Court File and Parties

COURT FILE NO.: FC-19-383 DATE: 2020-06-23 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tyler Hearty, Applicant (the “Father”) AND Julie Hearty, Respondent (the “Mother”)

BEFORE: The Honourable Mr. Justice Marc Smith

COUNSEL: Katherine Shadbolt / Alison Boyce, Counsel for the Applicant Pierre Ranger, Counsel for the Respondent Cheryl Hess, Counsel for the Office of the Children’s Lawyer

HEARD: June 11, 2020 by telephone conference

Endorsement

M. Smith J

[1] The Applicant Father seeks the following: (1) an Order preventing the Respondent Mother from unilaterally changing the schools of their two youngest children; (2) an Order preventing the Respondent from moving all three children outside of the youngest child’s current school district (Barrhaven to Orleans); (3) alternatively, if the Court allows the children to move to Orleans, the Father seeks an order varying the parenting time as set out in the Order of Justice Phillips dated March 3, 2020;.

[2] The Mother opposes the motion. In her materials, she raised an objection to the late filing of the Father’s most recent affidavit. At the outset of the Motion, the Mother withdrew her objection.

[3] For reasons that follow, the Father’s Motion is allowed, in part. The Mother shall not be prevented from moving to Orleans with her children or changing schools. The Father’s parenting time shall be increased.

Background

[4] The parties were married on September 23, 2000 and separated on April 1, 2018. There are three children of the marriage: Camille Lynn Barbara Hearty, born March 24, 2002? (“Camille”); Maxime Lucien Hearty, born January 12, 2005 (“Max”) and; Lucas Guy Bryne Hearty, born March 29, 2009 (“Lucas”).

[5] At the time of separation, the parties were living in Barrhaven. They had moved into their matrimonial home when Max was an infant. In or around April 2018, the Father moved out to live at his parents’ home which is approximately a 9-minute drive from the matrimonial home.

[6] On August 7, 2019, the Office of the Children’s Lawyer (“OCL”) was appointed, on consent.

[7] On March 3, 2020, Justice Phillips ordered that the parties shall maintain joint custody of the three children and that the Father and Mother share in decision-making authority, with all communications to be in writing. The Father was to continue exercising access with Camille and Max, at their discretion. In terms of Lucas, a parenting time schedule was ordered.

Position of the Parties

The Father

[8] The Father says that at the time of the separation, it was amicable. The parties agreed to a shared parenting regime. Then, the Mother started to curtail access time by withholding the children and denying overnight access. Camille and Max’ rate of absenteeism at school was increasing and the Mother was not keeping the Father apprised of the difficulties. The result of the OCL’s investigation echoed the Father’s concerns regarding the Mother’s behaviour (i.e. influencing the children, speaking negatively about the Father in front of the children, etc.).

[9] Justice Phillips’ Order brought stability. Lucas wanted to spend more time with his Father. The Father’s parenting time was increased to overnight on Tuesday and Thursday, with alternate weekends. Max was coming around, becoming closer to his Father and was agreeable to reunification therapy. A social worker in Nepean would be assisting Max and the Father. Camille was working in the area and was spending more time at the paternal grandparents’ home where the Father resides.

[10] The Father argues that the Mother’s decision to move to Orleans is in direct violation of Justice Phillips’ Order. The Mother is violating the fundamental tenet of joint custody. The parties are to make decisions together and in writing. The Mother’s unilateral decision deprives the Father of information and shared equal contact.

[11] The Father says that the Mother has also been making decisions unilaterally in the context of Lucas’ health. The Father learned, after the fact, that the Mother spoke to his doctor requesting that Lucas be put on medication to treat ADHD, without having been formerly tested and diagnosed.

[12] A move to Orleans and the changing of schools would not be in the best interest of the child. The proposed relocation is 39 kilometers away (55 minutes one way by car) from the Father’s residence and the commute is onerous and problematic. On school days, it would be impractical as Lucas would need to get up at 5:00am and the Father would need to leave work early for pick-ups. Lucas has been doing well at his school and he has one year remaining to finish elementary school at Monsignor Paul Baxter. Max attends St. Mother Teresa’s High School and for his stability and continuity of working with the social worker, he should remain.

[13] Lucas originally told the OCL that he wanted to remain in Barrhaven to complete his grade 6. However, in his most recent interview, Lucas had changed his mind and was looking forward to moving and changing schools. He wants to continue to play hockey with the Nepean Raiders. The Father says that this change of heart has occurred as a result of the Mother’s influence.

[14] The Father disputes the Mother’s financial reasons for moving to Orleans. He says that she continues to be employed, she has other sources of benefits and she is cohabitating with her new partner (Louis) who is employed with the government, earning a salary between $73,000.00 and $96,000.00.

[15] The Father argues that if the Mother’s plan to move to Orleans is implemented, the equilibrium that has been achieved will be shattered.

The Mother

[16] The Mother submits that the Court cannot prevent Camille (18 years old) and herself from relocating. The Order being sought must be limited to Max and Lucas.

[17] It is argued that the Father’s insistence of selling the matrimonial home (and obtaining an Order to that effect) has forced the Mother, for financial reasons, to move to Orleans into the maternal grandfather’s home, which is being provided rent free.

[18] The Father has not been paying child support. She continues to be unemployed, having been on WSIB that has ended in April 2020. She has applied and has been receiving the Canada Emergency Response Benefit (“CERB”). She has no money for a down payment.

[19] The Mother says that all three children are enthusiastic for the upcoming move to Orleans. No formal steps have been taken to change schools for both Max and Lucas.

[20] Max suffers from anxiety and PTSD. He has had very little contact with his Father since the last hearing. As a result of his medical condition, he has not been physically attending St. Mother Teresa’s High School. The Mother has no intention of changing Max’ school unless he is accepted in the Care and Treatment Program (section 23 school). She accepts that Max is to remain enrolled at St. Mother Teresa’s Hight School but notes that his health will not permit him to be physically present at the school. The Mother mentioned that Max has always been excited to move to Orleans and he has no concerns about moving.

[21] The Mother denies influencing Lucas. He was interviewed by the OCL, on separate occasions, in the Mother and Father’s respective homes. His most recent preference and view has remained the same. He is looking forward to moving to Orleans. At the Motion, counsel advised that the Mother wishes to enroll Lucas at the Convent Glen Catholic School, which is the school that the Father attended as a child. She acknowledges and understands that Lucas wishes to continue playing hockey in Nepean and will assume a lot of the driving. The Mother is also agreeable to increasing parenting time.

[22] The Mother says that the move to Orleans is an entire family move. All the children wish to move to the east end.

Position of the Children

[23] Ms. Hess was appointed pursuant to s. 89 of the Courts of Justice Act, R.S.O. 1990, Chap. C.43, to represent the children in this matter and to provide their views and preferences to the Court. Ms. Julie Clarke, a clinician with the OCL, has been assisting Ms. Hess in conducting interviews and gathering evidence of those views and preferences.

[24] Ms. Hess first described the children. Camille’s anxiety has been so bad that it caused a lot of non-attendance at school. She has not been able to finish her high school. Max is sensitive and has significant mental health issues (severe anxiety and PTSD). He is unable to physically attend school, he has a real fear of vomiting and difficulty eating. He is not well, terribly thin and grey which is concerning to the OCL. Lucas appears fine, with no anxiety being exhibited thus far but the OCL is guarded given the older children’s conditions.

[25] Camille and Max are estranged from their Father because of his past behaviours, specifically his aggression and anger. Lucas is close to both parents, he loves his parents equally, but he is torn.

[26] Influence by the Mother is clear and concerning, especially when it comes to Camille and Max. She speaks negatively about the Father, whether it is subconscious or not. She is however very invested in the well-being of her children.

[27] The Mother is supported by Louis and he is a very good influence. The children are close to the maternal grandfather and he also provides the Mother support (physical (driving the children), emotional and financial).

[28] The OCL has seen a change in Max’s behaviour. Previously, he was fairly open but in the most recent interviews, he was very closed. The OCL suspects that the events of the past hearing were discussed with him, but they are unable to confirm. That said, Max has always been consistent in his views and preferences. It would be in Max’ best interest if he is accepted in the Care and Treatment Program (section 23 school). There were some bullying issues at his school.

[29] For Lucas, a move to Orleans would be a first and it is a novel idea. During the last interview, he told the OCL that having done the drive from Barrhaven to Orleans, it is not too long. Ms. Hess agrees with counsel for the Father that he would not understand the length of the commute. He now wishes to go to school in Orleans stating that it would be best to make friends in grade 6 before attending high school. It is obvious to Ms. Hess that there have been discussions with Lucas regarding the move.

Analysis

Change of Primary Residence to Orleans

[30] The leading authority on mobility is Gordon v. Goertz, [1996] 2 S.C.R. 27. The best interest of the child remains the ultimate question in every case. At paragraph 49 of the decision, a summary of the law was provided:

49. The law can be summarized as follows:
50. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
51. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.
52. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
53. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.
54. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
55. The focus is on the best interests of the child, not the interests and rights of the parents.
56. 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.

[31] The Mother argues that section 16(10) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) enshrines the principle of maximum contact with both parents. It is however to be honoured if it consistent with the best interest of the child.

Material Change in Circumstance

[32] I acknowledge that the Mother has spoken openly to the children about the move to Orleans and the possible changing of schools, without the Father’s knowledge. Justice Phillips’ Order is clear that the parties maintain joint custody of the children and that they shall share in decision-making authority, with all communications to be recorded in writing. However, during argument, the Mother has said that if she is not permitted to relocate with the children, for financial reasons, she may have to remain in the matrimonial home and cancel the sale, scheduled to close in early July. Moreover, the Mother has not unilaterally registered the children in new schools. I accept these submissions.

[33] Counsel for the Father has referred me to caselaw, some that have similar (but not identical) fact situations, where the Court has refused to allow a relocation. I find that the facts of the case at hand are quite unique and when applying the approach laid out in Gordon v. Goertz, I arrive at the conclusion that it is in the best of the children to allow the Mother’s move to Orleans. There are distinguishing facts in the present case from those outlined in the caselaw such as: a move and a change of school has not yet occurred; the commute for an 11 year old is different then a 4 year old; considering the family history and dynamics, the disruption to the children is not an important factor in this case, and there are steps that can be taken to modify the parenting schedule and mitigate against the impacts of the move.

[34] I find that the Mother has made out the threshold requirement in order to be permitted to move Max and Lucas to Orleans. The circumstances have changed. I accept that, as a result of the impending sale of the matrimonial home and the Mother’s current financial condition, this unforeseen move to Orleans is a material change. Child support ($1,528.00 per month) is not being paid and the Mother’s primary source of revenue is a time-limited CERB payment. Funds from the sale of the matrimonial home may not be available to the parties as there is a dispute regarding repayment of a loan to the maternal grandfather in the approximate amount of $75,000.00. The maternal grandfather has offered the Mother to stay in her childhood home, rent free. I find that, in the circumstances, moving to Orleans remains the best available option for the Mother to meet the needs of her children.

Fresh Inquiry

[35] Turning now to the factors that need to be considered in the “fresh inquiry into what is the best interest of the child[ren]”, I make the following findings:

The existing custody arrangement and relationship between the children and the custodial parent

[36] By way of Justice Phillips’ Order, on an interim without prejudice basis, the parties maintained joint custody of the children. The relationship as between the Father and the two oldest children is strained. Although it appears that there have been some improvements, both Camille and Max have been affected by the Father’s past behaviour.

[37] Camille has not slept at her Father’s home for over one year and she prefers sleeping at home (the Mother’s), taking care of her dog at her Mother’s home. She has reported being more stressed when she returns from the Father’s home. Similarly, Max prefers being with his Mother and has little contact with his Father. Max was seeing his Father once per week. When he attended at his Father’s home for dinner, it was mostly to see his grandmother and not his Father.

[38] It is clear from the evidence that Lucas has a good relationship with both the Mother and Father. He enjoys spending time with the Father. I acknowledge the Father’s argument that the Mother had made attempts to curtail access but, regardless, since Justice Phillips’ Order, Lucas is spending slightly more time with the Mother.

The existing access arrangement and the relationship between the children and the access parent

[39] Camille and Max see their Father at their discretion. Camille has expressed being worried about her Father’s behaviour. Max has advised the OCL that he wants “nothing to do with his father”. While there may some minor increases in access, it remains infrequent.

[40] Justice Phillips’ Order provided that once the Father completed an anger management course (which he did), his access with Lucas would increase. Since May 14, 2020, as a result of Lucas not being in school because of the pandemic, the Father has been exercising access as follows: Tuesday (4pm) to Wednesday (4pm); Thursday (4pm) to Friday (4pm); and every alternating weekend from Friday (4pm) to Sunday (8:30pm). During a two-week period, this represents parenting time of approximately 45%. Assuming a regular school schedule (without the pandemic), his parenting time would be less, in the range of 34%.

The desire of maximizing contact between the children and both parents

[41] Maximizing contact between the Father and the two oldest children has been and will continue to be difficult. Their views, as told to the OCL are strong and deep rooted. Steps are being taken to improve the relationship, which in time may increase the frequency of contact. At present, it is limited.

[42] Lucas’ situation is different. There is no doubt that he loves his parents equally and he likes spending time in both homes. The pandemic situation has increased the Father’s parenting time with Lucas and from all accounts. Lucas enjoys the one on one time with his Father. I find that the current arrangement vis-à-vis Lucas is a good balance for him and it should continue, subject to maintaining quality parenting time. A move to Orleans, along with increased parenting time, will not prevent the maximizing of contact with his Father.

The views of the children

[43] The OCL has expressed some concern that the children’s views have been influenced by the Mother. I share this concern. On the evidentiary record before me, I am unable to find if the Mother’s conduct is deliberate or whether it is done subconsciously. The Mother has been diagnosed with recurrent depression, generalized anxiety, panic attacks and delayed chronic post traumatic stress disorder. It is possible that her current mental health may be a factor in the manner in which she interacts with her children and the comments that are being made.

[44] Regardless of my concern, I find that Camille and Max’ views have been consistent and strong. Lucas’ view is somewhat different as it has changed from wishing to complete grade 6 at his existing school to now wishing to attend school in Orleans. He has told the OCL that since the first interview, he has put some thought into it and changed his mind. I agree with the OCL that he has put some thought into it but there are some elements of the reasons given that raises doubt if he was influenced by the Mother. That said, I cannot completely disregard Lucas’ new desires. He shared his new preferences on two occasions, once while being interviewed at his Mother’s and the second time, at his Father’s.

The custodial parent’s reason for moving

[45] As stated above, I accept, and I am satisfied that the Mother is justified in moving to Orleans for financial reasons.

Disruption to the children

[46] I have outlined the relationship as between the Father and the two oldest children. I do not find that a change of the Mother’s primary residence will be a disruption to them. Camille is now 18 years old and she will be obtaining her G2 unrestricted licence. She will be able to use a vehicle purchased by her grandfather to attend her new adult high school in the Glebe. She will continue to build upon her relationship with her Father, at her discretion. It is hoped that Max will be accepted in the Care and Treatment Program (section 23 school). The specifics are unknown at present, but if he is accepted, he would likely be attending Immaculata High School on Main Street, which would be mid-way between the Father home and Orleans. In the unfortunate event that he is not accepted, I agree with the Mother’s submissions that given his current medical condition, he will not be physically attending at St. Mother Teresa’s Hight School. In terms of ongoing treatment with the medical professionals, including the social worker, there is no reason that this cannot continue from Orleans, with little disruption. Like his sister, Max will still be able to continue improving his relationship with his Father.

[47] For Lucas, other than the added travel time (commute between the Father and Mother’s respective homes), the disruption would be minimal. He will continue to spend time with his Father at the same frequency. The Mother recognizes the importance of maintaining Lucas’ activities (i.e. hockey with the Nepean Raiders, baseball, play dates with friends, etc.) and confirms that she will be doing a lot of the driving back and forth. I am satisfied that, despite the Mother’s relocation to Orleans, she will take the appropriate steps to ensure that Lucas maintains the same activities.

[48] In summary, considering the totality of the evidence, I find that it is in the best interest of the children to allow the Mother’s move to Orleans. Stability and continuity can still be maintained with a move to the east end of the city. Further, it is in Lucas’ best interest that the Father’s parenting time be increased to reflect the additional commuting time. Justice Phillips’ Order regarding the Father’s parenting time with Lucas will be varied to reflect an increase.

Change of School

[49] The Mother advised the Court that she has no intention of changing Max’ current school (St. Mother Teresa’s Hight School). Both parents are waiting to hear if Max will be accepted in the Care and Treatment Program (section 23 school).

[50] At the Motion, the Mother stated that she would like to enroll Lucas at the Convent Glen Catholic School. This Father was unaware of the Mother’s preference in schools and she should have disclosed it to the Father, in advance of the Motion. I appreciate that the Father was not provided any time to respond to the proposed school but there was no opposition made by the Father. Rather, counsel for the Father submitted in reply that the Mother’s “on the fly proposal” is not a solid and reliable plan, with no specifics.

[51] In Thomas v. Osika, 2018 ONSC 2712 (Ont. S.C.J.), Justice Audet reviewed the factors and jurisprudence on school placement issues. The choice of school is a matter of judicial discretion and to assist in this determination, several principles have emerged over the years. They include, inter alia, the following: development of a plan for the child’s education; ability of the parent to assist with the homework; emphasis must be placed on the interest of the child and not the parent; promote and maintain a child’s cultural and linguistic heritage; the impact to the child of changing schools; decisions that were taken before the separation; problems with the proposed school. Cases are fact specific and a decision must always be made in the best interest of the child.

[52] With a finding that it is in Lucas’ best interest to allow his Mother to move to Orleans, I equally find that it is in his best interest that he attends a school in the Orleans area. While I acknowledge that enrolling Lucas in a school represents a longer commute and an inconvenience to the Father, it is the best interest of the child that prevails. Lucas is at an age of being able to express his views and preferences, but I recognize that he can still be influenced by others. When Lucas says that it is “not that long of drive” (Barrhaven to Orleans), it is likely something that he can measure but having experienced the drive before, Lucas can have the general understanding of the time it takes.

[53] I agree that no plan was presented by the Mother. It does not however prevent me from concluding that it is in Lucas’ best interest to attend Convent Glen Catholic School. The school is in proximity (walking distance) to his Mother’s new home in Orleans, it is a Catholic School which maintains the religious heritage as well as the parental decisions that existed before the separation, and it is known to the Father as he attended the school as a child.

Conclusion

[54] Based on the above, there shall be an Order as follows:

a. The Mother is permitted to move Max and Lucas to Orleans; b. Max shall remain enrolled at St. Mother Teresa’s High School, unless he is accepted in the Care and Treatment Program (section 23 school); and c. Lucas shall be enrolled at Convent Glen Catholic School.

[55] I am prepared to make a modest increase to the Father’s parenting time to reflect some of the challenges posed by the Mother’s relocation to Orleans. The Mother should also be assuming increased responsibility vis-à-vis access transportation but within reason. However, I am not prepared to go as far as the 50-50 parenting time initially suggested by the Father in his Amended Notice of Motion. At the Motion, the Mother made a proposal, but the Father has not had an opportunity to respond. No detailed plans have been provided to the Court. I encourage the parties to come to an agreement, failing which they will each provide me, in writing, their suggested changes to parenting time and transportation. I will then decide the matter. This should be done within 7 days of this Endorsement.

Costs

[56] The success on this Motion is shared. Any party requesting costs shall serve on the other party and file, written submissions of no more than three pages, exclusive of their bill of costs and offers to settle, within 30 days of the date of this Order. The party in receipt of the request for a cost order shall serve and file written submissions of no more than three pages, exclusive of their bill of costs and offers to settle, within 10 days thereafter.

M. Smith J Released: June 23, 2020

COURT FILE NO.: FC-19-383 DATE: 2020-06-23 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Tyler Hearty Applicant (the “Father”) -and- Julie Hearty Respondent (the “Mother”) REASONS FOR JUDGMENT Justice Marc Smith Released: June 23, 2020