Court File and Parties

COURT FILE NO.: FC-17-996 DATE: 2020/09/21

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Kent Bradley Sammon, Applicant AND Dr. Susan Anne Krajewski, Respondent

BEFORE: Mackinnon J.

COUNSEL: Cynthia Squire for the Applicant Kellie Stewart for the Respondent

HEARD: September 17, 2020

ENDORSEMENT

[1] Should soon to be five year old Brady spend alternate months in Kapuskasing with his mother over the next twelve months while she undertakes a contract position there, or should he remain in Renfrew where he has lived to date and where his father will continue to reside?

[2] This question must be answered in the context that the parents have joint decision making and shared residential parenting, by agreement made in May 2017, then by temporary court order in February 2018. Neither seeks to change the joint decision making provision. The mother agrees that Brady would continue to have his primary physician and dentist in Renfrew, except for any emergencies that might arise when he was with her.

[3] The mother is a general surgeon. The father is a registered nurse. Both were employed at the Renfrew Victoria Hospital which is where they met. They continued to work together after separation but in May 2018 the mother resigned her position. Since then she has been unable to find a full time position as a general surgeon locally. She has worked doing locums and recently has secured an offer for a twelve month contract position as a general surgeon in Kapuskasing. There are no guarantees, but it is possible the position could be extended.

[4] The potential for full time employment in Kapuskasing provides the necessary material change of circumstances for the mother’s motion. I am also satisfied her proposal is made in good faith, that she has been unable to find local full time employment and that she has accurately represented the terms of the contract that she has tentatively accepted but not yet signed. Moreover, the one year contract is a very good opportunity for her. It provides significantly more income than she has been earning, with more stability and future prospects, and it will also enable her to obtain the surgical hours necessary to maintain her license in good standing. I have no doubt these advantages are also to Brady’s benefit.

[5] The father opposes the motion. He asks that Brady reside primarily with him. The father has lived and worked in Renfrew for 22 years. He has lived in the same house since 2001. Three of his children from a prior relationship live with him on a half time basis. Brady is close to all three. Brady has other extended family on both sides who live in the area. Last year he attended Central Public School and in prior years attended the daycare housed in the school building. The father does not often need daycare since he has fixed hours, Monday to Friday, and usually finishes work by 3:30 p.m. When daycare is needed, he has many options available to him. Brady has made friends at daycare and school and has been involved in local extracurricular activities.

[6] The father submits that the travel would be too much for Brady and himself. Even though the mother has said she would contribute $250 for each trip he makes, the father says he could not afford to fly himself and Brady to Timmins and rent a car to get to Kapuskasing. The best option for him would be to drive to Temagami which is the half way point and would mean each parent would have a nine hour drive for each exchange. At present the mother is only able to drive for employment, but she will seek to lift the restriction so that she could drive for access purposes. If the father chooses to deliver Brady to her by car, she will do what it takes to make the Temagami option work.

[7] The father agrees the mother should have parenting time with Brady in Kapuskasing and Renfrew. He believes they should make arrangements on a monthly basis when her actual work schedule is available to them both.

[8] The decision must be guided by Gordon v. Goertz, 1996 CanLII 191 (SCC) and by special considerations applicable to a request to relocate a child on a temporary basis. The Gordon v. Goertz factors are summarized at paragraph 49 of the decision as follows:

5. 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.

6. The focus is on the best interests of the child, not the interests and rights of the parents.

7. 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.

[9] The mother’s submissions in relation to these factors are as follows. The parents currently share residential parenting and under her proposal would continue to do so. Her proposal maximizes the time Brady would spend with each parent, whereas the father would relegate her to an access parent. Her request is made in good faith with a view to bettering her ability to meet Brady’s needs. The disruption to Brady is minimal since he could attend senior kindergarten in each location. She has a motion before the court for permission to relocate her other son, Noah, with her to Kapuskasing, which she expects will succeed. If so, Brady would be able to maintain that family tie. Brady would still maintain all his local and family contacts on his father’s side in the Renfrew area during the months he lives there.

[10] The mother submits that her proposal minimizes the changes for Brady by maintaining the important status quo of equal parenting time, whereas the father’s proposal would be more disruptive for Brady because it would greatly reduce his time with his mother.

[11] On their face these submissions appear compelling but in fact they minimize the disruption to Brady. Kapuskasing is located in northern Ontario approximately 150 km northwest of Timmins and about 760 km from Renfrew. The driving time in good conditions is estimated to be eight to nine hours one way depending on the stops made. Flights are available from Ottawa to Timmins via Toronto but would still require driving time from Renfrew to Ottawa and then from Timmins to Kapuskasing. To make that trip 12 times over the course of a year places a considerable burden on such a young child.

[12] Brady would also be attending two different schools in alternating months. He is only entering senior kindergarten but switching back and forth between teachers and class mates is never easy. In Renfrew, Brady has the benefit of knowing his teachers and class mates from his junior kindergarten year even if in person attendance did stop in mid-March when the COVID-19 lockdown began. On a related point Brady would need to settle into new arrangements in Kapuskasing for daycare and extracurricular activities whereas these are already well established for him in Renfrew.

[13] The mother submits the temporary nature of the order she asks for mitigates any disruption to the child. I disagree. Brady would be moving back and forth between two communities for one year followed by as yet unknown residential arrangements. Not even the mother knows where she will be working and living at the end of her one year contract in Kapuskasing.

[14] As noted, some special considerations apply in determining temporary requests to relocate. Plumley v. Plumley, 1999 CanLII 13990 (ON SC), [1999] O.J. 3234 (SCJ) remains one of the leading decisions on point:

[7] It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis:

1. A 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.

2. 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 unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.

3. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at a trial.

[15] In Datars v. Graham, 2007 CarswellOnt 5257 (SCJ) the court noted a general reluctance to “effect fundamental changes in a child’s lifestyle on interim motions”. One reason given was the concern for even more disruption for the child if the temporary change was reversed at trial. Here the concern is not whether a temporary order would be reversed at trial but the fact that the mother’s current proposal is not sustainable in the long term. If embarked upon now, after twelve months of demanding travel arrangements and life in two communities Brady would undoubtedly face another set of changed circumstances whether the mother remains in Kapuskasing or not.

[16] In Costa v. Funes, 2012 ONCJ 466 a mother was refused permission to move the children to Florida on a temporary basis even though she was temporary custodial parent and would have more financial security there. At para 22 the court said it should exercise caution in permitting a move of such a long distance “unless the court is certain that this will be the final result”.

[17] The facts in Costa were different in that the proposed move was not for a limited period of time. And I do not agree that certainty is required before a court may endorse a temporary move. What resonates is that it is not knowable whether the move to Kapuskasing will be the final move for the mother and if so what the outcome of a future relocation application for Brady may be.

[18] Unlike most cases the decision here does not turn on the comparative merits of the parents as parents. Rather, there is a genuine issue for trial created by the uncertainty of the mother’s future plans despite the good reasons for taking the contract position in Kapuskasing.

[19] The overriding consideration is Brady’s best interests and it is clearly my view that they are best served by remaining in his father’s care during the twelve months of the mother’s employment contract, with liberal and generous parenting time to her in Kapuskasing and in Renfrew. Both parties agreed to defer that issue until after the release of this decision and the decision for Noah which is under reserve by another judge.

[20] Counsel should contact me via the SCJ assistants generic email at scj.assistants@ontario.ca when they are ready to address the remaining issue. An oral hearing may be appropriate, but the mother should make a written submission first which should address these points, along with any others she may wish to make:

• The outcome of Noah’s case. If Noah will be relocating with her, the details of his residential schedule.

• Her plan for how and when she will take her eight weeks of vacation/ continuing education over the twelve month period.

• Whether she can arrange for Brady to attend Renfrew Central Public School online while in Kapuskasing, and if so, how she would facilitate that attendance.

• Given that the most workable option for both parents is to exchange Brady in Temagami, whether she has been able to lift the driving restriction to facilitate this.

• Her proposal for up to three block visits by Brady to Kapuskasing during the school year, her proposal for her travel to the Renfrew area to visit Brady there, and her proposal for vacations with Brady.

• Proposed additional contact by video conference.

[21] The father should then respond to the mother’s proposals and add any of his own that he may wish to make. To assist him, I do not favour his initial suggestion that contact between Brady and his mother should be worked out each month.

[22] I have not included a timetable but wish to assure the parents and counsel that I am attuned to their time constraints and will make myself available when they are ready. Costs are deferred until completion of the motion.

Mackinnon J.

Date: September 21, 2020

COURT FILE NO.: FC-17-996

DATE: 2020/09/21

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Kent Bradley Sammon, Applicant

AND

Dr. Susan Anne Krajewski, Respondent

BEFORE: Mackinnon J.

COUNSEL: Cynthia Squire for the Applicant

Kellie Stewart for the Respondent

ENDORSEMENT

Mackinnon J.

Released: September 21, 2020