COURT FILE NO.: 20-0220
DATE: 20210326
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TAYLOR MACLEAN
Applicant
– and –
ANDREW KOWALSKI
Respondent
John E. Summers, for the Applicant
Jennifer A. O’Reilly, for the Respondent
HEARD at Brockville: 10 and 11 February 2021 (by video conference)
Mew J.
reasons for decision
[1] At the heart of this application lies a request by the mother of six-year-old Anakin (“Annie”) Kowalski to move, with the child, from Brockville, Ontario to Jasper, Alberta. The parties agree that the resolution of other issues raised in the application, including support and access, should be capable of agreement once a decision on the mobility issue has been rendered.
Background
[2] The parties are each 29 years old. They both have their roots in Eastern Ontario. The applicant was born in Ottawa; the respondent’s hometown is Brockville.
[3] When the applicant was six, she moved with her mother to Western Canada, living initially for a few months in Golden, British Columbia, and then in Wainwright, Alberta. She then moved to Kingston when she was fourteen to live with her father. After that, she moved to Jasper, Alberta to live with her mother and her mother’s current partner. In 2009, the applicant spent a year going to high school in Brockville, before moving to Ottawa in 2010.
[4] The parties met in 2011 and started living together in Ottawa in 2012. Annie was born in Ottawa in 2014. Both parties worked in a variety of jobs. The respondent worked mainly in retail and sales. For the first two years of Annie’s life, the parties agreed that the applicant should stay home to care for Annie.
[5] In 2018, the parties moved to Brockville. The applicant was able to transfer to a Brockville branch of the child’s clothing store that she had been working in before the move. The respondent also found employment in Brockville. The ability of the parties to work full-time was assisted by the availability of a close friend to assist with Annie’s care as well as the respondent’s family.
[6] In 2019, the applicant went back to school to train as a personal support worker. She graduated in February 2020 and secured employment at an assisted living facility in Gananoque. She loves her work even though it often involves working night shifts. While there is an occupational demand for her skills, her current position is not a permanent one and her compensation does not include benefits.
[7] The respondent also started a new full-time job in February 2020, working at Service Ontario. This position, too, is not permanent, although he has been fully employed since he started there.
[8] The applicant’s mother and stepfather live in Jasper. They took in two foster/adoptive children in 2007 and 2008, now aged approximately 13 and 15. The applicant also has an uncle and his family in Winnipeg, her mother’s birth parents in Golden, B.C., an uncle and two great-uncles in Golden, B.C., an aunt and her family in Vanderhoof, B.C., an uncle and his family in Edmonton, and a grandfather in Victoria, B.C. The applicant’s father lives in Kingston with his current partner. They have a six-year-old daughter who is close in age to Annie. The applicant’s brother lives in Ottawa with his partner. She also has paternal grandparents in Ottawa.
[9] The respondent’s parents are originally from Poland. They have lived in the same house in Brockville for over twenty years. The respondent’s siblings reside in Ottawa and Brockville.
[10] A number of family members testified at trial: Katherine MacLean (applicant’s mother), Anthony Ruffo-Morin (applicant’s brother), Isabella Vigliotti (Anthony Ruffo-Morin’s partner), William Morin (applicant’s father), Olga Kowalski (respondent’s sister), Anna Kowalski (respondent’s mother) and Boguslaw Kowalski (respondent’s father). Alana Dakin, Erika Dubash and Rebecca McNeil, friends of one or both of the parties, also testified.
[11] The parties separated in the fall of 2020 after the applicant and the child had returned from an extended trip to Alberta. Despite their separation, they remain living under the same roof and jointly parenting Annie.
[12] The question to be resolved is whether it would be in the best interests of Annie for her to move to Jasper, Alberta with the applicant, or to remain in Brockville. The applicant’s proposal includes a request for sole custody of the child. The respondent proposes joint custody.
Governing Principles
[13] The parties disagree on the approach which the court should take concerning the custody and mobility aspects of this application.
[14] The respondent, relying on the Court of Appeal’s decision in Bjornson v. Creighton (2002), 2002 CanLII 45125 (ON CA), 62 O.R. (3d) 236 (C.A.) argues that where a first instance application is made and a party wishes to relocate with a child and custody has not yet been determined, the issue of custody must be decided first. The custody determination would then be factored into the analysis required to determine the issue of relocation in accordance with the principles established by the Supreme Court of Canada in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 49.
[15] The applicant urges a “blended approach” favoured by the British Columbia Supreme Court in McArthur v. Brown, (2008) 57 R.F.L. (6th) 82, 2008 BCSC 1061 and by Mackinnon J. of this court in Terris v. Terris (2003), 2003 CanLII 2040 (ON SC), 41 R.F.L. (5th) 433, [2003] O.J. No. 2829 (Ont. S.C.J.) rather than the two-step approach from Bjornson.
[16] A recent and helpful discussion of the applicable legal framework was undertaken by Summers J. in Shoumali v. Telatin, 2020 ONSC 563:
23 In Terris v. Terris, Justice Mackinnon looked at the rulings in both in Bjornson and Gordon and concluded that neither case required the court to determine custody in the first instance without considering each parent's proposed place of residence as an aspect of their respective plans of care and the best interests analysis. She observed that in Bjornson, the court's analysis indicated that it had considered what each of the proposed locations offered the children as part of the initial best interests' analysis and custody determination before it moved on to consider the relocation issue and the views of the custodial parent. Mackinnon J. said,
It would be artificial to interpret Bjornson, supra as requiring the court to determine custody without reference to all aspects of each parent's plan, including proposed place of residence, and only to consider the proposed place of residence as a discrete issue, at which time "great respect and the most serious consideration" is to be given to the views of the newly determined custodial parent.
24 Similarly, with respect to Gordon, Mackinnon J. concluded that if the proposed move is an aspect of the child's best interests' determination on a variation application, so too should it be where relocation is sought in a custody application of first instance. In this regard, she referred to the comments in Gordon that make it clear where the proposed relocation is the material change in circumstance in the variation application, that factor -- the proposed relocation -- must also be considered among the many circumstances touching the child's best interests when deciding whether to allow the move, or not.
[17] Summers J. goes on to note that the approach taken by Mackinnon J. in Terris was adopted by Diamond J. in Reeves v. Brand, 2017 ONSC 2306, a case which was subsequently reversed in part on other grounds (but not the application of the blended approach): 2018 ONCA 263.
[18] I, too, agree with the approach taken by Mackinnon J., Summers J. and Diamond J. in the above cited cases.
[19] Each party’s proposed place of residence is an element to be considered as part of the best interests analysis. As Summers J. noted in Shoumali, at para. 26, each party’s proposed place of residence is an element to be considered in the first instance as part of each parent’s plan of care and considered again in relation to where the child will live.
[20] The best interests test and the factors for the court’s consideration are set out in s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c.C.12, which, at the times material to this application (the section having been subsequently amended), requires the court, in considering the merits of an application for custody of or access to a child to consider all of the child’s needs and circumstances, including,
The love, affection and emotional ties between the child and, inter alia, each person entitled to or claiming custody of or access to the child and other persons involved in the child’s care and upbringing;
The child’s views and preferences if they can reasonably be ascertained;
The length of time the child has lived in a stable home environment;
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;
The plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
The permanence and stability of the family unit with which it is proposed that the child will live;
The ability of each person applying for custody of or access to the child to act as a parent; and
Any familial relationship between the child and each person who is a party to the application.
[21] At the time of the trial, the Children’s Law Reform Act stated that the past conduct of a person shall be considered only in circumstances where there has been violence and abuse or if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.
[22] The leading authorities on mobility – Gordon v. Goertz, supra and Berry v. Berry, 2011 ONCA 705, require the court to consider:
The existing custody arrangements and relationship between the child and each of the custodial parents;
The desirability of maximising contact between the child and both parents;
The views of the child (when applicable);
The 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;
Disruption to the child over change in custody; and
Disruption to the child consequent on removal from family, schools, and the community the child has come to know.
Analysis
[23] Many of the facts in this case are undisputed.
[24] The applicant was Annie’s primary caregiver in the first two years of her life and has remained heavily involved in her daughter’s care since then. Although both parents now work full-time outside the home, their work schedules have provided each of them with the opportunity to be principally responsible for Annie when the other parent is at work.
[25] The respondent acknowledged that the applicant is an “excellent” mother. Some of the respondent’s family members said “good” rather than “excellent”.
[26] The respondent, on the other hand, did experience some initial difficulties adapting to fatherhood. There was a lack of maturity and it would appear that he had some anger issues.
[27] The applicant has ongoing concerns about the respondent’s habitual use of marijuana. While the applicant is an occasional user herself, it was suggested that the respondent’s use of marijuana when acting in a parenting capacity was putting the child at risk. The respondent acknowledges recreational marijuana use, but denies that he has ever been impaired while looking after or being solely responsible for Annie.
[28] There was also evidence that on one or more occasions after putting Annie to bed, the respondent sat outside with friends and consumed alcohol. Again, he does not dispute this, but he says that on such occasions he did not drink to excess and he would check in on Annie regularly.
[29] The applicant points also to what she regards as the respondent’s unhealthy and perhaps obsessive attachment to video gaming.
[30] Despite these concerns, however, the applicant acknowledged that she trusts the respondent to look after the child when she is at work.
[31] None of the other witnesses called by the applicant were able to offer a negative view on the respondent’s abilities as a parent.
[32] On the more positive side, the respondent organised fundraisers at Annie’s school and was on the Parent Council. Since last fall, the respondent kept a journal in which he describes his parenting activities. It records that he is actively involved in all aspects of parenting. While the applicant regards this journal as self-serving – it does not depict her time with the child – she does not challenge its accuracy.
[33] Furthermore, despite the parties having different perspectives of their relationship since the separation, they have continued to live under the same roof. They both attended the last parents’ evening for Annie. By all accounts, both parties are actively engaged as parents.
[34] The evidence suggests that Annie is a happy, smart child. She enjoys her school. She is sociable and has friends both at school and in the neighbourhood. Her report cards are good. While there were different perspectives on the relationships between the parties and the respondent’s family members, it is clear Annie benefits from having grandparents and other relatives close by (including the applicant’s family in Kingston and Ottawa).
[35] In short, the evidence discloses that Annie is loved by, and shares a close bond, with both her parents.
[36] The applicant’s plan for Annie would have her moving, with Annie, to Jasper. There, she would initially live with her mother and stepfather. The applicant plans to look for a house once she has a job and has become more settled in Jasper. Because she would have support in Alberta, the applicant states that she could work whatever hours were offered until she found something permanent. While acknowledging that many jobs in Jasper are dependent on tourism and pay less, she states that they often offer full time hours and benefits. She also believes that employment prospects for personal support workers or health care aides are good. None of this was backed up by any information from a third-party source.
[37] The applicant’s proposal is short on specifics. This is perhaps not surprising given the applicant’s lack of certainty about where she would be living or working.
[38] The respondent’s proposal is that he and the applicant should have joint custody and that Annie should remain in Brockville. His preference is for a continuation of the shared and equal parenting arrangement that has been in place, albeit informally, since the parties separated in September 2020. He says that if the applicant wishes to move to Alberta without Annie, he is prepared and capable of caring for her in Brockville.
[39] As counsel acknowledged, a finding in favour of joint custody would not automatically preclude the court’s approval of the applicant and the child relocating to Jasper.
[40] Having regard to the enumerated factors in s. 24 of the Children’s Law Reform Act, the balance is not tipped firmly in favour of either the applicant or the respondent being better placed to fulfill the best interests of the child.
[41] As already alluded to, the applicant’s plan is less well formed, but I am satisfied that she would be able to provide a stable home environment for the child in Alberta.
[42] I do not regard the past conduct of either party as informing the present assessment of what would be in the best interests of the child. Despite the concerns which the applicant expressed about the respondent, she trusts him with the almost daily care of Annie.
[43] Both parents presented themselves well at this trial.
[44] So far as custody is concerned, I therefore see no basis to displace the equal entitlement of the parties to custody of the child, as provided for in s. 20(1) of the Children’s Law Reform Act.
[45] Having regard to the application of the legal principles governing mobility, it is clear that both parents have been active participants in the child’s life during the past year. They both have full time jobs. Their work hours are structured in such a way that they each enjoy periods of time when they are primarily responsible for Annie while the other parent is at work.
[46] During an extended visit by the applicant and the child to Alberta last summer, regular contact with the respondent was maintained through video calls.
[47] Since the separation, as already noted, the parties have remained living under the same roof and have continued to parent in a largely cooperative manner.
[48] In short, the child has been the beneficiary of the continued love and commitment by the parents to their responsibilities. Annie has only ever known the love, support and consistent presence of both of her parents.
[49] The respondent argues that the proposed move to Alberta would be inconsistent with the maximum contact principles applicable in mobility cases. The maximum contact principle holds that maximum contact with both parents is generally in a child’s best interests.
[50] In particular, he fears that he will no longer be there for the day-to-day things in his daughter’s life if she moves to Jasper. He disputes the applicant’s suggestion that his closeness to his daughter can be maintained through technology and holiday visits. He observes that neither of the parties have the resources to cover the cost of multiple flights and accommodation.
[51] There have been many advances in video technology since the observations nearly twelve years ago by Justice Curtis in Ryall v. Ryall, 2009 ONCJ 687, at para. 96, “that modern-day technology has made it significantly easier to overcome the distance problem with respect to access and maximizing contact with the other parent”. Nevertheless, although the availability of modern communications, including video conferencing, can mitigate the effect the relocation on the contact which the child has with her father, I accept that regular video contact is not a complete substitute for regular personal contact.
[52] That said, judges are cautioned against concluding that a child’s best interests are to be determined by weighing the status quo against the proposed change. As Paperny J.A. in Spencer v. Spencer (2005), 2005 ABCA 262, 257 D.L.R. (4th) 115 (Alta. C.A.) observed, at para. 15, were such an approach to be taken, “the status quo would almost always tip the scales”.
[53] Similarly, the court should not rely on a parent’s willingness, if forced to choose between relocation or remaining behind with the child, to stay behind “for the sake of the children”: Spencer v. Spencer, at para. 18; McArthur v. Brown, at para. 134.
[54] The respondent argues that the applicant’s motives are purely selfish. Her reasons for moving are self-focused. The respondent refers to paragraph 37 in Gordon v. Goertz where it was noted that “custodial responsibilities curb the personal freedom of parents in many ways”.
[55] As was noted in McArthur v. Brown, at para. 143, most desired moves have little direct connection with a child’s interests or needs. Almost invariably, the move is desired by the applicant parent in order to further his or her interests or needs. For that reason, the parent’s reason for moving is only considered in the exceptional case where it is relevant to the parent’s ability to meet the needs of the child.
[56] Rather, courts must assess the benefits of a proposed move to the mother and the child and weigh those benefits against the losses that would result from the move and, in particular, the potential negative effects on the child, should the parent who wishes to move be restricted from doing so (as counsel for the applicant put it, “happy parent” is a relevant consideration).
[57] The applicant and Annie would doubtless benefit from the family support which exists for them in Alberta. For the applicant, the support and warmth of her own family is an attractive alternative to that of the respondent’s family with whom, at times, her relationship has been challenging. I accept, too, and understand the applicant’s genuine desire to make a fresh start in a place she is familiar with, surrounded and supported by her family there.
[58] The applicant expresses confidence that she will find permanent, year-round (as opposed to seasonal) employment in Jasper; that she will not have to live at her mother’s for long; and that all of the kinds of activities Annie enjoys in Brockville will be available in Jasper.
[59] In that regard, I accept that the familiar amenities, such as medical and optical services, activities and friends which Annie has in Brockville no doubt have their equivalents in Jasper.
[60] However, the evidence leaves me less certain about what the applicant’s employment prospects and living arrangements for her and Annie would be in both the short- and longer-term future.
[61] What would Annie lose if she were to move with her mother to Jasper?
[62] For a start, of course, the respondent’s family has been very involved with Annie since she was an infant, particularly so since she moved to Brockville. All of the indications are that, from Annie’s perspective, her relationship with her paternal relatives is an important and beneficial part of her life.
[63] Annie also has many friends in Brockville (although, as the court observed in McArthur, at para. 157, the friendships of younger children “tend to be rather fickle and often transient in nature”).
[64] Undoubtedly, and most significantly, Annie’s contact and relationship with her father would be significantly altered if she were to move.
[65] While it is not known what Annie’s living arrangements will be in the future if she does not move to Jasper, she is likely to remain at the same school and to have the same friends and activities. Any disruption caused by the demise of her parents’ relationship would be at least mitigated by having familiar places and faces around her.
[66] As has been observed many times, decisions in relocation cases involve a delicate balancing act.
[67] In my view, the balance tips in favour of Annie remaining in Brockville.
[68] Other than a handful of visits, the applicant has, herself, not lived in Alberta since she was a high school student. She has family in Eastern Ontario as well as in Alberta. She has a job here that she acknowledges she loves. While I accept that the applicant’s preference is to raise her daughter in a place where she believes she can be better supported than she is in Brockville, she does not make a compelling case that Annie will be better off in Alberta.
[69] Annie is a smart, happy, and healthy six-year-old. The credit for this lies with both her mother and her father and the community that she has apparently thrived in.
[70] She stands to lose more from the proposed move than she will gain.
Decision
[71] For these reasons, I would dismiss the application and order as follows:
The applicant and the respondent shall share joint custody of the child, Anakin Kowalski;
The child shall remain in the jurisdiction of Leeds & Grenville, in the City of Brockville;
Should the applicant remain in Brockville, the child shall transition between the parties’ homes on a shared and equal basis;
Should the applicant relocate to Jasper, Alberta, she shall have generous and liberal access with the child, as arranged between the parties. If the parties are unable to agree on the details of the arrangements for access, I may be spoken to.
[72] If the parties are unable to agree on costs, the respondent shall provide his costs submissions within three weeks of the date of the release of this decision. The applicant shall thereafter provide her costs submissions within three weeks thereafter and the respondent will then have a further five day right of reply. Each party’s submissions shall be confined to five pages, exclusive of offers to settle and bills of costs. Reply submissions shall be limited to two pages.
Graeme Mew J.
Released: 26 March 2021
COURT FILE NO.: 20-0220
DATE: 20210326
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TAYLOR MACLEAN
Applicant
– and –
ANDREW KOWALSKI
Respondent
REASONS FOR Decision
Mew J.
Released: 26 March 2021