure meaningful and substantial access has occurred and that relationship between the applicant and the child have been significantly developed. There are absolutely no suggestion of alienation or disparagement by the applicant or the respondent.
[46] The respondent’s occupational skills and her own love and care has well-served the child. All development milestones have been met. There has been some conflict and exception taken by the respondent to statements in the voice of the child report attributed to the child about her. The respondent’s reply was factual and not exaggerated. I find some of the child’s indications are inaccurate and others largely the result of different or mistaken perspectives and interpretations of actions and events. I am also satisfied and find that these matters raised by the child are not the result of any outside influence, particularly of the applicant nor his immediate family members.
[47] The respondent has also solely contributed to a RESP for Nevaeh that she established some years ago. Significant consideration is given by the court to the respondent’s overall views and impressions as a custodial parent.
[48] I am also mindful the respondent recently gave birth to the child, Madisyn Phillips, on September 9, 2019 after being in hospital for approximately two months before the birth. This child was expected to be home with the respondent by the end of October or early November 2019. Derek Phillips is the father of this child. This circumstance should not be regarded in any negative manner as it involves the respondent. It provides only narrative and the context of the current circumstances for this motion.
[49] The respondent has been in a relationship Mr. Derek Phillips since May 2018 with the exception of a six week period. The applicant also knows Mr. Phillips since childhood. Mr. Phillips is divorced and lives with his son, Hunter, in Bayfield. Mr. Phillips suffered significant injuries including a head injury in a car accident some time ago. He also experienced significant problems and difficulties and still struggles with migraines. The respondent describes Mr. Phillips as a loving partner who has always treated her with love and respect.
[50] Nevaeh knows both Derek Phillips and his son, Hunter, and they all also generally get along well and enjoys a good relationship with them.
Other family members
[51] Nevaeh has a good relationship with both sets of grandparents. She is particularly close to Carol Hazen, the applicant’s mother. Carol Hazen has frequent contact with the child and a very good relationship with the respondent. She essentially took on the applicant’s alternate weekend visitation when he moved to B.C. She also continues to speak to the child two to three times a week.
[52] Carol Hazen has a balanced and sensible approach with an excellent understanding of the parties and circumstances. She has been a person to whom the respondent has confided in her regarding times of conflict and concerns involving the child and she and the respondent have mutually helped each other around other’s home.
[53] Mrs. Hazen also enjoys a strong relationship with the applicant, her son, and his wife. She and her husband have purchased a property across the road from the home of her son. Their plan to stay at this location when visiting them in B.C. generally four times a year.
[54] In the event of the child moving to B.C., Carol Hazen would certainly not be seeing the child as frequently as every other weekend as now. However, the personal visits would occur on occasions in both B.C. and Ontario should the child reside in B.C. The court is also aware that as Nevaeh soon moves onto senior public school and high school, such alternate weekend times would likely increasingly yield to the child’s relationships and activities with peers and others.
[55] In any event, there can be no doubt of Carol Hazen’s commitment and ability to continue to be a significant and steadying influence in the life of Nevaeh as well maintaining healthy contact with the applicant and respondent.
[56] Mrs. Hazen has an even-handedness and respect with all the parties. She also provided a helpful and realistic view of Nevaeh exerting her independence and pushing the rules with an approach to understand, respect, assure and provide perspectives to her. She also expressly appreciates the respondent’s efforts throughout and confirms that everyone has worked together with the focus on what is best for the child.
Love, affection and emotional ties with the child and others
[57] There are no concerns as to the love, affection and emotional ties of the child with parents, immediate family and extended family members. This is positive in relation to all persons mentioned.
Duration and stability of environment
[58] Nevaeh has substantially benefitted from the stability with each party. Although her primary residence has been with the respondent, she has spent significant times with both parties in each’s current home and has adjusted without any difficulties. Each of the parties can provide a stable environment for the child going forward.
Ability and willingness of each to provide the child with guidance, education, the necessaries of life
[59] Both parties have proven the ability and willingness to provide the child with guidance, education and the necessaries of life. The respondent has done very well in her care for the child. The child’s intelligence and confidence are but a few of qualities that she has fostered. The respondent, on the evidence presented including the Voice of the Child reports, also demonstrates his ability willingness to listen, reflect, properly articulate and provide guidance to the child. The child certainly respects both parents.
Proposed the plans by each and the ability of each person to act as a parent
[60] The plans of both parties are most suitable for the child’s development. Each are most capable to act as a parent even with some minor raised which I find are not significant.
[61] The concern about the father being away for 1.5 months at a time has been raised and seriously considered by the court. This would have been an obvious and substantial concern if there was any indication of ongoing marital instability with the applicant along with the substantial loss of the influence and connection of the extended family and, especially, Mrs. Hazen. That is not the case on the evidence before me.
[62] The child has regarded the relationship with applicant and his wife as a friendship based on past history that included the respondent travelling with the applicant’s wife to B.C., the applicant and his wife spending Christmas at the respondent’s home, amongst other things. The child’s perception accords with the actual conduct of the parties. It is a credit to both parties that they have not exposed the child to conflict or undue anxiety despite their obvious heightened personal feelings and concerns.
Permanence and stability of the proposed family unit where the child will live
[63] Both the applicant and the respondent have worked diligently and developed pro-social relationships. Both have relationships that are stable despite each having had some difficulties in the past. In any event, both family situations are regarded positively by the child.
Overall summary
[64] The court should not consider the enumerated factors in isolation and assign value from the perspective of one or other of the parties. Rather, the child’s best interest must be ascertained from the lens of the child rather than any parent’s perspective.
[65] The various factors must be considered holistically in relation to the needs of the child and the child’s development. Some factors take on greater or lesser weight, depending on the overall circumstances of the child’s development.
[66] From the parent’s respective viewpoints, some factors might be a draw with others having some margin of advantage in one or the other’s favour. However, when it comes to the child’s wishes, this factor must be considered in relation to the child’s intelligence, adjustment ability, confidence and overall development as well as any outside influences to determine weight and significance of these wishes.
[67] Nevaeh is a well-adjusted, intelligent and loving child. The respondent has been a significant reason for this. The mother’s views and understanding been given due consideration. I likewise recognize and have carefully considered that there are other positive factors that involve the applicant and others who are significant to the life of the child. None of these positions have been lost nor ignored by the court.
[68] In this case, the wishes and views of Nevaeh are longstanding, realistic and clear. She is intelligent and demonstrates a maturity and ability to adjust that is rare at her age. To ignore or minimize Nevaeh’s wishes given her development would be both a legal error and leave an inevitable, problematic and practical difficulty of dealing with these wishes again sooner than later by both the respondent and applicant.
[69] After considering and weighing all these factors, including the child’s wishes, I find it is in the best interest of Nevaeh to reside primarily with the applicant with substantial parental access to the respondent, not unlike what was has been accorded to the applicant in the past.
Decision
[70] The child shall be permitted to reside primarily with the applicant.
[71] The primary residence to the applicant shall occur on or after January 3, 2020. The applicant shall make arrangements and pay all associated costs in this regard.
[72] The respondent shall otherwise have the continued primary care and residence of the child through the balance of the Christmas school holiday period.
[73] The respondent shall have liberal and generous access and care of the child to include the summer school break, the spring school break and for one half of the Christmas holiday period as well as liberal, frequent and regular communications by telephone, electronically and otherwise.
[74] The order of Justice Bondy dated July 6, 2012 shall be amended accordingly. If the parties are unable to mutually agree to the incidental terms, counsel may provide further written submissions to the court within 21 days of this decision.
[75] If either party wish to request costs, written submissions of three pages along with caselaw and legal references shall be served on the other party and filed with the court within the later of 30 days of the date of this decision or the date of determination of the incidental terms, if requested.
“Justice M.D. McArthur”
Justice M.D. McArthur
Released: December 17, 2019
COURT FILE NO.: 28-2012 (Goderich)
DATE: 20191217
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Dustin Daniel John Kaufman
Applicant
– and –
Tammy Leanne House
Respondent
REASONS FOR JUDGMENT
McArthur J.
Released: December 17, 2019