Court File and Parties
COURT FILE NO.: FS-20-97316-00 DATE: 2020 09 05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Melissa Goes-Ross v. David Ross
BEFORE: D. E. Harris J.
COUNSEL: K. Laverick for moving party, D. Ross C. Chambers for responding party, M. Goes-Ross
HEARD: September 3, 2020 by videoconference
ENDORSEMENT
[1] Mr. Ross moves, amongst other things, for an order that the two children of the marriage live with him in the matrimonial home in Mississauga and that they be registered for and attend school at the local public school there.
[2] The marriage broke down in March of 2019. Mr. Ross moved out of the matrimonial home and Ms. Goes-Ross remained there with the children. The parties agreed to a shared parenting arrangement for Gabriella, age 5 (almost 6), and Christian, age 4. Each parent has the children for a substantial amount of time. The split is about 60% for the mother and about 40% for the father. Mr. Ross had been living for monetary reasons in Toronto much of the time, although he was in Port Credit near the matrimonial home for the summer of 2019.
[3] On June 15, 2020, Mr. Ross received an email from counsel for Ms. Goes-Ross announcing that she intended to leave the matrimonial home in Mississauga and move to Maple in late July. The email notes that the address to which she will move is known to Mr. Ross as the address of Ms. Goes-Ross’ mother. The email continues on to say that “[t]his is an ideal time for transition” and then refers to it being better for the childrens’ schooling. The distance to Maple for Mr. Ross, the email states, is only marginally longer than to Mississauga. Lastly, it will help Ms. Goes-Ross to have the support of her family in Maple.
[4] Ms. Ross-Goes actually moved with the children earlier than that, on June 25, 2020. Counsel wrote a letter to Mr. Ross on that date informing him of the permanent move to Maple to be with her mother. Mr. Ross was not involved in this decision nor did he consent to it. Mr. Ross moved into the matrimonial home immediately after Ms. Goes-Ross vacated it with the children.
[5] After her move, Ms. Goes-Ross went ahead and enrolled the children in a school in Maple, St. Cecilia Catholic Elementary School. This too was done without notice or the consent of Mr. Ross. Mr. Ross, going back to early June, had several times entreated Ms. Goes-Ross to enroll the children at Kennolie, the local school in Mississauga. Gabriella is about to start Grade 1 and had previously attended the school. Christian is going into Junior Kindergarten. There was no response to these requests until August 21, 2020. On that date, Ms. Goes-Ross’ counsel responded by letter to the request to enroll the children at Kenollie by saying it “did not make sense”, backing this up with several reasons based primarily on the fact that Ms. Goes-Ross was now living with the children in Maple.
[6] Mr. Ross moves for an order establishing the primary residence of the children to be with him in the Mississauga matrimonial home and ordering the children to be registered and attend the local school there, Kenollie. There is a cross-motion by Ms. Goes-Ross requesting that primary residence be with her in Maple and that the children be registered and attend the school there. She also asks for an order with respect to Mr. Ross’ parenting time and for child support.
[7] I only intend to deal with the issue of the place of residence of the children and the issue consequent upon this of where they are to attend school. Those are the matters of urgency. This motion was heard mere days before school is to commence. The litigation is at an early stage, a case conference has not yet been held, and court intervention at this point ought to be kept to a minimum and only take up matters of immediate necessity.
[8] In my opinion, the mother’s move to Maple was a unilateral action designed to fundamentally alter the status quo. As was said by Justice Kershman in Madill v. Madill, 2014 ONSC 7227, [2015] W.D.F.L. 756:
31 In interim custody and access cases, the status quo is ordinarily maintained until trial unless there is material evidence that the best interests of the children require a change [citations omitted].
[9] In determining what is meant by the status quo, it has been said:
… the phrase status quo with respect to timesharing does not refer to a situation unreasonably created by one party after separation to create a tactical advantage in the litigation [citations omitted].
Balke v. O’Connor, 2017 ONSC 2491, [2017] W.D.F.L. 3092 at para. 14, as quoted from Batsinda v. Batsinda, 2013 ONSC 7869; also see Atkinson v. Atkinson, 2016 ONSC 5486, [2016] W.D.F.L. 5777 at para. 8
[10] A similar theme can be discerned in the jurisprudence considering the correct venue for family litigation: Autio v. Lariviere, [2002] O.J. No. 5508, 125 A.C.W.S. (3d) 656 at para. 26; Alcine v. Murray, 2018 ONSC 3856, [2018] O.J. No. 3274 at para. 30; C.B. v. C.F., 2019 ONCJ 713, 311 A.C.W.S. (3d) 72 at para. 25. It is contrary to the best interests of the children for one parent to arrogate to themselves decision making over their lives: See Section 24(2)(a) of the Children’s Law Reform Act R.S.O. 1990, c. C.12. Moreover, if a court were to condone unilateral action by one parent, it would have the effect of encouraging self-help, a result which would lead to chaos and additional disruption to the family unit.
[11] None of the mother’s cases deal with early, unilateral action of the kind at issue here: see Tsuji v. Green, 2017 ONSC 3912, Baxter v. Cameron, 2010 ONSC 4501 and Gaudet v. Dietz, 2010 ONSC 6379.
[12] In this instance, I do not accept that the move to Maple at the instigation of Ms. Goes-Ross was a reasonable step required by the best interests of the children. Her lawyer’s brusque announcement by email June 15, 2020 of the move demonstrates the one-sided motivation behind the step. In my view, particularly in view of the contents of the email, it was clearly a matter of preference, not a matter of necessity. Seen against the prior announcement of the intention to move, the late developing complaint that the matrimonial home was “unsafe” was a rather transparent pretext. This complaint was first contained in the lawyer’s letter the day Ms. Goes-Ross moved to Maple, June 25, 2020.
[13] A detailed inspection report of the home obtained soon after by Mr. Ross indicates that while the roof needs to be replaced and there are some other minor issues, the home is perfectly safe. He has been living in the home ever since Ms. Goes-Ross vacated it.
[14] Similarly, the complaint in counsel for Ms. Goes-Ross’ communications on both June 15 and June 25, 2020 that Mr. Ross was failing to pay proper child support or assist in the costs of carrying the home and this required the move out of the matrimonial home is also dubious. This fact of insufficient support and carrying of the home is disputed by Mr. Ross and I do not intend to delve into it in detail. Given the prior stated intention to move, the unsafe home allegation and the apparent overriding motivation to reside with her mother, I am skeptical of this excuse and give it little weight. At the least, if this was true, there were numerous other ways to deal with it other than moving to Maple.
[15] The evidence as a whole convincingly shows that the intention to move to Maple came first and the reasons stated behind the move came only later. In the event, I grant the motion to the extent of ordering the children be returned to Mississauga forthwith and be enrolled and attend Kenollie. The cross-motion is dismissed.
[16] I leave the details of the childrens’ residence and other associated issues to the parties to work through. They are both lawyers and with the assistance of legal counsel, should be able to agree on the details, keeping in mind that the best interests of the children is of salient importance. It is important that what has unfortunately become a high conflict litigation be dialed down immediately. Counsel are expected to facilitate this.
[17] It is imperative that a case conference in this matter be held as soon as possible. Attempts have been made previously and each party blames the other for lack of cooperation. Wherever the truth lies, this must be a first priority for both parties.
[18] If the parties cannot agree on costs, the father shall deliver submissions of not more than 2 pages, not counting the bill of costs, within 30 days; the mother shall have the same limit and must file within 20 days of the father.
Harris J.
DATE: September 5, 2020
COURT FILE NO.: FS-20-97316-00 DATE: 2020 09 05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Melissa Goes-Ross v. David Ross
BEFORE: D. E. Harris J.
COUNSEL: K. Laverick for moving party, D. Ross C. Chambers for responding party, M. Goes-Ross
HEARD: September 3, 2020 by videoconference
ENDORSEMENT
Harris J.
DATE: September 5, 2020