ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 4105/18

DATE: 2020-08-28

BETWEEN:

CHANTALE MARIE SIMON Applicant

– and –

MAURICE LUC CORRIVEAU Respondent

COUNSEL: Kenneth Davies, Counsel for the Applicant Paul Skeggs, Counsel for the Respondent Trevor Simpson, Office of the Children’s Lawyer

HEARD: August 5, 2020

GAREAU J.

REASONS ON MOTION

[1] Before the court is a motion at Tab 15 of the continuing record pertaining to the interim residency of the two biological children of the parties, namely, Andric Maurice Corriveau born July 3, 2006 and Reese Mateo Corriveau born June 25, 2009.

[2] The applicant mother is asking the court to permit Andric and Reese to reside with her in London, Ontario and to attend school there, commencing September 2020.

[3] The respondent father opposes a change of residency for Andric and Reese and asks that they continue to reside with him in Sault Ste. Marie, Ontario and attend school there, commencing September 2020.

Factual Background

[4] The parties were married on July 14, 2007 and have lived separate and apart since November 7, 2012. As a result of their relationship the parties are the biological parents of Andric Maurice Corriveau born July 3, 2006 and Reese Mateo Corriveau born June 25, 2009.

[5] The parties entered into a separation agreement dated January 17, 2013 which provides for shared parenting between the mother and father and equal parenting time with the children between them.

[6] The children were cared essentially jointly and equally by both their biological parents from April 2014 until the temporary order granted by Varpio J. on May 21, 2019. Even when the applicant’s new spouse relocated to London, Ontario in 2017 to assume a dental practice in that city, the applicant remained in Sault Ste. Marie to care for the children in that city during her two weeks each month and would visit her spouse in London, Ontario when the children were in the care of the respondent. That arrangement continued until 2019 when the applicant physically relocated on a full-time basis to London, Ontario.

[7] The applicant’s intention to relocate to London precipitated the application before the court, which was commenced on May 9, 2018.

[8] The temporary order granted by justice Varpio on May 21, 2019 provides, inter alia, that the children reside with the applicant for the first semester of school in London, Ontario being from September 1, 2019 to January 31, 2020, and reside with the respondent for the second semester of school in Sault Ste. Marie, Ontario from February 1, 2020 to June 30, 2020. The order also provides for a sharing of the holiday periods such as Christmas and Easter, with the summer holidays of July and August 2020 to be shared equally between the parties.

[9] Each party is in new relationships with children other than Andric and Reese who are also affected by any decision that the court makes about the residence of Andric and Reese.

[10] The applicant is married to Dr. Youly Chhung, a dentist, who purchased a dental practice in his hometown of London, Ontario in 2017. The applicant and her new spouse have three biological children together, namely, Sothea Sue Chhung born January 111, 2017, Caleb Chhung born May 12, 2018, and Khem Chhung born April 29, 2020. The applicant wishes Andric and Reese to reside in London in a family unit with their new younger siblings.

[11] The respondent has been in a relationship with Kelly Viel since the fall of 2013. They are engaged to be married but their plans for a wedding have been put on hold due to the COVID-19 pandemic. Ms. Viel has four biological children who either currently live or have lived with her and the respondent as a family unit while the respondent had Andric and Reese in his care on a week about basis. Kieran is 21 years old, attends Sault College and resides with Ms. Viel and the respondent. Jared is 19 years old and attends school away from home. Megan is 17 years old in grade 12, and lives with Ms. Viel and the respondent. Maia is 14 years old going into grade 9, and lives with Ms. Viel and the respondent.

[12] It is against this factual backdrop that the court must consider the motion before it related to the residency of Andric and Reese.

The Law

[13] In deciding where Andric and Reese will reside this upcoming school year the question of what is in their best interest is the paramount consideration. In applying the best interest test, the seminal case remains the Supreme Court of Canada decision in Gordon v. Goertz, [1996] S.C.R. 27. The principles set out in that case have been summarized in subsequent case law as follows:

(1) The judge must embark on a fresh inquiry into what is in the best interest of the child, having regard to all the relevant circumstances relating to the children’s needs and the ability of the respective parents to satisfy them;

(2) 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 and the most serious consideration;

(3) 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;

(4) The focus is on the best interests of the child, not the interest or rights of the parents;

(5) 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 chid 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 reasons for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

(f) The disruption to the child of a change in custody; and

(g) The disruption to the child consequent or removal from family, schools and the community he has come to know

[14] Although the court was referred to case law in addition to the Gordon v. Goertz decision, the case law is so fact specific that it is of limited use in assisting the court in adjudicating the matter before it. Although principles are set out as noted by the Supreme Court of Canada in Gordon v. Goertz, each case turns on its own unique circumstances with the paramount focus being on what is in the best interest of the child.

Discussion/Analysis

[15] The applicant mother and respondent father have been sharing the care of Andric and Reese equally for a substantial period of time, in fact for over the past six years. The length of this arrangement and the affidavit material before me indicates that both the applicant and the respondent are good parents to Andric and Reese and can properly meet their needs. This is not a case where the children should reside with one specific parent because they can provide vastly superior care to the children. Whether the children reside in London, Ontario or in Sault Ste. Marie, Ontario they will be well cared for.

[16] The same can be said for the new partners that the parents have chosen. Both Dr. Chhung and Ms. Viel seem to be responsive to Andric and Reese’s needs and supportive to their biological parents in meeting those needs.

[17] Although the views and preferences of the children should be given consideration by the court, especially given the fact that Andric is 14 years of age, not much weight can be placed on the preference of the children given the inconsistency in the views expressed by them. Mr. Simpson, the children’s counsel, has met with Andric and Reese extensively. He reports that the children have not been consistent about their wishes as to where they wish to reside. It appears that initially the children wanted to reside in London, then they wished to divide their time between London and Sault Ste. Marie (which is reflected in the May 21, 2019 order) and that more recently they wished to remain in Sault Ste. Marie although it is fair to say that the youngest child Reese no longer wishes to express an opinion or participate actively in instructing his counsel. It is also fair to say that more recently, the views expressed by Andric did not favour residing in one location in a significant way. For example, it is reported by the children’s counsel with respect to meetings he held with the children in June and July 2020, “Andric reported at the first meeting a slightly stronger preference to reside primarily in Sault Ste. Marie, and then at the second meeting, an almost evenly divided view of residing in either location (Sault Ste. Marie a 6/10 desire, and London a 5.5/10 desire). Neither of the boys expressed a reason for the change in their preferences starting on or about May 27, 2020.”

[18] Perhaps the basis of the reason that the children do not have a consistently expressed preference about living in London or Sault Ste. Marie can be found in their counsel’s observations where he notes, “Both boys regularly reported during all meetings that they loved both parents equally and did not want to make each parent ‘sad’ by expressing their preferences or with the outcome of the litigation.”

[19] From the affidavit evidence filed by both the parents and the individuals supporting them (such as partners, and siblings) it is apparent that both London and Sault Ste. Marie have enticing opportunities available to Andric and Reese in their education, leisure activities, connection to family members and their overall development. It cannot be said that what London has to offer the boys is substantially better than what Sault Ste. Marie has to offer and vice versa.

[20] While it is true that a move to London, Ontario will keep Andric and Reese connected to their siblings, it must be borne in mind that they are also connected to Ms. Viel’s children and that this connection will be affected as well if the children relocate to London, Ontario. The siblings in London are far removed in age from Andric and Reese which is not the case in Sault Ste. Marie, especially in the relationship with Andric and Maia who are the same age, attend the same school and are particularly close to each other.

[21] It is abundantly clear on the evidence before this court that Andric and Reese are most closely connected to Sault Ste. Marie. That is not difficult to appreciate given the fact that apart from the period of September 1, 2019 to January 31, 2020 this is the only city where they have attended school, building up a body of friends and routines, social connections and activities with friends and teammates, and with extended family members. There may be connections that Andric and Reese have established in London, Ontario but they cannot possibly be as deep as the connections in Sault Ste. Marie given the short period of time they have been in London compared to the lengthy period of time that they have been in Sault Ste. Marie, which has essentially been all of their lives.

[22] I agree with the comment made by counsel for the applicant that the children will be impacted no matter what is decided for them but, in my view, the impact on Andric and Reese will be less if they are required to remain in Sault Ste. Marie than if they were allowed to move to London, Ontario to reside with their mother. There will be less of a transition for the children to make remaining in Sault Ste. Marie regarding their education, maintaining friendships, and continuing in regular activities than there will be if they were to navigate a move to London, Ontario.

[23] The mother’s move to London, Ontario may be best for her as she has a new family there. However, as noted in the jurisprudence, the focus is on the best interest of the children, not or what might be best for the parents. What is best for Andric and Reese and the most minimally disruptive to them, especially to Andric as he makes the transition to secondary school, is for them to remain in their most familiar surroundings in the community that they have resided in for the majority of their lives.

[24] It is also important for Andric and Reese and their wellbeing that they maintain frequent contact with their mother if they reside in Sault Ste. Marie. I am satisfied that what is proposed by the father in the “parenting plan” attached as Exhibit “E” to his affidavit sworn July 24, 2020 (Tab 21 of Volume 1 of the continuing record) accomplishes that.

[25] In reviewing all the evidence filed on the motion, I am not persuaded that a move to London, Ontario for Andric and Reese is at this time in their best interest. The benefits of them remaining in Sault Ste. Marie, Ontario outweigh the benefits for them in relocating to London, Ontario. In so deciding, I have considered the principles set out in Gordon v. Goertz and the case law subsequent to that decision.

[26] Accordingly, there shall be an interim order as follows, effective on September 1, 2020:

(a) The applicant and the respondent shall continue to have joint custody of Andric Maurice Corriveau born July 3, 2006 and Reese Mateo Corriveau born June 25, 2009;

(b) The children shall have their primary residence with the respondent father in Sault Ste. Marie, Ontario;

(c) The children shall be in the care of the applicant mother as set out in paragraphs 1.4 to 1.8 inclusive in the “parenting plan” attached as Exhibit “E” to the affidavit of Maurice Luc Corriveau sworn July 24, 2020 at Tab 21, Volume 1 of the continuing record.

[27] Given the fact that the court has released its decision in writing, the telephone conference scheduled for September 1, 2020 at 2:00 p.m. is vacated.

[28] With respect to the issue of costs, I am not inclined to make any order for costs with respect to the motion at Tab 15, Volume 1 of the continuing record. While there is a presumption that a successful party is entitled to costs pursuant to Rule 24(1) of the Family Law Rules, this is tempered by the overall principle that costs are ultimately in the discretion of the court. My impression is that both the applicant and the respondent were solely motivated by what they perceived was in the best interest of Andric and Reese. Given this and the difficulty in these types of cases involving mobility, it would be unfair to either punish or reward the parents by making an order of costs. Accordingly, each party shall bear their own costs with respect to the motion.

Gareau J.

Released: August 28, 2020

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CHANTALE MARIE SIMON

• And –

MAURICE LUC CORRIVEAU

REASONS ON MOTION

Gareau J.

Released: August 28, 2020