Court File and Parties

COURT FILE NO.: FC-20-0023 DATE: February 24, 2020 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Paul Araujo, Applicant AND: Genia Sheinman, Respondent

BEFORE: Honourable Madam Justice M. Fraser

COUNSEL: Self-Represented Applicant Joseph P. Hamon, for the Respondent

HEARD: January 29, 2020

Endorsement

[1] The Applicant father, Paul Araujo (“Araujo”), seeks a temporary order requiring that the Respondent mother, Genia Sheinman (“Sheinman”) return the residence of the children, Mendel Araujo-Sheinman (“Mendel”), born October 27, 2006 and Rackel Araujo-Sheinman (“Rackel”), born January 23, 2013 to Innisfil, Ontario. He seeks a temporary order prohibiting Sheinman from relocating the residence of the children from Innisfil, Ontario pending the determination of the issues in this proceeding. Alternatively, Araujo seeks an order transferring Mendel and Rackel into his primary care in Richmond Hill, Ontario.

Background

[2] The parties were married in January 2004. They separated in July 2014. Mendel and Rackel are the only children of the marriage. Mendel is presently thirteen years old. Rackel is presently six years old.

[3] The issues arising from the parties’ separation were addressed by way of the final order of Justice F. Graham dated January 10, 2017. This order provided, among other things, that the parties would share joint custody of the children and that their primary residence would be with Sheinman.

[4] The Order additionally provided the following:

2. The parties shall consult with each other prior to making major decisions relating to the children’s health, education and general welfare.

3. Both parties shall keep each other informed about any significant issues relating to the children that arise during their time with the children.

4. Except as otherwise provided, a weekend visit from Friday at 6:00 p.m. until Sunday at 6:00 p.m. which shall occur every second weekend starting on January 20, 2017. The weekend access will include any extra days of long weekends.

5. Such further and other access as the parties may agree upon from time to time.

6. The parties shall equally share and alternate all holidays as arranged in advance between them, with consideration given to their work schedules and holiday traditions.

7. All access described below in this section shall have priority over the regular weekend and mid-week arrangements, but if access lost it will be made up by agreement.

8. Access exchanges shall take place at the home of Victoria Gotlieb in Newmarket or an agreed upon location in Newmarket.

[5] The order did not contain a specific provision addressing mobility.

[6] During the relationship the parties resided in North York, Ontario. Upon separation, Sheinman moved to Innisfil, Ontario. Araujo subsequently moved to Richmond Hill, Ontario which is approximately 60 kilometres from Innisfil.

[7] The children have been in Sheinman’s primary care since the parties’ separation in July 2014. Araujo has exercised the access as set out in the order of Justice F. Graham dated January 10, 2017.

[8] In March 2019, Sheinman informed Araujo that she proposed to move to Petawawa with the children. Araujo maintains that he made it explicitly clear to Sheinman that he was not consenting to the proposed move. Araujo asserts that this was the only occasion the parties discussed Sheinman’s intention to move. He concluded, given his objection, that the move was not going to happen.

[9] In September 2019, Araujo was contacted by the children’s school because they didn’t show up for the first day. Araujo had no idea where the children were at that time and it was through the school secretary that he eventually learned that the children had been relocated to Petawawa, Ontario. As a result of this move to Petawawa, Araujo now resides about 370 km away from the children.

[10] Sheinman enrolled the children at Valour school in Petawawa. Araujo believes that Sheinman only accomplished this by misrepresenting information to the children’s new school by failing to identify the fact that Araujo had joint custody of the children.

[11] Since September 2019, Araujo’s access has continued according to the access schedule set out in the January 10, 2017 order undisturbed. However, for this to happen, Sheinman has been removing the children from school early on the Fridays with the result that the children are missing substantive instruction. Araujo reports that the children are tired from the travel and that this arrangement can not be sustained over the long term.

[12] Araujo raised concerns that Rackel’s teacher at her new school contacted him to report that Rackel was being sent to school without lunches. Araujo responded by arranging for money to be sent to the school so that the children could participate in the school’s meal program.

[13] Sheinman states that she did not seek permission from Araujo when she raised the issue of relocating the children with him in March 2019. Rather, she put Araujo on notice of her intention to move with the children as she maintains that there was nothing in the order prohibiting a move.

[14] Sheinman also provided evidence that there was an exchange of letters between the parties’ respective lawyers in October 2019 (a month following the move). At this time Sheinman advised Araujo she would not be interfering with the access schedule. Her response asserted that Sheinman’s new partner, who is a member of the military, had been posted to Petawawa, Ontario and that Araujo had been told of this. This move, she suggested, offered an opportunity for Sheinman and her new partner to gain financial security and provide the children with a better home. That correspondence also pointed out that the children were already settled in to their new community and school.

[15] Sheinman may have misrepresented the true custody situation to Valour school in order to register the children. Regardless of whether this was the case, her actions appear to be contrary to paragraph 2 of the order of Justice Graham. This could bring into question Sheinman’s preparedness to recognize Araujo’s right to be involved in major decisions concerning the children.

[16] Sheinman denies that she failed to provide the children with proper lunches. She produced an email from the school principal. The email explains that the teacher’s belief that Rackel was being sent without a lunch to school was an error and that Rackel had had lunches sent with her (in her back pack). Rackel was, for whatever reason, reporting otherwise to the teacher.

[17] Sheinman now has a newborn child with her new partner. She asserts that it is too late at this juncture to expect her to move the children’s residence back to Innisfil, Ontario as their former residence is now rented. She has a newborn child to care for and her partner, who is the father of this child, is required to be in Petawawa, Ontario as a result of his military posting.

[18] Araujo commenced this Motion to Change on January 21, 2020. He concurrently brought this urgent motion for interim relief.

[19] Araujo complains that the move impacts his ability to maintain the quality of relationship he has enjoyed with his children. He believes the access schedule cannot be sustained over the long term. He asserts that his ongoing involvement with the children can not be maintained at the same level given the geographical distance.

Position of the Parties

[20] Araujo seeks an order requiring Sheinman to return the children’s residence to Innisfil, Ontario pending the determination of the issues in this proceeding. Araujo alternatively seeks an order transferring the children into his primary care.

[21] Sheinman disputes the urgency of this motion. In any event she asks that it be dismissed on the basis that it would not be in the best interests of the children to require them to return to Innisfil on an interim basis given Araujo’s delay in bringing this Motion to Change. She argues that it would be unduly disruptive for the children at this point to return to Innisfil, to transfer into the care of Araujo. She submits that the children have always been in her primary care and that they should remain in her care on an interim basis.

The Law with Respect to Mobility

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

[23] 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.”

[24] 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).

[25] 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.”

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

[27] 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.

Analysis

[28] Firstly, I do not agree that Sheinman was entitled to move the residence of the children based on the absence of a specific mobility clause in the order of Justice Graham. While Sheinman has, since the move, ensured that the children were made available for access every second weekend, this can not realistically continue over the long term. The children can not continue to be removed from school early on access Fridays. Travelling back and forth in order to exercise access with their father every second weekend is likely going to prove too burdensome for them, particularly in the winter. I conclude that Sheinman’s move constitutes a material change in circumstances.

Should a temporary order be made requiring the children’s residence to be returned to Innisfil pending a trial of the issues in this matter transferring the children into Araujo’s care or alternatively?

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

The existing custody arrangement and relationship between the child and the custodial parent:

[30] Sheinman has been the principal caregiver of the children since separation. While Araujo questions the care Sheinman has provided the children, suggesting that she was not sending the children to school with proper lunches, I am satisfied that this has been explained away by the principal’s clarification on this issue.

[31] Sheinman’s partner has now become part of her family unit. Sheinman has a newborn child with her partner. They form part of the family unit with Sheinman and the children.

[32] Because of the partner’s transfer to Petawawa, Ontario Sheinman and her partner are in a better financial position. This benefits Mendel and Rackel. They have secured better living accommodations in Petawawa.

The existing access arrangement and the relationship between the child and the access parent:

[33] Araujo has exercised alternate weekend access with the children since the parties’ separation. It seems clear that he is committed to maintaining a close and loving relationship with the children. There has additionally been a sharing of holiday time between Araujo and Sheinman. It is not disputed that Araujo’s relationship with the children is a positive one which should be fostered and preserved.

[34] Araujo recently moved to Richmond Hill, ON. from North York, ON. He resides there with his partner and his parents in a two-bedroom condominium. The space to accommodate the children is therefore limited and if Araujo assumed their primary care, it does not return the children to their school or community.

The desirability of maximizing contact between the child and both parents:

[35] Neither party appears to dispute the importance of the other party’s continuing relationship with the children. It is clear that the relationship of the children with both parties should be maximized.

The views of the child:

[36] No independent evidence is available at this point respecting the children’s views. Sheinman maintains that if Mendel wishes to reside with his father, she would support Mendel’s wish. She asserts, however, that he wishes to reside with Sheinman. Araujo did not challenge this aspect of her evidence.

[37] Araujo asserts that the children have consistently expressed to him the wish to return to Innisfil rather than live in Petawawa. I note that Araujo doesn’t state that the children have expressed a wish to reside with him in preference to Sheinman.

The custodial parent’s reason for moving:

[38] While I am to consider 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, I consider this to be such a case.

[39] Sheinman is presently parenting a newborn child with her partner who resides in Petawawa. She presently relies upon his support in order to help provide for all of her children. Given her present circumstances, the stability and support offered by the present arrangement with her partner cannot be ignored.

[40] Sheinman’s partner is in the military. Sheinman claims the move was precipitated by her partner’s military transfer to Petawawa, ON. This posting entailed a career advancement for her partner. It is not possible for her partner to leave Petawawa at this time.

[41] The move has resulted in greater financial security for the whole family unit and, as a result, the children are living in better accommodations.

Disruption to the child of a change in custody:

[42] Araujo’s proposal that the children be transferred into his care would cause a fairly significant disruption to the children. It would involve a significant change in the past custody arrangement. It would remove the children from their accustomed family unit including her partner and the newborn child. Given the delay in bringing this application, it would remove them from the home, school and community they have now settled into since September. It would require them to reside with Araujo, when it appears at least in the case of Mendel, that this would not be consistent with his views and preferences.

Disruption to the child consequent on removal from family, schools and the community he or she has come to know:

[43] There is no doubt that the move to Petawawa posed some disruption to the children. I am prepared to accept Araujo’s evidence that they reported to him that they were not happy with being removed from Innisfil. This disruption has already occurred and is not easily repaired at this time. Araujo’s proposal that he assume their primary care will not return the children to the school or community they know.

[44] The greatest disruption caused by the relocation to Petawawa is due to the manner in which the move impacts on access visits with Araujo. They need to travel a longer distance every second weekend. They are missing school on the Friday afternoons preceding an access weekend in order to get to the access exchange at the appointed time. Missing school is not feasible over the long term. It is also not practical for the children to be travelling on the roads to this extent during the Canadian winters.

[45] That said, alternative access arrangements are possible which could better fit and accommodate that distance to facilitate access, while preserving the quality of the ongoing relationship the children have enjoyed with Araujo.

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

[47] There are genuine issues for trial. In particular, the issue of custody and access will require a determination of the children’s best interests in light of the geographical distance posed by the move. The children’s relationship with both parties needs to be examined more thoroughly and the proposed move, with all that it entails, more fully considered. The children’s views and preferences need to be determined.

[48] The birth of a child with Sheinman’s new partner is the most compelling reason which would support allowing the move to Petawawa pending the determination of the issues. The delay in bringing this application and the result that the children are now well into their school year is also a compelling consideration which would suggest that they ought to remain in Petawawa pending the determination of the issues. Finally, the fact that the “status quo” pre-existing the move cannot be reinstated (ie. their prior home in Innisfil) is another compelling reason why the children should be permitted to remain in Petawawa pending the determination of the issues.

[49] 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. In particular, she has been the primary caregiver of the children since the parties’ separation. She now has a new child with a partner who is required to be in Petawawa. I am not convinced from the evidence introduced at this point that the primary care of the children is likely to change or that Sheinman in her circumstances will be compelled to move the residence of the children back to Innisfil.

[50] I therefore conclude that the children should reside in Petawawa, in Sheinman’s primary care, pending further order of this court, for the following reasons in particular:

(a) Sheinman has been the primary caregiver of the children to date and she appears to be adequately providing for the care of the children. This leads me conclude that it is unlikely that primary custody will change following a determination of their best interests after a full trial;

(b) The present access schedule has been made difficult because of the move. However, the schedule can be modified to reduce the disruption of travel for the children while providing Araujo with alternate but equivalent access pending trial;

(c) There are legitimate reasons for Araujo to be unhappy with certain actions taken by Sheinman. For instance, Araujo was to be consulted when major decisions are made concerning the children. I do not accept that Sheinman had the right to act unilaterally when moving the residence of the children and changing their school. Notwithstanding this, I conclude that the move was made in good faith and was not made for the purposes of frustrating Araujo's access to the children. Sheinman has cooperated in facilitating regular access between the Araujo and the children even though the present arrangement may not be workable over the long term; and

(d) It appears that Mendel, who is 13, wishes to remain in the care of Sheinman.

[51] Therefore, Araujo’s motion should be dismissed.

[52] Both parties are encouraged to consider alternative interim access arrangements which would support the children maintaining their relationship with Araujo while recognizing the burden which is caused by travelling the distance now required every second weekend.

[53] If the parties cannot agree on the costs of this motion, then Sheinman 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. Araujo shall have ten days from receipt of the Sheinman’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: February 24, 2020