Corbett v. Corbett, 2011 ONCJ 677

Sault Ste. Marie Registry No. 124/2010 DATE: 2011·VI·23 CITATION: Corbett v. Corbett , 2011 ONCJ 677 ONTARIO COURT OF JUSTICE BETWEEN: ) ) stacey-lee corbett ) Murdoch J. Carter, ) for Stacey-Lee Corbett ) ) — AND — ) ) ) thomas corbett ) P. Michael Walz, ) for Thomas Corbett ) ) ) ) Heard on 13 June 2011 [ 1 ] JUSTICE J. KUKURIN:— This is a decision on a motion (at tab 21) brought by the applicant mother. [ 2 ] The main issue in this case is over custody of the child Mary Faith, age eight. The mother’s application asks for sole custody.

The father contests this claim and asks for sole custody in his favour. [ 3 ] Although the application was filed a year ago, there is no interim order for custody. There have been several orders made, all interim orders, over the past year. The current interim order awards primary residence to the mother but requires that residence to be at the home of the child’s maternal grandmother in Sault Ste. Marie. It provides for the father to have the child in his care alternate weekends (Friday 5 p.m. to Sunday 6 p.m.) and each Wednesday 5 p.m. overnight to Thursday 9 a.m.

It also provides for a roughly equal sharing of the March school break and the Christmas season (for 2010 only). The issue of care during the summer months and subsequent Christmas seasons remains outstanding. The current order for summer access, made without prejudice a year ago, gives the father one week in August. Exchanges between parents is to be at the home of the maternal grandmother (which is currently the home of the mother and the child), unless otherwise agreed. It appears, however, that the parties have agreed otherwise.

There are currently no problems involved at exchanges. [ 4 ] The present motion of the mother seeks yet another interim order that varies the provisions of the existing interim orders. [ 5 ] In contested custody and access cases, interim orders are not unusual. In this case, the parties each brought motions previously, the father at tab 6, and the mother at tab 8. These were argued and resulted in the current interim order. Formal reasons for the order were released December 21, 2010.

The provisions of the current interim order establish what is now the status quo in this case, at least on an interim basis, pending a final hearing. [ 6 ] The expectation of the court is that the interim order terms will persist until a final hearing. Apart from a minor tweaking due to unforeseen difficulties arising from the implementation of an interim order, the preference is to leave the status quo “as is”. [ 7 ] However, this is not something that is carved in stone. There can be changes to interim orders made in some cases. The pre-requisites for this to occur are: (

a) a material change in circumstances from the time that the existing order was made, to be demonstrated, with evidence, by the motion applicant who is seeking the change; and (

b) the material change in circumstances must support the changes sought to the existing order by the motion applicant having regard, at all times, to the interim best interests of the child. [ 8 ] I am satisfied that the material change in circumstances threshold has been crossed. In terms of the mother: (

a) she has entered into a relationship with her new partner, Clifton; (

b) she has become pregnant (and as of mid June has a second daughter); (

c) the mother’s residency plan has changed from residing with maternal grandparents in Sault Ste. Marie to residing with her new partner in his home in Thessalon; and (

d) the mother’s plan to attend college in Sault Ste. Marie has apparently changed. [ 9 ] In terms of the father:

(

a) he no longer resides with his parents at their home in Sault Ste. Marie; (

b) he has entered into a cohabitation relationship with his new partner Lila and lives with her and her son in her apartment in Sault Ste. Marie; (

c) he no longer pays the $70 per month child support he was ordered to pay on an interim basis as he is now below the threshold of the Child Support Guidelines , O. Reg. 391/97, as amended; (

d) he is attending school, apparently completing his grade XII and then attending Sault College in an automotive program. [ 10 ] It is fair to say that there have been significant changes on both sides. Although custody of Mary Faith remains as the critical issue in this case, the contextual framework in which this custody contest is being fought has altered considerably. [ 11 ] The essential determination on the motion of the mother (at tab 21) is with respect to mobility. Specifically, whether the residence of Mary Faith can be changed from Sault Ste. Marie to Thessalon. This was not an issue previously.

The parties both relocated from Thunder Bay to Sault Ste. Marie which was their hometown. All indications suggested that both would reside in Sault Ste. Marie. It is in Sault Ste. Marie where both maternal and paternal grandparents of the child reside. The prior interim decisions with respect to primary residence, times of parental care, and other contacts with the child, as well as exchanges between parents, were predicated on the father living with his parents and the mother living with her parents, all in Sault Ste. Marie. [ 12 ] The claims made by the mother in her motion (at tab 21) are fourfold.

First, she wishes an order that primary residence of Mary Faith be with her. There is already an order to this effect. However, that order specifies that primary residence to be the residence of the maternal grandmother. What the mother is really seeking in this claim is for the restriction of primary residence to the home of the maternal grandmother to be terminated.

This is tied to the second claim of the mother, namely, for permission of the court to allow her to change Mary Faith’s primary residence to Thessalon. [ 13 ] The third claim in her motion is to terminate the father’s mid-week care of the child Wednesday evening overnight to Thursday. [ 14 ] The fourth claim is to terminate the existing requirement for exchanges to take place at the home of the maternal grandmother.

This claim is the least contentious as the parties have already implemented alternative exchange arrangements which seem to be working out with little or no problems. [ 15 ] Interim mobility decisions are seldom easy ones. To permit a move changes the status quo that has already been established. Why do so if the status quo seems to be working adequately. In this case, the status quo is working not too badly. Moreover, the status quo is not something that simply materialized.

In this case, the status quo was created by the court after hearing motions for interim relief sought by each parent. [ 16 ] Associated with a judicial reluctance to disturb the status quo on an interim basis is the judicial desire to avoid needless disruption for the child. The main context in this case is over sole custody of Mary Faith. To permit a move now is a disruption. Should the father be successful in his sole custody claim, this would require another change in the child’s residence back to Sault Ste. Marie. In short, yet another disruption for her.

This is not a case where the issue of custody is close to resolution. The parties remain polarized. [ 17 ] The usual dynamic in play in interim mobility contests is one that applies in this case. The father’s relationship with the child is being fostered by a judicially imposed order for parental sharing of the child. The father’s time with the child would be reduced should the child move to Thessalon. The largest impact would be on his time with the child each Wednesday at 5 p.m. overnight to Thursday at 9 a.m. The mother’s motion asks for termination of this mid-week time of the child with her father.

In this case, the reason for the termination is related to geography, transportation and school. Mary Faith is a student. If the Wednesday overnight access were to continue, it would require the father to drive her to school in Thessalon Thursday mornings. This is an hour away from his home in Sault Ste. Marie. [ 18 ] There are other arguments made to oppose the mother’s proposed move of Mary Faith’s residence to Thessalon. It would mean a change in school. This, the father argues, does not mean simply a separation from her classmates and school friends. It means a different teacher and a different principal.

More importantly according to her father, it means that destabilizing of established routines in which she receives help in class, and, apparently, outside the class as well (possibly from an educational assistant). [ 19 ] Not to be forgotten is the fact that the child’s grandparents on both sides live in Sault Ste. Marie. The move to Thessalon will distance her from them.

In particular, she lives within the home of her maternal grandmother, from which fact I infer that there is a well developed grandparental relationship. [ 20 ] The father also argues that permitting the child to move is tantamount to deciding on an interim basis what should be decided at trial; in effect prejudging the main issue. [ 21 ] While the foregoing considerations militate against permitting the move, there are other considerations that support such a move. [ 22 ] The most significant is the nature of the relationship between the child and the two most important persons in her life at the moment, her mother and her father.

Although there is no custody order, it is clear from the evidence that the mother is and has been the child’s de facto custodial parent throughout the child’s life. The father can also validly claim that he was a de facto custodial parent. However, that claim cannot be said to have been continuous since Mary Faith’s birth. When the parents were not together, Mary Faith invariably remained in the care of the mother.

[ 23 ] It is more than just the continuity of care and de facto custody that is relevant. It is the quality of the relationship of the child to each of her parents, and theirs to her. In reviewing the evidence, it is my inference that the major portion of child rearing and parenting was done by the mother, not by the father. [ 24 ] The father suggests that the emergence of an issue with respect to interim mobility should open up the issues of custody and access, or at least, principal residence. Although that may be desirable in some cases, it is not in this one.

The mother-and-child relationship in this case is accorded considerably more judicial weight and importance than the father-and-child relationship. I would not upset primary residence of the child with her mother at this stage of this case. [ 25 ] That does not necessarily mean approval of her intended move to Thessalon. The court can dismiss the mother’s motion claims and require Mary Faith to continue to reside in her maternal grandmother’s home.

The mother would then be put in the difficult position of moving the Thessalon without Mary Faith, or staying put. [ 26 ] In this case, I am permitting the change of the child’s residence on an interim basis to Thessalon from Sault Ste. Marie. There are a number of reasons for this. [ 27 ] Firstly, this is the mother’s decision. This mother has parented Mary Faith adequately, based on the evidence to date. She has made decisions as a de facto custodial parent for the child, some jointly with the father during their cohabitation, others on her own.

I cannot infer from the evidence that she has been deficient in any significant way in her parenting responsibilities. Courts tend to defer to the decisions of custodial parents made with respect to their children so long as they are reasonable decisions. [ 28 ] This inevitably leads to a second consideration. Is this move of Mary Faith’s residence a reasonable one? The evidence persuades me that it is. [ 29 ] The mother has a new partner and has clearly formed a relationship with him that has persisted for more than a year. Time will tell if it will be a lasting one.

At the moment, the fact that they have an infant child born to them cements their relationship considerably. Their wish to live together in what will be their family home is not only understandable but commendable. The fact that her partner owns a home that seems to be suitable as a family home is a stroke of good fortune for her. Her partner, according to her, has two jobs, and from this I infer that he has income which will be used for expenses related to their home and family. The uncontradicted evidence is that this partner, Clifton, and the child Mary Faith have already established a good relationship.

It also supports the inference that Mary Faith is comfortable at Clifton’s home in Thessalon and does not have any fears or hesitations in moving there. [ 30 ] The father can hardly argue against the mother entering into a new relationship. He has done exactly the same. For the mother, her circumstances have improved significantly, at least from an economic point of view. Although she has filed no financial statement, it is apparent from her evidence that she had been receiving some social assistance from Ontario Works. She now has a second child, an infant.

This is another body, and one with many demands, in a household already accommodating two more persons than usual. While this household is the home of the mother’s birth family, and provides a familial environment, it is hard to argue that it would be superior to a home of the mother’s own, particular a mother with two young children, a mother who had not lived with her parents for some years. Moreover, the mother’s parents endorse the mother’s intention to relocate to Thessalon. The relationship they have with her remains amicable and supportive. They approve of her new partner.

From many perspectives, it makes good sense for the mother to move. She receives no financial support from the father for herself or for Mary Faith, and, based on the evidence of the father that he intends to pursue a college diploma in the automotive field, it is not likely that he will be paying child support for some time to come. [ 31 ] A third consideration has to relate to how the move will affect the relationship of the child with the parent who is not relocating.

Specifically, what is the impact on “access”? [1] Courts have refused permission to move where the moving custodial parent’s motivation is seen to be one that is designed to extinguish, curtail or minimize the relationship that the child has with the other parent. This is not what I perceive to be the case here. The mother’s request to eliminate the father’s mid-week access is not motivated by any malice or bitterness towards him.

Rather, it is a consequence of her relocation brought about more by geography than by anything else. [ 32 ] In fact, the mother proposes some compensatory access (on an interim basis) to make up paternal time with the child lost due to the termination of his mid-week access. Her proposal is not ungenerous. The father has alternate weekend access Fridays 5 p.m. to Sundays 6 p.m. (or to Mondays 6 p.m. if it is not a school day).

She proposes that he will have access one extra weekend each month. [ 33 ] In terms of both frequency and duration, even with this extra weekend, the net result is less time with Mary Faith in his care than the current court order provides. His additional complaint is that there will be a 12-day period every month or so where he will not see the child at all. [ 34 ] I appreciate the father’s argument. However, it is not altogether persuasive when one considers: (

a) he gets an extra weekend as a result; (

b) weekends are generally preferable times for access; (

c) he is entitled to generous telephone access at all times. [ 35 ] My inclination is to permit him one evening, preferably a Friday after school for several hours, preceding the mother’s sole weekend with the child. This can equally be a Thursday evening or the following Monday evening. My expectation is that the maternal grandparents can assist in this one day per month access visit to facilitate any difficulties relating to transportation or exchange. My understanding from the evidence is that the mother and her partner have access to two vehicles.

I am not sure what the father may have. [ 36 ] While minimizing any negative impact that relocation may have on the father’s contact with his child is a major consideration in these interim mobility cases, there are others that have relevance as well.

[ 37 ] The fact is that Mary Faith now has an infant sibling. The preference is for siblings to be kept together and raised in the same home. This preference is a significant (new) factor in this case. [ 38 ] The change in Mary Faith’s schooling is not an obstacle of any great significance. Rare is the child who does not change schools, teachers and classmates. The father suggests that Mary Faith will suffer academically by relocating. I do not find this argument persuasive. First, the father did not seem to have any such concerns when Mary Faith moved from Sault Ste.

Marie to Thunder Bay where he had found employment. Nor did he express any such concern when she moved back to Sault Ste. Marie to where he had returned. Second, his evidence establishes only that Mary Faith is receiving some extra assistance academically. Whether the school the mother has chosen for Mary Faith in Thessalon is in the same school board as her present school is not in evidence. However, both are public schools in Ontario.

The inference that I draw is that Mary Faith will get whatever help she requires academically regardless of what school she goes to. [2] As for teachers, they tend to change from year to year in any event as students move to higher grades. I have no evidence of any peer friendships so strong that Mary Faith’s heart will be broken by moving an hour away. [ 39 ] In

summary, the mother’s relocation plan is reasonable. She has good reasons for the move. The move will likely bring benefits and improvements to her present circumstances. This is bound to trickle down to Mary Faith. There is no down side from Mary Faith’s point of view to moving, at least none that persuades me to prohibit the move. The major potentially negative effect is on the contact between father and child. This is not an insurmountable obstacle. It can be minimized by adjusting the father’s parenting time as I have outlined. Thessalon is less than one hour by car from Sault Ste. Marie.

The child will continue to have opportunities to spend significant amounts of time with her father and with paternal and maternal extended family members with whom she has significant relationships. [ 40 ] Finally the child’s school year is almost over. This decision will not really have much of an impact until next September. In the interim, the child has July and August as summer school holidays. I would endorse the mother’s suggestion that the father have care of Mary Faith for two weeks in July and two weeks in August.

The August weeks would exclude the period from August 12 to August 26 when the mother plans a trip to Alberta with Mary Faith to visit the mother’s biological father. [ 41 ] The finer details of the variation order I leave to the parties to work out. This includes provisions for exchanges. These no longer need to be restricted to the maternal grandparents’ home. Failing agreement of the parties, I will provide a detailed order based on what evidence I currently have. [ 42 ] If any party seeks costs of this motion (at tab 21): (

a) such party shall serve and file a notice of motion, any affidavit or other documents in support, and written submissions on costs within 30 days of the date these Reasons are released, failing which there shall be no order as to costs of such party; and (

b) if such motion is duly made, the other party shall have 20 days from the date of service to serve and file any responding affidavit or other evidence together with written submissions on the issue of such costs. 23 June 2011 Justice John Kukurin Ontario Court of Justice