Court File and Parties

Court File No.: D25639/16 Date: 2020-06-16 Superior Court of Justice – Ontario

Re: Shannon Michael Dill, Applicant And: Rebecca Lynn Harris Dill, Respondent

Before: Mr Justice Ramsay

Counsel: Christopher Young for the Applicant Diana Continenza for the Respondent

Heard: June 16, 2020

Endorsement

[1] The Applicant has filed a motion to vary the final order of Milanetti J. dated November 14, 2018. Today he moves for a temporary order. A case conference was scheduled for May but was adjourned because of the health emergency. I propose to give leave to bring the motion urgently. The child’s schooling and residence are in issue and cannot wait.

[2] The parties separated in 2016 after 14 years of marriage during which they lived in Niagara Falls. They had one daughter, who is now a month or so shy of her 13th birthday. On separation, the Respondent mother took the child secretly to Kitchener without telling the Applicant where they were. She says that she did this because she feared the effect on her daughter of the “high conflict separation.” She has not elaborated in any material that is before me. Nothing before me justifies hiding the child from her father. Eventually the Applicant father found the child’s school and brought proceedings that resulted in the order of November 14, 2018.

[3] The child has had an anxiety disorder for some time.

[4] Pursuant to minutes of settlement, Milanetti J. gave joint custody to both parties. The child’s primary residence was with the mother in Kitchener. The father had the child on weekends in Niagara Falls. They met in Clappison’s Corners every Friday and Sunday to effect the exchanges. Not surprisingly, after a year of shuttling back and forth like this, the child’s anxiety did not abate. Eventually, she decided that she did not want to continue school in Waterloo. She wanted to stay with her father in Niagara Falls and go to school here. The Applicant did not return her after her visit to him of October 5, 2019.

[5] The Applicant paid child support based on the set off between the parties’ incomes, reduced by the cost of access, and agreed in the minutes of settlement that child support would not be payable by the Respondent if the child went to live with the Applicant. The Applicant asks for a termination of child support effective October 5, 2019, and an order for child support payable to him from the same date. The Respondent agrees that child support should terminate as of July 2020.

[6] In October 2019 the child decided that she wanted to remain with her father in Niagara, according to the Applicant. The Respondent doubts this. In any event, here she stayed. She began school at a private school in Fort Erie in spite of the Respondent’s refusal to consent to enrolment. She had been missing school in Kitchener because of her anxiety. She is still anxious and still missing a significant amount of school. The Applicant thinks that Stamford Collegiate in Niagara Falls, which would have been her school if she had never left Niagara, is in the best position to deal with the child’s special needs.

[7] I accept the Applicant’s contention that the child was the moving force behind the decision to stay in Niagara. It makes sense to me that she did would not have wanted to move in the first place and would find the constant shuttling tiresome. The Respondent’s reaction to the developments of October 2019 was to engage in conflict by refusing to consider any change that was not according to her wishes, obstructing the Applicant’s efforts to enrol the child in school and to insist on continuing to receive child support. The Respondent now deposes that she plans to move to St Catharines and that she thinks it is in the child’s best interest to be returned to her care there.

[8] It seems to me that the parties entered minutes of settlement that reflected their own best interests, not the child’s. She is vulnerable. Her parents need to insist on stability, not their own rights. It is clear with hindsight that the move to Kitchener was not good for the child. She herself seems to me to know what she needs – to return home and stay here with a minimum of fuss so that she can finish high school and work on her manifest problems. The most recent status quo was established by the child eight months ago. I do not propose to interfere with it. If things look different to the trial judge, at least I will have minimized the number of moves. I recognize that the child has difficulty expressing herself and that she does not want to displease either parent. She can, however, express herself passively with great effect. In other words, she is able to refuse to go places where she does not want to go. I do not attribute her desire to live in Niagara to pressure from the Applicant.

[9] In view of the Respondent’s resistance to the notion of cooperation I think it important that the temporary order give custody to the Applicant. I do not think it desirable for me to decide where the child should go to school. The Applicant is better placed to do that. His proposed choice is reasonable. Furthermore, I do not want the parties fighting over access. The child knows her own mind on that issue. Access to the Respondent has taken place successfully under conditions that suit the child.

[10] I shall invite the Children’s Lawyer to participate. I shall leave it to them to choose whether and how they wish to intervene. I do not think that a s.30 assessment is necessary. Both parties have the ability to parent at the moment. The Respondent has health issues of her own. I do not know how they will affect the picture in the long run. They may not have any significant effect. The parents do not agree on the specifics of child rearing, although they appear to agree at the moment that the child should stay in Niagara. The matter is essentially straightforward in spite of the child’s special needs. The child is old enough to go into high school and wants to return to her father’s care and her home town. The Applicant’s resources would be better spent on counselling for the child than on an assessment of the parents.

[11] There is no justification for requiring the Applicant to pay child support after October 2019 when the child moved to his residence. The parties agreed, however, that if this happened the Respondent would not pay child support, and that agreement was incorporated into Milanetti J.’s order. At the time the Respondent did not make very much money. If that has changed, it can be dealt with at trial.

[12] I make the following orders. Paragraphs b. and c. are temporary orders. The rest are procedural.

a. Leave is given to bring this motion before the case conference. b. The order of Milanetti J. dated November 14, 2016 is varied by vacating paragraphs 1 to 8 thereof and providing instead that the Applicant shall have custody Jasmine Renee Dill, born August 7, 2006. The Respondent shall have access to the child as arranged with the Applicant, who shall take the child’s wishes into account. c. Child support payable by the Applicant under paragraph 10 of the said order is terminated effective October 31, 2019. d. No order for child support payable by the Respondent is made in view of paragraph 12 of the order of Milanetti J. e. The Office of the Children’s Lawyer is invited to participate. f. The parties may file written submissions to costs not exceeding 3 pages in length, to which a bill of costs and any offers to settle may be appended. The materials shall be filed electronically, the Applicant’s by June 22, 2020 and the Respondent’s by June 26.

J.A. Ramsay J. Date: 2020-06-16