OSHAWA COURT FILE NO.: FC-19-942

DATE: 20210414

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jordyn Greenham Applicant

– and –

Carley Ann Nisbett Respondent

Brendan M. McDermott, for the Applicant

Sheila MacKinnon, for the Respondent

HEARD: March 22 and April 7, 2021

RULING ON MOTION

LEIBOVICH J.:

[1] The Applicant Father and the Respondent Mother are in the middle of a divorce and are awaiting a trial to address the relevant issues. They have a five-year-old daughter Averie. Parenting time for their daughter is currently governed by a temporary, on consent order, without prejudice, dated July 17, 2019 by Timms J. The Applicant Father has brought an interim motion to increase his access to Averie so that he and the Respondent Mother have equal parenting time. The Respondent Mother has brought a motion to be allowed to relocate with Averie from Whitby to Keswick, Ontario. The parties oppose each other’s motions. These motions were heard separately by me, two weeks apart, via Zoom. In my view, it made sense to have one judge consider both motions. The parties agreed.

Background

[2] The parties were married in 2017 and they separated on January 15, 2019. Their daughter Averie was born November 7, 2015. The Applicant Father is a power line technician and has been employed with the same company for 10 years. The Respondent Mother is a police officer with the York Region Police Service, also for the past 10 years. The Applicant Father has a new partner, Becky, and they have a daughter, Ainsley, born August 15, 2020. The Applicant Father currently works Monday to Thursday from 6:00 a.m. to 4:00 p.m. The Respondent Mother is in a new relationship with a police officer named Amy. The Respondent Mother works Monday to Friday from 8:00 a.m. to 4:00 p.m.

[3] Access to Averie is governed by an interim and without prejudice on consent order that was made on July 17, 2019. Pursuant to that order, the Applicant Father has parenting time with Averie on alternate weekends from Friday at 7:00 a.m. to Sunday at 6:00 p.m., as well as a mid-week overnight visit from Tuesday after school until Wednesday morning with a drop off before school.

[4] An urgent motion was held when the Respondent Mother was planning to move to Keswick. The Court ordered that the daughter not be moved absent a court order. A continuing settlement conference is set for August 5, 2021.

The request for equal parenting time

[5] The Applicant Father states that he and the Respondent Mother have always been equal caregivers for Averie. For the first two years of Averie’s life, the Respondent Mother worked shift work while the Applicant Father had a standard schedule. He states that he was therefore equally involved with Averie’s morning and evening care routines. The Applicant Father states that later, both parents had shift work and they both worked together to ensure Averie’s care. As a result, he states that he always participated fully in all daily/evening parenting responsibilities for Averie, such as preparing her meals, bathing her and putting her to bed. The Respondent Mother, in her affidavit, disputes this and states that her mother assisted while she was at work and that the Applicant Father would either be sleeping or at the gym.

[6] The Applicant Father states that the current interim order was never meant to be final and that he always wanted a shared parenting schedule.

[7] The Applicant Father does not complain about the Respondent Mother’s parenting ability but does complain about the Respondent Mother limiting his involvement in Averie’s life. The Applicant Father believes that they can co-parent together. The Respondent Mother does not. She states:

I strongly disagree that we can communicate properly and effectively as co-parents. I am constantly being barraged with inappropriate messages regarding my decisions for Averie. Attached hereto and marked as Exhibit “C” is a true copy of the OFW message from September 6, 20 19 where Father asked me to purchase clothing for Averie for his home. I complied with his orders to provide him with clothing for Averie at his house.

[8] The Respondent Mother has set out in her affidavits a number of complaints about the Applicant Father. They are as follows:

1. She states that she engaged a child therapist in the fall of 2019 to help Averie. The Applicant Father refused to consent to Averie having therapy until January 2020;

2. The Respondent Mother states that Averie struggles with transitions for the mid-week visit. The Respondent Mother states that Averie has complained that Becky, the father’s new partner, hits her. The Respondent Mother notes that there was a CAS investigation, who found that this was not a fabrication;

3. The Respondent Mother states that Averie complained that the Applicant Father locked in her room while crying and was unable to go to the bathroom;

4. During the Applicant Father’s two-week parental leave, after his daughter Ainslie was born, he did not ask for Averie to spend more time with him;

5. Averie has complained that she does not see her father sometimes because he is working overtime and nights. The Respondent Mother provided two such examples of the Applicant Father dropping Averie off early. [The Applicant Father has disputed these examples. On one occasion, Averie had an overnight with her paternal grandmother. On the second occasion, there was a major water leak in the house.];

6. The Applicant Father does not allow Averie to call home during the visits;

7. The Applicant Father, in mid-October, was dropping Averie off at 5:20 a.m. on Wednesday after the Tuesday overnight visit. These drop off times only became normalized after a February 17, 2021 case conference. Leading up to this motion, the Applicant Father has dropped off Averie at 6:30 a.m.;

8. The Respondent Mother states that the Applicant Father returned Averie early on November 29, 2020 to punish her for bad behaviour. The Applicant Father told her that on December 5, 2020 Averie purposely wet her bed;

9. The Applicant Father does not maximize the time he has with Averie. On two occasions when the overnight was switched to Thursday night, he still dropped her off early on Friday even though he does not work on Friday. From July 2020 to present, the Applicant Father has returned Averie home early on his weekend visits, between one to six hours early on 10 out of 18 weekends, or about 55% of the time;

10. Averie was upset after a visit at the end of January 2021. Averie was upset because her father told her not to touch the baby’s toys, called her rude and did not pay her any attention;

11. The Applicant Father chose not to attend at Averie’s extracurricular activities, including soccer, gymnastics, and her very first children’s triathlon in June 2019, despite being invited to attend and support Averie;

12. Averie was upset because she was excluded from a family photo with the new baby. [The Applicant Father in response has submitted a photo which included Averie and the new baby. The Respondent Mother countered by stating that the father has not attached all the photos that did not include Averie];

13. The Applicant Father has only participated, since separation in two pediatrician appointments; and

14. The Applicant Father uses cocaine. [The Applicant Father has denied this allegation in his affidavit.]

[9] The Respondent Mother states that she believes that Averie loves her father but that he is not supporting of her. The Respondent Mother notes that Averie often tries to get out of the mid week visit.

[10] The Applicant Father disputes the above complaints. Specifically, he states that both parents are involved with Averie’s therapy and he is not to blame for Averie’s distress, noting that Averie resides primarily with her mother. The Applicant Father also noted that the therapist stated in July 2020 that Averie was in a good place.

[11] The Respondent Mother states that:

Averie’s persistent and frequent complaints that she is “feeling sick” prior to her midweek visits with Father demonstrates that she is struggling - Father fails or refuses to acknowledge Averie’s distress. As her mother and primary caregiver and the parent who is primarily responsible for Averie’s medical care, I am and have been much attuned to Averie’s mood and emotions. Averie is a sensitive child.

[12] The Applicant Father states that:

When Averie is in my care she is loving, kind, extremely fun and filled with life and laughter, especially with the addition of her half-sister, Ainsley.

[13] The Applicant Father states that he attended Averie’s first day of school and has attached a picture. And with respect to extracurricular activities he states:

These are purely false accusations and general conjecture. I vehemently deny the allegations and reconfirm that I truly love being involved with Averie’s extra-curricular and have already stated that I dream about the day when I can coach her in sports and watch my two daughters play sports together, attend events/shows together, take dance lessons, etc.

(a) I attended multiple soccer games and took Averie to get her soccer photos completed. My parents also attended some of Averie’s soccer games.

(b) Further, I attended all swimming-lessons and the Respondent did not attend any.

[14] The Respondent Mother has complained about the Applicant Father’s schedule. However, the Applicant Father has stated that his work schedule has been the same since July 2, 2019 and that he has only worked overtime thrice since July 1, 2019.

[15] Both parents allege that the other is coaching Averie. In this regard, the Respondent Mother stated in her affidavit:

I have not ever “manipulated or coached” Averie. On the contrary, Averie has reported to both me and her therapist Ashley Henderson that Father and Becky are telling her to lie to me about wanting to spend more time at Father’s home. I have had repeated conversations with Averie not to lie, even if an adult tells you to.

The Respondent Mother’s request to relocate

[16] The Respondent Mother would like to move to Keswick, as houses in Whitby are too expensive and out of her price range. Keswick houses are cheaper, and, if she moves, the Respondent Mother can transfer to Keswick and have a shorter commute to work. The Respondent Mother states that she is willing to meet the Applicant Father at Dagmar Ski Resort for drop offs and pick ups. Amy’s mother resides in Keswick and Averie has made friends in the area when she has previously visited. Averie has only attended school in person from September 2019 to March 12, 2020 and has been online since the pandemic. There are good schools in Keswick.

[17] The Applicant Father states that he is concerned that a relocation would diminish Averie’s relationship with him and her half-sister. The Applicant Father notes that Averie has lived in the Durham Region since she was born and that she has family, including her half-sister, friends, and a school in the region.

Law and Analysis

[18] As set out at the outset of these reasons, there are two interim motion requests. They are:

1. Should the Respondent Mother be allowed to relocate with Averie, to Keswick, Ontario? and

2. Should the Applicant Father’s time with Averie be increased so that both parents have equal parenting time?

1) Should the Respondent Mother be allowed to relocate with Averie, to Keswick, Ontario?

[19] While this issue was argued second, I find it more convenient to address it first.

[20] In determining mobility issues the leading case remains the Supreme Court of Canada’s decision in Gordon v. Goetz, 1996 191 (SCC), [1996] 2 S.C.R. 27. In Gordon v. Goetz, the Supreme Court emphasized that the superordinate consideration in a mobility case is the best interests of the child determined from a child-centered perspective. The focus is on the best interests of the child, not the interests and rights of the parents. The judge should consider:

(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; and

(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

[21] In Reeves v. Brand, 2018 ONCA 263, Laskin J.A. said at para. 22 with respect to the maximum contact principle:

…the maximum contact principle is not an absolute principle; if it were very few relocation requests would ever be allowed. Instead, as this court said in Bjornson v. Creighton (2002), 2002 45125 (ON CA), 62 O.R. (3d) 236 (C.A.), at para. 34, though the maximum contact principle is obviously important, “it remains one factor in the whole of the analysis. It ought not to be treated as the governing factor.” And in Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, still the leading case on mobility, McLachlin J. said at para. 24:

The “maximum contact” principle, as it has been called, is mandatory, but not absolute. The [Divorce Act] only obliges the judge to respect it to the extent that such contact is consistent with the child’s best interests; if other factors show that it would not be in the child’s best interests, the court can and should restrict contact: Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at pp. 117-18.

[22] The Respondent Mother seeks a temporary order pending trial to allow her to relocate with Averie to Keswick. A court in considering a temporary order must still be guided by the factors set out in Gordon v. Goertz, but the Respondent Mother faces a substantial burden to justify the change: Cromwell v. Allaby, 2021 ONSC 172 at para. 78, MB v. DAC, 2014 ONCJ 273. See also Papp v. Papp, 1969 219 (ON CA), [1970] 1 OR 331 at para 34. Mobility cases can rarely be decided without a trial: Guillotte v. Sinopoli, 2010 ONSC 4471 at para 17. As McDermot J. said in Walsh v. Walsh, 2012 ONSC 4965 at para. 38:

As well as Marshman J., several other justices have commented that a temporary order permitting a party to move with the children should be only granted in limited circumstances. Although conflicting affidavits alone do not prevent such an order from being made (Luckhurst v. Luckhurst, 1996 737 (ON CA), [1996] O.J. No. 1972 (C.A.)), a number of judges have commented that a court must exercise caution in permitting a party to move on an interim basis where the available evidence is limited or conflicting, or where a trial may be necessary to determine the final custodial arrangements for the children: see Cox v. Darling, 2008 ONCJ 91, [2008] O.J. No. 824 (C.J.) at para. 13 and Datars v. Graham (2007), 2007 34430 (ON SC), 41 R.F.L. (6th) 51 (Ont. S.C.J.) at para. 15-16. The cases also confirm that even on an interim motion, the factors under Gordon v. Goetz, 1996 191 (SCC), [1996] 2 S.C.R. 27 supra must be considered and, as stated by Quigley J. in Datars [at para. 16] “it is difficult if not impossible in most cases to complete the extensive child-focused inquiry required under Gordon v. Goetz on the typically conflicting and incomplete affidavit evidence that is often available to the court on interim motions.”

Also see Atkinson v. Atkinson, 2016 ONSC 5486 at para. 10, S (SL) v S (JA), 2013 BCSC 1775 at para 31, P(D) v B(R), 2007 PESCAD 25 at para 34.

[23] I would not grant the Respondent Mother’s request to move with Averie, pending trial, to Keswick. I agree with counsel for the Applicant Father that this is not simply a request to move to Keswick, it is a request to change Averie’s school, and it affects the parenting plan going forward. Final decisions have not been made with respect to parenting time. Relocating Averie now just to have a trial judge potentially reverse course is not in Averie’s best interests. Deciding this issue now, in effect, would have me placing the cart before the horse. There is no urgency to the mother’s relocation motion that requires that this issue be decided now. In addition, I cannot say now, based on the material filed, that the Respondent Mother will necessarily be successful on this point. There is a genuine issue for trial. While the Respondent Mother points to Keswick providing a more affordable place to raise Averie, the support of her partner’s mother, the relatively short relocation distance, the Applicant Father points to the fact that Averie has her roots, school, and extended family, including her new baby half-sister in the Durham Region. In my view, it is premature to decide this issue and it is best left to the trial judge, if needed, or to the parties as part of a global resolution.

2) Should the Applicant Father’s time with Averie be increased so that both parents have equal parenting time?

[24] The Divorce Act, R.S.C., 1985, c. 3 provides the court with the ability to make interim orders with respect to the custody or access to the child. Section 16(8) of the Divorce Act states:

In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

[25] In determining what is in the child’s best interests under s.16 of the Divorce Act, many courts have also considered the provisions of the Children’s Law Reform Act R.S.O. 1990, c.C.12 (“CLRA”), which requires that in determining the best interests of a child, a court must consider the needs and circumstances of the child, including a specific set of criteria. Section 24 of the CLRA provides:

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

ii) other members of the child’s family who reside with the child, and

iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application.

[26] As the Ontario Court of Appeal recently confirmed in Rigillio v Rigillio, 2019 ONCA 548, courts determining custody and access issues must advert to the maximum contact principle set out in s. 16(10) of the Divorce Act, which states:

In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[27] As noted by Kurtz J. in Robinson v. Robinson, 2020 ONSC 7533, [2020] OJ No 5302 and M.A.C. v. M.C., 2019 ONSC 6769, the goal of maximum contact with each parent is not absolute:

Despite the court’s finding on the specific facts of each of Rigillio and Ferreira, the wording of the DA s. 16(10) explicitly subordinates the maximum contact principle to the child’s best interests. The principle is to be honoured only to the extent that it is “consistent” with the child’s best interests.

Also see Berry v. Berry, 2011 ONCA 705, at para. 27, Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3 at pp. 270-271.

[28] This is not a request for a final order after a trial. Rather, this is a request to vary an interim on consent order, made without prejudice, by another interim order, pending trial. A review of the cases on this point reveals that the overriding principle in making parenting decisions in these cases is still the child’s best interests. The maintenance of the status quo is not “an immutable principle” but there must be compelling reasons to vary from it on an interim basis. As Finlayson J. wrote in Ray-Bevington v. Rigden, 2017 ONCJ 602 at para. 31, “... just because a court can make an order with different terms doesn’t mean that it should.”; Papp v. Papp 1969 219 (ON CA), [1970] 1 O.R. 331 (O.C.A.): Madill v. Madill, 2014 ONSC 7227 at para. 31, Kimpton v. Kimpton, [2002] O.J. No. 5367 at para. 1, Holt v. Anderson, 2005 38583 (ON SCDC), [2005] O.J. No. 4494, at para. 10: Batsinda v. Batsinda, 2013 ONSC 7869 at para. 26; M.A.C. v. M.C., 2019 ONSC 6769 at paras. 68 and 69.

[29] I agree with the Applicant Father that his parenting time should be increased. However, I am not prepared at this stage, on an interim motion, to provide the Applicant Father with shared parenting time. I am unable to decide on the basis of the paper record before me if the Applicant Father and the Respondent Mother can in fact co-parent. The Applicant Father states they can, the Respondent Mother says no. The Respondent Mother, as set out above, has numerous concerns with the Applicant Father’s ability to parent Averie. She has described him, in essence, as a controlling man, who is neglectful of Averie’s needs and concerns and that Averie is unhappy when with him. The Respondent Mother also asserts that his new partner has hit Averie and that the Applicant Father consumes cocaine. The Applicant Father denies these assertions. Interim motions by their very nature do not easily lend themselves to resolve cases where there is conflicting evidence on critical issues presented to the court by way of affidavit evidence, untested by cross-examination: Al Tamimi v. Ramnarine, [2020] O.J. No. 3510 at para. 57, Coe v. Tope, 2014 ONSC 4002, at para. 25.

[30] I agree with the Applicant Father that the allegation that he uses cocaine is a bare assertion lacking in any specificity or details. I also agree that, at this stage, there is no evidence in support of the assertion that the Applicant Father’s new partner hit Averie. I also note that the Respondent Mother is not seeking to reduce the Applicant Father’s access because of this allegation.

[31] I also agree with the Applicant Father that a number of the Respondent Mother’s assertions are not supported by the material filed. For example, The Respondent Mother stated in her March 17, 2021 affidavit that:

Exhibit “C” to this my affidavit a number of emails setting out my requests for Father’s involvement and participation at various events/celebrations/Halloween/school/soccer, which Father either ignored or did not want to attend as a co-parent to support Averie.

[32] However, I find the Applicant Father’s decision not to attend the Respondent Mother’s family event in the summer of 2019 a reasonable one, given the break up of their marriage, even if it meant that he could not support Averie on that occasion.

[33] By way of another example, the Respondent Mother stated, “I am constantly being barraged with inappropriate messages regarding my decisions for Averie. Attached hereto and marked as Exhibit “C” is a true copy of the OFW message from September 6, 20 19 where Father asked me to purchase clothing for Averie for his home.” I have looked at the exhibit and while the Applicant Father could have used softer language, it does not support the mother’s description of it. That being said, its possible that the Applicant Father does barrage the Respondent with inappropriate messages and that this particular message is simply a poor example. Again, there are limits on one’s ability to assess credibility based on dueling affidavits that have not been the subject of cross-examination, let alone supported by live testimony.

[34] There is no dispute that Averie has been seeing a child therapist. According to the Respondent Mother, Averie has had difficulties with the mid-week overnight visit with the Applicant Father. The problems were compounded in October 2020 when the Applicant Father would return Averie on Wednesday at 5:20 a.m. The drop off times were improved closer to the start of this motion in March. Both parties seem to agree that Averie has been having difficulty since October 2020, but they disagree on the cause. I am unable, on the record before me, to ascertain the cause and if the Respondent Mother is accurately voicing Averie’s complaints and concerns or, if accurately described, is Averie’s description of being neglected by her father, when she visits, true. I do agree that the Applicant Father’s decision to return Averie at such an early hour after the mid-week visit is concerning. It should have been obvious to him that it was an unworkable solution for Averie.

[35] In my view, I do not think it is in the best interests of Averie, at this time with her current difficulties, to radically alter the parenting schedule, on an interim basis pending trial without being able to resolve, on the static record before me, critical core questions. However, the current temporary order has been in place for almost two years and the parenting schedule is heavily favoured towards the Respondent Mother. Furthermore, the current schedule does not maximize the fact that the Applicant Father does not work on Friday and does not minimize the disruptiveness of the early mid week return to the Respondent Mother.

Conclusion

[36] Pursuant to the current order, the Applicant Father has parenting time with Averie on alternate weekends from Friday at 7:00 a.m. to Sunday at 6:00 p.m., as well as a mid-week overnight visit from Tuesday after school until Wednesday morning with a drop off before school. I would maintain the current order but change the Applicant Father’s parenting time to the following:

a. The Applicant shall have care of the child, Averie Patricia Ann Greenham, born November 7, 2015, on alternate weekends starting from Thursday after school to Sunday at 6:00 p.m. During these weeks, there is no mid-week overnight visit. If a visit falls on a long weekend, Averie’s visit shall be extended to Monday at 5:00 p.m.; and

b. The Applicant shall have care of the child, Averie Patricia Ann Greenham, born November 7, 2015, on the alternate week when there is no weekend parenting time, from Wednesday after school until Friday at 5:00 p.m.

[37] Pick up and drop offs shall be at the Respondent Mother’s home. When Averie returns to in-person school, then the pick ups shall be from the school. The schedule shall change as of the week of April 19, 2021 and will coincide with the current schedule. In other words, if Averie was scheduled to spend the weekend with her father during the week of April 19^th then that weekend visit will start Thursday, April 22^nd after school with no mid-week visit. If not, then Averie’s mid-week visit will start on Wednesday, April 21^st after school and go to Friday, April 23^rd at 5:00 p.m.

[38] If the parties cannot agree on costs, the Applicant Father, shall provide, 10 days from the release of these reasons, his submissions on costs, totalling not more than two pages. The Respondent Mother shall have 15 days from the release of these reasons to provide her submissions with respect to costs, again totalling not more than two pages.

Justice H. Leibovich

Released: April 14, 2021