Court File and Parties

COURT FILE NO.: FC-20-201 DATE: 2020/08/14

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Robert Arthurs, Applicant AND Dakotah Cress, Respondent Justin Place, Co-Respondent

BEFORE: Justice M. O’Bonsawin

COUNSEL: V. Naik for the Applicant J. Mookerjea, Respondent K. Pollard, friend of the court

HEARD: August 4, 2020

ENDORSEMENT

Overview

[1] This is an Urgent Motion by the Applicant, Mr. Arthurs, and a Cross-Motion by the Respondent, Ms. Cress. Mr. Arthur’s Motion is to oppose Ms. Cress’ relocation with the children from Ottawa to Kingston, Ontario. Ms. Cress seeks to remain in Kingston with the children.

[2] There are three children: RP born on June 12, 2013, CA born on May 4, 2016 and NA born on July 19, 2018. RP is the biological child of Ms. Cress and Mr. Pierce. CA and NA are the biological children of Ms. Cress and Mr. Arthurs.

[3] At the beginning of the motion, I was advised by Ms. Pollard that Mr. Place was in the process of retaining her. On July 7, 2020, Shelston J. issued an Order adding Mr. Place as a Co-Respondent. Mr. Place has not yet served and filed an Answer and a Response. The parties agreed to bifurcate the part of the motion regarding RP for Mr. Place to file a Response. It was agreed that this matter would return before me on September 1, 2020 at 11:00 a.m.

Facts

[4] The parties started a relationship in 2015. They did not have a stable relationship and they separated in March 2019.

[5] After separation, the parties maintained separate residences in Ottawa. In December 2019, they obtained a residence in Manotick, Ontario. Ms Cress and the children resided upstairs and Mr. Arthurs resided downstairs. The parties remained at this residence for thirty-six days.

[6] On January 9, 2020, there were a series of texts between the parties regarding the move to Kingston. They relevant texts are as follows:

Moving to Kingston is pretty much pointless if you’re going to get childcare here and spend 10x more on that because I won’t be saving that in childcare while I’m there and I’ll be paying for a house I don’t need, so I’m just gunna stay here. Thanks for pointing out how pointless this all i[s].

Ms. Cress: I’m aware, never said I didn’t support you. I’ve told you I understand your motives for going, also I’m human of course in going to have mixed feelings and I guess I was looking for some reassurance. sorry for letting my feelings complicate shit, in no way am I stopping you from going.

Mr. Arthurs: I’m aware that it’s better for the kids and the future in a lot of ways and I’m aware I’m not in a position that I can financially have the kids during the week if you move, when we talked in the truck it was hypothetical situations that I guess I was just looking for reassurance, like I said in no way am I stopping you from going it’s a great opportunity.

Ms. Cress: And in no way do I want you to feel like I’m running off with your family to have a better life without you, like it’s literally the opposite of that.

[7] Ms. Cress did not file a Motion to Change.

[8] On January 27, 2020, Ms. Cress moved to Brockville then afterwards to Kingston with the children.

[9] On February 11, 2020, Labrosse J. ordered that Mr. Arthur could receive an urgent motion date. The motion was set for April 15, 2020. Unfortunately, the urgent Motion did not proceed due to COVID-19.

[10] Labrosse J. made the following interim order:

• In the interim, Mr. Arthurs’ parenting time with the children, CB and NA shall occur each weekend from Friday at 4:30 p.m. to Monday at 10:00 a.m.;
• Mr. Arthurs’ parenting time with RP shall occur every alternate weekend, from Friday at 4:30 p.m. to Monday at 10:00 a.m.; specifically the weekends that she does not spend with her biological father;
• Mr. Arthurs shall exercise his parenting time in Ottawa;
• Ms. Cress shall drive the children from Brockville to Ottawa on Fridays. Mr. Arthurs shall drive the children back to Brockville on Mondays; and
• Ms. Cress’ move from Ottawa to Brockville shall not be deemed to be the status quo with respect to habitual place of residence of the children.

Issue

[11] The main issue for determination is whether, on a temporary basis, this court should permit Ms. Cress to move with the children to Kingston.

Analysis

[12] Section 19 of the Children’s Law Reform Act, RSO 1990, c C.12 (“CLRA”) sets out the purposes of the custody, access and guardianship provisions. One of the purposes is to ensure that applications to the courts in respect of custody, incidents of custody, access to and guardianship for children will be determined based on the best interests of the children.

[13] Another purpose set out in s. 19 of the CLRA is to discourage abduction of children as an alternative to the determination of custody rights by due process.

[14] Section 20(1) of the CLRA provides that the mother and the father of a child are equally entitled to custody of that child.

[15] Both the Divorce Act, RSC 1985 c. 3 (2nd Supp) at s. 16(8), and the CLRA, at s. 24(1), require the court to consider the best interests of the child as the sole criterion in matters of custody and access.

[16] Section 24 of the CLRA states that when considering what is in a child’s best interests:

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application.

[17] Section 16 of the Divorce Act states that where an Application is made for custody of or access to children, the court may make an interim order pending determination of the Application, with such terms, conditions or restrictions that it thinks is fit and just. Section 16 also states that when making an Order under this section, the court shall take into consideration the best interests of the child as determined by reference to the condition, means, needs and other circumstances of the child, and that the child should have as much contact with each spouse as is consistent with the best interests of the child, and for that purpose, the court shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[18] In Gordon v. Goertz, 1996 191 (SCC), [1996] 2 SCR 27, the Supreme Court of Canada determined that the ultimate question in every case, including cases involving mobility issues, is what is in the child’s best interests, in all the circumstances. The focus is on the best interests of the child, not the interests or rights of the parents. At para 49, the court summarizes the law as follows:

a) there is no legal presumption in favour of the de facto custodial parent;

b) the focus is on the best interests of the child and not the wishes of the parent;

c) the court should consider the existing parenting arrangement;

d) it is desirable to maximizing contact with both parents;

e) the views of the child;

f) a custodial parent’s wishes to move are only considered if they are relevant to their ability to meet the needs of the children;

g) the disruption to the child by changes in school, community and family they have come to know.

[19] In L. (N.D.) v. L. (M.S.), 2010 NSSC 68, 289 N.S.R. (2d) 8 (N.S. S.C.) at para. 10, the court provided a helpful list of additional factors to be considered when applying the framework from Gordon . They are as follows:

• the number of years the parents cohabited with each other and with the child;
• the quality and the quantity of parenting time;
• the age, maturity, and special needs of the child;
• the advantages of a move to the moving parent in respect to that parent’s ability to better meet the child’s needs;
• the time it will take the child to travel between residences and the cost of that travel;
• feasibility of a parallel move by the parent who is objecting to the move;
• feasibility of a move by the moving parent’s new partner;
• the willingness of the moving parent to ensure access or will occur between the child and the other parent;
• the nature and content of any agreements between the parents about relocations;
• the likelihood of a move by the parent who objects to the relocation;
• the financial resources of each of the family units;
• be expected permanence of the new custodial environment;
• the continuation of the child’s cultural and religious heritage; and
• the ability of the moving parent to foster the child’s relationship with the other parent over long distances.

[20] As noted by Audet J. in Trudel v. Ward, 2019 ONSC 5047, this court must be mindful of the fact that this decision, which is interim in nature, is likely to establish a status quo that will be very difficult to change in the context of a trial that might only take place in likely over a year from now (assuming that it will be pursued by the parties). Consequently, at the interim stage, the following considerations are also relevant in deciding a mobility issue:

• the 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, which will be lost if the matter awaits a trial or the best interests of the children might dictate that he commences school at a new location; and
• although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong possibility that the custodial parent’s position will prevail at trial (Plumley v. Plumley 1999 13990 (ON SC), [1999 CarswellOnt 3503 (Ont. S.C.J.)], 1999 13990 (Trudel v. Ward, at para. 10).

[21] I have reviewed and considered the factors/considerations in this matter and I find that Ms. Cress should be permitted to remain in Kingston, on a temporary basis, for the reasons that follow.

[22] The parties each provided Affidavits to support their position. The goal of the Affidavits is to support the position of the party putting them forward. Instead, I choose to rely more heavily on the words of the parties as exchanged by way of texts. On January 9, 2020, the parties had discussions via texts regarding Ms. Cress moving to Kingston with the children. Mr. Arthurs clearly responded in the text that he was aware that it was “better for the kids and the future in a lot of ways…in no way am I stopping you from going it’s a great opportunity.” Mr. Arthurs consented to Ms. Cress’ move to Kingston with the children. It is important to note that Ms. Cress has the support of her sister in Kingston who acts as a caregiver when necessary.

[23] After the parties separated, the children remained with Ms. Cress and Mr. Arthurs moved in with his sister. Subsequently, the parties rented a house in Manotick, Ontario, for a period of thirty-six days. This can hardly be said to have create a status quo.

[24] After Ms. Cress moved to Brockville, she drove the children to Manotick on the weekends for Mr. Arthurs to exercise his access with the children.

[25] Ms. Cress’ sister and her husband offered to buy a second home in Kingston for Ms. Cress and the children. The plan is for Ms. Cress to rent to own the home. Until the purchase of the home in Kingston was terminated, Ms. Cress stayed in Brockville with her parents. Once the house was purchased, Ms. Cress and the children moved to Kingston.

[26] Ms. Cress also started a new job as a tattoo artist in Kingston. The children are enrolled in swimming and gymnastics. CA will start Junior Kindergarten in September and RB will attend Grade 2. This will be the first time that CA attends school. For the first time in her life, Ms. Cress has the possibility to own a home.

[27] It must be noted that Mr. Arthurs continued to have access to the children as per the provisions of Labrosse J.’s Order. The reasonable distance to travel for access makes it possible for Mr. Arthurs to exercise his access with the children.

Conclusion

[28] In consideration of the above, I find that there is a strong possibility that Ms. Cress’ position will prevail at trial and that there are compelling circumstances that support her relocation to Kingston with the children on a temporary basis. Based on all the circumstances of this case, I find that it is in CA and NA’s best interest to move to Kingston.

[29] Ms. Cress proposes that Mr. Arthurs should have access every second weekend, every other Christmas, every other March Break and three non-consecutive weeks during the summer. It is also in CA and NA’s best interests to maintain and foster their relationship with Mr. Arthurs. The distance between Ottawa and Kingston is reasonable (a 2-hour drive) and I find that Ms. Cress has offered reasonable alternatives to ensure that the relationship with Mr. Arthurs is maintained.

[30] Therefore, the following temporary order shall issue:

a) Ms. Cress shall remain in Kingston with the children, CA and NA (the issue of RP will be reviewed on September 1st);

b) Mr. Arthurs shall have access every second weekend from Friday after school to Sunday at 6:00 p.m. to CA and NA with the parties meeting in Brockville;

c) the Christmas vacation shall rotate between the parties. Mr. Arthurs shall have the first Christmas being Christmas 2020, and every even year thereafter. Christmas shall be for the duration of the school break;

d) the March break will rotate between the parties and Mr. Arthurs shall have the first March break being March 2021 and thereafter March break on the odd years; and

e) Mr. Arthurs shall have three non-consecutive weeks in the summer.

Costs

[31] Ms. Cress is the successful party in this case. If the parties cannot agree as to costs, they may provide brief written submissions on costs not exceeding three pages, exclusive of the Bill of Costs. Ms. Cress will have 10 days from the date of this Endorsement to provide her submissions and Mr. Arthurs will have 10 days thereafter to do the same. Ms. Cress will be allowed a brief reply if deemed necessary, of no more than one page which shall be provided within the next 5 days.

Justice M. O’Bonsawin

Date: August 14, 2020

COURT FILE NO.: FC-20-201 DATE: 2020/08/14

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Robert Arthurs, Applicant AND Dakotah Cress, Respondent Justin Place, Co-Respondent

BEFORE: Justice M. O’Bonsawin

COUNSEL: V. Naik for the Applicant J. Mookerjea, Respondent K. Pollard, friend of the court

ENDORSEMENT

Justice M. O’Bonsawin

Released: August 14, 2020