COURT FILE NO.: 21/19
DATE: 2019-12-24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MITCHELL ROBERT ALEXANDER McDONALD, Applicant
AND:
AMY JOYCE WILSON, Respondent
BEFORE: The Honourable Mr. Justice D.J. Gordon
COUNSEL: Walter Drescher, counsel for the Applicant
Nadine Russell, Counsel for the Respondent
HEARD: December 19, 2019
REASONS FOR DECISION
[1] In his motion, dated December 13, 2019, the applicant father seeks an order for:
(a) leave to hear the motion on an urgent basis before a case conference; and
(b) prohibiting the respondent mother from moving the child from his current residence in Simcoe, pending further order or consent of the parties.
[2] For the reasons that follow, I conclude mother’s proposed move is premature. Father’s motion is granted.
Background
[3] Both parties are presently 24 years of age. They are the parents of Bodhi Mitchell McDonald, born October 25, 2017. The parties commenced cohabitation in 2017 (either April or September, according to the pleadings) in a residence in Simcoe owned by the respondent’s mother. Separation occurred in November 2018. On separation, the applicant moved out of the residence. He lives with his mother and other family members. The respondent and the child remained in the residence.
[4] In April 2019, the respondent’s grandmother moved into the residence. The respondent is the “caretaker” for her, including preparing meals, errands, taking her to appointments and other matters. The respondent is paid an undisclosed amount for her caretaker role. Previously, she was employed at Community Living. The respondent recently left that employment, saying such resulted from the applicant’s family obtaining further information about her from one of the residents. No detail was provided, and the applicant denies the allegation.
[5] The applicant is employed at Barton Street Correctional Facility in Hamilton on a part-time basis, working additional shifts as they become available.
[6] Prior to separation, both parties were involved in providing childcare. There is a significant evidentiary dispute. Given the child’s age, it is likely the respondent’s role was greater.
[7] Bodhi attends the Montessori pre-school program in Simcoe several days per week. Additional daycare is arranged on occasion, perhaps once per week. This daycare is in Teeterville.
[8] The child appears to be healthy. The parties recently attended a medical consultation together. No significant problems were identified by the parties.
[9] Of some interest, the parties attempted a reconciliation in October 2019. Such was unsuccessful.
[10] The parties have not yet agreed on a parenting schedule. Since separation, they have had an arrangement, at best. Bodhi is in the applicant’s care on alternate weekends and some weeknights. He has sought more time, hence this litigation. The applicant has objected to the use of daycare providers when he is not working.
Litigation History
[11] The application was issued on February 13, 2019 and served the following day. Father seeks shared joint custody of Bodhi on a week about basis, and other relief. Nothing contentious is set out in the facts supporting his claim. Father makes reference to both parties being active parents and that the nature of his employment provides him with sufficient time off work to equally parent Bodhi with mother.
[12] The answer is dated March 21, 2019. Mother claims for joint custody of Bodhi, primary residence with her and access to father on alternate weekends and weekday visits on one and two days and other times as agreed. Mother also seeks final decision-making authority if the parties are unable to agree. Other relief is sought.
[13] Like the application, there is nothing contentious in the answer, other than the disagreement as to parenting time. Mother states her opposition to week about parenting but goes on to say the parties have been agreeable in arranging father’s access time. Of particular importance are the following statements:
Since our separation, Mitchell and I have worked well together for the best interest of our son. We both acknowledge the importance of co-parenting and playing an active role in Bodhi’s care.
I am agreeable to joint custody with primary residence to be with me. Mitchell shall continue to have liberal access with Bodhi as is currently in place and at such other times as agreed upon.
There have been no issues with respect to Mitchell’s access and I am confident that we can continue to work together effectively for the benefit of our son.
[14] The issue that arises in this case, as a result of the pleadings, is the division of parenting time between the parties.
[15] There was some delay in proceeding with this case after the exchange of pleadings. On December 6, 2019, mother’s present counsel served a notice of change in representation.
[16] A case conference had been scheduled for December 12, 2019. It was adjourned to February 6, 2020.
Announced Move
[17] By correspondence dated December 9, 2019, Ms. Russell advised Mr. Drescher that the mother intended to relocate with Bodhi to a new home in Norwich, along with her grandmother. She proposed the parties meet halfway, in Delhi, to exchange the child. The move was said to be occurring on January 10, 2020.
[18] Father was unaware of the proposed move prior to this notice. It appears such lead to an argument the following day when both parties were attending a medical appointment with the child.
[19] Norwich is said to be approximately 38 to 40 kilometres from Simcoe or about a 36 minute drive.
[20] The respondent advises that her mother has purchased a home in Norwich for her and her grandmother. She also reports that most of her family members reside in this community. The intention is to live in Norwich on a long-term basis. Mother goes on to say all of her grandmother’s appointments are in Norwich, as are all of her friends and family.
[21] Mother denies the move is an attempt to interfere with father’s parenting time. She has now offered to provide all transportation so that the exchange of the child would continue in Simcoe. She intends to have Bodhi attend pre-school in Simcoe, at least for the time being.
Analysis
[22] There is always some conflict between spouses following separation. In this case, the conflict was, at most, at the lowest end of the scale initially. Conflict appears to now be escalating, having regard to the comments contained in the affidavits on this motion. There are now historical allegations. None of this is helpful. The parties need to calm down and return to the civil relationship they had before. This dispute is resolvable.
[23] Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.), is the guiding authority on mobility. A multitude of factors are identified in Gordon; however, ultimately the best interests of the child govern relocation disputes. This decision dealt with a mobility issue within the context of an application to vary an existing order.
[24] Bjornson v. Creighton (2002), 2002 45125 (ON CA), 31 R.F.L. (5th) 242 (Ont. C.A.), involved a mobility issue in a custody trial. There was no prior order. Of interest here, are the comments by Austin J.A., at para. 19. In applying the Gordon guidelines, he indicated the court must consider:
(a) at the outset of trial, parents are “equally entitled to custody”; and
(b) custody should be decided first, then mobility.
[25] Equal entitlement to custody of the child is recognized in section 20(1), Children’s Law Reform Act.
[26] Professor McLeod, in his annotation on Bjornson commented that “… most courts are still reluctant to approve interim moves and prefer that the decision to approve a move be made after a trial unless there is no arguable case to deny a move or there is some urgency associated with a move that is likely to be approved in any event …”. He cited a number of decisions, including M.(D.) v. B.(M.) (2002), 2002 SKQB 397, 31 R.F.L. (5th) 72 (Sask. Q.B.). In that case, on an interim application, McIntyre J., at para. 10, concluded the affidavit material was not sufficient to adequately address the factors set out in Gordon, adding that to so address may require a trial.
[27] In Howard v. Howard (1999), 1999 35009 (ON SC), 1 R.F.L. (5th) 375 (Ont. S.C.J.), the mother surreptitiously left the matrimonial home with the children, moving 20 kilometres away. Both parties moved for interim custody. Aston J., at para. 4, indicated self help ought be discouraged. The status quo that counted was up to the date of separation. He determined the mother shouldered more of the child care responsibility than father and awarded day to day care to her, but also directed mother to return to the matrimonial home, with an order for exclusive possession.
[28] Status quo is an important concept in family law, often difficult to determine. In general terms, it is the parenting regime prior to separation, but can change thereafter in the circumstances of the particular case. See: Gerbert v. Wilson, 2015 SKCA 139. A party may not create a new status quo by unilateral changes, absent special circumstances, agreement or court order. See: Rifai v. Green, 2014 ONSC 1377. Status quo is not a rigid concept, nor is it a short term living arrangement. It is the regime in place during the relationship. It assists the court by examining how parenting has worked in the past and the benefit or detriment to the children. See: Moggey v. Moggey (1990), 1990 7339 (SK KB), 28 R.F.L. (3d) 416 (Sask. Q.B.); Sodhi v. Sodhi, 2002 41503 (Ont. C.A.); Izyuk v. Bilousov, 2011 ONSC 6451; Gerbet, supra; and K.R. v. J.K., 2018 SKCA 35.
[29] Both counsel referred to Plumley v. Plumley, 1999 13990 (ON SC), 1999 CarswellOnt 3503 (Ont. S.C.J.). At para. 7, Marshman J. identified the following factors in deciding a mobility case on an interim motion:
(a) a court will be more reluctant to upset the status quo on an interim basis;
(b) there can be compelling circumstances which might dictate the move be allowed; and
(c) although there may be a genuine issue for trial, the move may be permitted if there is a strong probability the custodial parent’s position will prevail at trial.
[30] Many subsequent decisions have accepted those factors as relevant to the determination. For example, Mr. Drescher referred to Peters v. Chelchowski, 2018 ONSC 1012, while Ms. Russell relies on Schlegal v. Schlegal, 2016 ONSC 4590. These decisions turn on the facts or evidence before the court.
[31] As said at the outset, I am of the view the proposed move is premature. There is no urgency presented. Rather, it appears to be only a matter of convenience, with the respondent’s mother purchasing another residence, but this time in a different municipality. No explanation was provided that is focused on the child. Details were presented regarding grandmother, but it is unclear why the respondent is the caretaker for her grandmother.
[32] There is an arrangement in place for parenting the child and it appears the parties have been co-operating. But it is not an agreement. Father has sought more time with his son and has opposed the use of daycare when he is not at work. There are obvious benefits to daycare or pre-school for a child, including socialization, but this child is only two years of age. The status quo during the relationship remains to be determined.
[33] While there are competing claims for parenting, it cannot be said one position or the other will prevail. The only evidence is presented on this motion. The pleadings are informative, as previously noted, but the affidavits are not compelling. The evidence has not been tested. It is impossible to make findings of fact at this early stage. As in M.(D.), the affidavits are not sufficient to address the Gordon factors.
[34] The announced move, at this early stage of the case, is suspicious. There is no urgency. The disruption to the child is of some concern. Moving will impact on the competing claims. The distance is not overly significant, but it is a different community. It would lead to a change in routine for the child. In due course, Bodhi would attend a local school. Father’s claim for equal parenting time, in my view, would be prejudiced. The issue in this case goes beyond his present parenting time.
[35] This case should be allowed to move forward without outside influence. The competing claims need to be canvassed at a case conference and settlement conference. There may be the need for other temporary measures to assist in the best interest of the child analysis, such as a referral to the Children’s Lawyer or other agency. A trial may be required.
[36] Simply put, the evidence is incomplete and untested. Findings of fact cannot be made at this early stage. Whether the move to Norwich is in the best interests of the child is an issue to be determined at a later point in this case.
[37] In the meantime, moving the child is not appropriate until such time as the request can be properly considered and determined on its merits and with a complete evidentiary record.
Summary
[38] I am satisfied the motion is urgent and that it ought be determined prior to the case conference as permitted by Rule 14 (4.2).
[39] The applicant’s motion is granted. A temporary order shall issue prohibiting the respondent from moving Bodhi from his current residence in Simcoe pending further order or consent of the parties.
[40] I expect the parties and counsel will resolve the issue of costs; failing which brief written submissions are to be exchanged and delivered to my chambers in Kitchener within 30 days of the release of this decision. If submissions are not received within that time, the issue of costs will be considered settled.
D.J. Gorodn J.
Released: December 24, 2019