Hammond v. Ellis, 2011 ONCJ 708

Fort Frances Registry No. 09/000021 DATE: 2011·X·28 CITATION: Hammond v. Ellis , 2011 ONCJ 708 ONTARIO COURT OF JUSTICE BETWEEN: JASON HAMMOND Applicant — AND — JENNA ELLIS Respondent Before Justice A. Thomas McKay Heard on July 27, August 10 & 11, August 31, 2011 Reasons for Judgment released on 28 October 2011 Barbara J. Morgan ............................................................................................. for the applicant(

s) Michael Cupello .............................................................................................. for the respondent(

s) JUSTICE A.T. McKAY J: BACKGROUND [ 1 ] This is a decision on an application to vary a final order. The parties are the parents of one child, Zachary William Glen Hammond, born August 20, 2008. They met while both were students in college in Sudbury during the 2006 – 2007 academic year. They began cohabiting in 2007. After approximately a four month breakup, they reconciled and resumed cohabiting in May of 2008. Zachary was born in Sudbury, Ontario. [ 2 ] Ms. Ellis was born in Timmins, Ontario and has resided in various locations in north-eastern Ontario for the majority of her life. Mr.

Hammond is a resident of Fort Frances. He attended college in Sudbury and worked there briefly. In late 2008, the couple was experiencing significant financial pressure. Accordingly, in January of 2009 they moved to Fort Frances, where Mr. Hammond had employment, a place to live and the support of his family. Approximately three months after moving to Fort Frances, they separated. Ms. Ellis took Zachary to Ottawa on April 30, 2009, for what Mr. Hammond believed was a visit. When Ms. Ellis indicated to him in mid May that she would not be returning to Fort Frances with Zachary, Mr.

Hammond brought an application for custody. On May 26, 2009, Justice Bishop made an order giving Mr. Hammond temporary custody of Zachary, and requiring Ms. Ellis to return Zachary to Mr. Hammond forthwith. Ms. Ellis returned to Fort Frances with Zachary. At that point, she had nowhere to live. In order to assist her, and maximize the amount of time which she spent with Zachary, Mr Hammond allowed her to temporarily stay at his residence, until, with his assistance, she found an apartment. [ 3 ] On September 27, 2009, a final order was made with the consent of the parties.

The order provided that the parties would have joint custody of Zachary and that they would cooperate regarding parenting time, and each parent would have equal parenting time. The order also provided that Zachary’s residence would remain in Fort Frances. In the event that either party wished to relocate to a community outside of Fort Frances, the order provided for written notice to the opposite party of the intention to relocate, followed by attempts to resolve the matter by mediation, failing which a court order would be sought. At the time that the consent order was made, Ms.

Ellis was living in Fort Frances and pursuing her education in a registered practical nursing (“RPN”) program. That program was to be two years in duration. Mr. Hammond was working in the Fort Frances area. [ 4 ] Earlier this year, Ms. Ellis brought an application to vary that final order. It is the position of Ms. Ellis that there has been a material change in circumstances since the order was made, specifically her admission to a Bachelor of Science (“B.Sc.”) in nursing program at Nipissing University in North Bay.

Further, it is her position that in view of the material change, the order which would currently be in Zachary’s best interests would be one of joint custody, with his primary residence with her in North Bay. Mr. Hammond’s position is that there has not been a material change since the making of the existing order. If the court were to find that there has been a material change, his position is that the appropriate order for the court to make would be joint custody, with Zachary’s primary residence with Mr. Hammond in Fort Frances. Because of the timing of Ms. Ellis’s school year, the court gave a brief oral

decision August 31, 2011 indicating that Zachary would not be relocating to North Bay. What follows are the reasons for that decision. EVIDENCE [5] During the period from 2009 to 2011 the parties, for the most part, worked cooperatively regarding parenting Zachary. Ms. Ellis lived in a two bedroom apartment in a building in which rent is geared to income. She began her RPN program in September of2009. Parenting time was shared fairly cooperatively. Ms. Ellis indicated that her course demands were significant, and that her Mondayand Tuesday were particularly demanding days.

Also, during her final semester in 2011, she had an eight week period where she wasplaced to work at the hospital 40 hours per week on 12 hour shifts. Mr. Hammond was cooperative with her regarding her workschedule and course demands and parenting time with Zachary. If Ms Ellis was busy, he would care for Zachary so that she could focuson her other commitments. Mr. Hammond was working during that timeframe. He generally works 8:00 a.m. to 5:00 p.m. Mondaythrough Friday when he has care of Zachary, and works overtime when Zachary is not in his care. When Mr. Hammond was workingand Ms.

Ellis had school commitments at the same time, Zachary was in daycare, which was arranged by Mr. Hammond. Mr. Hammondcompleted a parenting course when Zachary was eight months old in order to enhance his parenting skills. MATERIAL CHANGE ISSUE [6] Proof of a material change in circumstances is a prerequisite for a court to vary a custody order. A material changemeans a change, such that, if known at the time, would have resulted in different terms in the order. If the matter which is relied upon asconstituting a change was known at the relevant time, it cannot be relied upon as the basis for a variation. As Ms.

Ellis brings the motionto vary, the onus is on her demonstrate a material change on a balance of probabilities. [7] The parties do not agree that a material change has occurred. Mr. Hammond takes the position that the evidencedemonstrates that Ms. Ellis wished to relocate from the Fort Frances area prior to the original order being made. The 2009 orderspecifically mentions the fact that Ms. Ellis was enrolled in the RPN program at Confederation College in Fort Frances at the time theorder was entered into.

Her evidence is that her acceptance into a B.Sc. program at Nipissing University, which provides a bridgingprogram to shorten the time for the B.Sc. degree, is a material change in circumstances which was not contemplated when the consentorder was entered into. The parties were not aware of that specific opportunity at the time the original order was made. The court findsthat, on a balance of probabilities, Ms. Ellis has demonstrated that a material change in circumstances has taken place.

Given that, thiscourt must consider the merits of the parenting plan for each party, and make an order that best reflects the interests of Zachary in thenew circumstances contemplated by the parties. The Children’s Law Reform Act provides that all incidents of custody of, access to andguardianship for children shall be determined on the basis of the best interests of the children.

Section 24 of the Children’s Law ReformAct provides list of factors for the court to consider. In addition, the leading case on mobility, Gordon v. Goertz (SCC), [1996] 2 S.C.R. 27, provides guidance on cases involving mobility of parents. ZACHARY [8] At the time of trial, Zachary was three years old. He is described as a happy, independent boy. Zachary has onemedical issue. Zachary was born with a genetic condition known as MCAD deficiency, which is classified as a fatty acid oxidationdefect. Zachary was diagnosed with the condition shortly after his birth. The result is that Zachary requires a special diet.

In addition,unless there are new medical developments, Zachary will require medication for the rest of his life. Zachary has a family doctor in FortFrances, and a specialist in Winnipeg who he sees periodically. The arrangements for his medical care have been made by Mr.Hammond, who also attends the medical appointments with Zachary. ZACHARY’S CONNECTIONS WITH THE FORT FRANCESAREA [9] As indicated, Zachary was born in August of 2008 in Sudbury. The parties moved to Fort Frances in January of 2009. Ms. Ellis was born in the Timmins area and subsequently moved to Elliot Lake.

From there her family moved to the North Bay area. Ms. Ellis then moved to Sudbury in order to attend college. She has three sisters living in the Timmins area. Her mother was living inMarathon, Ontario at the time of the trial, but Ms. Ellis indicated that her mother intended to move to North Bay. Her father passed awaya number of years ago. Ms. Ellis indicated that she has no family in the Fort Frances area, and no real connection with Fort Frances priorto moving there.

She indicated that she did not originally want to move to Fort Frances, but she was convinced to do so because of theeconomic situation that she and Mr. Hammond faced. Her view was that it was to be a temporary move to Fort Frances. [10] In the original motion for change, Ms. Ellis indicated that it was her intention to move to Ottawa with Zachary. Thedocuments provided that Ms. Ellis would be graduating from the RPN program at Confederation College in Fort Frances, and wanted toenrol in a B.Sc. program at University of Ottawa. The motion to vary also indicated that Ms.

Ellis was engaged to marry an individualwho lived in the Ottawa area. The documents indicated that Zachary had a relationship with her new partner and his parents who wouldbe providing her and Zachary with assistance and support. [11] Ms. Ellis’s parenting plan for Zachary has changed a number of times. In cross-examination, Ms. Ellis indicated that inMarch of 2011, her engagement to her new partner was terminated, although they remain friends. She agreed that she never told Mr.Hammond that the engagement was terminated. In June of 2011, Ms.

Ellis became aware that she did not gain acceptance into the B.Sc.program at the University of Ottawa, but that she did gain acceptance to the B.Sc. program at Nipissing University in North Bay. At thatpoint, she changed her relocation plan to move to North Bay with Zachary, although she did not file any updated parenting plan with the

court. In addition, in cross-examination, she agreed that on June 23, 2011, she sent an email to Mr. Hammond which outlined a new parenting plan. That plan involved moving to Timmins with Zachary and temporarily living with her grandparents or her sister while she attempted to save money. Her intention at that point was to work as an RPN for at least one year in order to save money to attend a B.Sc. program at university. At the time of trial, Ms.

Ellis’s plans had changed to the point where she felt she could borrow enough money to attend the B.Sc. program in North Bay beginning in September of 2011, and her parenting plan was to move to North Bay with Zachary and enrol in the B.Sc. program. [ 12 ] Mr. Hammond’s plan is to remain in Fort Frances and continue working. His plan for Zachary is that Zachary should remain with him in a stable environment in the Fort Frances area. Mr. Hammond is a lifelong resident of Fort Frances, except for the interval when he moved to Sudbury to attend college and work there for a brief period of time. Mr.

Hammond has extended family in the Fort Frances area, who offers support. That includes his parents, and aunts and uncles. He has one sibling, who lives in Alberta. He also has a few cousins in the Fort Frances area, but indicated that a number of his cousins have also moved to Alberta. Mr. Hammond indicated that Zachary sees his paternal grandparents on average twice per week. Mr. Hammond has begun involving Zachary in his outdoor hobbies such as fishing. He indicated that Zachary enjoys such activities. Zachary’s paternal great-grandmother also lives in Fort Frances. [ 13 ] Mr.

Hammond intends to remain in Fort Frances. His employment here is secure. Currently he has two diplomas from Cambrian College. His employer testified that he is trying to encourage Mr. Hammond to complete his qualifications to become an HVAC technician. His evidence is that Mr. Hammond has completed all of the practical hours needed for such a designation. His employer gave a very positive review of Mr. Hammond’s qualities as an employee. [ 14 ] Mr. Hammond owns a two bedroom home in Fort Frances. He purchased it in April of 2011. Zachary has his own bedroom there when he is with his father.

The home has a backyard. Mr. Hammond intends to make improvements to the home, and eventually upgrade to another home. However, at this point he indicates that the home is excellent for him and Zachary. He describes Zachary as being happy there. His neighbour has a four year old child. Mr. Hammond and Zachary have a dog, and Zachary enjoys playing with the dog in the backyard. Mr. Hammond describes the home as being in a quiet neighbourhood comprised mainly of older adult families, but indicates that some younger families are moving into the area.

PARENTING TIME [ 15 ] There was a significant amount of evidence regarding parenting time. Both parents had documents which they indicated were records of parenting time. As indicated, originally the parties worked quite cooperatively regarding parenting time. For instance, if Ms. Ellis’s work commitments or school load was significant at any time when she was to have Zachary, Mr. Hammond would care for Zachary in order to allow Ms. Ellis to focus on her other commitments. For much of the relevant time frame, Ms. Ellis did not have a car. When Zachary was in her care, Mr.

Hammond would drive to her residence and pick up Ms. Ellis and Zachary in order to drop Zachary at daycare, and drop Ms. Ellis at school. The parties are not in complete agreement regarding parenting time, but it is clear that the parties engaged in a shared parenting routine. The Court finds that Mr. Hammond had care of Zachary approximately 60 percent of the time. An exact percentage allocation beyond that is not necessary at this point. [ 16 ] As indicated earlier, Mr. Hammond made all arrangements for Zachary to be in daycare. Because of his income level, Zachary qualified for subsidized daycare, and Mr.

Hammond has arranged and maintained the subsidy. The arrangement is such that if Zachary is removed from daycare more than 30 days per year, the subsidy is in jeopardy. There has been a problem in the past with Ms. Ellis removing Zachary from daycare in order to travel with him. Mr. Hammond actually received a bill last year because of the missed days and had to arrange to have that debt forgiven. Mr. Hammond indicated that Ms.

Ellis in the past has offered to pay an excess costs which resulted from her removing Zachary from daycare, but did not do so when he received the bill. [ 17 ] The application to vary and supporting material were filed January 21, 2011. In the Change Information Form sworn by Ms. Ellis, she made a number of allegations regarding Mr. Hammond’s parenting. For example, she swore that Mr. Hammond “has shown little interest in the actual day-to-day care of our son”.

She also swore the following: “The Applicant has not demonstrated any signs of wanting Zachary in his care more often than the short amount of time that Zachary spends in the Applicant’s care. The Applicant expects me to provide for Zachary’s day-to-day needs and has not asked me to spend more time with Zachary. The Applicant is almost never home and has not demonstrated any ability to cook nutritious meals”. Interestingly, there was no hint of any such evidence being given at trial. In fact, given the evidence at trial, many of the allegations sworn to in the Change Information form were simply not true.

SUGGESTED BENEFITS RELATED TO A MOVE TO NORTH BAY [ 18 ] Ms. Ellis has proposed a number of reasons why a move to North Bay with her would be in the best interest of Zachary. Ms. Ellis suggests that it is in Zachary’s interest to move to North Bay in part because it will strengthen his relationship with her extended family. As indicated, at the time of trial, none of Ms. Ellis’s family lived in North Bay. Ms. Ellis did testify that her mother intended to move to North Bay. In addition, she has three sisters in the Timmins area, approximately 370 kilometres from North Bay. The evidence shows that Ms.

Ellis has had an inconsistent connection with her family. She agreed that at times in her life, she has had difficulties in her relationship with her mother. She moved out of her mother’s home when she was 16 years of age. While Zachary would benefit from strong ties with both his paternal and maternal extended families, at best one can speculate as to how the move to North Bay might improve Zachary’s connection with his maternal extended family. [ 19 ] Ms. Ellis also indicated that Zachary would benefit from her enrolling in the B.Sc. program at Nipissing University in North Bay.

Her evidence was that there are very few job opportunities for an RPN in the Fort Frances area. In addition, the additional

qualifications which would come from completion of a B.Sc. program would lead to a higher level of income for her and a better lifestyle for Zachary. As support for the proposition regarding such limited job prospects for RPN’s in the Fort Frances area, Ms. Ellis called Ms. Ogden as a witness. Ms. Ogden is one of the instructors with the RPN program for Confederation College for Fort Frances. She gave evidence that the Fort Frances Hospital limits the scope of practice of RPN’s to something less than they are trained for by the program in Fort Frances. Ms.

Ogden gave evidence regarding limited possibilities for employment in Fort Frances for RPN’s. During cross- examination, Ms. Ogden agreed that there were seven people in Ms. Ellis’s graduating RPN class. All but Ms. Ellis had found employment in the Fort Frances area. Ms. Ogden made the point that many of them do not have full time permanent positions. [ 20 ] In cross-examination, Ms. Ellis agreed that she had not applied for any RPN jobs in Fort Frances.

In addition, she made no inquiries as to what jobs might be available in Fort Frances, she simply assumed from what her teachers had said that there were no positions. Mr. Hammond called Laurie Ball as a witness. She is currently the director of residential care at Rainycrest, an extended care home in Fort Frances. Ms. Ball is in charge of hiring all nursing positions and personal support workers at Rainycrest. At the time of trial, the organization had one full time opening for an RPN, and several openings for casual RPN employees.

Employees designated as casual are scheduled in advance and are also called in for additional shifts on short notice. They may work up to full time hours. Traditionally there has been a problem keeping a full RPN compliment at the institution. Casual employees accumulate seniority at the organization, and accordingly are given preference pursuant to the collective agreement when applying for full time positions.

Her evidence essentially was that all RPN’s at the institution start as casual employees, and work their way into full time positions. [ 21 ] With respect to enrolling in a B.Sc. program in another institution closer to Fort Frances, Ms. Ellis confirmed that she did not apply to the universities in Winnipeg or Thunder Bay, both of which are approximately 350 kilometres from Fort Frances. Her indication was that she did not like large cities. She limited her applications to Ottawa and North Bay, where she knew there were bridging programs which could shorten her study period. [ 22 ] Ms.

Ellis also gave evidence that a move to North Bay would be in Zachary’s best interest because Zachary would have more opportunities in North Bay for recreational activities and education. Her evidence was that Zachary could attend a French speaking daycare in North Bay and then a French immersion school. Her evidence was that it was important to her that Zachary learns to speak French, as her mother’s first language was French. She agreed that in her initial communications with Mr. Hammond regarding a possible move, there was no mention of opportunities for Zachary in the French language being an issue.

It is an issue that she raised after commencing the application to vary. In cross-examination, Ms. Ellis also agreed that during the time she has lived in Fort Frances, she had made no inquiries as to french language clubs or activities in the Fort Frances area. Her evidence in chief was that the only French immersion school program in Fort Frances was one which involved children taking one class in French per day. When asked by the court where that information came from, she indicated that her sister, who lives in the Timmins area, told her that.

The court is aware from personal knowledge that at least one of the school boards in the Fort Frances area offers full French immersion programming. Ms. Ellis agreed that at no time had she ever made inquiries regarding a French immersion program to any of the school boards in the Fort Frances area. ACCESS ISSUE IF THERE WAS A MOVE TO NORTH BAY [ 23 ] Ms. Ellis took the position that she realizes the importance of Mr. Hammond maintaining contact with Zachary if Zachary were to move to North Bay.

She indicated that there would be a lot of travel involved, and if that were to happen, it would be difficult to arrange. However, she took the position that four times per year, at her expense, she would arrange for Zachary to fly from North Bay to Toronto and on to Thunder Bay, where Mr. Hammond could pick Zachary up in order to exercise access. Her evidence was that she had spoken with someone at Air Canada who indicated that at age 5, a child could be an unaccompanied minor on Air Canada flights.

In cross-examination, she agreed that she wouldn’t dispute the proposition that Air Canada’s policy regarding unaccompanied minors was that they had to be between 8 and 11 years of age. Her response was that she didn’t look into the issue enough, but that if Zachary could not be an unaccompanied minor, she would fly with him to and from access visits. While agreeing that would be expensive, Ms. Ellis simply indicated that she would make it possible. In cross-examination, she agreed that her total income for 2010 was less than $4,200.00.

She agreed that she currently owes $56,000.00 in student loans and would need to borrow something in the range of $21,000.00 to $25,000.00 each year for three more years to pursue the B.Sc. program. Her position was that she would pay for the air travel to make access visits possible for Mr. Hammond through her student loans, or with family assistance. Her position on this issue appeared to be completely unrealistic and unsupportable. The simple fact of the matter is Mr. Hammond could not afford to exercise access in North Bay given his income, nor could Ms. Ellis afford to facilitate that access.

In essence, if Zachary was to move to North Bay, his father’s involvement in his life would largely be lost for the foreseeable future. TRAVEL ISSUE [ 24 ] The evidence established is that, essentially since she has been able to, Ms. Ellis has travelled approximately once a month to Ottawa, North Bay, or the Timmins area to visit friends and family. Zachary has accompanied her on those trips. The travel is by motor vehicle, and depending upon the destination, results in Zachary spending from 26 to 40 hours round trip in the back of a vehicle while his mother drives that distance. At times, Ms.

Ellis drives right through the night. There are risks involved in road travel in northern Ontario at the best of times. Given that Zachary is three years old, regular trips of this nature result in Zachary spending an extreme amount of time sitting in a motor vehicle. This pattern has caused problems between the two parents, with Mr. Hammond taking the position that such frequent trips are not in Zachary’s best interest. Ms. Ellis has apparently convinced herself that these trips benefit Zachary by, among other things, spending time with her extended family. The reality is that while Ms.

Ellis may have convinced herself that the trips are in Zachary’s best interest, objectively viewed, the facts result in a different conclusion. It is apparent from all the evidence that Ms. Ellis strongly desires a move from the Fort Frances area to north-eastern Ontario. That desire formed within a few months of her moving to Fort Frances. The reasons for her frequent trips with Zachary are not child focussed. Rather, they are focussed on her desire to spend her free time and to live somewhere other than Fort Frances.

DECISION [ 25 ] The reality in this situation is that Ms. Ellis clearly does not want to reside in the Fort Frances area. Her desire to relocate has blinded her to any objective consideration of what is in Zachary’s best interests. As a result, she has constructed reasons as to why a move to North Bay would benefit Zachary. However, those reasons do not withstand objective scrutiny. Ms. Ellis’s plans have changed numerous times, even in the interval between starting the application and the date of trial. [ 26 ] Zachary has a stable situation in Fort Frances.

He has a strong bond with his father, who has been heavily involved in Zachary’s life since he was born. He has relationships with his paternal extended family in Fort Frances, and has opportunities to pursue a variety of educational and recreational opportunities. A move to North Bay would create significant uncertainty and would significantly restrict Mr. Hammond’s involvement in Zachary’s life. Such a move is not in Zachary’s best interests at this point. The order which meets the best interests of Zachary in this case is an order of joint custody, with Zachary’s primary residence with Mr. Hammond. Mr.

Hammond shall make decisions regarding Zachary’s care, including medical and educational decisions. Ms. Ellis testified at trial that if she were not allowed to relocate with Zachary, she would not be relocating. Assuming that she remains in the Fort Frances area, the parties shall continue to have a shared parenting arrangement related to Zachary. If she chooses to relocate, an order will issue in accordance with the terms of

schedule “A” attached. COSTS [ 27 ] Rule 24 (1) contains a presumption that a successful party is entitled to costs. This matter involved a three day trial. Counsel for Ms Ellis took the position that a mobility case such as this offers very little middle ground. Accordingly, a trial was necessary, and the court should not make an order as to costs. The court is mindful that both parties are of modest means. A three day trial would be a significant burden on Mr. Hammond. The court finds that a costs order is appropriate, given the court’s findings. Ms Ellis shall pay costs to Mr. Hammond in the amount of $1500.

That is a modest costs award, given the actual expense of a three day trial. Released: 28 October 2011 Signed: “Justice A. Thomas McKay”