ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-18-FS-20-01 DATE: April 28, 2021
B E T W E E N:
Jacob Ryan Yost, Applicant
Self Represented
- and -
Holli Samantha Preston-Latour, Respondent
Edward Kiernan, for Ms. Preston-Latour
HEARD: April 22 and 23, 2021
The Honourable Mr. Justice H. S. Arrell
JUDGMENT
INTRODUCTION:
[1] The respondent has brought a motion to change paragraph 41 of the Order of Braid J. dated November 1, 2019. Justice Braid’s Order was the result of a 7-day trial before her.
[2] The current Order of Braid J. indicates that if the respondent wishes to move out of Norfolk County, without the consent of the applicant, she must obtain a court order, which is the issue before me.
[3] The respondent wishes to move to the Niagara region to attend Niagara College to complete her education.
[4] The applicant is opposed to any move out of Norfolk County by the respondent and their two children. He has brought a cross motion in his responding material also seeking to vary the Order of Braid J. He seeks sole custody of the children and primary residency.
FACTS:
[5] The parties separated in 2017. Ms. Preston has two children being Dakota (DOB November 5, 2011) and Reggie (DOB October 23, 2017). The applicant is the biological father of Reggie only and has accepted Dakota as his son since September 2013, as the biological father of Dakota has not been a presence in his life.
[6] The respondent lives alone with her two children in a home in Delhi that she owns jointly with her stepfather. The home is a triplex with two rental apartments in addition to her apartment.
[7] The applicant also lives in Delhi approximately a 10-minute drive away from the respondent. At the time of the trial before Braid J., the applicant lived in the Kitchener area. Braid J. stated in her Order that it would be considered a material change in circumstances regarding his access time if he moved to the Delhi area. He so moved in February 2020 with his partner Amanda Corey. They have no children of their own.
[8] At the completion of the 7-day trial Braid J. agreed with the recommendations from the OCL report regarding custody and access and granted sole custody and sole decision making to the respondent. The applicant was granted access for two full weekends a month and one-half weekend per month with an additional visit over dinner on the Wednesday night of the 4th week in the rotation. In essence, it is this access part of the Order that the applicant wishes to change, if he fails in his request for sole custody, so that he has additional time with his children.
[9] Shortly after the Order of Braid J., the main tenants of the respondent gave her two months’ notice that they would be moving out and that rental income would cease. At about the same time as they left, the respondent lost her part-time waitressing job in Delhi due to COVID. In 2019 she earned $15,000.00 and 2020 was less. At that point she testified that she decided she needed to make some changes to improve her career, job security, and finances for her and her children. She receives approximately $650.00 per month in child support based on the applicant’s income of approximately $57,000.00 per annum as found by Braid J. He works in security out of an office in Ayr, Ontario.
[10] The respondent testified that she could not properly provide for herself and her children on the income coming in and was going into significant debt to family and credit cards to make ends meet.
[11] The respondent did some research on various programs that were of interest to her. She tried a real estate brokers program but gave up as she simply found it too difficult doing it alone and online while looking after two young children who were home schooling. The partner of the applicant is a real estate broker and she confirmed in her evidence that she found the licensing program extremely difficult and it took her full focus to be successful. She agreed that many start the course but find it too difficult and drop out.
[12] The respondent next found a course at Niagara College in Tourism Management in the winter of 2020. She was unsuccessful in receiving the consent of the applicant to allow her to move during the summer of 2020 to participate in this program and start in September 2020. She testified that she requested that he agree to mediate the issue as per the Order of Braid J. however, according to her he refused, so she commenced this motion to change.
[13] The respondent did start at Niagara College in September 2020 but online as in person classes were cancelled due to COVID. She also, perhaps wisely given COVID, changed her program from Tourism to Recreational Therapy. Niagara College has advised her, and it is confirmed by copies of the school’s emails in this court’s record, that it hopes and intends to move back to in person classes in September of 2021, as most post-secondary institutions have announced.
[14] The program being taken by the respondent is a three-year diploma degree. She has just finished the first year which has been totally online and full time. She testified that she feels she has done reasonably well with several courses in the 70’s, two in the 60’s and one in the mid 50’s. She has passed her first year and been accepted for her second year in September. She has paid for this program through OSAP loans and will be funded similarly in her second year, which of course has added to her debt burden.
[15] The respondent has family support in the Niagara area being a father, brothers, cousins, grandparents, and some close friends. She has researched accommodation and filed copies of her online searches for apartments which she believes are more plentiful and less expensive than in the Norfolk area.
[16] The respondents’ parents separated when she was relatively young. She resided during the week with her mother in Erin Ontario and would spend weekends in Niagara where her father lived.
[17] The parties moved to Delhi to raise their two children as it was a location, at the time, where they felt they could afford to buy a house and were keen on a small town atmosphere; after Kitchener where they had been renting.
[18] The house the respondent currently owns was the matrimonial home. Upon separation, she bought out the applicant with the help of her stepfather and made three apartments out of it. She is not sure if she should sell the home if she is allowed to move to Niagara or keep it and have three rental units producing income. She correctly has not made that final decision until she knows the outcome of this motion.
[19] I accept that the applicant and his partner moved to Delhi to be closer to his children. He did not bring a motion to vary once he moved as contemplated in the Order of Braid J. but instead responded to the respondent’s motion to change her residence, although it is noted that the timing of both was close together. He commutes to Ayr for his job on a daily basis, a distance of 45-60 minutes. His partner’s office is located in Brantford. His extended family are situated in the Kitchener/Guelph area.
[20] The parties admit that theirs is a high conflict situation and both admit they are unable to communicate face to face. They use text messaging mostly. They have difficulty cooperating which was obvious to Braid J. and hence her extremely detailed Order. Each party blames the other for the miscommunications and lack of cooperation.
[21] The parties have been following the Order of Braid J. with only a couple of minor changes.
[22] The children have remained home schooled with the respondent since the start of COVID. The respondent decided switching back and forth for Dakota between in school and virtual would not be in his best interests. He has been diagnosed with ADHD and is on medication to help improve his focus. It has been helpful. He has also had counselling that was arranged and paid for by the respondent. The counselling was to assist him with the separation. This counselling took place at a clinic in St. Catharines which was the closest location that could take him without a long wait period. The respondent drove him weekly for just over a year completing the program on December 8, 2020. The drive to St. Catharines from Delhi is just over an hour. His therapist gave evidence and indicated Dakota did well in therapy. The therapist was satisfied with the involvement of the respondent who appeared to be fully engaged with the treatment her son was receiving and followed all of the therapist’s recommendations. The therapist had no involvement with the applicant until he received an email from him after the treatment was completed.
[23] Dakota’s pediatrician gave evidence. Both children are his patients and have been since 2018. Dakota takes his ADHD medication daily. It is helpful. He deals mostly with the respondent who brings the children to any appointments. He has no concerns about the care she provides, and she appears fully engaged in the health of her children and follows all recommendations that he provides based on what he has observed.
[24] Reggie is not yet in school but will start kindergarten in September. He remains at home with the respondent. Dakota is in grade 4 and his current report card was part of the record before me. His marks are satisfactory in all subjects and he has only been absent from his online school on two occasions. His teacher, since September 2020, gave evidence. She testified that Dakota has done reasonably well, he is engaged, he tries hard and has an excellent attendance record. As best she can tell from virtual learning, she believes he is a “B” student. She has spoken to both parents from time to time and both appear very interested in his progress and how they can support him.
POSITION OF THE PARTIES:
[25] The respondent argues that there has been a material change in her circumstances. She has lost her job. She has limited education and few career options. Her children are becoming older and both will be in school in September. The tenancy arrangements in her triplex has changed which caused her to enroll in the program at Niagara College last winter. One set of tenants moved out, although it appears that they may have now been replaced. The other tenant, being the respondent’s mother, wishes to move out and move back to the Guelph area where she is from.
[26] The respondent’s debt load continues to increase. She has started a full-time program to further her education to give her employment stability and financial security for her and her children. She has been successful so far in her first year. The next year is expected to be in person which would make commuting daily from Delhi impractical. She is not asking that any access time be removed from the applicant, except the Wednesday dinner once per month. She has suggested some additional time in the summer and on weekends to more than make up for the lost Wednesday night dinner that would not be feasible, should she be allowed to move.
[27] The applicant takes the position that the respondent’s potential move will deprive him of his current access time. It is his position that he and the respondent moved to Delhi to raise their children in a small town. He and his partner moved to Delhi after the separation solely to be close to his two sons. The applicant feels a move to Niagara will deprive him and them of being close to each other in a small town. He also feels he should be given more time with the children now that he has moved to Delhi and preferably that would occur by him being given sole custody which would allow the respondent the freedom to move and see the children on weekends. He further feels that the respondent deprives him of information about the boys’ health care and education providers, as well as others. As such he wants sole decision-making authority regarding the boys.
ANALYSIS:
[28] It is clear to me that both parents love their children very much and feel that what each has suggested would be in their best interests. The record also indicates both boys love each parent and enjoy their time with them. There is no evidence before me that either party is not a good parent and in fact all of the evidence is to the contrary.
[29] S. 29 of the Children’s Law Reform Act reads as follows:
“A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.”
[30] The applicant does not have to persuade me of a material change in circumstances regarding access as that is already confirmed in Braid J.’s Order if he moved to Delhi which he has done; (See para. 53). He does, however, have to persuade me that there has been a material change in circumstances before I can re-visit the issue of custody and decision making.
[31] I conclude that the applicant has not led any evidence to substantiate any material change in circumstances regarding custody, other than his move to Delhi.
[32] If I am wrong in my conclusion that there has been no material change in circumstances, then I would also conclude that there is no evidence before me that any change in custody or decision making would be in the best interests of the children. The children appear to be thriving according to both parents, their Doctor, and Dakota’s teacher and therapist. As such there is no reason to change custody and decision making simply because the applicant wishes it and feels it would be in the best interests of the children without some evidence to that effect. In regards to obtaining information, the applicant, pursuant to paragraph 47 of the Order of Braid J., has the absolute right, under the authority of that Order, to obtain any information he wishes directly from any third party involved with the children.
[33] There is no evidence before me that the respondent is not meeting and surpassing all of the needs of the children under the current arrangements which were based on the recommendations of OCL and the Order of Braid J. An arrangement I totally agree with based on the evidence heard by me.
[34] I conclude that there has been a material change in circumstances regarding the respondent’s living location since the Order of Braid J. She has lost her job. Prospects in Delhi are limited for meaningful future employment for someone with a high school education, such as she. Her arrangement regarding her tenants has changed. Her debt load has increased and continues to accumulate. She has found a way to improve her education and hopefully as a result, her financial security. She has succeeded in the first year of the proposed 3-year program.
[35] I conclude it is not unreasonable for the respondent, who is 28, to want to improve her station in life. She wishes some job security as well as employment that is fulfilling, meaningful and which will provide some financial improvements for her and her children. She wants to become more independent and to be able to provide better for her children. Indeed, the partner of the applicant, Ms. Corey, expressed exactly the same reasons that she decided to become a real estate broker in the last couple of years. The applicant was unable to explain to me how the improvement in the respondent’s education would not be in the best interests of the children.
[36] I also conclude that the proposed move will not deprive the applicant of any time with his children. Granted, there will be additional travel time for both parents and the children, of approximately 1.5 -2.0 hours for access, depending where the respondent can find accommodation in Niagara. However, half of that travel time will be with the children and one would assume would be quality time. It must also be remembered that the parties share any travel for access visits on an equal basis. Certainly, some of the activities the children may become involved in after COVID may be in the location where they live which would make it inconvenient for the applicant to attend mid-week. However, there is nothing preventing him from arranging extracurricular activities for the children on his own time in the Delhi area assuming he follows the Order of Braid J.
[37] The applicant has requested, in the alternative to sole custody, some additional time with the children. This seems reasonable to me especially in light of the additional travel time for visits and the loss of the Wednesday dinners once per month. In fact, the respondent is agreeable to increasing the applicant’s access time to give him each of the 8 PD days during the school year if they fall on his weekend and some increased time in the summer. I have concluded that some further access time for the applicant would be in order.
CONCLUSION:
[38] Paragraph 41 of the Order of Braid J. will be varied allowing the respondent and her children to move to the Niagara region, effective immediately.
[39] The motion by the applicant to change custody or decision making is dismissed.
[40] The access schedule in Braid J.’s Order, paragraph 10, is varied such that the applicant will have the first 3 weekends of each rotation as full weekends from Friday afternoon until Sunday afternoon.
[41] There will be no access on the Wednesday night of the 4th week.
[42] The children will leave the respondent’s home at 5:00 p.m. on Friday so that they may be at the applicant’s home no later than 7:00 p.m. The children will leave the applicant’s home at 5:00 p.m. Sunday so that they are returned back to the respondent’s home no later than 7:00 p.m.
[43] The applicant will have the children the extra day of a statutory long weekend if such a long weekend falls on one of his weekends. He shall also have the children on PD days starting the afternoon before if the PD day if is a Friday. If the PD day is a Monday, his access will continue until the Monday afternoon, as set out in the Order of Braid J. at paragraph 11(S), provided such PD day falls on one of his weekends.
[44] The change in access set out in paragraphs 37 and 38 above will become effective commencing June 1, 2021. Until then, the Order of Braid J. remains unchanged, except for paragraph 40 of this judgment which shall be effective immediately.
[45] The parties shall each have two non-consecutive weeks with the children during the school summer vacation commencing the summer of 2021. The children will be picked up at 5:00 p.m. on the Friday of the access week; and picked up at the applicant’s home at 5:00 p.m. the following Sunday. The normal weekend access schedule will not apply during these weeklong vacations.
[46] The applicant will have first choice of the 2 weeks’ vacation he wishes and will advise the respondent in writing for this year no later than May 28, 2021. The respondent will then notify the applicant in writing of the 2 weeks she wishes no later than June 15, 2021. For all future years, the applicant will notify the respondent in writing of the 2 weeks he wishes on or before May 1st, and the respondent will advise the applicant in writing no later than May 20th of each year as to the 2 weeks she wishes.
[47] Except for the changes made in this Order the balance of the provisions in the Order of Braid J. remains in effect, unless the parties wish to make any changes on consent.
[48] If the parties are unable to agree on costs the respondent may file written submissions with the Trial Coordinator in Simcoe electronically of no more than 3 pages double spaced along with any relevant offers and draft bills of costs by June 1, 2021. The applicant may file his written submissions with trial Coordinator in Simcoe electronically of no more than 3 pages double spaced in addition to any relevant offers or draft bills of costs on or before June 22, 2021.
Arrell, J.
Released: April 28, 2021
COURT FILE NO.: FC-18-FS-20-01 DATE: April 28, 2021
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jacob Ryan Yost, Applicant
- and -
Holli Samantha Preston-Latour, Respondent
JUDGMENT
Released: April 28, 2021