Court File and Parties

Court File No.: 4662/20 Date: 2021-02-16 Ontario Superior Court of Justice

Between:

BRANDON CALABRESE Applicant – and – STEPHANIE SLADE Respondent

Counsel: Victoria Kayal, for the Applicant Daniel Therrien, for the Respondent

Heard: February 9, 2021

Before: Varpio J.

Reasons on Mobility Motion

[1] This is a motion brought by the father to, inter alia, have the children returned to live with him in the Ottawa area. The mother filed her own motion seeking child support. The mother and father lived in Perth, Ontario prior to the pandemic and the mother moved to Sault Ste. Marie in May 2020. The children have lived here ever since. I received extensive materials from the father including a factum. The father’s materials, however, were silent on a couple of major issues. For her part, the mother filed a nine-paragraph affidavit denying the father’s allegations but providing little information of her own.

Facts

[2] The mother and father were residing with their two young children (ages 5 and 7) in Perth, Ontario prior to the pandemic. They lived in a rented house. At the time of the pandemic, the father worked as a truck driver at Sysco earning approximately $80,000 per annum while the mother did not work. He deposes, and has provided evidence to demonstrate, that his pay has since dropped to approximately $73,000 per annum as a result of the pandemic.

[3] The children were enrolled in school in Perth. The pandemic struck in March 2020 and in May 2020, the mother took the children to Sault Ste. Marie. The father and the mother disagree on the nature of that proposed visit. The mother deposed that she moved on the understanding that the father would move to Sault Ste. Marie as well. She indicated that the mother and father decided to separate but that both parents agreed it was better financially for the children to reside in Sault Ste. Marie. Despite this allegation, the mother claims that the father decided to remain in Ottawa.

[4] For his part, the father alleges that the mother and the children went to Sault Ste. Marie to visit the mother’s parents when lockdown struck. The father did not consent to a permanent move. The mother advised the father that she no longer wished to live in the Ottawa area. The parties agreed to a 3-week on, 3-week off arrangement because the children were attending virtual school and could do so from anywhere.

[5] In early September, the mother enrolled the children in school in Sault Ste. Marie. They have been attending school here ever since. The mother claims that the father consented to said enrollment while the father claims that he knew nothing about same. This enrollment ended the “three-week about” access schedule and the father has had to secure periodic access via interim without prejudice order. He sees the children occasionally as the pandemic and the mother permit. The father has supplied text message evidence that the mother has made access difficult either by not wanting the father to see the children in Sault Ste. Marie (even though the father was willing to drive eight plus hours to have parenting time) and/or has failed bring the children to North Bay to allow the father access. I note, however, that the pandemic has made midway access difficult since it is quite possible that schools would require some form of quarantine depending upon when the children were away from the Algoma District.

[6] The mother brings a motion for child support. The father deposes that he has paid certain expenses directly but is concerned that the mother, an addict who was on methadone, may use the money to pay for her habits. The father deposes that when he visited the children in Sault Ste. Marie (although he did not specify exactly when), he saw evidence of a party that had gone on the night before presumably in the presence of the children. The father provided documentary evidence of both his direct payments to the mother’s creditors and to the mother. Other than a blanket denial of all the father’s allegations, the mother did not address the substance abuse concerns.

[7] The father did not, however, provide me with a specific plan of care for the children were they to move back to the Ottawa area. Indeed, it is clear that he is no longer residing in the rental home in Perth. Instead, he appears to be living with his parents in Ottawa.

[8] The father provided considerable evidence to satisfy me that he has undertaken some reasonable due diligence in attempting to have this matter heard quickly. He attempted to have the mobility issue heard in Ottawa in the fall and then in Sault Ste. Marie once it was clear that he could not get the matter heard in Ottawa. The parties came to an interim, without prejudice order regarding temporary access but the mother has apparently ceased to follow that order.

Analysis

[9] In determining the mobility of the children, the overriding principle must be the best interests of the children: Gordon v. Goertz, [1996] 2 S.C.R. 27. When determining the best interests of the children, it is apparent from all the cases that the courts typically look to two major issues: the ability of the parents to provide both love and stability for the children. The notion of “love and stability”, however, can factor in many different components.

[10] In this case, I am quite concerned about the stability for the children, irrespective of what I order. The children have been in Sault Ste. Marie since May 2020 and are in school. This augers for their continued stay in Sault Ste. Marie. I note that a parent should not be able to artificially create a “status quo situation” by overholding children and then rely upon the overholding to justify their position: McPhail v. McPhail 2018 ONSC 735; Rifia v. Green 2014 ONSC 1377; Gray v. Canonico 2020 ONSC 5885 and many others. I also note that the father appears to have been reasonable in his positions regarding consent orders, and reasonably diligent in getting his matter heard. For these two reasons, I am willing to determine the motion giving discounted weight to the fact that the children have been in Sault Ste. Marie since September.

[11] Nonetheless, I must be mindful that moving children in February is not an ideal time to change schools. The children have presumably established a routine (although the mother has not seen fit to provide me with this information) and have made some inroads at school (although the mother has not seen fit to file a report card or progress report).

[12] I also do not have a detailed plan of care from either parent. CHECK THIS While the father has indicated that the children can return to their original school in Perth to attend virtually, he has not given me any evidence of where he plans to live with the children. Will there be enough room? Where will the children sleep? Equally, I note that for the purposes of the children’s mental health, it is generally preferable that the children attend in person as opposed to virtually.

[13] I am also mindful of the effects of the pandemic. This is not a typical situation whereby the exigencies of moving a child are such that making an immediate decision is necessarily in their best interests. Put another way, had this motion been heard in February 2020 or were it to be heard in February 2022 (hopefully), it may well have been crucial to make a speedy decision since the children would need to be entrenched in new and/or existing routines. In February 2021, however, the effects of the pandemic are such that it is unrealistic to think that the children will be able to establish the beginnings of any meaningful long-term routines since Covid-19 will undoubtedly continue to affect all aspects of life including school.

[14] I am also highly concerned about the father’s allegations of the mother’s substance abuse. The mother did not specifically refute same. As a result, I am worried that if the children were to remain with the mother, they might be exposed to drugs abuse and its incumbent evils.

[15] With all of that in mind, I hereby order that the mother to provide me with further and better affidavit evidence regarding:

1. Her drug abuse history and present condition;
2. Her residence – where does she live, with whom, and in what condition;
3. The children’s school – where are they enrolled, how are they finding school, do they have report cards?

[16] The mother will file this evidence no later than February 22, 2021.

[17] The father will provide me with further and better affidavit evidence regarding his detailed plan of care for the children if they are to return to Ottawa. He will also provide me with specifics of the mother’s drug abuse history including what drugs she was abusing, when she was abusing them and whether any community organizations like CAS have been involved as a result of this concern. This evidence will be filed no later than February 26, 2021.

[18] The parties may file no more than 3 pages of supplementary written argument by March 5, 2021 (if they deem it necessary) to address any new issues raised by the new materials.

[19] Upon receipt of the new materials, and absent anything in those materials that causes me to change my view of the matter, I will consider providing an interim decision determining where the children will finish the school year. Thus, the parties will forthwith schedule June return date for this motion. At this June attendance (should same prove necessary), I will consider where the children will attend school in September of 2021. The parties will write to me with the proposed date and I will set a timeline for further evidence. [^1]

[20] I am willing to consider bifurcating the proceedings as a result of the following considerations:

1. The age of the children is such that they have not likely established lifelong friendships that could be destroyed by changing schools;
2. Sault Ste. Marie has been largely spared a meaningful COVID-19 outbreak (unlike Ottawa) such that keeping them in Sault Ste. Marie for another two weeks pending determination of this interim interim motion is not detrimental to them;
3. I suspect that the national scope of the COVID-19 response will be clearer by summer;
4. I need to determine what impact the mother’s alleged drug issues will have upon my decision;
5. Neither parent at this stage has provided me with a plan of care that gives me considerable confidence, although I note that I am especially concerned with the mother’s lack of affidavit evidence in this regard; and
6. All else being equal (although I am far from satisfied that this is the case in this instance), it is preferable to move children at the beginning and/or at the end of the school year. This thought, however, is greatly attenuated since COVID-19 protocols have periodically caused children to attend virtual school. As such, it is quite possible that I will order that the children finish the school year in one jurisdiction and then start the 2021-22 school year in another because the effect of such changes would not be overly negative given: a. The age of children; and b. The fact that the 2020-21 school year has not been marked by stability in any event.

[21] The father should note that, if I order that the children remain in Sault Ste. Marie to complete the 2020-21 school year, I will keep in mind the possibility that this is due to a possible overholding situation. As noted earlier in these reasons, the law is clear that such a phenomenon is not looked upon favorably by the courts.

[22] In the interim, I would ask the Office of the Children’s Lawyer to please consider becoming involved in this case. This mobility motion is plagued by both conflicting evidence as well as allegations of drug abuse that would have a serious effect on the children in question. It is also plagued by a lack of evidence pertaining to serious issues. This absence of evidence is especially noteworthy in the mother’s affidavit. The OCL would undoubtedly be able to provide some assistance with the file.

[23] I will consider the following in my upcoming reasons:

1. Custody/access/residency for the remainder of the school year;
2. Child support for that period of time; and
3. Costs.

Varpio J. Released: February 16, 2021

[^1]: The further evidence described in this paragraph is independent of the further evidence I ordered to be received in the next two weeks.