COURT FILE NO.: FC-20-970
DATE: 20200821
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
STACEY FIRTH
Applicant
– and –
KHALID MOHAMED
Respondent
Areesha Subair/Tanya Davies, for the Applicant
Fan Mackenzie, for the Respondent
HEARD: August 20, 2020
REASONS FOR decision
Audet J.
[1] This is a motion by the applicant mother seeking a temporary order allowing her to move from Ottawa to New-Brunswick with the parties’ 8-year-old son Kayden, as well as sole interim custody. The respondent father opposes the motion.
[2] For the reasons set out below, I find that it is in Kayen’s best interests to relocate to New-Brunswick with his mother at this time, and that his mother continues to make all decisions affecting his well-being on a temporary basis.
Background
[3] The parties were never married. They dated from April 2009 to December 2011 at which time they moved in together. They separated in November 2015. Kayden was born on December 13, 2011.
[4] When the parties separated, Kayden remained in the primary care of his mother. She moved from the east end to the west end (Barrhaven) to improve her and Kayden’s standard of living and to be closer to Kayden’s paternal aunt, Ms. Ranya Mohamed (“Ranya”). The father moved into his own residence in Gatineau.
[5] Since the beginning of 2018 (access before that was on an ad hoc basis), the father has had access to Kayden every second Sunday for three to four hours, at the paternal grandmother’s home in Ottawa. Kayden has never spent an overnight visit with his father. No written parenting agreement was ever signed by the parties and no court action was ever commenced to confirm or challenge the parenting arrangements in place (until the mother filed this court action seeking leave to relocate with the child, in July of this year).
[6] Although the father alleges that this parenting regime was unilaterally imposed by the mother (an allegation that I will address later in these reasons), it is also undisputed that the mother has been solely responsible for all of Kayden’s needs. She has made all major decisions about Kayden, including the choice of his school and daycare. She has made all decisions in relation to his health and dental care and has attended all his medical, dental and other appointments. She is the one who registered him and attended all his extra-curricular and sports activities and has been the driving force in ensuring that Kayden accessed all the necessary resources to meet his health and academic needs (such as psychological assessments and counselling). She has been solely responsible for all his day-to-day and other needs.
[7] Other than the father’s allegation to the effect that the mother has attempted to alienate Kayden from him since the date of the parties’ separation (an allegation that I will also address later in these reasons), there is no evidence that would support a conclusion that the mother has not provided this child with the best possible care since the parties’ separation. The father is not suggesting this either.
[8] Both parties are employed by the Federal Government on a full-time basis. The mother’s family, including her parents, siblings, aunts and uncles, cousins, nieces and nephews, mainly reside in New-Brunswick, whereas the father’s immediate family (his sister and parents) reside in Ottawa.
[9] The mother explains that for some time now, she has been thinking of relocating to New-Brunswick to be closer to her large family network which is her main support system. She says that the COVID-19 pandemic has intensified her wish and need to relocate to be supported in caring for the parties’ child. As Kayden is no longer in school since the beginning of this pandemic, and the mother is required (as Kayden’s sole caregiver) to care for him on a full-time basis while working remotely from home, she needs the support of her parents and large extended family.
[10] The father takes the position that the mother’s wish to move to New-Brunswick with Kayden is motivated by her desire to thwart Kayden’s relationship with him. Further, he says that his mother and sister have always been there to support the mother in her care for Kayden, and that he is also willing and able to assist as a co-parent, as is his girlfriend.
Analysis
[11] This is an urgent motion brought on a temporary basis based on untested written affidavits. The main issue for determination is whether, on a temporary basis, the court should permit the mother to move with the child to New-Brunswick before a trial has been held.
[12] In Gordon v. Geortz, 1996 CanLII 191 (SCC), [1996], 2 S.C.R. 27, the Supreme Court of Canada established the relevant legal principles to take into consideration in a mobility case. The focus of the analysis is the child’s best interests and it requires a full and sensitive inquiry taking into account the following considerations:
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.
[13] In N.D.L. v. M.S.L., 2010 NSSC 68, 289 N.S.R. (2d) 8 at paras. 9 and 10, the court listed a very helpful list of additional factors that courts have considered when applying the framework in Gordon. While I will not repeat them all here, I have considered all of these factors, many of which were relevant to this case.
[14] I am also mindful of the fact that my decision, which is interim in nature, is likely to establish a status quo which may be difficult to change in the context of a trial that might only take place in several months or even a year from now (assuming it will be pursued by the parties). For that reason, 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;
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 CanLII 13990 (ON SC).
[15] Having looked at all these factors and considerations, I conclude that it would be in Kayden’s best interests to move to New Brunswick with his mother, on a temporary basis.
[16] I have already mentioned that the mother has been Kayden’s sole caregiver since the parties separated in 2015. His father has been minimally engaged in his care, if at all, and has not attended Kayden’s medical, dental or other relevant appointments. He has not been engaged with Kayden’s school and has not attended parent-teacher meetings, not even when specifically asked to do so by the mother in June of 2019 (his sister Ranya attended in his absence according to the mother).
[17] While the father alleges that this state of affairs is the result of the mother’s strong resistance in allowing any involvement on his part, I find, on the evidence before me, that this is not the case at all. While the parties’ many allegations around this issue are contradictory, I find that the significant number of text messages exchanged between them, and which each party has attached to their respective affidavits, are quite revealing.
[18] For instance, there is ample evidence that the mother encouraged the father to spend meaningful time with Kayden. She has tried for years to make the father realize how much Kayden needed him in his life and needed to spend more meaningful time with him. She is the one who insisted in 2018 (two years after the parties’ separation) on the implementation of a fixed access regime to ensure regular contact between father and son. While she offered access every weekend, the father responded that he could not commit to this and preferred to see Kayden only every other Sunday for a few hours.
[19] While the father alleges that the mother has often denied him access including telephone access, I find that the selected text messages presented in his evidence do not support the father’s alleged long-standing systemic denial of access by the mother. If anything, it shows that on some occasions, the mother did not respond to the father’s text messages as quickly as he would have wished. I find that the bulk of the evidence shows that the mother has made constant efforts to maintain and promote regular and meaningful contact between Kayden and his father.
[20] The evidence also shows that the mother has supported and promoted the relationship that exists between Kayden and his paternal family, in particular with his aunt Ranya who also acted as his daycare provider for a period of time after the parties’ separation. Ranya continues to have large and liberal access to Kayden, whenever she wishes to see him. The evidence (including text messages) also demonstrates that the mother was disappointed by the paternal grandparents’ perceived lack of involvement with Kayden, and that she has made attempts to have them become more involved in his life. This is not indicative of a parent who is attempting to “alienate” the father from Kayden or to cut him out of his paternal family.
[21] The evidence before me makes it clear that the mother has kept the father appraised of important events occurring in Kayden’s life, and that the father was content with the role of a by-stander. His lack of involvement in Kayden’s education is well illustrated by the following answer he provided in his Form 35.1 affidavit (in support of claim for custody or access): “I believe he (Kayden) has an IEP”.
[22] Further, as stated earlier, the father has never taken any steps since November 2015 (almost five years) to obtain more meaningful parenting time with Kayden, either by initiating legal proceedings, negotiations through counsel or by making that simple request to the mother. His one text message sent to the mother on November 3, 2019, in which he states “I think it’s time to work towards shared custody. This current arrangement is not the best for Kayden”, without anything more, does not support the father’s contention that he sought to spend more time with Kayden for some time, nor does it support his contention that the mother’s request to move to New-Brunswick is her direct response to his expressed desire to spend more time with Kayden.
[23] Despite his minimal involvement in Kayden’s day-to-day life, I have absolutely no doubt that the father loves his son deeply and that he wants to continue to have a relationship with him. The evidence makes it clear that Kayden loves his father very much and has wanted to spend more meaningful time with him for a long time.
[24] The mother explains that since the beginning of the pandemic, she works remotely from home. Like all other students in Ontario, Kayden has stopped attending school in April 2020 and has been required to self-isolate at home and social distance while engaging in virtual schooling. Kayden suffers from asthma which makes him more vulnerable and at higher risk if contracting COVID-19. School status in Ottawa remains dependant on the progression of the pandemic, and it remains unclear given Kayden’s health issues whether it will be in his best interest to return to the classroom in two weeks.
[25] I take judicial notice of the fact that COVID-19 cases in New-Brunswick are extremely low, which is in large part due the existing strict bubble for anyone going into the province, making it necessary to quarantine for 14 days upon entering New-Brunswick. The mother confirms that schools are opening full-time in September in New-Brunswick and this means that if allowed to relocate in that province, Kayden would be resuming full-time attendance at school with significantly lower health risks than if in Ottawa.
[26] Kayden also has a diagnosis of ADHD. He is accustomed to a lot of exercise which according to his mother is a natural way for him to manage his ADHD behavior. As she is effectively raising Kayden as a single parent without her family support here in Ottawa, this has resulted in Kayden having to be babysat by his electronics for lengthy periods of time throughout the day while his mother must work. This is not healthy for him.
[27] The mother’s extended family in New-Brunswick is remarkably large (30 sets of aunts and uncles as well as 35 immediate cousins, plus second cousins etc.). The mother explains that Kayden has spent much of his holidays in New-Brunswick with his grandparents and extended family. He is very familiar with New-Brunswick and greatly enjoys his time there. He has spent several weeks in his grandparents’ care during the summer break each year, and his grandparents (who are retired) ensure that each day is filled with physical exercise, playdates with his cousins and several other activities.
[28] Given the above, it is not difficult for me to accept the mother’s evidence, over the father’s assertion to the contrary, that Kayden is very excited at the idea of moving to New-Brunswick.
[29] The mother acknowledges, and I find as a fact, that Kayden’s paternal aunt Ranya has a strong relationship with Kayden and has been an important support for the mother over the years. As stated before, she has been Kayden’s daycare provider for some months in the past and she has stepped in in times of emergency, when able to, to assist. However, Ranya works full-time and cannot provide the daily support that the mother needs and that her extended family can provide if living in New-Brunswick. I find, based on the evidence before me (which includes a very brief affidavit sworn by the paternal grandmother), that while the paternal grandmother loves Kayden and does want to see him, in practice, she has not been a significant day-to-day support for the mother and Kayden. She also works full-time at present.
[30] If the mother is permitted to relocate to New-Brunswick with Kayden, she is prepared to agree to the following access between Kayden and his father on a go forward basis:
One week during the Christmas break;
The entire March Break, and;
Two to three weeks during the summer (two weeks during year one and three weeks thereafter).
[31] While I acknowledge that the mother’s move to New-Brunswick will have an important impact on Kayden’s access with his father, the access proposed by the mother will in fact represent a significant increase and will provide father and son with much longer periods of time together (including several overnights) and more meaningful contact, although less frequent.
[32] Furthermore, the mother’s move to New-Brunswick is not irreversible, as many of those temporary moves often become. As stated earlier, the mother is employed on a full-time basis by the Federal Government. On June 8 of this year (about two months into the pandemic), it became obvious that her current arrangements were not healthy for Kayden or sustainable for her. She wrote to her superior seeking his permission to move to New-Brunswick and work remotely from there. She wrote:
First and foremost, let me say that my job is of critical importance, and absolutely cannot be jeopardized. That is #1.
Prior to COVID, and as you may be aware, I had been considering an eventual move back east where my son and I will have family support. That ‘eventual plan’ has become an immediate need. I am recognizing that I need family support now, with development of COVID-19 situation, working/schooling/mothering, completely alone, all while on virtual house arrest and no end in near sight.
I would love to be able to continue doing what I am doing, and working on your team, but from back east.
[33] On June 10, the mother’s superior responded:
You may proceed at anytime, it’s a pleasure for me to be able to accommodate.
If I need you, you could get to the New Brunswick office right.
[34] In addition to confirming the mother’s true motives for moving to New-Brunswick, this exchange confirms that the mother will be maintaining her full-time employment with the Federal Government and, should she choose to come back to Ottawa – or be required to do so after a trial has been held in this matter – she will be able to do so. I also note that the mother owns two condominium units in Ottawa, in her sole name, one of which she currently rents. While I have no evidence as to what the mother intends to do with these properties if allowed to move to New-Brunswick with Kayden, I am satisfied that she will have a place to return to if an order is made at trial requiring her return with the child.
[35] Given that the mother will be maintaining her current position with the Federal Government if she relocates to New-Brunswick, at least until this pandemic is behind us all and we can confidently return to some form or normal, her move will have no impact on Kayden’s standard of living. If the mother is forced to return to Ottawa after the trial has been held, her employment will not be jeopardized.
Conclusion
[36] For all those reasons, it is in Kayden’s best interests to move to New-Brunswick with his mother, on a temporary basis, at this time.
[37] The specific location that the mother intends to move to has not been identified by her in her evidence. However, she has made it clear that her parents would be her main support in New-Brunswick. Since they reside in Campbelton, I assume that the mother intends to move nearby. Even if the mother was to move to another location, including one further east or south from Campbelton, it would not have changed my decision. As stated earlier, the mother has a very large extended family in New-Brunswick upon which she can rely, and since her parents are retired, they will be available for Kayden as needed regardless of where Kayden and her mother live in the province (without the need to self-isolate for 14 days).
[38] I am fully aware that the distance between Ottawa and New-Brunswick will require the parties and Kayden to travel for several hours in order for Kayden to spend time with his father. That downside is balanced by the benefits of Kayden spending an entire week at a time with his father when such access does occur. Further, both parties earn an annual income of $80,000 or more, and as such, they have the means to pay the related travel costs.
Order
[39] Based on the above, the following temporary order shall issue:
1- The mother shall have sole interim custody of Kayden.
2- Leave is granted to the mother to relocate to the province of New-Brunswick with Kayden, on a temporary basis.
3- The father shall have parenting time with Kayden as follows:
a. One week during the Christmas break;
b. The entire March Break;
c. Two consecutive weeks during the summer;
d. Any other time as agreed to between the parties.
4- If the parties are unable to agree on the date that such access will begin/end, they may bring the matter to my attention by way of 14B motion and I will decide based on the written materials.
5- The exchanges shall occur at a mid-point chosen by the parties, mid-way between the parents’ respective residences, unless the parties agree otherwise or another means of transporting Kayden to Ottawa is secured.
6- The father shall have large and liberal videoconference and telephone access to Kayden. Kayden shall be free to communicate with his father as frequently as he wishes, by any means of communication.
Madam Justice Julie Audet
Released: August 21, 2020
COURT FILE NO.: FC-20-970
DATE: 20200821
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
STACEY FIRTH
Applicant
– and –
KHALID MOHAMED
Respondent
REASONS FOR decision
Audet J.
Released: August 21, 2020