Superior Court of Justice – Ontario
COURT FILE NO.: FS-19-19505 DATE: 20210125
BETWEEN:
Farzia Bouillet Applicant
– and –
Michael Laurence Bouillet Respondent
COUNSEL: Dennis A. Covello, for Applicant Jerrod D. Patterson, for Respondent
HEARD: January 13 and 21, 2021
RULING ON MOTION
munroe j.
[1] Before me is an interim mobility motion.
[2] Respondent, Michael Laurence Bouillet (“respondent” or “father” or “Mr. Bouillet”), seeks interim custody of the two children of the marriage with permission to relocate with the children to Boydton, Virginia, United States of America. Applicant, Farzia Bouillet (“applicant” or “mother” or “Ms. Bouillet”), strongly opposes the motion, urging the maintenance of the status quo with adjustment to the parenting time.
Background Facts
[3] Both applicant and respondent are 40 years old. They began cohabiting in September 2002, were married on March 24, 2004, and separated in May 2018. There are two children of the marriage presently ages 11 and 9: Alizeh Farzia Bouillet and Curtis Jose Bouillet (“Alizeh” and “Curtis” or collectively “the children”).
Father and his Employment
[4] Father is a Canadian citizen. He is and has been the financial provider for the entire family. Now, after separation, he provides monthly spousal support to mother.
[5] Father is impressively experienced. Father’s niche is health and safety. He works on large-scale health and safety projects, primarily for large American-based corporations. Most recently, he was responsible for developing the COVID-19 corporate safety plan for Fiat Chrysler. He speaks three languages: English, French and Spanish.
[6] Travel always has been part of father’s work. With mother, and then with their children as they were born, the family has lived in more than fourteen or fifteen cities in three different countries, all because of father’s employment requirements.
[7] In October 2014, the family moved to Windsor, Ontario to allow father’s acceptance of a position with Walbridge Construction Consultants (“Walbridge”). Father is the Executive Director of Health and Safety at Walbridge. His primary office is in Michigan, across the river from the family home in the Windsor, Ontario area. Father commutes from the matrimonial home in LaSalle, Ontario to Michigan daily, Monday to Friday.
[8] Father’s annual income is approximately US$90,000.00.
[9] According to father, his continued employment with Walbridge is contingent upon him moving to Boydton, Virginia, United States for training until this summer and then moving to Queretaro, Mexico for an indefinite placement. These moves are necessitated by the downturn in the automotive sector in Michigan coupled with the impact of the COVID-19 pandemic.
[10] Father attached a November 19, 2020 letter from Walbridge’s Vice President for Health and Safety. In pertinent parts, it states as follows:
Mr. Michael Bouillet brings 16 years of Health and Safety experience and knowledge and in particular has lived in three countries where our primary projects are located. He speaks English, Spanish and French plus his ability to travel and/or relocate represent a good fit for Walbridge.
Mr. Michael Bouillet’s role within the company continues to evolve as we seek new business opportunities. Michael[’s] responsibilities from the date of hire included up to 50% travel as part of his job description, with the ability of relocating. ….
…. Given Mr. Bouillet’s Health and Safety audit and language/cultural skill set, we look favorably on retaining Mr. Bouillet, however, his assignments will have to be in the areas where Walbridge has been successful in pursuing these opportunities in the technology industry. In particular, the projects in Boydton, Virginia and then in Queretaro, Mexico.
We look forward positively to our working relationship with Mr. Bouillet as a Director of Health and Safety based on where his skills are required, however, Mr. Bouillet’s position within Walbridge will become redundant if he is unable to accept these assignments.
[11] According to father, if he does not move to Virginia and then to Mexico, he will lose his job with Walbridge and be forced to find a new job, in a different field, with a “drastic” pay cut.
Mother
[12] Mother was born and raised in Trinidad. She met father while they were both students at the University of the West Indies, Trinidad Campus. She completed three years as a psychology major but was unable to complete her degree.
[13] Following marriage, the parties came to Canada and lived in various cities in British Columbia, Alberta, Manitoba, Newfoundland and Ontario, always for father’s employment. Mother had some short-term jobs but generally she was a stay-at-home mother.
[14] Recently, in her December 4, 2020 affidavit, mother reports obtaining a virtual job starting January 1, 2021, but no further information was provided.
Children
[15] Alizeh and Curtis have lived in the Windsor area for over six years, from October of 2014. At the time of moving, Alizeh was five years old and Curtis was three years old.
[16] When in the care of father, the children live in the matrimonial home, 387 Victory Street, LaSalle, Ontario. When in the care of mother, the children live in mother’s new home in Windsor, Ontario. The driving time between these two homes is approximately ten minutes.
[17] The children attend Sandwich West Public School, where they have attended for the last four years. Due to the current COVID-19 pandemic, the children are attending school remotely through the Essex Virtual Learning Program.
Application
[18] Mother filed an application on January 15, 2019, seeking, inter alia, custody of the children, child support, spousal support, and exclusive possession of the matrimonial home.
[19] Father answered on January 29, 2019, seeking, inter alia, the same: custody of the children, child support, spousal support, and exclusive possession of the matrimonial home.
[20] There are two temporary orders that, in part, relate to the issue before me. Howard J., on February 15, 2019, ordered exclusive possession of the matrimonial home to respondent and ordered the residency of the children to be at the matrimonial home. By consent order dated April 3, 2019, Campbell J. ordered continued residence of the children at the matrimonial home except when residing with applicant every weekend and Wednesday evenings.
Minutes of Settlement
[21] On August 1, 2019, the parties executed a formal Minutes of Settlement. Both mother and father had counsel.
[22] Paragraph 8 provides, in pertinent part:
The parties shall have joint custody of the children, based on the following residential schedule:
a. the children shall reside with the Applicant one week per month and with the Respondent three weeks per month;
[23] Paragraph 33, provides, in pertinent part: “the children shall reside in Essex County.”
[24] These minutes have never been incorporated into a court order.
Status Quo
[25] The residency and parenting time of both parties continues pursuant to the minutes: each month the children live with father for three weeks and with mother for one week.
[26] Mother asserts that she takes the children to doctor and dental appointments. Father responds asserting that they both do, depending on who has care at the time of the appointments.
[27] Both parents assert they comply with the COVID protocols.
[28] When in mother’s care, she asserts that she makes meals for the children and assists in their homework.
[29] When in father’s care, according to father, and he is working, the children are in the “direct care” of his mother, the children’s paternal grandmother. She wakes the children, gets them ready to log on for school, and prepares snacks and meals for them. Grandmother is 66 years old and has “poor” knees.
CAS Involvement
[30] The Windsor-Essex Children’s Aid Society (“CAS”) has been involved with the family since mother’s attempted suicide by sleeping pills on August 2, 2019.
[31] Father submitted 239 pages of CAS records for my consideration.
[32] In addition, a letter dated November 19, 2020 from CAS family service worker, Ms. Elizabeth Ihie-Ikpong, to father’s counsel is an exhibit to father’s affidavit. It provides, in pertinent part, as follows:
[T]he Society is not taking a position on the custody and access matter currently before the Superior Court of Justice. The Society is able to provide observational evidence if summoned ….
I can confirm that I continue to work with the Bouillet family. In working with the family, I am hopeful that the family can accomplish the following goals: Counseling services for the children to address emotional issues resulting from the frequent exposure to parental conflict; Counseling services for Mr. Michael Bouillet to enhance his coping skills; Counseling services for Ms. Farzia Bouillet to address anger issues and to strengthen her coping skills. Ms. Bouillet will benefit from a psychiatric assessment and to follow through with any recommendations made to her.
[33] In addition, on the first day of this hearing, I heard viva voce evidence from Ms. Elizabeth Ihie-Ikpong. Ms. Ihie-Ikpong confirmed that the position of the CAS, reflected in her letter of November 19, 2020, remained the same. The worker advised that the CAS has never instituted a protection case with regard to the children. She testified that there was no concern with mother having increased access with the children as long as mother availed herself of the recommended services. Finally, in response to cross-examination by father’s counsel, the worker said CAS would increase its checks on mother and the children, at least initially, if mother secured custody, to satisfy itself that all was smooth.
[34] Ms. Ihie-Ikpong and the CAS records identify four recent involvements with the family: 1) August of 2019 – mother’s attempt suicide; 2) February of 2020 – Curtis fearful of his paternal uncle; 3) May of 2020 – Family Responsibility Office (“FRO”) called Windsor Police for well-being check on mother; 4) June of 2020 – school called CAS re mother posting inappropriate message on school service line. The latter file remains open. Ms. Ihie-Ikpong took over the open file on July 9, 2020.
[35] Ms. Ihie-Ikpong assisted in further identifying the CAS contact with the family. Regarding the self-harm incident, by the time she took over the file, it was not a major concern.
[36] With regard to the parental uncle issue, this was instituted by the school. Curtis was fearful because of what mother told him. The CAS took issue with mother sharing this information and the worker characterized it as “over-sharing.”
[37] The file on the last matter – the inappropriate message – remains open with Ms. Ihie-Ikpong assigned the file. Mother’s message was an openly filthy angry rant against father. Significantly, the message was on a school service and its recipients included the school and the oldest child, Alizeh. The concern of the CAS was that it caused Alizeh distress.
[38] Ms. Ihie-Ikpong believes that all the family should have counseling: the children because they are witnesses to parental conflict causing anxiety; mother because of her pent-up anger and distress; father because of stress and frustration.
[39] From the CAS records and the evidence of Ms. Ihie-Ikpong, it is clear that initially mother neither accepted responsibility nor was amenable to counselling. Lately, since early December, mother appears to have a change of mind and now recognizes that CAS is there to help her. According to Ms. Ihie-Ikpong, mother now is accepting help. Mother now agrees that the school message was inappropriate and she should not have sent it. She is now attending counseling at Family Services Windsor and has attended one session. She has agreed to counseling for the children and their first appointment is set for February 8, 2021, with her consent.
[40] Ms. Ihie-Ikpong testified that the initial filthy school message and mother’s refusal to acknowledge responsibility or accept correction, caused emotional stress to the children and led to the open CAS file. But mother now is accepting responsibility and is taking corrective measures.
[41] Ms. Ihie-Ikpong attended mother’s home, unannounced, three times recently: December 11, 23 and 30, 2020. She found nothing “alarming” or out of the ordinary on these visits.
[42] In addition, Ms. Ihie-Ikpong interviewed the children “a number of times.” She reported that they were “good.” The children did have anxiety from the parental conflict, but they were still “good.”
Psychiatric Assessment
[43] A four-page psychiatric assessment of mother by Dr. A. Azam Khan, M.D., dated December 7, 2020[^1] was submitted by mother.[^2] Dr. Khan reported seeing mother for a psychiatric assessment upon a referral from mother’s family doctor because mother was “feeling devastated” and unable to cope with the news that father wanted to take the children to Mexico with him.
[44] Dr. Kahn reported seeing mother previously in 2019 in the hospital emergency room. Mother tried to commit suicide by the ingestion of sleeping pills and called a friend, who called 911. The police took mother to the emergency room for assessment. According to Dr. Kahn, mother “presented with emotional trauma but … regretted her act.” Mother acknowledged it was out of anger and should not have happened. According to mother, she was “coaxed” by father into signing her children and house over to him and now regretted it. Dr. Kahn then made a clinical impression of adjustment disorder but discharged mother finding no imminent risk to herself or others. She was prescribed medication and follow-up counselling.
[45] Dr. Kahn saw mother for this assessment on December 7, 2020. The current issue, according to mother, is father’s effort to move with the children to Virginia and then to Mexico. This is causing her distress.
[46] Mother admitted two incidents of self-harm: the 2019 incident referenced above and one in 2001 after separation from a boyfriend. According to mother, she regrets both, is angry with herself, and denies any active suicidal or homicidal thoughts.
[47] Mother reported a happy, normal childhood in Trinidad. She did report, however, two sexual assaults growing up: one by an uncle at age 10 and the other a gang rape at age 16. She denied any symptoms of PTSD.
[48] Dr. Kahn reported nothing remarkable under the heading, “Mental State Examination.” However, he did include this sentence, “Patient described her mood to be 10/10 objectively presented as happy/mildly elated ?.” The question mark before the period is unexplained.
[49] Dr. Kahn’s “Impression” section includes:
At present the patient does not present with any depressive or manic symptoms. She does not appear to have any psychotic symptoms. There is definitely a history of adjustment disorder, could be underlying major depressive disorder with anxious distress.
[50] Dr. Khan’s concluding plan included counseling and a safety plan but excluded any psychotropic medication.
Respondent’s Position and Plan
[51] Father seeks interim custody of the children with permission to move them to a small town in southern Virginia where he is being transferred for work. Father says he has to accept the transfer or he will lose his job. Because he is the sole supporter of the family, this job loss will result in a “drastically” reduced pay hurting the whole family including the children.
[52] Further, according to father, leaving the children with mother is not in the best interests of the children because of her recent history of both mental health issues and her causing repeated emotional harm to the children by her conduct.
[53] Father asserts that he is advancing the status quo plan. The parenting time with mother will be identical because he will drive the children back and forth from Virginia for the one week per month residency with mother in Windsor. Father claims everything else will be identical. His mother, the children’s grandmother, will go to Virginia and perform the same function she does now: to take care of the children while father works. Because of the pandemic, all will remain in a bubble in Virginia with the children continuing their on-line education via the Essex County virtual learning program. Father asserts he is an expert in COVID-19 safety and will ensure the children are well-protected both while in Virginia and while in their monthly trip to and from Windsor.
[54] The plan, according to father, is to move himself, the children, and his mother to Boydton, Virginia to live while he is in employment training. The town is in southern Virginia. It has a very small population of a little over 400 people. It is in a rural county. He proposes securing a three-bedroom house that he has not yet rented because of the uncertainty of the accompaniment of the children. The Virginia residency is only temporary to mid-summer at which time he must move to Mexico and again seeks to take the children with him.
[55] Father’s counsel asserts this court has three options on this interim motion: 1) order the relocation of the children and father moves with the children; 2) deny the relocation with the children staying with mother and father has weekend access when father moves; or 3) deny the location with the same parenting plan and father elects not to move.
Applicant’s Position
[56] Mother strongly opposes the removal of the children to Virginia and then to Mexico. The move is unsafe for the children in the time of the pandemic. There are too many unanswered questions about the well-being of the children and the ability of the plan to work during the pandemic.
[57] Mother is a safe and appropriate caregiver to her children. The best evidence of that is the evidence of Ms. Ihie-Ikpong, the CAS worker. Mother’s problems, that emerged from the separation of the parties and especially by the effort by father to remove the children to different countries, now are being addressed well. In sum, CAS now is comfortable with increased access by mother.
[58] The children must maintain the status quo during this pandemic in Windsor. This is the only rational and safe choice for the children.
[59] Mother seeks interim custody or residence of the children with liberal access to father.
Legal Principles
[60] This is a motion for a temporary order pursuant to s. 16 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.).
[61] The pertinent parts of s. 16 of the Divorce Act provide:
(1) A court of competent jurisdiction may … make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.
(2) Where an application is made under subsection (1), the court may … make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).
(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.
(8) 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.
(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.
(10) 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.
[62] The leading case on mobility is Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27. The Court emphasized the uniqueness of each case and underscored the only issue: the best interests of the child. McLachlin, J. (as she then was) stated, at para. 7:
More particularly the judge 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 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;
(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
[63] Factors to be considered when dealing with a request to relocate on a temporary basis were set out in the widely followed decision of Marshman J., Plumley v. Plumley, 1999 CanLII 13990 (ON SC), [1999] O.J. No. 3234 (S.C.), at para. 7 as follows:
It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis:
A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.
There can be compelling circumstances which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.
Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent's position will prevail at a trial.
[64] Courts should be careful before permitting relocation on a temporary basis. The decision may have a strong influence on the final outcome of the case particularly if relocation is permitted because courts generally are reluctant to cause further disruption in the lives of children by reversing the temporary order: Goodship v. McMaster, 2003 CanLII 53670 (ON CJ), [2003] O.J. No. 4255 (C.J.).
Principles Applied
[65] I confess frustration. As noted by other courts, it is not possible to conduct a thorough child-focused inquiry in this interim mobility context. The affidavit evidence is incomplete and contradictory in significant ways.
[66] The safety and well-being of the children are my focus here. We are in troubled times – all of us are living through a global pandemic that impacts virtually everything. From reports, children generally are at a lower risk of bad outcomes upon contracting the virus, but the risk to children exists and is serious, sometimes fatal.
[67] Mostly concerning the pandemic and its impact on the children, I find the evidentiary record before me incomplete at least in the following ways:
• There is no affidavit from the paternal grandmother, the proposed sole caregiver to the children when father works. The record evidence is clear: father works and his work requires travel. Functionally, grandmother replaces the historical role of mother in caring for the children. Yet, I have nothing from grandmother. Indeed, I do not even have a name. The record evidence tells me she is a Canadian citizen, 66 years of age, has bad knees, and has performed this same function three out of every four weeks for the past 18 months, without apparent objection from mother.
The pandemic raises more questions. Has grandmother been vaccinated for the virus? Does grandmother have any medical issues that would increase the probability of a bad outcome if she contracts the virus?
Father’s counsel responds to my concerns by noting mother’s apparent acceptance of grandmother as caregiver. In my view, this is not satisfactory. Father asks me to approve his plan, a significant part of which is grandmother as caregiver. Thus, her appropriateness in said role is my responsibility. Respectfully, I decline to blindly delegate that responsibility to another.
• Father proposes relocation to the United States with monthly access visits to mother in Windsor. This plan calls for two Detroit/Windsor international border crossings each month. These crossings are during a crushing pandemic, the end of which is unknown but hoped to be this fall. The Canada/United States border has been closed since April of 2020 for all land crossings except crossings deemed “essential.” According to father, he crosses the border for work and is deemed an essential worker. With regard to the 14-day quarantine mandated by Canada for all persons arriving into Canada from a foreign country, father’s counsel directed me to the Government of Canada website exempting quarantine to those who cross the border for access visits pursuant to court order.
Although this appears to satisfy one legal hurdle, I have no answers for others including: 1) Can the children cross the border into the United States? They are not citizens of the United States and are not essential workers. During submissions, father’s counsel told me the court order would make them essential, but I have been provided no authority to confirm that position. 2) Can grandmother cross the border into the United States? She is a Canadian citizen and is not an essential worker. Father’s counsel say she can, but again, I have no authority for this. 3) Does the United States, or the states through which father must travel for his planned access visits, Michigan, Ohio, Pennsylvania, West Virginia, and Virginia, have quarantine rules for persons incoming from a foreign country? Although the answer for father and the State of Michigan appears clear because of his frequent commute, is it the same for the other states and are there any quarantine rules for persons such as the children and grandmother? 4) The Province of Ontario currently has a “stay-at-home” directive enforced by provincial sanctions. Does the requested order, with its monthly border crossings, contravene this provincial directive? Father’s counsel responds by asserting that a court order would make the requested travel necessary. I decline to contravene any lawful enactment of government without full knowledge of the law, my authority to override the law, and a satisfactory reason to do so. A simple, “you can order it,” does not help me.
• Father proposes to relocate with the children in the small town of Boydton, Virginia, population slightly more than 400 persons. Boydton is located in southern Virginia in a rural county with a population of approximately 33,000 people. What are the COVID-19 protocols of the State of Virginia and of the county and town in question? Are there any restrictions or requirements for new arrivals? Are the children, father and grandmother eligible for the vaccine? If so, when? If the children relocate to Virginia and are ineligible for the vaccine there, can they get the vaccine in Windsor? I have no answers to these questions.
• The children are long attendees of the public school system in the Windsor area. Because of the pandemic, the children have been attending class virtually. Father asserts that the children will continue to attend the same Windsor virtual program after they relocate to another country. To my question, whether this is possible/appropriate, father’s counsel affirmatively responded without providing any support for his position. I confess being uncomfortable with the concept that a local school system will or should continue to educate a student who leaves the country. Without authority I remain adrift and father has not presented any alternative plan should the Windsor virtual school become unavailable to the children.
• How can father safely acquire food for the family in Boydton, Virginia? According to father’s affidavit, “We will have groceries and other necessities delivered by Amazon, or, if necessary, I will attend errands without the children.” Will Amazon deliver groceries to such a remote town?
• From the affidavit evidence, the children have no doctor or dentist in Boydton, Virginia.
• From the affidavit evidence, the children have no fixed home in Boydton, Virginia.
[68] In addition, and before addressing directly the interim mobility issues, I make the following observations.
[69] First, when united, mother and father worked as a unit for the good of the whole. From the record evidence, in their situation, this meant that father earned the money and mother took care of the home and the children. This also meant a family accommodation to the work requirements of father, namely his travel and frequent relocations. This family unit now has broken down; mother and father are separated. Thus, it is not surprising that father’s continuation in the work field of his choice, with its travel and relocation requirements, is under stress.
[70] Father argues that his plan is the status quo. According to him, he will strictly adhere to the parenting plan currently in place – for each month, one week with mother and three weeks with father. I reject this notion of status quo. Status quo is not defined exclusively by the time each parent has with the children. To characterize a relocation to a small town in a different country eleven hours away from Windsor as status quo is both novel and inappropriate. From the perspective of the children, they will have a new home, a new and much smaller community, a new country, perhaps a new school, new friends, new activities, and a full day’s automobile drive both to and from Windsor to see their mother one time each month. Father’s plan is not the status quo.
[71] I now address the three questions at the heart of an interim mobility motion: Is there a genuine issue for trial? Are there compelling circumstances that might provide a reason to allow the move immediately? Is there a strong probability that the respondent’s position will prevail at trial? Each will be addressed.
Genuine Issue for Trial
[72] In my view, there is a genuine issue for trial. The issue, of course, is child focused. Is it in the best interests of the children to move with father to Virginia temporarily before father moves to Mexico? This requested move is in the middle of a devastating pandemic. Mother opposes said moves arguing that the children are safest here in Windsor.
[73] Father’s position rests on three pillars: 1) the move is necessary for the financial well-being of the children; 2) mother is not fit to be the caregiver to the children; and 3) the move is safe for the children and essentially identical to their life now.
[74] Of these three factors, only the financial benefit to the children appears to have strength. The other two remain unclear. From the evidence of the CAS worker, mother’s intransigence to help has thawed. She now is receiving the recommended counseling. CAS does not oppose custody with mother and will continue to work with her. Moreover, for the last 18 months, mother has had a full week of being the sole caregiver to the children with no argument from father until the notification of his transfer. The resolution of this issue at the future trial may depend on the conduct of mother in the ensuing months. This aspect remains a genuine issue for trial.
[75] Whether the move currently is safe for the requested international relocation is a genuine issue that, hopefully, will have some clarity at the time of trial. As noted above, the current state of the record on the requested relocation during the pandemic is woefully inadequate.
[76] I fully recognize that my ruling on this interim motion will have an impact on the ultimate arrangement with the children. But father is seeking to temporarily relocate these children away from their known home and surroundings only to move again later this year, either back to Windsor or on to Mexico. This is a profound disruption to the children. Windsor is what these children know. They moved here when Alizeh and Curtis were ages 5 and 3; they now are ages 11 and 9. Windsor is their known life. It should not be easily disrupted.
[77] I cannot conclude, based on the record evidence before me, that the best interests of the children dictate their immediate but temporary relocation to small town Virginia only to move again in the summer. Even eliminating the extraordinary and added pandemic concerns that are largely unanswered as reviewed above, the wisdom of such a move is not clear to me.
[78] Moreover, and again based on the evidence before me, I have no concerns with the continuation of the current parenting arrangement.
[79] The question of whether a move to Mexico is in the best interests of the children is a triable issue.
Compelling Circumstances
[80] Although the Walbridge letter is not as direct as the affidavit evidence of father, for purposes of this interim motion, I accept father’s position: if he does not accept the transfer he will lose his job and be forced to find another job with a “drastic” cut in pay. However, on the record evidence before me, it is impossible to quantify “drastic” or the lost financial benefit to the family. Moreover, if one accepts his position of the necessity of relocation to keep the financial benefit, then, it appears, one must accept the continuing movement of the children because of the dictates of his career choice. According to the Walbridge letter, father’s job description includes up to 50% travel with the ability to relocate.
[81] Most importantly, and focusing on the best interests of the children, this requested interim move is in the middle of a pandemic. Especially with the inadequate record as reviewed above, in my view, the pandemic is a compelling circumstance to not allow the move at this point in time.
Will Respondent Prevail at Trial?
[82] In my view, I am unable to conclude, on the record evidence before me, that there is a strong probability that respondent will prevail at trial. Too much is unknown. Will the pandemic still be raging? Mother was the caregiver to the children through most of their lives; father worked and traveled while mother took care of them. And the family continually moved until they settled in Windsor. Then came the separation and the emergence of mother’s anger and mental health issues. Father seeks to simply plug in grandmother and continue to work, travel and move. This, of course, means the dislocation of the children from their known world of family, school, friends and activities. This also means the absence of a mother close at hand.
[83] Applicant has demonstrated an apparent genuine desire to be a stable mother to the children after a rough start with separation. Yes, I agree with father, this is late in coming. But, I also agree with the CAS worker, mother appears to have seen the light. That is very good, not only for herself but for the children whose main anxiety is over parental conflict. In my view, the outcome of the future trial may hinge on mother’s conduct from now until then.
[84] In the circumstances, I am not prepared, at this point and on this record, to find that respondent has a strong probability of success at trial.
Conclusion
[85] For the foregoing reasons, respondent’s interim motion for custody and relocation of the children is dismissed. The current parenting time status quo shall remain until trial or further order to the court. If father chooses to accept the transfer to Virginia, and the choice is his to make, this matter must immediately come back before me to vary the parenting time arrangement.
Costs
[86] As the successful party, applicant is presumptively entitled to costs pursuant to r. 24(1) of the Family Law Rules.
[87] During submission, both parties agreed that $2,500.00 is the appropriate quantum to be awarded to the prevailing party.
[88] Accordingly, I award costs on this motion to applicant of $2,500.00, all inclusive.
Order
[89] I make the following temporary order:
Respondent’s interim motion for custody and relocation of the children is dismissed;
Pending further order of this court, the children of the marriage shall not be removed from Essex County, Ontario, Canada.
Applicant/mother Farzia Bouillet and respondent/father Michael Laurence Bouillet, shall continue with the existing residential schedule as agreed in paragraphs 8-13 of the Minutes of Settlement dated August 1, 2019;
The non-residential parent shall be permitted to have reasonable and regular telephone or electronic communication with the children;
The parties shall communicate with each other in a positive manner. Each party will support other’s relationship with the children. Neither party shall speak negatively about the other in the presence of the children. Both parties shall encourage the children to spend time with the other parent and the extended family of the other parent;
Mother shall participate in all counseling or other programs recommended by the Windsor-Essex Children’s Aid Society;
If respondent/father, Michael Laurence Bouillet, decides to accept the transfer to Boydton, Virginia, before he leaves, father shall forthwith notify applicant/mother and secure an urgent hearing before me to change the existing parenting schedule either on consent or contested;
If mobility remains a trial issue, the parties shall arrange for a prompt trial management conference before me on an urgent basis; and
Respondent/father, Michael Laurence Bouillet, shall pay forthwith to applicant/mother, Farzia Bouillet, costs on this interim motion in the amount of $2,500.00 all inclusive.
Original signed by Justice Kirk W. Munroe
Kirk W. Munroe
Justice
Released: January 25, 2021
COURT FILE NO.: FS-19-19505
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Farzia Bouillet Applicant
– and –
Michael Laurence Bouillet Respondent
Ruling ON MOTION
Munroe J.
Released: January 25, 2021
[^1]: Although the letter is facially dated December 7, 2020, at page 4, the letter includes a passage noting the acquisition of further information on January 8, 2021. From this inclusion in the letter itself, I conclude that this letter was not released to mother or her counsel until sometime on or after Friday, January 8, 2021.
[^2]: Although initially objecting to any consideration of the report because it was not served timely nor in affidavit form, there was no claim regarding the authenticity of the report and father’s counsel quickly resiled from said objection arguing only its content and weight. I will consider this report in this interim motion especially considering its completion just prior to the date set for the hearing, the inappropriateness of an adjournment given father’s need for a prompt decision, and father’s emphasis that mother had not undergone a psychiatric assessment. I do appreciate the weaknesses of a bare report and will so include said weaknesses in the weight given to it.