COURT FILE NO.: FS11934/21
DATE: 20220120
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Scott McNeill Marshall, Applicant
AND:
Sandy Christine Marshall, Respondent
BEFORE: Justice H.A. Rady
COUNSEL: Louise Mimnagh for the applicant
Jennesa Plaine for the respondent
HEARD: November 26, 2021 at Woodstock by ZOOM
endorsement
Introduction
[1] The respondent mother brings a motion for an interim order permitting her to move from Beachville to Sarnia with the couple’s six-year-old daughter Lauren.
[2] She asks that Lauren reside primarily with her with the applicant having parenting time on alternate weekends, with two weekday “visits” from after school until 7 p.m., and liberal Facetime contact, including a call once per day. She also seeks child support and an order that the parties share transportation.
[3] The applicant opposes the move and suggests that the issue should be adjourned to trial. He proposes a shared care parenting arrangement on a four-day rotating schedule and a mutual right of first refusal where one parent is unavailable to care for Lauren.
[4] The parties would pay child support to each other in accordance with their respective incomes, after the respondent moves from the matrimonial home,
[5] Finally, the applicant seeks an order striking certain paragraphs from the respondent’s affidavit.
[6] The parties married on October 5, 2015. Lauren was born on December 13, 2015. They separated in 2019 or 2020 – they disagree on the date.
The Evidence
[7] The parties rely on their own affidavits and those of third parties, including the respondent’s employer and their parents. The material is extensive.
[8] The applicant requested that the first sentence of para. 13 and para. 46 of the respondent’s affidavit of October 22, 2021 be struck as inflammatory. At the hearing of the motion, I struck para. 46. It was unhelpful and in my view, was irrelevant to the issues before me. The same may be said about the first sentence in para. 13. It is not relevant. Counsel did not pursue argument respecting Exhibits A, B and C.
[9] The respondent’s evidence can be summarized as follows:
• she has been Lauren’s primary caregiver since her birth;
• the applicant did not participate in caring for Lauren in any significant way prior to separation;
• the applicant has been employed in three different jobs, two as a paramedic and as a volunteer firefighter. He worked shifts;
• from the respondent’s perspective, the applicant’s work schedule has been unpredictable and remains so, making a regular, stable “access schedule” difficult;
• he has recently become employed as a firefighter in London and will be available on weekends
• the applicant has been unable to care for Lauren, given his erratic work schedule;
• since January 2021 he has been having parenting time of one sleep-over visit one week and two sleep-over visits the next week;
• lately, Lauren has returned home from her father’s exhausted and hungry, with hygiene issues;
• the respondent is a social worker and has been employed by Genesis Community Rehabilitation Inc. since 2017. It is work that she enjoys. She has excelled and advanced in the company. It has offered her a promotion to the role of Manager of Western Ontario. If accepted, she deposes that she is required to move to Sarnia;
• the requirement to move to Sarnia is confirmed in a letter written by Genesis dated July 19, 2021 addressed to whom it may concern.
• she will receive a considerable raise in the new position, which will afford her and Lauren a better lifestyle;
• she has not sought employment in the Beachville area given her positive history with Genesis;
• her parents, to whom she is close, live in Sarnia; They provide emotional support, something that she lacks in Beachville;
• she also has friends in the Sarnia area;
• Lauren is a well-adjusted child who has friends in Sarnia and will transition to a new school with no anticipated difficulty;
• The respondent and Lauren reside in the matrimonial home, which is being maintained by the applicant who has assumed responsibility for expenses in lieu of child support at this time.
[10] The applicant’s evidence can be summarized as follows:
• after Lauren was born, he and the respondent decided that she would be a stay-at-home mother and he would maintain his full and part-time jobs as a paramedic to facilitate the arrangement;
• his work involved shift work;
• both parents were meaningfully involved in Lauren’s care;
• he has recently secured employment with the London fire department which will provide better family and work life balance and a more predictable schedule;
• since separation, the respondent has restricted his parenting time. She delays responding to his proposals for parenting time in a timely way;
• Lauren is happy and well adjusted. She enjoys her current school, her teacher and friends;
• she enjoys participating in extracurricular activities, although the respondent has had difficulty arranging them;
• the London firefighting position will provide certainty respecting scheduling;
• the applicant will continue as a volunteer firefighter involving two evenings per month and with Ornge where advance notice of a shift is available;
• the applicant has extended family in the Beachville area with whom Lauren is close;
• the respondent’s allegations respecting his ability to look after Lauren’s needs and hygiene are an attempt to portray him in an unfavourable way.
The Law
[11] Section 16(1) of the Divorce Act mandates that only the best interests of the child are to be considered by the court when making a parenting order. Section 16(3) sets out the factors to be considered in determining a child’s best interests. Of particular relevance to this case are (a) – (d) (g) – (i).
[12] Section 16.9 of the Act governs relocation claims. Seven additional factors are enumerated that speak to the best interests of the child. Both parties bear the burden of proof to show whether the relocation is in the child’s best interests.
[13] Section 16(6) of the Act also requires the court to give effect to the principle that a child is to have maximum contact with each parent, consistent with the child’s best interests.
[14] The respondent places emphasis on the recent decision of Justice Leach in Gordon-Bowes v. Gordon-Bowes, 2020 ONSC 4994. It involved an interim motion by the mother permitting her to relocate with the parties’ three children from Oxford County to Windsor. There was a dispute respecting whether the mother had been the primary caregiver prior to separation. The father wished the children to remain in Oxford County where he owned a house in the children’s school district.
[15] The mother had recently lost her employment. A relocation to Windsor would enhance her ability to secure employment and she would have the support of her extended family. The court determined that if the mother could secure a residence in Oxford County, the factors favoured the children remaining there. However, the court was satisfied she could not, and a temporary order was made permitting the relocation. The parties were ordered to return to court to provide an update with respect to the arrangement.
[16] The father brought a motion seeking the children’s return. In her decision reported at 2021 ONSC 5568, Justice Tranquilli continued the Leach order but made note of her concern that the two older children were very distressed and wished to return to Oxford County. The Office of the Children’s Lawyer was involved.
Analysis
[17] I am not persuaded that a temporary order permitting relocation would be appropriate on this limited record. I recognize that the respondent is thriving at Genesis and understandably she wants to advance. I also understand that her standard of living is likely to improve if she were to receive the promotion. This, in turn, could have positive effects for Lauren. The respondent also has a support network in Sarnia with her parents, family, and friends. It is evident that the maternal grandparents enjoy a close relationship with their daughter and granddaughter.
[18] However, the information respecting this employment opportunity is thin. It appears that Genesis operates in locations other than Sarnia. The respondent’s proposed responsibility for the Southwestern Ontario region covers a large area. It appears that she will be meeting with clients, which suggests to me she may be required to travel. It is not clear to me why the respondent’s physical presence in Sarnia is required. The reality is that many employees are afforded the opportunity and indeed, are encouraged to work remotely.
[19] There is also an issue respecting the roles each party played in parenting their daughter when the family unit was intact. I have the impression that the respondent has attempted to discredit the applicant by painting him as uncaring and uninvolved.
[20] The applicant strongly contests the respondent’s characterization of the level of his involvement. I do note that the applicant is a paramedic and it seems unlikely to me that he is or has been unable to look after her daughters.
[21] The respondent’s proposal would move the child from the only home she has known, away from her paternal relatives, away from her school and her friends. There is no evidence that Lauren’s relationship with her maternal grandparents will be impaired. It has clearly flourished on the basis of the existing arrangement.
[22] Importantly, a move would substantially disrupt the parenting time that the applicant could have. Essentially, parenting time would resemble what might be seen as a traditional schedule of alternate weekends. It arguably sets a new status quo.
[23] It appears to me that the applicant’s new employment will afford more flexibility and certainty with respect to scheduling. Based on the limited evidence I have, it appears that the respondent has not been responsive to the applicant’s suggestions or requests respecting his parenting time.
[24] Unlike in Gordon-Bowes, there is no suggestion that the respondent will not have accommodation if she remains in Beachville. At least for now, she occupies the matrimonial home. While the applicant wishes to return there to live eventually, he has not insisted she move or suggested that he will not continue to make payments on the home.
[25] In my view, it would be premature and inappropriate to permit relocation at this juncture. I agree with the court’s comment in White v. Richardson, [2005] O.J. 1715 (S.C.J.) that “it is virtually impossible to determine a mobility issue at the motion stage. Only in exceptional circumstances could such be accomplished where, for example, it is plain and obvious relocation ought to be permitted or denied”.
[26] The same concern was expressed in Prasad v. Lee, 2008 CanLII 24545 (ON SC), [2008] O.J. No. 2072 (S.C.J.). The motion judge observed that it is difficult, if not impossible, to complete the extensive child focused inquiry on the conflicting evidence that is available at this stage of the proceeding. I agree.
[27] Turning then to the parenting time issue, the respondent has not said what she proposes in the event relocation was not permitted. However, she does suggest that until she relocated, the applicant would have parenting time on week one of two consecutive or non-consecutive overnight “visits”; and on week two, one overnight “visit”. The applicant has set out a detailed proposal for a rotating schedule.
[28] It is clear that the parties have difficulty communicating and regrettably, this motion and the content of the Affidavits has increased their discord.
[29] I favour the applicant’s proposal. A rotating four-day schedule promotes stability and predictability, both important for a child. Lauren would not be away from either parent for too long. It maximizes the time she has with each parent. It reduces the amount of interaction the parties would be required to have with one another.
[30] Therefore, the court orders as follows:
On an interim basis, the child’s residence shall be in Beachville, Ontario.
On an interim basis, the child shall continue to attend school at Laurie Hawkins Public School.
On an interim basis, any relocation claims in this matter are adjourned to trial.
On an interim and without prejudice basis, the parties shall have shared-care parenting time with the child on the following schedule:
a. A four-day rotating schedule, with exchanges occurring after school (or at 4:00 p.m. if school is not in session) after the applicant completes his second twenty-four (24) hour shift; and
b. A mutual right of first refusal, so that if a parent is not available to care for Lauren for a period of over three (3) hours they will offer the other parent the opportunity to care for her before arranging child-care.
If a party with whom the child is scheduled to be according to the parenting time schedule cannot care for the child for more than three (3) hours, that party will notify the other party and give the other party the opportunity to do so. If the other party cannot care for the child, the party with whom the child is scheduled to be with will be solely and financially responsible for making alternate child-care arrangements.
On an interim basis, the applicant and the respondent shall equally share holiday parenting time with the child.
On an interim basis, the applicant and respondent shall each have the option of selecting two non-consecutive periods of seven (7) days with the child, with the applicant having priority for selecting same in even numbered years, and the respondent having priority in odd-numbered years. Unless otherwise agreed upon, the parties will give on another a minimum of thirty (30) days notice of their selected dates.
[31] I invite the parties to settle the issue of costs. Failing agreement, I will receive brief written submissions of no longer than three pages together with Bills of Costs by February 14, 2022.
“Justice H.A. Rady”
Justice H.A. Rady
Date: January 20, 2022