COURT FILE NO.: FS-20-20751
DATE: 20200320
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Andre Dias
Applicant
– and –
Jennifer Gagnon
Respondent
Katherine Zhang, for the Applicant
Dawn Melville, for the Respondent
HEARD: Conference Call – March 20, 2020
RULING ON MOTION
Hebner J.:
[1] The applicant father and respondent mother were never married. They had a relationship that produced a child, Kayden Meghan Dias-Gagnon, born January 21, 2012. Kayden is currently eight years of age.
[2] This motion was brought by the applicant for custody of Kayden, an order prohibiting the respondent from changing the address of the child from the County of Essex and an order appointing the Office of the Children’s Lawyer. This is my ruling on the motion.
Background Facts
[3] Kayden lives with the respondent mother in Stoney Point, Ontario. She spends every other weekend with the applicant father in Windsor, Ontario. There is no current court order or separation agreement outlining terms of custody and access between the parties. There was an action commenced in July 2013 by the respondent mother in the Ontario Court of Justice. Shortly thereafter, the applicant father commenced an action in the Superior Court of Justice and the respondent withdrew her action in the Ontario Court of Justice on August 9, 2013. The only endorsement that I was provided with is that of Master Pope made at a case conference on December 3, 2013. That endorsement provides that the applicant father pay child support of $379 per month based on income of $42,000 per annum. That endorsement further provides that, on consent, the applicant father have access on alternating weekends from Friday at 5:00 p.m. to Sunday at 7:00 p.m. and every Wednesday from 5:00 p.m. to 8:30 p.m. There is a notice of approaching dismissal dated June 27, 2014, indicating that that action was to be dismissed unless steps were taken. That file is apparently now in storage. Counsel have taken steps to have the file delivered from storage, but both counsel assume that the 2013 action was dismissed and the interim order of Master Pope is no longer in force.
[4] Even though the 2013 action did not result in a final order, the parties governed themselves based on the terms set out in Master Pope’s endorsement. Kayden has lived with the respondent mother and the applicant father has had access on alternating weekends and has paid $379 per month for child support. The Wednesday evening access has not taken place, although there is conflicting evidence as to why that is the case.
[5] The respondent is fluent in French and has a strong family French heritage. Kayden is also fluent in French and attends a French school.
[6] The respondent mother is currently employed as an educational assistant with Conseil Scolaire Providence. In 2019, she earned $35,041. She states her 2020 income is expected to be $42,120.
[7] The applicant is employed as a logistics coordinator for Amico Construction. He states that his salary is approximately $60,000. He has not yet provided proof of his 2019 income. The respondent is residing in a common-law relationship with his girlfriend, Jacalyn Gualtiere, a pharmacist at St. John’s Hospital in Detroit.
The Respondent’s Plans
[8] The respondent advised the applicant on Friday, February 21, 2020 that she wishes to relocate with Kayden to Edmonton, Alberta, on March 24, 2020.
[9] The respondent mother is currently in a relationship with Wissam Kobrosli. Mr. Kobrosli is employed as a police officer in Red Deer, Alberta. She plans to move to Alberta to be with him. Mr. Kobrosli and the respondent have located a two-bedroom apartment where they plan to reside together.
[10] According to the respondent mother, she plans to pursue a career in policing with the Edmonton police department. She claims to have passed the “vast majority of the tests including the physical.” She has additional tests to complete, including a psychological evaluation, and has been told that she then “should be able to commence employment right away.” The respondent mother states that she is “pursuing her dream position as a police officer.” She claims this to be “a once-in-a-lifetime opportunity” and expects to start work with a salary of approximately $70,000 per annum.
[11] According to her affidavit, the respondent has known Mr. Kobrosli for six years. They originally met through Goodlife Fitness where they both attended for workouts. They reconnected on Facebook after the respondent ended a previous relationship. In August 2019, they decided to enter into a relationship with each other. Since then, they’ve had the following contacts:
Mr. Kobrosli came to the Windsor area in August 2019 for one week;
The respondent has been to Alberta for one week;
The respondent went to Alberta for two weeks in February 2020;
Mr. Kobrosli was to come to Windsor for an extended visit between March 13 and March 24, 2020.
[12] The respondent states that she and Mr. Kobrosli “love each other and we are both confident that this relationship is going to move to the next level.”
[13] The respondent has located an appropriate French school for Kayden to attend in Edmonton. She states that Kayden is excited about the move. In terms of Kayden’s continued access with her father, the respondent states the following:
“Our relocation will not interfere with (Kayden’s) ongoing relationship with her father which has historically been overnight for approximately 60 overnights throughout the year.”
“I am prepared to facilitate longer periods of access between Kayden and her father and would hope we could work through a schedule which will accommodate not only Kayden’s needs but the needs of her father.”
“I want to ensure that Kayden does not miss any time with her father and believe that we can work out a creative schedule.”
“I am prepared to accommodate visits to Windsor and the costs of exercising the contact between Kayden and her father can be addressed with the ongoing child support determinations.”
[14] In oral argument, Ms. Melville suggested an appropriate access schedule might be six weeks in the summer, a sharing of holidays and a four-day weekend every month structured around professional development days.
The Applicant’s Position
[15] The applicant opposes the proposed move. He claims that Mr. Kobrosli is a “virtual stranger” and the relationship “is not aged or strong enough to risk moving Kayden to Alberta.”
[16] The respondent states that Kayden has a life in the Windsor/Leamington area. Kayden’s extended family lives in the County of Essex, including both sets of grandparents, uncles and aunts and cousins. He points out that several months ago the respondent and Kayden moved from LaSalle, where they had been living with the respondent’s previous boyfriend, to Stoney Point where they currently reside with the maternal grandparents. Kayden has already had to change schools this school year. He points out that if Kayden moves to Edmonton before the end of the school year, she will have attended three schools over the course of one year.
[17] The applicant expresses concern about his continued relationship with Kayden should she move to Alberta with the respondent. He suggests that the respondent move to Alberta and Kayden reside with him in Ontario. He suggests that the respondent travel to the Windsor area where she can stay with the maternal grandparents and exercise access to Kayden.
[18] The applicant points out that the respondent previously moved to Newmarket with Kayden to live with her previous boyfriend, a man that she intended to marry. That relationship broke down. He claims that the respondent “does not have a good track record with relationships” and that it is “taking a negative toll on Kayden.” The applicant claims that the respondent had Kayden calling the previous boyfriend “dad” and that his own role as Kayden’s father has been marginalized.
Analysis
[19] This motion is an interim application. The issue of mobility on an interim application is a challenging one. In Potter v. Potter, 2010 ONSC 5113, Fregeau J. set out a framework to be used on such a motion. He said, at paras. 27 through 30:
The framework established in Gordon v. Goertz dealt with an application to vary an existing custody and access order. The motion before this court deals with temporary custody and the issue of mobility on a temporary basis and is the first time either party has sought an order regarding custody of these children. The Ontario Court of Appeal has held in Bjornson v. Creighton (2002), 2002 CanLII 45125 (ON CA), 62 O.R. (3d) 236 that the Gordon v. Goertz principles and analytical methodology is also to be applied to first instance custody cases. Gordon v. Goertz mandates an extensive child-focused inquiry which is very difficult to accomplish at the interim stage given the typical conflicting affidavit evidence on interim motions. The general reluctance of the court to effect fundamental changes in a child's circumstances on interim motions has resulted in a slightly more restrictive approach to interim mobility cases, in recognition of the short term nature of interim orders and the summary nature of interim motions.
The standard that ought to be applied when dealing with the issue of mobility on an interim basis pending trial is set out in Plumley v. Plumley, 1999 CanLII 13990 (ON SC), [1999] O.J. No. 3234, (Ont. Fam. Ct.). The court observed that a court will necessarily be more reluctant to upset the status quo and permit the move on an interim basis when there is a genuine issue for trial. At para. 7 of the judgment, Justice Marshman indicated:
(7) 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 trial.
In Terris v. Terris, Court File Number 02-FL-502, 2002 CanLII 46107 (ON SC), [2002] O.J. No. 3018, dated June 21, 2002, the court made the following observations with respect to interim mobility motions:
The other point of distinction that must be mentioned in this case is the fact that this decision is being made on a temporary basis until the court can deal with the matter at trial with the benefit of examination and cross-examination of witnesses. This is particularly relevant where evidence is conflicting and there is a triable issue of whether a parent should be permitted to change the residence of the child. I accept the wisdom of the jurisprudence that establishes that on a temporary basis, there must be a pressing reason for an immediate move and there is case law cited in support of that and that is also provided in counsel's material. This does not in any way affect the overriding test of the best interest of the children in any decision, temporary or permanent.
The decision made on an interim motion in a mobility case will often have a strong influence on the final outcome of the case, particularly if the interim order permits relocation. The reality is that courts do not like to create disruption in the lives of children by making an order that may have to cause further disruption later if the order has to be reversed. See Goodship v. McMaster (2003), 2003 CanLII 53670 (ON CJ), 126 A.C.W.S. (3d) 815.
[20] There are three questions, then, that I ask myself. Is there a genuine issue for trial? Are there compelling circumstances that might provide a reason to allow the move immediately? Is there a strong probability that the respondent’s position will prevail at trial?
Genuine Issue for Trial
[21] In my view, there are genuine issues for trial. The inquiry at trial must be a child focused one. The question will be whether the child’s best interests dictate that she move to Edmonton with her mother. The parties disagree on that issue. The respondent claims that Kayden’s best interests dictate that she move to Edmonton and the applicant claims that Kayden’s best interests dictate that she remain in the County of Essex.
[22] There is also the issue of Kayden’s wishes. The respondent claims in her affidavit that Kayden is excited about the move. That evidence is not objective. I have no objective evidence whatsoever as to the wishes of this eight-year-old girl.
[23] I am concerned about making an order allowing the move based on the evidence of the parties only, by affidavit. That evidence has not been tested by cross-examination. In Cosentino v. Cosentino, 2016 ONSC 5621, Pazaratz J. at para. 10 said: “Temporary orders can have a huge impact on final orders. Effectively, they can have a forever impact on children. As a result, motions judges must be mindful of both short-term and long-term dynamics, to ensure that the maximum contact principle is not undermined by the unilateral action of either party.” Pazaratz J. was dealing with a proposed relocation of a child between Hamilton and Niagara-on-the-Lake. His comments are even more germane when dealing with a proposal relocation between Windsor and Edmonton.
[24] I cannot conclude, based on the affidavit evidence before me, that Kayden’s best interests dictate a move to Edmonton. The respondent mother has been Kayden’s primary parent throughout her young life. There are not any questions raised in the affidavit material about the respondent’s care of Kayden. At the same point in time, Kayden has a support system in Windsor where her father and extended family reside. She has already had to change schools once this year. There is no evidence as to her wishes.
[25] The question of whether this move is in Kayden’s best interests is a triable issue.
Compelling Circumstances
[26] The respondent is in the process of pursuing a new career. She is undergoing training and testing. She claims to have already completed many of the tests, and I can only conclude therefore that she is able to travel to Edmonton for that purpose or is able to complete the tests remotely. There is no evidence of a job offer yet. There is no evidence of a required start date of employment.
[27] I cannot find a compelling circumstance for the move to Edmonton this point.
[28] I point out that this matter came before the court by way of an urgent motion to be held by telephone conference during a period of time that the court has suspended normal operations. There is a global pandemic at the present time, namely COVID-19. I take judicial notice of the pandemic. We are currently living in times when international travel is affected. There is no evidence as to how the pandemic might affect the respondent’s plans to move to Edmonton or the ability of Kayden to attend school and integrate into her new community. The current rules across the country requiring social distancing and, in some cases, social isolation will most likely have a significant impact on Kayden’s lifestyle following a move to Edmonton. In my view, this is a compelling circumstance to not allow the move at this point in time.
Will the Respondent Prevail at Trial?
[29] Counsel for the respondent mother points out that she has been the primary parent for Kayden throughout her eight years of life. She points out that there are no negative comments about her ability to parent and that prior to her desire to move to Edmonton, there was no attempt to change the current parenting schedule.
[30] However, the respondent mother has not provided particulars of her plan for the child’s care in Alberta. She has located a school for the child to attend but has not provided particulars of any required child care arrangements. She has not identified a family doctor, dentist and other healthcare professionals who will provide required service for Kayden. Aside from her boyfriend, she has not identified support persons who will be available for she and Kayden. She has indicated a desire to work towards an appropriate access arrangement for the applicant, but has not provided particulars of the proposal, the costs of that arrangement, and how the cost will be covered. These are all issues that have to be addressed on a fulsome basis at a trial.
[31] The applicant has demonstrated what appears to be a genuine desire to be and remain an actively engaged parent. He has demonstrated what appears to be a genuine desire to have Kayden live with him in Windsor.
[32] In the circumstances, I am not prepared to find at this point that the respondent has a strong probability of success at trial.
Next Steps
[33] In my view, it is in Kayden’s interests that the issue of whether the respondent ought to be able to move Kayden’s residence to Edmonton be resolved as soon as possible. It needs to be resolved, if at all possible, prior to September 2020 so that, if Kayden moves to Edmonton, she can start the school year in her new school. However, it needs to be resolved after all of the issues identified above are addressed in a child focused trial. The best-case scenario would be to have a trial sometime in June, July or August of this year.
[34] I note that the applicant requested the involvement of the OCL in his notice of motion. In my view, the issue is a legal one. I am concerned, particularly given the current limitations, that the involvement of the OCL would delay the matter past the dates identified above. Counsel have agreed that the issue is a legal one and the involvement of the OCL is likely unnecessary. However, counsel have agreed that some independent evidence of Kayden’s wishes needs to be placed before the court. They have agreed to jointly privately retain counsel to interview the child and provide a Voice of the Child report or evidence of Kayden’s wishes. I am grateful to counsel for their cooperation in that regard.
[35] Given the limitations placed on the court now by the COVID-19 pandemic, I am unable to obtain a trial date today. However, I make the following order in the hopes that a trial date can be obtained soon as possible:
The holding of a case conference is dispensed with.
The parties may conduct cross-examinations of one another by teleconference, limited to the time period of three hours each. The cross-examinations shall take place by April 30, 2020.
The parties shall retain counsel to speak with Kayden and provide evidence as to her wishes. Counsel for the applicant and the respondent have agreed to retain Kristin Hales, subject to her availability. The parties shall share the cost, with the ultimate decision of who ought to bear the expense to be determined by the trial judge.
The matter is adjourned to June 8, 2020, to be spoken to in a special assignment court in accordance with the direction of the local administrative judge. At that time, the trial date will be set based on the following parameters:
a) if at all possible, the trial date will be set during the months of June, July or August;
b) subject to the direction of the trial judge, the witnesses to give oral evidence in-chief will be the parties and their respective partners. The evidence in-chief of other witnesses, such as grandparents and extended family members, shall be by affidavit with cross-examinations to take place at trial;
c) it is expected that the trial will take three to four days to complete.
Pending further order of the court, Kayden shall continue to reside in, and shall not be removed from, the County of Essex.
Should circumstances change such that either party seeks a variation of this interim order, counsel are directed to contact trial coordination for a further conference call with me.
Costs of this motion are left to the discretion of the trial judge.
Original signed by Justice Pamela L. Hebner
Pamela L. Hebner
Justice
Released: March 20, 2020
COURT FILE NO.: FS-20-20751
DATE: 20200320
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Andre Dias
Applicant
– and –
Jennifer Gagnon
Respondent
Ruling on motion
Hebner J.
Released: March 20, 2020