MacKenzie v. Newby, 2013 ONCJ 541

COURT FILE NO.: 342/13 DATE : October 2, 2013 Citation: MacKenzie v.

Newby , 2013 ONCJ 541 ONTARIO COURT OF JUSTICE RE: Jamie Dionne MacKenzie – Applicant Christopher Newby – Respondent BEFORE: Justice Roselyn Zisman COUNSEL: Harold Niman and Vanessa Amyot for the Applicant Karen Cunningham for the Respondent HEARD ON: September 27, 2013 Introduction [ 1 ] This is a temporary motion for by the applicant mother for permission to move to Nova Scotia prior to a trial that was heard on an urgent basis. [ 2 ] The mother began an application for custody, child support and permission to move the permanent residence of the child to Nova Scotia.

The first appearance was scheduled for September 11, 2013. As the respondent father had served and filed his answer, the first appearance date was vacated at the request of counsel and a case conference date set for November 1, 2013. [ 3 ] On September 13, 2013, Mr. Niman counsel for the mother served the father’s counsel with this urgent motion returnable September 16 th , 2013. It was submitted that there was urgency in hearing the motion as the mother’s parents with whom she and the child lived were selling their home and moving to Nova Scotia by the end of September.

Ms Cunningham, counsel for the father submitted that she had been short served, then served with a further affidavit and brief of authorities on that day.

She submitted that there was no urgency but if the court was inclined to hear the motion then she required a brief adjournment to properly prepare further materials. [ 4 ] I held that this was an urgent motion and adjourned the motion to September 27, 2013. [ 5 ] The mother relied on her own affidavits sworn September 10 th and 15 th , 2013, her financial statement sworn July 26 th , 2013, the affidavit of Cindy MacKenzie, the maternal grandmother, sworn September 10 th , 2013 and several affidavits from staff in the mother’s counsel’s office with all attachments. [ 6 ] The father relied on his own affidavits sworn September 10 th and 24 th , 2013, his financial statements sworn August 28 th and September 24 th , 2013, the affidavit of his sister, Chantal Newby sworn September 19, 2013 and five supporting affidavits from his friends. [ 7 ] Upon reading the materials filed and hearing submissions, I advised the parties that I was prepared to permit the mother to move pending trial and would release my reasons.

A date was also set for an early case conference to deal with the issue of the father’s access pending trial. Background

[ 8 ] The mother is 32 years old and the father is 38 years old. The parties have one child, Krya Lynn MacKenzie born August 15, 2011 (“Kyra”). [ 9 ] The parties met in May 2010, began dating a few months later and shortly thereafter the mother became pregnant. The mother was living with her parents at the time and attending university.

The father was working full-time and living with his father and when his father began ill, he took care of him until he died in January 2012. [ 10 ] When the father found out that the mother was pregnant he was not ready to have a child but sometime in January 2011, the parties attempted to renew their relationship. [ 11 ] The parties never lived together although the father spent some time living with the mother at her parents’ home.

The parties finally separated in October 2012. [ 12 ] Since Krya’s birth the father had contact with her either while he stayed at the maternal grandparents’ home with the mother or in the presence of either the mother or her sister-in-law. As a result of comments made by the mother, the father began to question the paternity of the child and arrangements were made for a paternity test. From January to May 2013, the father did not see Krya pending the results of the paternity test. [ 13 ] Upon the father receiving confirmation that he was the father of the child, access was resumed.

As of June 2013, the father has been exercising access every week for one or two hours at a supervised access center. [ 14 ] The parties through their respective counsel, not counsel now retained, attempted to negotiate a separation agreement but ultimately were not able to do so.

At the time the father was prepared to agree to the mother having sole custody but was not prepared to agree to the mother’s position that his access be solely at the mother’s discretion. [ 15 ] The father now seeks joint custody, an order for expanded unsupervised access and an order prohibiting the mother from moving the child’s permanent residence to Nova Scotia. Position of the mother and her plan [ 16 ] The mother deposes that it has always been her parents’ plan to retire to Nova Scotia and that they are building a home there. The mother was born in Nova Scotia and all of her extended family resides there.

The mother advised the father on May 24, 2013 that due to an injury her father suffered he needed to retire early and her parents planned to sell their home and immediately move to Nova Scotia and had rented a home there. The mother will be able to reside with the maternal grandparents’ and they will be available to provide child care free of charge. [ 17 ] It is the mother’s position that she is totally dependent on her parents financially and if she is not permitted to move she will be required to rely on social assistance.

Since Kyra’s birth two years ago, the mother states that the father has only provided her with a total of $800 in child support. The father does not dispute this, except he deposes that he has provided the mother with $700 in total, but he states that this amount more than covers his support obligation based on his income. [ 18 ] Since Kyra’s birth, the mother and Kyra have lived with the maternal grandparents. The mother works part-time as a bookkeeper from her parents’ home.

Her income in 2012 was only $10,975. [ 19 ] It is the mother’s plan that she will finish her undergraduate degree and hopes to continue her education to become a social worker. She has registered at Dalhousie University for September 2014. She has provided details about the neighbourhood where her parents will be living and the various amenities available for children in that area.

Both she and Kyra will have the ongoing emotional and financial support of her parents and her extended family. [ 20 ] The mother raises concerns about the father’s lack of parenting experience and she has been requesting that he take a parenting course before he be permitted to have unsupervised and expanded access. The mother has also alleges that the father is involved in the production and sale of marijuana and has produced a copy of a text message from the father supporting her position. Position of the father and his plan [ 21 ] The father is currently unemployed.

On September 11, 2013 he lost a job he had since June 5, 2013 as a machine operator with anticipated earnings of $31,000. The father earned $9,850 in 2012 and $9,147. He is proposing to pay the mother $78.00 per month as child support based on his estimated earnings of $14,000 for 2013.

It is the father’s position that the mother has not done enough to try to earn more income and states, “I would like a better job too but I do not have the luxury of living off my parents to support me.” [ 22 ] It is the father’s position that due to his limited financial resources if the mother is permitted to move with Kyra he will not have any contact with her as he will not be able to afford to travel to Nova Scotia.

The father did not respond to the mother’s allegation that he lives in a home worth $800,000 to $1,000,000 and that he received an inheritance of $100,000 from his father’s estate. [ 23 ] The father’s counsel submits that the father has made a general denial at the outset of his affidavit that he is not responding to every statement and allegation in the mother’s affidavit and if he has not responded it should not be deemed to be an admission. [ 24 ] The father’s financial statement raises questions about his financial resources.

For example, it indicates that for his housing expenses he is only paying property taxes, property insurance and utilities but no amount for either a mortgage or rent and he does not list a house as an asset. The financial states indicates he is paying debts of about $1,000 per month but does not explain his source of income to pay these debts. [ 25 ] It is also the father’s position that the maternal grandparents have the resources to support the mother if she remained in this jurisdiction and they should required to file financial statements or at least provide proof of their financial resources.

[26] The father does not dispute that he has had limited contact with Kyra but provides various reasons such as he was advised by iscounsel not to have contact pending the results of the paternity test, the mother dictated the terms of his access and he was trying to workout the parenting arrangements in a non-adversarial manner.

The father does not dispute that his mother and sister have not seen Kyrasince June 2012 but blames the mother for making it uncomfortable for them to see Kyra and that the mother delayed in giving herpermission for them to see Kyra at the supervised access centre. [27] It is the father’s position that the reports from the supervised access centre are positive and raises no serious concerns about hisparenting abilities and that he has now enrolled in a parenting course.

It is his position that there was never a need for supervised accessbut he agreed to supervision so that he could see his daughter. [28] In the father’s answer, he denies he sells or grows marihuana but he does not explain his text message to the mother, in either hisanswer or his affavits, where it appears he is involved in the production of marihuana. [29] The father raises concerns about the mother’s use of drugs and questions the validity of the hair follicle test that she producedthat is negative for all drugs tested.

He has also alleged that the maternal grandparents have a problem with alcohol and use and allowthe use of drugs at their home.

In support of this allegation, the father relies on numerous affidavits from his friends confirming that theyhave been at the maternal grandparents’ home when people were outside smoking marijuana. [30] The father does not provide any details regarding his plan if the mother is not permitted to move with Kyra to Nova Scotia. [31] It is the father’s position that the mother and her parent have conspired to create this situation so that they can submit there is animmediate need for the mother to move and that it is only an attempt to curtail his involvement in the life of his daughter.

Applicable law and Analysis Urgency [32] Despite my ruling on September 10th,2013 wherein I held that this was an urgent motion, the father’s counsel again submittedthat there was no urgency and therefore I find it necessary to address this preliminary issue. [33] A motion prior to a case conference is the exception to the philosophy of the Family Law Rules but it is permitted in exceptionalcircumstances.

Subrule 14 (4.2) of the Family Law Rules provides that a motion can be heard prior to a case conference if there is asituation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice. [34] The leading case with respect to the

interpretation of subrule 14(4.2) dealing with urgent motions is Rosen v. Rosen, (ON SC), [2005] O.J. No. 62 (Superior Court of Justice, Family Court). Justice Wildman confirmed that an urgent motion within acourt proceeding contemplated issues such abduction, threats of harm, or dire financial circumstances.

Justice Wildman also set out theprocedure to be followed in requesting an urgent motion prior to a case conference namely, that an inquiry should be made regarding theavailability of an early case conference and prior to bringing the motion there should be some settlement discussions. [35] In this case, although it appears that there were no attempts to obtain an early case conference, the father was on notice since theinception of the proceedings that the mother wished to move and through correspondence between counsel, he was aware that there wasnow urgency in that move as the maternal grandparents were moving at the end of September.

It is also obvious that a motionpermitting the mother to move was not being consented to by the father and therefore this motion was necessary and would not havebeen resolved at a case conference. [36] Based on the evidence provided, the mother and Kyra have resided with the maternal grandparents since Kyra’s birth and arebeing financially supported by them. The maternal grandparents have sold their home which is scheduled to close on October10th, 2013.

Based on the mother’s income and the father’s position that he should only pay only $78.00 per month in child support, I find that themother’s financial circumstances are dire and that the issue of relocation was urgent and should be determined immediately and prior toa case conference. Determination of mobility on a temporary motion [37] Courts are generally reluctant to permit a parent to relocate prior to trial without the benefit of a full hearing to determine whatparenting arrangements are in a child’s best interests.

Such an order creates a status quo that favours the parent who is permitted to moveand can have permanent and long lasting effects. This is especially relevant in this case, as the proceedings have just been commencedand there is no formal order as to custody or access. [38] The considerations for determining if a move should be permitted on a temporary motion are set out in the well-known case ofPlumley and Plumbley (ON SC), [1999] O.J. No. 3234 (S.C.J.) wherein Justice Marshman articulated the followingprinciples: 1.

A court will be more reluctant to upset the status quo on an interim motion and permit the move when there is agenuine issue for trial;

2. There can be compelling circumstances which might dictate that a justice ought to allow the move. For example, themove may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial of the best interests of the childrenmight dictate that they commence school at a new location. 3.

Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strongprobability that the custodial parent’s position will prevail at trial. [39] The burden is on the parent seeking the change to prove compelling circumstances exist that are sufficient to justify the move. (See Terris v.Terris (ON SC), [2002] O. J. No. 3018 (S.C.J. ) at par. 29 and Vanderhyden v. Vanderhyden [2002] O.J.

No. 3769 (S.C.J.) at para. 22.). [40] I have also considered that the Ontario Court of Appeal, in Bjornson and Creighton (2002) (ON CA), 31 R.F.L. (5th) 242 emphasized the need for trial judges to determine the issue of custody before mobility and that at the outset of anyproceeding both parents are equally entitled to custody. [41] It is trite law that any decision regarding a child, including the issue of mobility, must be determined in the child’s best interestsand not in a parent’s best interests. (Gordon v.

Goertz (SCC), [1996] 2 S.C.R. 27 (S.C.C.) [42] In considering any mobility case, the principles that apply are set out in paragraphs 49 and 50 of Gordon v. Goertz, supra, asfollows: 1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstratinga material change in the circumstances affecting the child. 2.

If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests ofthe child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfythem. 3. This inquiry is based on the findings of the judge who made the previous order and evidence of the newcircumstances. 4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent'sviews are entitled to great respect. 5. Each case turns on its own unique circumstances.

The only issue is the best interest of the child in the particularcircumstances 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 parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs ofthe 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.

In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the newlocation must be weighed against the continuance of full contact with the child's access parent, its extended family and its community.The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? [43] The case law is clear that these guiding principles apply with necessary modifications to an initial consideration of custody andnot just to a variation of custody or access. (See Bjornson v.

Creighton, supra.) Both counsel have provided me with several cases thatapply to these factors and that support their respective positions. But each of the cases turns on the unique facts and can therefore bedistinguished from the facts in this case. [44] Applying these legal principles, I find that the mother should be permitted to move the child’s residence to Nova Scotia on atemporary basis. [45] It is undisputed that the mother has been the de facto custodial parent. Despite all of the father’s allegations against the mother

and the maternal grandparents, there is no evidence of any harm to the child and quite the opposite the contradicted evidence is that thechild is happy and doing well in the mother’s care. If the father truly believed that the mother or maternal grandparents were notappropriate caregivers then there is no explanation as to why he would have not raised concerns about Kyra remaining in the mother’scare and in that household before the mother commenced these proceedings. [46] The mother and her parents have provided letters from their doctors and Kyra’s doctor.

The letters confirm there have neverbeen any concerns about the mother’s parenting or the use of drugs or alcohol by either the mother or maternal grandparents. Themother also went to the trouble of provide a hair follicle test that was negative. [47] It is undisputed that the father for whatever reason the father has only had limited and supervised access to his daughter and thatall of his access has been supervised. It is also undisputed that he chose not to have any contact at all with Kyra for at least four monthswhen she was just over a year old while he waited to verify that was the biological father.

Although this may have been reasonable andprudent from his perspective, it interrupted any attachment Kyra was forming with her father and was not child focused. [48] I find that if this matter proceeded to trial it is inevitable that the mother would be awarded custody of this child and primaryresidence. [49] It is undisputed that the father has paid only limited child support and it is his position that he should only pay ongoing support of$78.00 per month. [50] It is undisputed that the mother is dependent on the maternal grandparents for financial support.

The father deposed that themother never made support a priority or requested support from him and that she is now using this issue to bolster the necessity of herneed to move. However, in response the mother’s counsel filed his assistant’s affidavit with copies of letters requesting the fatherprovide support. [51] It is undisputed that the mother and Kyra have always resided in the maternal grandparents’ home. I rely on the agreement ofpurchase and sale filed to confirm that the maternal grandparents’ home has been sold and is closing in early October.

I reject thesubmissions of father’s counsel that it is a conditional offer and until there is proof that those conditions are waived or until the house isactually sold the court should not assume the house is sold and that the mother will have nowhere to live. I take judicial notice of thefact that based on the agreement of purchase and sale the house is sold I can infer the house is sold and if there are any problems with theclosing those will be resolved. [52] I find that the mother’s financial situation is a compelling circumstance that requires she be permitted to move immediately.

I donot accept the submission of father’s counsel that either the mother has not looked hard enough for a full-time job or she could obtain theassistance of her parents to continue to reside in this jurisdiction. The father’s counsel went so far as to submit that there would be noharm even if the mother and Kyra needed to rely on social assistance for a few months pending a trial. Such an approach is absolutelynot focused on the best interests of the child but on the father’s interests.

I also find that it is in the child’s long term best interests thatthe mother complete her education and is able to find suitable employment that will enable her to earn a decent income.

The mother hasno support in this jurisdiction once her parents move to Nova Scotia whereas if she is permitted to move, she will have the support of herparents and other family members so that she would be able to attend school and also be assured that Kyra’s needs were taken care of. [53] Several cases have recognized that requiring a parent to remain in a community isolated from her family and supports and indifficult financial circumstances cannot but impact on a child.

The economic and financial benefits of moving to a community where themother will have supports, financial security and the ability to complete her education and establish a career are properly considered inassessing whether or not the move is in the child’s best interests. [54] I adopt the following passage, from the case of Lebrun v. Lebrun [1999] O.J.

No. 3393 (S.C.J.) wherein Justice Pardu states, atparagraphs 32 to 34, as follows: 32 The children's need for shelter, food and clothing which could be provided by adequate earnings by the mother musttake priority over the disruption of a move, and reduced contact with the father and his family. The intellectual and emotional floweringof these children cannot occur until their basic physical needs are met. 33 The economic realities require that the mother be free to pursue employment which will permit her to escape thewelfare rolls.

I am confident she will manage the move in a way which promotes the children's best interests. 34 An order restricting the residence of the children would, as in Woods v. Woods (1996) (MBCA), 110 Man. R. (2d) 290 C.A., condemn the mother and children "to a life of penury with a dissatisfied [mother] bereft of work anddignity.

The alternative is to empower the [mother] to improve their lives from both a material and psychological standpoint." While thesecurity of the positions offered to the mother cannot be assured, I am satisfied that the prospects of good, full-time employment aremuch better in southern Ontario. Leave is granted to the mother to move the residence of the children within Ontario. [55] (See also Greenfield v. Garside (ON SC), [2003] O. J. No. 1344 (S.C.J.) at para. 14; Roberts v. Young [2004]O. J. No. 1786 (S.C.J.) at para.25-26; Sterruzzi v. Allan [2013] O.J.

No. 3381 (C.A.) at para. 56.) [56] I have no doubt that the father loves Kyra and wishes to be involved in her life and have as much contact as possible with her. Ihave considered the principle of maximum contact between the child and her father and the importance of the father maintaining accessto Kyra which is especially important for young children; nevertheless the importance of the father’s contact in this case cannot overridethe positive effects that the move will have on Kyra. Kyra will remain in the primary care of her mother who will be happy, living in asupportive environment and financially secure.

Kyra will also have the benefit of the continued love and care of her maternalgrandparents who have played an integral role in her life. The advantages of the mother and Kyra moving outweigh the disadvantage ofthe loss of contact with the father.

[ 57 ] I find that it is inevitable that after a trial, the mother’s position would prevail and she would be permitted to move and there is no reason to delay the inevitable. The only triable issue is the nature and extent of the father’s access. [ 58 ] The father filed a cross-motion with a proposal for access if the mother is required to remain in this jurisdiction. It was his position that if the mother moves then Kyra should be placed in his care. But he did not address the issue of his access if the mother was permitted to move with Krya.

Mother’s counsel did not file a responding affidavit to the father’s cross motion although she did outline in her affidavit a proposal for access.

However, further financial disclosure is required from the father so that his financial circumstances can be understood as this will impact on his ability to exercise access in Nova Scotia. [ 59 ] I note that in the motion before me, the mother’s counsel did not request an order for temporary custody, however, I am making that order as it may be necessary for the mother to have a formal temporary custody order if there are any issues with respect to medical care or other issues concerning Krya that may arise prior to a trial in this matter. [ 60 ] There will therefore be a temporary order as follows: 1.

The Applicant, Jamie Dionne MacKenzie shall be granted custody of Kyra Lynn MacKenzie born August 15, 2011. 2. Pending further order of the court, the Applicant shall be permitted to move the child’s residence to Nova Scotia. 3. Ontario shall be deemed to be the child’s habitual residence and this court shall retain jurisdiction over all issues with respect to custody, access and support. 4.

The Applicant shall advise the Respondent, Christopher Newby, immediately of her contact information including, her address, telephone number and email address and shall advise him of any change in this information within 24 hours of any such change. 5. Pending the case conference scheduled on October 8 th , 2013, the parties shall arrange for the Respondent to have reasonable telephone and Skype access to the child. The Applicant will be permitted to participate in the case conference by telephone conference call to be arranged by the court. 6.

Costs reserved and to be addressed at the return of this matter. ________________________ Justice Roselyn Zisman DATE: October 2, 2013