COURT FILE NO.: F0324-97 Orillia
DATE: 2005-July-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N: )
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D.M.B. )
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Arman Hoque, Counsel for the Applicant
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Applicant )
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- and - )
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D.C.B. )
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Brian Kinnear, Counsel for the Respondent
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Respondent )
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)HEARD: July 6, 2005
Wood J.:
[1] This was a motion by the respondent father seeking a finding of contempt, and a change
of custody of the party’s daughter B. born […], 1996.
Background
[2] The parties began living together in 1990. They were married on March 25, 1995. B.
was born on […], 1996. The parties separated on October 19, 1997.
[3] A final consent order dated May 27, 1998 granted the parties joint custody of B. with
day-to-day care and control to be shared on a week about basis. The order also provided that
neither party was to change the child’s residence from the County of Simcoe without the other
party's written consent.
2005 CanLII 24599 (ON SC)
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[4] The applicant’s evidence is that the week about residence scheme was never put into
place. In the first years following the order, B. spent about 12 weeks with her father. In 2001
the applicant moved to Gravenhurst with her new partner and his two sons. The respondent
raised no objection and began exercising weekend access approximately once per month.
[5] The respondent last exercised access to B. at Christmas in 2003. He exercised no access
throughout the winter and spring of 2004 although he did talk with his daughter on the phone.
None of this evidence is seriously disputed by the respondent. He merely states that he was
denied access. On balance I find that the respondent failed to exercise the access under the order.
[6] In May 2004 the applicant and her new family moved to Lindsay, Ontario as her partner
had a promise of work. When the work did not materialize the applicant and her new family
moved to Winnipeg, Manitoba where the applicant's partner has family. He obtained work there
almost immediately and the family has resided in the Winnipeg area ever since.
[7] The applicant admits that she did not tell the respondent of her move to Winnipeg. Her
reasons for this are unclear. She deposes that although the respondent exercised little access he
was constantly threatening to seek custody of B.. Although she says she paid no attention to
these threats, it appears this was a factor in her decision. It is also clear, however, that the move
was made for economic reasons. She deposes that the family is better off there than they were at
any time in Ontario.
[8] The respondent discovered the applicant's whereabouts in December 2004 and applied for
an order that the child be returned to Ontario. The applicant consented to return with the child
and has attorned to the jurisdiction of this court.
Discussion
[9] The respondent seeks a finding of contempt against the applicant and a change of
custody. The contempt is for the removal of the child from the County of Simcoe without his
consent. The change of custody is based on allegations of violence on the part of the applicant's
new partner, drug use by the applicant, and his belief that he can provide a better home for the
child.
Contempt
[10] Both parties are technically in contempt of the order of May 27, 1998. The respondent
never undertook the responsibility of caring for B. 50 percent of the time as required under the
order. The applicant obtained permission to move B.’s residence outside the County of Simcoe
when she moved to Gravenhurst in 2001. However, the move to Lindsay and the subsequent
move to Winnipeg were without the respondent's permission. Therefore, while I make a finding
that the applicant is in contempt of the order, I decline to impose any sanction upon her for this
contempt.
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Change of custody
[11] The respondent's evidence in support of a change of custody is as follows. He alleges he
was told by mutual friends that the applicant was using methamphetamine and cocaine on a
regular basis. He alleges a volatile and violent relationship between the applicant and her new
partner. He further alleges that she is a messy housekeeper.
[12] I am not impressed by these allegations which have no substance behind them. The drug
usage is pure hearsay and is denied. The allegations of violence between the applicant and new
partner are dated and the matter has been fully investigated by the Children's Aid Society.
Messy housekeeping is a charge which could be laid at many people's doors.
[13] The evidence is clear that both before and after separation the applicant was B.’s
principal caregiver. There is no reason to alter that arrangement at this time.
Residence Pending Trial
[14] The applicant and B. have returned to Ontario. However her partner has remained in
Winnipeg where the applicant and B. have lived now for over a year. The applicant deposes that
her new partner got a job within one week of moving to Winnipeg and is earning a higher wage
than at any other time since they began living together. She further deposes that all three
children have adapted to Winnipeg and that they are doing well in school. Attached to her
material is a report card for B., showing satisfactory progress in grade 3 and a promotion to
grade four.
[15] The applicant has relatives here and can remain for the time being. However, it is her
desire to return to Winnipeg to reunite with her partner and his sons. It is also her wish that B.
continue in school in Winnipeg where she has been for the past year.
[16] In MacDonald v MacDonald[2002] O.J. No.2317 Campbell J. of this court set out a
useful guideline for deciding this issue. At page 2 of the decision he opined as follows.
“Interim mobility cases should be decided on the basis of the following
considerations:
(a) where there is a genuine trial issue, a court should be reluctant to disrupt
the status quo;
(b) even with a genuine trial issue, the move might be allowed if the
moving parent's positions that a strong possibility of success at trial;
(c) the existence of compelling circumstances (such as a limited window of
opportunity to exploit a financial benefit to the family unit) may justify
allowing the move.”
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[17] This case will eventually be decided using the analysis of set out by the Supreme Court of
Canada in Gordon v Goertz [1996] 2.S.C.R. 27. At paragraph 49 of the majority judgment the
law is summarized as follows:
“1. The parent applying for a change in the custody or access order must
meet the threshold requirement of demonstrating a material change in the
circumstances affecting the child.
2. If the threshold test is met, the judge on the application must embark on
a fresh inquiry into what is in the best interests of the child, having regard
to all the relevant circumstances relating to the child's needs the ability of
the respective parents to satisfy them.
3. This inquiry is based on the findings of the judge who made the
previous order and the evidence of the new circumstances
4. The inquiry does not begin with a legal presumption in favor of the
custodial parent, although the custodial parent's views are entitled to great
respect.
5. Each case turns on its own unique circumstances. The only issue is the
best interests of the child in the particular circumstances of the case.
6. The focus is on the best interests of the child not the interests and rights
of the parents.
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 parents reasons 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.
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50. In the end the importance of the child remaining with the parent to
whose custody it has become accustomed in the new location must be
weighed against the continuance of full contact with the child’s access
parent, it's extended family and its community. The ultimate question in
every case is: what is in the best interests of the child in or the
circumstances, oiled as well as new?”
[18] If the criteria set out above are applied to the facts known about this case at present the
following tentative findings can be made.
The lack of access exercised by the respondent constituted a material change in
circumstances sufficient to satisfy the first part of the test.
The existing custody arrangement and relationship between the child and the custodial
parent is as follows. To all intents and purposes the applicant has had sole custody of B..
Both before and after separation she was the principal caregiver. Since 2001 the
respondent has exercised less than conventional weekend access. Since Christmas 2003
the child has not seen her father.
The existing access arrangements up until Christmas 2003 were weekend access on a
monthly basis plus some telephone calls. It appears that the respondent had cut back
access himself after January 1, 2004 even further.
While access should always be maximized, if possible, it appears that contact had
become occasional prior to the child leaving Ontario.
The views of the child are unknown at present.
The applicant's reasons for moving were at least in part economic. It appears that the
family is doing better in Winnipeg than it ever did in Ontario.
A change in custody for B. would be catastrophic. Her mother has been her principal
caregiver throughout her life.
The move to Winnipeg has removed B. from Ontario where both of her parents’ extended
families reside. This has certainly caused a disruption and will continue to do so.
[19] An analysis of these findings indicates that the applicant has a strong possibility of being
successful at trial. This is particularly so since B. has already lived in Winnipeg for over a year.
[20] In the circumstances the applicant and B. should be allowed to return to Winnipeg
pending the trial of this matter after suitable arrangements have been made for B. to spend some
time with the respondent.
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[21] I am prepared to hear submissions on the form and duration of this access on the next
appearance date.
___________________________
Justice T.M. Wood
Released: July 11, 2005.
2005 CanLII 24599 (ON SC)
