Court File and Parties
COURT FILE NO.: FC89-20
DATE: September 22, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SEBASTIEN TOWER
Applicant/Responding Party
– and –
RENELLE LEBRUN
Respondent/Moving Party
Counsel:
Ralph Lee, for the Applicant/Responding Party
Tessa Morris, for the Respondent/Moving Party
HEARD AT PERTH: September 18, 2020
RULING ON MOTION
PEDLAR J.
[1] The applicant is the father, and the respondent is the mother, of three children: Layla Tower born August 15, 2007, Sophia Tower born September 14, 2012, and Alexandra Tower born February 12, 2016. The parties were in a common-law relationship since around 2004 and separated permanently after a serious domestic conflict in November 2019. As a result of that incident the father was charged with assaulting the mother and pled guilty on April 13, 2020. He was sentenced to a six-month conditional sentence with 4 months of house arrest, plus 2 years probation. He is currently serving the last month of his conditional sentence. Two years probation will follow.
[2] This is a motion brought by the respondent mother seeking an interim order permitting the respondent to move with the three children to Kapuskasing Ontario. The former matrimonial home in Smiths Falls, Ontario, has been sold with a closing date of September 30, 2020. The mother and children continued to reside at that residence following separation. The father originally went to live with his father and then moved to live with a brother in Ottawa.
[3] Both parents are of relatively modest means. The mother works at Tim Horton’s and her hours have been cut back to part-time during the current pandemic. The father, as a result of an accident at work, has being unemployed since 2016 and has stayed at home with the children, unable to return to his employment. He reportedly receives income from ODSP and CPP.
[4] The reason for the mother’s planned move to Kapuskasing with the children is to be able to provide accommodation for herself and the three children and receive emotional and financial support from her family who reside in that community. Her brother has provided an affidavit stating that the mother and three children are welcome to share his four-bedroom home. He will continue to pay the mortgage insurance and property taxes himself and the mother will contribute to groceries and utilities. He will also drive the children back and forth from that community to Ottawa to facilitate the father’s parenting time proposed by the mother. The mother has not only her brother but also her father, stepmother, another brother (or brothers), aunts, cousins and a close friend. Both her brother, stepmother and aunts have offered to assist with childcare so that she may continue to work, and she does not believe she will need to pay for any childcare.
[5] The children know their uncle with whom the mother plans to reside quite well. He has visited with them regularly at their home in Lanark County, most recently over this past summer and prior to that for Christmas 2019. The mother has limited social contacts in the area of Smiths Falls where the children have lived while their parents resided together. She has no family in that area.
[6] Her uncontradicted evidence is that the housing and rental market in that community is extremely tight and that there is no possibility she can find accommodation for herself and the three children on her limited income. As a result of my question, I was advised by counsel that each party will receive approximately $20,000 proceeds from the sale of the matrimonial home.
[7] There is no evidence before me at this time as to what plans the father has if the children reside with him after the sale of the matrimonial home. He does state that he would plan to return to the Lanark County area. Based on his estimated income, that may not be any more realistic than it is for the mother. In his material the father has listed a number of activities in which he has been involved with these children over the past several years. All of that time has been while they resided together in the matrimonial home with mother. There was a very short time when she left in September 2013 and then returned.
[8] As of June 19, 2020, an order was made for a week-about parenting schedule which was established as of June 29, 2020. That schedule was relatively easy over the summer months, but as of September 30 when the matrimonial home is sold, the status quo will basically implode. Except for the summer months of July and August, and early September, the children lived in that home either with both parents, or with the mother.
[9] Mother states that the father is a good father to the children. The father, in his court application, has claimed equal time for each parent with the children, which would indicate a level of comfort with her parenting of the children as well. However, since the commencement of the interim order in late June 2020, the father has made numerous complaints to the local Family and Children’s Services about the quality of the mother’s care for the children. None of those concerns have been verified and have primarily been dealt with by a phone call to the mother. Family and Children’s Services has remained involved with the parents on a voluntary basis. The mother has given her explanation for the specific incidents mentioned in the father’s affidavit complaining about her parenting. I am unable to resolve those issues at this time for the purpose of this interim motion.
[10] The mother has indicated she will be vacating the matrimonial home on September 25, 2020, in order to allow the father to gain access to the home and remove his belongings in preparation for the closing date of September 30. The parties listed their home for sale in August. They quickly received and accepted an offer with the September 30 closing date. That supports the mother’s position, to some extent, that the housing market in Smiths Falls is very tight. As of September 30, neither parent and the children will have housing in Smiths Falls.
[11] The parents agree that it is approximately a 10 hour drive between Kapuskasing and the Ottawa area. If the motion is granted, then the children would be on the highway for 20 hours to allow each visit to take place. The mother is proposing periods of access that she is prepared to have the father spend with the children. Her proposal includes every March Break, either Easter or Thanksgiving weekend, four weeks each summer, one week over Christmas, including Christmas day in even-numbered years and such further and other times as can be mutually agreed upon. She also agrees to contact such as Skype or FaceTime or other social media or telephone access as agreed. If her motion is denied, she would like a minimum of the same access granted to her. Unless some form of public transportation can be arranged, that is affordable and convenient, that is a very demanding and daunting proposal for access, particularly on long weekends as two full days would be taken up directly by travel. The longer periods suggested are more realistic, provided the Canadian winter does not interfere with the Christmas or March Break plan. The mother, or her brother, would be providing the transportation whether the motion is granted or not, as I understand her material. That will be a daunting task.
[12] The mother, quite properly, raises an issue regarding the father’s numerous complaints about her parenting which indicates less commitment on his part to support her parenting role than she has indicated in her material she is prepared to do in support of his role with the children. It is notable that these complaints have only arisen over the last few months since the equal parenting time has been in place. Given that the mother’s explanation about the shovel incident refers back to snowballs and shoveling snow and an accidental contact, obviously that incident occurred well before the end of June. Those are the kind of issues that both parties agree cannot be sorted out by affidavits filed on this motion.
[13] There is not much disagreement on the law to be applied under these circumstances. As usual, it is the application of the facts that tell the story of this family to that law that determines the outcome.
[14] The leading case in Canada regarding the issue of mobility remains the case of Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.) where the Supreme Court of Canada made it clear that although each case turns on its own unique circumstances, the paramount test is always the best interests of the children.
[15] Justice McLachlin set out a non-exhaustive list of factors which the court should consider, as follows:
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.
Gordon v. Goertz, 1996 Can LII 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.) at para 7.
[16] Both parties in this motion agree that the court is generally very cautious in granting an interim order seeking a change in mobility or relocation given the summary nature of interim motions. The reported Ontario case of Plumley v. Plumley, (1999), 1999 CanLII 13990 (ON SC), makes the following statement at paragraph 7:
It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis:
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.
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.
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.
[17] As stated above, I find that the pre-existing status quo in terms of the children’s residence cannot be maintained. I find that the mother’s reasons for moving are reasonable and require careful consideration. They are relevant to her ability to meet the needs of the children. I accept that it is not realistic, given information available at this stage of the proceeding, for her, or the father given the current state of the real estate market in Smiths Falls, to provide a home for either of themselves and the children in the community. Her relocation plan will take place in a community where she has a reasonable prospect of employment, the promise of a suitable residence and the existence of a family support network. This move back to the support network will, by the nature of the distant between the parents, require that one of them will have the major responsibility for providing for all three children. The level of support available from the other parent will be modest, because they are both living on modest income. The cost of access will be significant and it may not be realistic from one party to bear that burden. It will affect the capacity of the parent with the children to support family.
[18] The mother has stated in her affidavit that she has attempted to find local accommodations even on a short-term basis without success. It is clear that the well-being of both parents is relevant to the well-being of children under their care. I agree that this disruption to the children’s connection to their current community is inherent to the circumstances of this case, no matter which person has the primary parenting time. This disruption to the children’s contact with one of their parents is also inherent and appears unavoidable. The mother’s letter written to the police, following the father being charged with assault against her, indicates a spirit of generosity and support for him as a parent. She admits that in the weeks leading up to separation her emotional health was compromised. In spite of that, there is no evidence in that letter of her seeking to be vindictive towards him. The father’s repeated complaints to the Family and Children’s Services does indicate that his views of the mother’s parenting abilities, which have arisen only lately, may very well affect his willingness to support the level of commitment required to overcome the logistical challenges in having the mother to continue to play a major role in the lives of these children.
[19] It is evident from the material filed that when this family was together both parents were engaged with the children. The mother went home to visit her family for approximately a week in September 2019. The father committed an assault on the mother a few weeks after her return which led to the immediate separation of the family. After the father pled guilty to the charge, there was a period of time when the mother restricted or denied access until the court order of June 19, 2020. Both those actions by each parent appeared to be symptoms of other issues within their relationship, which ultimately affected their judgement on parenting issues.
[20] I find that they now are in a very curious and somewhat similar dilemma whereby, without support from outside resources, it appears virtually impossible for either of them to maintain a home and to fully provide for these children on their own. There is no serious doubt that both of them love the children and want what is best for them. The oldest child, at least, admittedly would prefer to stay with the father. She stayed with him for several weeks in the spring 2020, against the wishes of the mother. Unfortunately, the enormity of the impact of selling the home in which she has grown up and the limited options available to either parent will now be a sad reality for her.
[21] In cases like this where the status quo of community is disintegrating around the family, one must primarily look to the status quo of the parenting roles and relationships within the family. It is a fine line in many circumstances, including this one, to determine who is in fact the primary parent over the past years. With the father staying home from work, because of his accident, for approximately the last three years that can be a strong indication of being the primary parent. It is not an absolute indication. The mother has taken on the role of contributing financially through employment. That employment has been reduced to part-time at least in recent months. Her role of bringing in additional income to support the family must not be diminished or discredited. Traditionally, that was often the role of the father when fewer women were employed outside the home. As was the case in this family until 2016, both parents are often employed outside the home. This father has apparently embraced his role as the stay-at-home parent and that is not contradicted. The mother’s role in working outside the home to bring additional income has obviously benefited the family as a whole and was both helpful and essential under the circumstances. If the current arrangements would allow the parents to be able to live somewhere in the same community then I would find them to be suitable candidates for equal parenting time. That would presume that they had the resources to be able to financially support such an arrangement, which is not always possible, as appears to be the case in the Smiths Falls housing market currently.
[22] Because of unique circumstances of this family, the real status quo here is the strength of parenting relationships between the children and both parents, which resulted in equal time-sharing. Based on the evidence, the result of one parent in Kapuskasing and one in Ottawa would drastically impact on that dynamic. Neither parent would be cut out of the children’s lives, but the consequences are enormous to the children. The father has stated that if the mother and children move to Kapuskasing, he will move there as well. That would mean equal parenting time with all three children could continue there. There would be changes in school and community, but the primary strength of parental involvement of both parents would be preserved.
[23] The mother has a suitable plan in place for this move. The exact plans for accommodation for the father and all three children are unknown. His income is portable and not dependent on him continuing to reside in this part of Ontario. The mother could even support his move there by helping him to find suitable accommodation to allow joint parenting to continue. The challenge of 20 hour travel for access would be eliminated. The strength of this family of parental involvement by both parents could be maintained.
[24] On the basis of the father’s willingness to move to Kapuskasing, which is a strong testament to his love for his children, I allow the equal time parenting to continue for this family in Kapuskasing and, with understandable periods of time needed to get settled and make the necessary move and find accommodation for the father and children, suggest a 30 day period of grace time for that plan to be put in place. The parties can work out the exact details of the living and moving arrangements during the interim.
[25] This matter is adjourned to Wednesday, November 4th, 2020, at 12:30 p.m., to be spoken to, by phone, (one-half hour reserved).
The Honourable Mr. Justice K. E. Pedlar
Released: September 22, 2020
COURT FILE NO.: FC89-20
DATE: September 22, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SEBASTIEN TOWER
Applicant/Responding Party
– and –
RENELLE LEBRUN
Respondent/Moving Party
RULING ON motion
Pedlar, J.
Released: September 22, 2020