COURT FILE NO.: FS-17-420321
DATE: 20201022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHRISTIAN MORETON
Applicant
– and –
DOUANGTA INTHAVIXAY
Respondent
Self-represented and acting in person
Self-represented and acting in person
Jean Hyndman and Nicole Stewart-Kamanga, lawyers for the Office of the Children’s Lawyer (“OCL”)
HEARD: September 29, 30 and October 1, 2020
REASONS FOR DECISION
DIAMOND J.:
Overview
[1] The trial of this action was originally scheduled to commence on March 23, 2020 and last up to six days. At that time, the trial was made peremptory upon the respondent.
[2] Due to the suspension of operations of the Ontario Superior Court of Justice, the trial needed to be rescheduled. Pursuant to the Endorsement dated September 1, 2020 of Justice Shore, the trial was bifurcated. The issues of (i) mobility and (ii) residential schedule of the child (all due to the applicant relocating to Lindsay, Ontario) were ordered to be tried on September 29, 2020 for up to three days. The trial of the balance of the issues (mainly custody and financial matters) is scheduled to proceed on December 14, 2020 for up to two days.
[3] The first trial proceeded before me as scheduled on September 29, 2020. Both parties were cross-examined upon their respective trial affidavits. I also heard viva voce from Michelle Nagy (a social worker and clinical investigator for the OCL) and Dr. Alya Rahim (the respondent’s family doctor).
[4] At the conclusion of the trial, I took my decision under reserve. These are my Reasons.
The Respondent’s motion to adjourn
[5] At the opening of trial, the respondent sought an adjournment on the grounds that the Court allegedly failed to accommodate the respondent in light of her ongoing health issues. For oral reasons given on September 29, 2020, I dismissed the respondent’s motion. That said, I believe it important to revisit, at least in part, the dismissal of the respondent’s motion in these Reasons.
[6] This proceeding has an extensive procedural history, which was thoroughly documented in Justice Kraft’s Endorsement released on August 13, 2020 as Moreton v. Inthavixay 2020 ONSC 4881. The salient “highlights” of that procedural history (as they relate to the respondent’s latest motion to adjourn) set out in paragraph 8 of Justice Kraft’s Endorsement are as follows:
• On October 21, 2019, Justice Kristjanson presided over the original trial management conference, and made an order fixing the trial to commence on February 3, 2020 for five days, with a final “exit” trial management conference scheduled for January 22, 2020. In Justice Kristjanson’s signed Trial Scheduling Endorsement Form, and at the respondent’s request, the Court ordered the following special arrangements to be in place for the respondent at trial:
a) low light in the court room,
b) a support person for the respondent; and,
c) the ability for the respondent to be seated during the trial.
The respondent did not seek leave to appeal Justice Kristjanson’s order.
• On January 22, 2020, the exit trial management conference proceeded before Justice Horkins. I refer to Justice Kraft’s summary of the orders made that day:
“On January 22, 2020, the parties had a TMC before Horkins, J. The Endorsement of Horkins, J. indicates that the Trial is set for February 3, 2020. The mother asked for an adjournment due to an unidentified medical condition. Horkins, J.’s endorsement indicates that the note from the mother’s doctor, Dr. Rahim dated January 14, 2020, is vague and does not give any particulars about the mother’s condition. The letter indicates that the mother needs to delay the court proceeding. The father vigorously objected to an adjournment. The OCL advised the Court that the children needed closure but reluctantly agreed to a short adjournment. The mother had attended at the Court on January 21, 2020 to speak to the trial coordinator and it was hard to understand why she did not attend the TMC and why the trial needs to be adjourned; that the mother described symptoms that were not mentioned in her doctor’s letter; that Kristjanson, J. had ordered on October 21, 2019 that the trial was set to proceed; that the mother had ample time to get ready and has not complied; and that the mother has previously attended in court without any apparent difficulty according to the various endorsements. Horkins, J.’s Endorsement states as follows:
I. The mother’s symptoms that she describes cause one to question her ability to care for the children.”
II. The respondent/mother’s unproven and unsupported health problems lead me to grant a short adjournment to March 23, 2020 for 5 days”.
III. The mother assures this Court that she will be able and ready to attend on March 23, 2020, for the 5-day trial. The trial date was peremptory to the mother.
IV. Should [the mother] continue to have valid ongoing medical issues that interfere with her ability to start and complete the trial, there will be no adjournment request without a proper motion from the mother with a sworn affidavit of a detailed medical report from the treating doctor that clearly explains why the mother is unable to attend court, what the medical problem/diagnosis is and when she will be able to proceed to trial or continue with the trial.
V. The following timelines/deadlines shall be extended as follows:
Children’s counsel shall file a document book by January 31st, 2020 and has leave to file a supplementary document book by February 29, 2020. This is required to include the CAS documents;
Affidavit of clinical assist is to be served and filed by February 2, 2020;
Father’s document brief has been served and is accepted today as filed;
All parties and OCL shall serve their written opening statements by March 156, 2020 and filed with the Court by March 17, 2020;
Mother shall serve and file her document brief by February 28, 2020.”
Justice Horkins adjourned the trial to commence on March 23, 2020 based upon “the respondent’s unproven and unsupported health problems”. Justice Horkins advised the respondent that if any valid ongoing medical issues interfered with her ability to start and complete the trial, any further adjournment request(s) were to proceed by way of a proper motion and include a sworn affidavit and a detailed medical report from the respondent’s treating physician to clearly explain why the respondent would be unable to start and complete the trial.
• On September 1, 2020, Justice Shore released her said Endorsement bifurcating the trial. In rejecting the respondent’s renewed request for another adjournment of the trial, Justice Shore stated that the respondent’s need for any accommodations had already been brought to the attention of the Accommodations Office of the Superior Court of Justice in accordance with Justice Kristjanson’s Order dated October 21, 2019. Paragraphs 15-17 of Justice Shore’s Endorsement stated as follows:
“The Respondent also expressed concern that as a result of her disability she would not be able to prepare for trial by September 28, 2020. The trial was adjourned less than one week before it was scheduled to begin. When before Justice Horkins in January 2020, the Respondent assured the Court that she would be able and ready to proceed with the trial in March 2020. Most of the work for trial would have been completed in preparation for the March 23rd trial date. The Respondent need only incorporate any updates in preparation for trial.
The Respondent advised that she could prepare for a long motion but not for trial because she could not read for more than fifteen minutes per day. In addition to preparing for a long motion, she advised that she has a motion for leave to appeal pending and a report coming from the ombudsmen. At this stage, the work for a long motion on mobility would not be all that different from the work required to prepare for a trial on the very same issues.
The Respondent then stated that she was not able to access court services due to her disability and therefore was not getting equal access to justice. Specifically, she was referring to her inability to pass the screening process for COVID-19 and therefore was prevented from entering the Courthouse to access her file. The Applicant and the OCL both agreed to send her an electronic copy of the Continuing Record, but the Respondent advised that she still wanted and needs access to the file from the filing office. This can be easily rectified by the filing office providing her with an electronic copy of the entire file.”
• On September 11, 2020, the respondent brought an urgent motion requesting, yet again, that the trial be adjourned. That motion was heard and dismissed by Justice Shore, who relied upon the factual and legal summary in her prior Endorsement. Justice Shore summarized the respondent’s grounds in support of her urgent motion as follows:
a) the respondent had been working with the accommodations officer to meet her disability needs but “it has not been resolved”,
b) the respondent could participate in person at trial in person because she would not pass the COVID-19 screening process,
c) the respondent could participate by Zoom because “it is not aligned with her communication needs”,
d) the pandemic had affected the respondent’s ability to access services, including a court support worker; and,
e) the best way for the family to obtain finality and closure would be to adjourn the trial and appoint a case management judge.
• A final exit trial management conference proceeded before Justice Nishikawa on September 16, 2020. The respondent did not attend, but sent her friend (Lisa Kim) in her place. Ms. Kim advised the Court that the respondent:
a) was not able to attend the trial management conference because “of an emergency”, and that the respondent was “in the emergency room”,
b) the respondent could participate in the trial management conference because “she was not accommodated”; and,
c) Justice Shore’s dismissal of the respondent’s urgent motion was “made in breach of her right to natural justice”.
Justice Nishikawa ordered the parties to adhere to the timelines for the delivery of materials, and made no changes to the scheduled bifurcated trial date.
• On September 22, 2020, the Divisional Court refused the respondent leave to appeal from the decisions of Justice Shore dated September 1 and 11, 2020. The Divisional Court found Justice Shore’s decisions to be “clear, thoughtful, and well-reasoned”.
[7] With that extensive background, at the opening of trial the respondent served and filed yet another motion seeking an adjournment. She did not attend in person, but sent two friends in her place, including Ms. Kim. The grounds in support of the respondent’s motion were recycled from her previous motions, and included confusing evidence that not only could the respondent allegedly not pass the COVID-19 screening process (due to her suffering from a multitude of unspecified COVID-19 symptoms at the same time), but she could also not participate remotely by Zoom (or other video conference platform) due to medical issues with her eyesight. No affidavit was tendered on behalf of any treating physician (in contravention of Justice Horkins’ order), and the two medical letters attached as exhibits to the respondent’s unsworn affidavit were either outdated or internally inconsistent with each other.
[8] During argument of the respondent’s motion, I questioned how the respondent was able to amass, create, serve and file yet another electronic fulsome and lengthy motion record given her medical condition (self-described by the respondent in a vague manner, but apparently nevertheless ever-present).
[9] In dismissing the respondent’s motion at the opening of trial, I found that there was very little, if any, reliable or credible medical information to support the respondent’s repeated, vague contentions. The respondent was essentially able to do everything but participate in the trial, either in person or remotely. Notwithstanding the Accommodations Office ensuring that the terms of Justice Kristjanson’s order were in place, the respondent sought further, unspecified accommodations based upon nothing more than a moving target of continuous and unsubstantiated conjecture.
[10] The trial had already been adjourned on several occasions. The bifurcated trial was made peremptory upon the respondent. Numerous judges had explained to the respondent that the family, and more importantly the children, need finality and closure by way of a final order from this Court.
[11] There were no grounds to support the respondent’s request for an adjournment. As such, and for the oral reasons given on September 29, 2020, the respondent’s motion to adjourn was dismissed.
[12] Of note, once the respondent’s motion was dismissed, she participated via Zoom (on the telephone) for the balance of the day on September 29, 2020. The respondent then drafted, signed, served and filed a trial affidavit (which was well past the deadline for doing so as ordered by Justice Shore), but she did not participate on September 30, 2020, citing (via email communication to the Family trial coordinator’s office) that she was dealing with an unspecified emergency. While the applicant objected to the admission of the respondent’s trial affidavit served and filed in the middle of the trial, with a view to ensuring that the Court had the benefit of the entire available record I did admit the respondent’s trial affidavit but assured the applicant that he would be given proper and sufficient time to review and cross-examine on it, bearing in mind the trial time that had already been used to hear and decide the respondent’s unsuccessful motion to adjourn.
[13] The respondent then participated anew on October 1, 2020 and was cross-examined on her trial affidavit before both parties and the OCL made final submissions.
Summary of Key Facts
[14] The parties separated on October 1, 2017 after approximately 8 years of marriage. There are two children of the marriage: Olivia (currently 11 years of age) and Alexa (currently 7 years of age).
[15] The applicant was traditionally employed as a commercial digital artist. Approximately one year ago, he was hired by Technicolour Inc. as a VFX Supervisor and was earning an annual salary of $120,000.00. Unfortunately, effective April 3, 2020 the applicant was laid off in the middle of the COVID-19 pandemic. The applicant testified that he is now working as a consultant from home in the film production industry. Specifically, the applicant mixes computer generated images with photographic images for film and movie production. According to the applicant, he is now earning approximately $70,000.00-$80,000.00 a year, and enjoys a rather flexible work schedule.
[16] The respondent is not working, and has not been employed for some time. As she previously testified before Justice Kraft, the respondent’s evidence is that she suffers from a medical disability that makes it impossible for her to work on either a part-time or full-time basis. Justice Kraft held that “the nature of the respondent’s disability has not been fully disclosed.” Even after hearing from the respondent at trial, I share Justice Kraft’s view.
[17] The applicant gave evidence that in his view, over the last several years (pre-dating the parties’ separation) the respondent has slowly descended into a questionable mental state whereby the respondent believes that she suffers from both a myriad of symptoms, and illnesses which cannot be properly diagnosed. The applicant gave evidence of an incident in 2016 when the respondent was riding her bicycle and fell, scraping her arm and chest. The scrapes became infected, and within two weeks the respondent became totally bedridden and claimed to be allergic to light. According to the applicant, the respondent believed that her illnesses were caused by toxins released from a wild parsnip plant that was held near her children. The applicant gave evidence that the children believed that their mother’s illnesses were in fact their fault.
[18] The respondent testified that she is a very good parent, while the applicant has chosen not to be involved in the children’s school lives. According to the applicant, and despite the absence of any official diagnosis, Alexa is likely autistic.
[19] The respondent further testified that she consistently encourages the applicant to participate in many areas of care for the children, and in particular their schooling. According to the respondent, she must always remind the applicant of the children’s birthday parties, parent-teacher interviews and medical/dental appointments. The respondent believes that the applicant encourages the children to speak negatively about her, something which the applicant denies.
[20] In her testimony, the respondent seemed to not only obsess over her own medical state, but that of both her children as well. Not only was she convinced that Alexa was likely autistic, but the respondent was hyper-focused upon the children’s alleged learning disabilities, digestive intolerances, need for occupational therapy, psycho-educational assessment and speech therapy, skin issues and ear, nose and throat issues. Regrettably, there was very little independent evidence proffered by the respondent to support most, if not all, of her contentions. While a few random letters from treating pediatric physicians were included in her trial affidavit, they amount to nothing more than hearsay and did not, on their face, support most of the respondent’s concerns.
Parenting Schedule
[21] Pursuant to the Order dated July 17, 2018 of Justice Kristjanson, the primary residence for both children was with the applicant, with the respondent granted access to the children as follows:
a) every Tuesday and Thursday from after school/camp until 7:00 pm;
b) alternate weekends from Friday after school/camp until Sunday at 7:00 pm; and,
c) as otherwise agreed between the parties in writing.
[22] After the OCL became involved in this matter, the respondent’s access was varied by way of the Order dated February 21, 2019 of Justice Paisley so that she would now have the following access;
a) every Tuesday from after school until the children will return to school on Wednesday morning;
b) alternate weekends from Friday after school until their return to school on Monday morning;
c) every Thursday after school until 7:00 pm; and
d) the entire 2019 March break.
[23] Justice Paisley’s Order also granted the applicant specific vacation time with the children from May 25 – June 1, 2019.
[24] In early April 2020, the applicant served an urgent motion for the immediate return of the children, as the respondent was not complying with the terms of Justice Paisley’s order due to the respondent maintaining that the children had “symptoms consistent with COVID-19” which cause the respondent to unilaterally implement a 14 day self-isolation period. The applicant believed that, at most, the children had mild cold symptoms. Justice Nishikawa heard the applicant’s motion on April 9, 2020, and held that “the response to the current health crisis is not, however, to disregard or cast aside existing agreements and orders that have been negotiated and/or considered at length, and that have been determined to be in the girls’ best interest.
[25] On the morning of the hearing before Justice Nishikawa, the respondent indicated that she had been experiencing “new onset upper respiratory symptoms” for at least five days. There is no evidence that the respondent was ever tested for, or diagnosed with, COVID-19. Justice Nishikawa expressed concern that the respondent obtained a doctor’s note on the eve of the hearing for the purpose of instituting an additional period of self-isolation so she could continue to withhold the children from the applicant.
[26] Justice Nishikawa found it to be in the children’s best interest to set out a specific schedule and require the parties to adhere to it during the COVID-19 pandemic. As such, the parties were ordered to abide by their existing “summer schedule” during the pandemic, which was a 2-2-3 schedule. As the children were not attending school at that time, Justice Nishikawa ordered the children to be returned to their primary residence with the applicant on April 19, 2020, with an alternating 2-2-3 parenting schedule to follow and to remain in effect “for during the duration of the current pandemic.”
[27] At trial, the respondent seemed to interpret the terms of Justice Nishikawa’s Order as granting her the ongoing, interlocutory right to a 2-2-3 parenting schedule. This is not accurate, as the 2-2-3 schedule was ordered by Justice Nishikawa as a “stop gap measure” to serve the children’s’ best interest during the unforeseen COVID-19 pandemic. In normal times, the children’s primary residence would remain with the applicant.
The Applicant’s Move to Lindsay
[28] In late September 2020, the applicant moved to Lindsay to reside in a home recently purchased by his father (currently 82 years of age). The applicant pays his father approximately $1,200.00 per month in rent. Lindsay is approximately ninety minutes away from Toronto by vehicle.
[29] The applicant’s move is essentially financially driven. The applicant testified that he would be able to get “more bang for his buck” by residing in Lindsay than continuing to reside in the Greater Toronto area. His father’s home is spacious, on a large parcel of land, and there is a public school (Parkview Elementary) which is a five minute walk from his father’s house. The applicant will be continuing to work from his father’s home on various consulting contracts.
[30] There is no current custody order in place, and the applicant has yet to approach Parkview Elementary with a view to registering the children there for the 2020/2021 school year (whether online or in person). The applicant explained that he was under the impression that he required a court order granting him the right to relocate there with the children before he could speak to anyone at Parkview Elementary.
[31] The applicant had been looking for houses with his father and the children for several months before the Lindsay home was purchased. The applicant testified that a few months before he moved to Lindsay, he took the children on a camping trip in nearby Peterborough, and both children (especially Alexa) loved the trip and the surrounding community. The applicant stated that both children asked him when they could move into the Lindsay house which would provide each child with their own bedroom and a shared bathroom.
[32] There was no evidence with respect to whether the children would need to be seen by a new family doctor in Lindsay. As the applicant had yet to connect with anyone in Parkview Elementary, there is no actual evidence that any steps have been taken to ensure that Alexa’s current IEP can be adequately addressed on a go forward basis.
[33] The respondent testified that the children would be much better served by remaining in the Greater Toronto area. The respondent submitted that she is able to provide stability, routine and discipline for the children. According to the respondent, the applicant is not moving for “economic reasons, work or schooling.”
[34] The respondent testified that the children have many established supports in the Greater Toronto area, and connections to their community. The respondent further stated that while this is an extremely high conflict case, she nevertheless believes that the children’s best interests would be served by the parties agreeing to a “parallel parenting” approach whereby tasks are divided up between the parties without consultation between them.
Position of the OCL
[35] Once the OCL was involved in this proceeding, clinical investigators were assigned to provide assistance to counsel for the OCL. Originally, Sonia Ghandi was assigned but left the OCL panel in March 2019. Michelle Nagy (“Nagy”, a social worker registered with the Ontario College and Social Workers and Social Services Workers) was then assigned to replace Ms. Ghandi, and has acted as the clinical investigator since then.
[36] Nagy swore two affidavits dated February 27, 2020 and September 21, 2020. Nagy’s original affidavit was sworn at a time when this matter was scheduled to proceed to trial on all issues, and the mobility issue had yet to arise. Nagy’s latest affidavit was prepared with a view to specifically address the mobility issue.
[37] In Nagy’s original affidavit, she concluded that a joint custodial arrangement would not be workable, as the parties had very different parenting styles which rendered joint decision making extremely difficult. The OCL believed that the applicant should have sole custody of the children but with the requirement of full and meaningful consultation with the respondent before the applicant made any decisions.
[38] Since early 2020, Nagy has met with the children on several occasions by telephone and in person. All of those interviews took place during the COVID-19 pandemic, and included interviews during the time when the respondent was allegedly withholding the children from the applicant.
[39] According to Nagy, when the children were in the midst of the 2-2-3 schedule, Olivia advised Nagy that she wanted “more time with her dad” as she was not really doing anything at the respondent’s house. Olivia further indicated that she wanted to return to the previous schedule (i.e. the schedule set out in Justice Kristjanson’s Order as amended by Justice Paisley’s Order) “once the world went back to normal”.
[40] According to Alexa, the respondent was constantly giving both children homework but did not help either of them with the homework. There was “no one to play with” at the respondent’s house and they did not “do anything for fun”.
[41] Nagy conducted one last interview with the children after it was known that the applicant would be relocating to Lindsay. Both children advised that they knew about the move, had seen the Lindsay house, and wanted to move there to attend school in Lindsay. As the applicant would be working from home, he could care for both of them after school.
[42] According to Olivia, the respondent wanted the children to stay in Toronto and attend after school daycare at the YMCA. Olivia does not like the YMCA.
[43] Olivia further told Nagy that the respondent “works on court things” when they are all at the respondent’s home.
[44] Alexa characterized the respondent as “very hardcore” about staying at her house, but that there could be “a fresh start” if they moved to Lindsay.
[45] Nagy believed that the children were less enthusiastic about remaining at the respondent’s house, and Olivia wanted her voice heard in this process. While Alexa did not mind continuing to attend daycare at the YMCA, Olivia was steadfast against it.
[46] Nagy believed that given the extremely high conflict in this proceeding, both children wanted predictability and stability. The children also wanted the court process to be finally over.
Decision
[47] A preliminary issue I raised with the parties and the OCL was whether the governing jurisprudence mandated the Court to decide the issue of custody of the children prior to the determination of the applicant’s request to relocate with the children to Lindsay. In Bjornson v. Creighton 2002 45125 (ONCA), the Court of Appeal for Ontario held that the issue of custody is to be decided first when the proceeding is an original application. Justice Shore’s Endorsement dated September 1, 2020 bifurcated the trial of this proceeding and mandated that the issue of custody be tried after the mobility issues are determined.
[48] In my view, the process set out in Justice Shore’s Endorsement is still consistent with the Bjornson decision as the applicant is effectively asking for a variation of the terms of the Order of Justice Kristjanson (as subsequently varied by Justice Paisley). While there is no current custody order in place, in my view the concerns in Bjornson do not apply to the circumstances of this case.
[49] In support of their positions, both parties and the OCL rely upon the Supreme Court of Canada’s seminal decision in Gordon v. Goertz 1996 191 (SCC). In determining whether it is in a child’s best interest to relocate, the Court must be mindful of and consider the following key principles:
The Court 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 child's needs and the ability of the respective parents to satisfy them.
The Court 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.
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.
The focus is on the best interests of the child, not the interest and rights of the parents.
More particularly, the Court 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 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 on removal from family, schools and the community he has come to know.
[50] While the applicant is not a custodial parent, until the COVID-19 pandemic occurred, the children’s primary residence was with the applicant.
[51] As held by the Court of Appeal for Ontario in Berry v. Berry 2011 ONCA 705, the maximum contact principle is a statutory factor to be considered by the Court, and Parliament has indicated that maximum contact with both parents is generally in the best interests of the child.
[52] While the maximum contact principle is mandatory, it is not absolute. The Court must respect the maximum contact principle to the extent that such contact is consistent with the children’s best interest. As held in Gordon, “if other factors show that it would not be in the child’s best interest, the Court can and should restrict contact.”
[53] With respect to the views of the children, the respondent argues that as a general rule, little to no reliance should be placed upon the wishes of younger children as younger children are not old enough to make mature and reasonable decisions, and are more impressionable and subject to subtle (and perhaps not so subtle) influence by their parents.
[54] In response, the OCL directed me to the decision of Justice Hackland in Pike v. Cook 2005 2034 (ONSC), appeal dismissed [2005] O.J. No. 4 No. 4529 (C.A.), and in particular the following passage:
“Jeremy’s wishes are deserving of considerable weight. He is a very intelligent and articulate nine year old who is deeply committed to both parents. He desperately wants to see more of his father. He wishes to return to Cornwall which he considers his home and where his support network exists. Alternate weekend access in Philadelphia is not to Jeremy’s liking and is not meeting his needs. I agree with Dr. Weinberger that the current situation has resulted in a diminution of the quality of Jeremy’s access with his father and I also agree with him and with counsel for the Children’s Lawyer that the ideal situation in terms of Jeremy’s interests would be for Ms. Cook to obtain employment in the Cornwall area and return with Jeremy.”
[55] In reviewing Nagy’s clinical notes and affidavits, it appears that the children are arguably more parent-focused than the parents are child-focused. Nagy described both girls as thoughtful and mature. Nagy’s conclusion seems to be a reasonable one, especially in light of the children’s joint desire to end this court proceeding for everyone’s sake.
[56] Neither the applicant nor the respondent is a perfect parent. However, while the applicant owned up to various mistakes he has made, and discussed the steps he has taken to grow from those mistakes, the respondent remains steadfast in her obstinance and intractability displayed over the last several years. Rather than try and co-parent with the applicant, the respondent suggested parallel parenting without consultation. In my mind, this spoke volumes about the level of conflict between the parties, the frustration felt by the applicant, and most importantly the negative impact upon the children.
[57] While both parties share responsibility for the high degree of conflict in this proceeding, I find that the respondent is the primary source of the fireworks which seem to damage this family on a weekly basis. According to Nagy, the children feel much more pressure while with the respondent. That pressure comes in several forms, including concerns about the children’s health (whether legitimate or not), and their schooling.
[58] While I do not question the respondent’s motives as parent, I find that she has displayed manipulative tendencies which call the reliability and veracity of her evidence into question. In addition, despite her closing submissions, the wide and continuous extent of the respondent’s medical issues clearly undermine her ability to care for the children. There is evidence that the respondent has made her children feel responsible for causing the respondent’s own medical issues, and Alexa has been subjected to the respondent’s continuing efforts to have her diagnosed as being autistic.
[59] While the children have lived in the Greater Toronto area their entire lives, the applicant introduced them to the Lindsay area several months before he relocated there with his father. The children were excited about the Lindsay area, and expressed a desire to move there with the applicant.
[60] While the respondent stresses the maximum contact principle, she has shown in the past that she does not adhere to this principle when it suits her.
[61] The views of the children were expressed to Nagy while they were in the respondent’s care, free from influence of the applicant.
[62] The respondent has significance concerns with the applicant’s ability to manage the children’s health and education needs on his own in Lindsay. While this may be a general concern, it is not to the extent that the respondent believes, as she has convinced herself that any health and schooling issues cannot be serviced in her absence. The applicant will be home almost every day to attend to the children’s needs as they arise.
[63] The Court must balance the applicant’s legitimate interest in relocating with the children, together with the respondent’s legitimate interest in maintaining her relationship with the children. The ultimate question is of course: what is in the best interests of the children?
[64] I do not believe that a move to Lindsay would cause a significant disruption to the children in terms of a potential removal from family, schooling and the community they have come to know. No doubt the children will have to enroll in a new school in Lindsay. However, they are only ninety minutes from Toronto, and can still maintain their relationships with the respondent, her family and the children’s friends. Any potential disruption caused by a relocation to Lindsay does not justify refusing to permit that move.
[65] As Justice Furey noted in Sexton v. Tipping 2017 56984 (N.L.S.C.T.D.):
“It is a reality of the times in which we live that many couples with children come together through partnership or marriage, separate or divorce after a period of time and then move on with their lives. … The crux of these scenarios is change – for the parents and for the children.
Change is a constant in all our lives. As a general principle, children are adaptable in their lives. They change communities. They change schools. They change friends. Many change families, not because of their actions but because of the actions of their parents. That has happened in this matter.”
[66] On balance, I conclude that the children’s best interests are served by having their primary residence be with the applicant in Lindsay. While the applicant has yet to contact Parkview Elementary with a view to enrolling the children, as a term of my order the applicant must ensure that this step is carried out without further delay.
[67] The respondent did not propose an access schedule in the event that the applicant’s request was granted. For his part, the applicant did put forward a proposal to ensure that the respondent maintains contact and access with the children on a reasonable, consistent basis. The terms of the applicant’s proposal are similar to the terms proposed by their OCL, but I prefer the terms proposed by the OCL with a view to ensuring that maximum contact between the children and the respondent continue.
[68] I therefore make the following order:
a) the terms of the Order of Justice Kristjanson (as amended by the order of Justice Paisley) are varied so that the children’s primary residence shall be with the applicant in Lindsay;
b) the applicant shall register the children in Parkview Elementary School forthwith, and provide the respondent and the OCL with proof of same;
c) the applicant shall ensure that the children’s OSRs are transferred to Parkview Elementary School forthwith, and that Alexa’s IEP is brought to the attention of the Parkview Elementary School’s principal without delay;
d) The respondent shall have parenting time with the children as follows:
• During the school year, for two consecutive weekends from Friday evening until the commencement of school on Monday morning (to be extended by commencing on Thursday evening or ending on Tuesday morning when there is a statutory holiday or professional development day immediately before or after the weekend in question).
• On the third weekend, the children shall remain with the applicant in Lindsay.
• Christmas vacation shall be divided equally between the parties. Commencing this year (2020), the respondent shall have the first week (Christmas Eve, Christmas Day and Boxing Day included). The applicant shall have the second week (New Year’s Eve and Day included). In 2021 the weeks shall be reversed. This alternating schedule shall continue every year thereafter.
• During the children’s summer vacation, both the applicant and respondent are entitled to two weeks’ vacation with the children (these weeks may be consecutive), and commence on the Friday evening of that parent’s chosen week(s) and end on the Sunday evening at the end of that parent’s chosen week(s). Each child may also be enrolled for up to two weeks in overnight summer camp during which time neither parent shall have parenting time, and no make-up visits shall be necessary while the children are at camp. For the balance of the summer, the children will live with each parent in alternating weeks with the exchange taking place every Thursday evening.
• For the children’s March break, each parent shall have one half of the March break. The first half of the March break commences at the end of the school day prior to the March break and ends at 9:00 am on the Wednesday of the March break. The second half of the March break commences at 9:00 am on the Wednesday and ends at the commencement of the children’s return to school on the following Monday.
• With respect to pick-up and drop-off for regular and holiday access, the parent receiving the children shall pick the children up at the other parent’s residence. If the receiving parent is unable to pick up the children themselves, they may arrange for another person (known to the other parent and the children) to do so, and shall inform the other parent through the “Two Houses” program. The parties are also at liberty to agree upon a mid-way point for pick-up and/or drop off if they choose.
Costs
[69] Pursuant to Justice Shore’s Endorsements dated September 1 and 11, 2020, I am charged with hearing the trial of the remaining issues starting on December 14, 2020 for two days.
[70] As such, I will reserve the costs of this bifurcated trial to myself as the trial judge hearing the balance of the issues.
____________ ______________
Diamond J.
Released: October 22, 2020
COURT FILE NO.: FS-17-420321
DATE: 20201022
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
CHRISTIAN MORETON
Applicant
– and –
DOUANGTA INTHAVIXAY
Respondent
REASONS FOR DECISION
Diamond J.
Released: October 22, 2020