Mortimer v. Hirschler, 2011 ONCJ 700

Orangeville Registry No. 151-97 DATE: 2011·IX·29 CITATION: Mortimer v. Hirschler , 2011 ONCJ 700 ONTARIO COURT OF JUSTICE BETWEEN: TAMMY VIRGINIA MORTIMER Applicant — AND — NICHOLAS HIRSCHLER Respondent Before Justice Patrick W. Dunn Heard on 20 September 2011 Ruling on Motion released on 29 September 2011 Elizabeth Sachs .......................................................................................... for the applicant mother Tracey D. Bucks ....................................................................................... for the respondent father Jennifer J.

Holder .............................................................. for the Office of the Children’s Lawyer, legal representative for the child [ 1 ] JUSTICE P.W. DUNN:— Before the court is the respondent’s motion for temporary custody, dated 11 July 2011 in volume 2, tab 21 of the continuing record. [ 2 ] In preparation for the hearing, I read the following affidavits: 1. The respondent’s affidavit sworn 11 July 2011 (Vol. 2, Tab 22) 2. The affidavit of Kevin Myles sworn 12 July 2011 (Vol. 2, Tab 23) 3. The affidavit of Michael Emter sworn 12 July 2011 (Vol. 2, Tab 24) 4.

The applicant’s affidavit sworn 13 July 2011 (Vol. 2, Tab 25) 5. The respondent’s affidavit sworn 13 July 2011 (Vol. 2, Tab 26) 6. The respondent’s affidavit sworn 13 September 2011 (Vol. 2, Tab 27) 7. The affidavit of Mary-Michelle Hirschler Carrion sworn 9 September 2011 (Vol. 2, Tab 28) 8. The applicant’s affidavit sworn 13 September 2011 (Vol. 2, Tab 29) 9. The affidavit of Michael Emter sworn 13 September 2011 (Vol. 2, Tab 30) 10. The applicant’s affidavit sworn 28 June 2011 (Vol. 2, Tab 16) 11. The applicant’s affidavit sworn 4 April 2011 (Vol. 2, Tab 11) 12.

The affidavit of Michael Emter sworn 4 April 2011 (Vol. 2, Tab 12) 13. The applicant’s affidavit sworn 27 June 2011 (Vol. 2, Tab 14)

[ 3 ] The applicant and the respondent are the biological parents of Tanner Mortimer, born 3 July 1996, now fifteen years old. The parties had a brief relationship fifteen years ago, but they never lived together.

The applicant resided in Orangeville and the respondent, in Toronto and Tanner’s principal residence has always been with the applicant in Orangeville. [ 4 ] On 15 January 1998, Justice Allen, based on minutes of settlement, granted final orders pursuant to which the applicant received custody, and the respondent, “generous access”, to include alternate weekends and such other access as the parties should agree upon. [ 5 ] From 1997 (when Tanner was about a year old) until 2003 (when he was about seven), the applicant lived with one Kevin Myles. Since then, Mr.

Myles has had access to Tanner and he maintained a close relationship with the boy over the years. At present, Mr. Myles lives in Toronto relatively close to the respondent. [ 6 ] The applicant has lived with her present spouse, Michael Emter, since 2008 and he had treated Tanner like a son. Mr. Emter is very supportive of the applicant’s position; his affidavits confirm that the applicant takes very good care of Tanner. [ 7 ] The applicant has attended to Tanner’s educational and physical needs throughout her son’s life.

It was the applicant’s position that the respondent was disinterested in being involved in the myriad arrangements that have to be put in motion for tutoring and medical and educational appointments. From the applicant’s perspective, the respondent was more interested in engaging in “fun” activities with their son. It was the respondent’s opinion that he was not told about appointments at school or otherwise, and that living in Toronto, it would have been difficult for him to attend doctors’ and other appointments.

However, Tanner did stay with the respondent in Toronto on a very regular basis for all the prescribed access. [ 8 ] In the last six months after access with the respondent, the applicant complained that Tanner was returning to her with the uncooperative attitude of being sullen, rude and disrespectful. It was her belief that the respondent was giving their son “free reign” at his house.

She also thought the respondent was encouraging Tanner to decide for himself where he would like to live, and what he wanted to do. [ 9 ] The respondent stated that he did not encourage Tanner to live in Toronto; the idea arose exclusively from the boy. The respondent maintained that he had rules that Tanner had to follow, and that he was closely involved in monitoring Tanner’s activities when he was in Toronto. [ 10 ] On 24 June 2011, Tanner went for a regular weekend access to the respondent, with an expected return of 26 June 2011.

However on that day, Tanner telephoned the applicant to say he was not coming home and would remain with the respondent. The applicant brought a motion seeking a court order for the return of her son and it was heard on 15 July 2011 by Justice Baldock. Summer access was granted to the respondent by that court, but the respondent was ordered to return Tanner to the applicant after the summer holidays, which he did as required on 28 August 2011.

However, the respondent was granted access for three weeks; 15 July 2011 to 7 August 2011 and for the period 19 August 2011 to 28 August 2011. [ 11 ] The respondent made all the access transportation arrangements. Mr. Myles had extensive involvement with Tanner when he was residing with the respondent and he strongly supports the respondent’s bid for temporary custody. [ 12 ] Upon Tanner’s return to the applicant on 28 August 2011, his behaviour was oppositional and police were involved. The boy settled down however, and now he is enrolled in grade 10 in an academic stream and he sees his longstanding friends.

He receives tutoring in mathematics and the applicant is handily meeting his needs. Tanner was not permitted to visit the respondent since his return to the applicant on 28 August 2011. [ 13 ] The Office of the Children’s Lawyer in the person of Ms. Holder has had extensive involvement in this case. Ms. Holder appeared before Justice Baldock at the hearing on 15 July 2011. By then, the lawyer had only met Tanner once, and her investigation was at an early stage. Therefore, in the words of Justice Baldock on 15 July 2011, when Tanner said he wanted to live with the respondent, Ms.

Holder “was not in a position to advise the court as to whether his views and preferences as expressed to her are independent”. [ 14 ] However, now when the respondent’s motion for temporary custody is before the court, Ms. Holder had completed her investigation. She advised: 1. There were four meetings with Tanner between 16 June 2011 and 15 September 2011. 2. The boy presented as mature, well spoken and thoughtful. He was consistent, direct and of the firm view that he wanted to live with the respondent. 3. It was Ms.

Holder’s opinion that Tanner’s preferences were reached independently and that he was not coached by anyone. 4. Tanner had a plan for his Toronto residence involving school and activities. 5. Contrary to the applicant’s thought, Ms. Holder believed there were rules at the respondent’s home that Tanner had to follow. Also, the respondent was involved in his son’s day-to-day activities and contacts with friends and there was supervision.

6. Ms. Holder found no issues requiring the need for a clinical investigation and she believed her enquiry is now complete. 7. Ms. Holder submitted that Tanner’s desire to live with the respondent is being frustrated by the parties’ conflict and the slowness of court proceedings. She opined that the boy’s upset emotionally leads to anger and stress that will adversely affect his ability to focus on school work. 8. The present disconnect between the applicant and Tanner this past summer was a concern to the Children’s Lawyer, because she saw the relationship as needing professional help to get back on track. 9.

Ms. Holder recommended strongly that there be an immediate transfer of Tanner’s residence from the applicant to the respondent. [ 15 ] The applicant likely perceived that Tanner was happy and performing well in his Orangeville setting. However, Ms. Buck submitted that Tanner did not convey his feelings to the applicant for fear of inciting conflict. Ms.

Holder believed the boy was being honest with her by saying what he really felt. [ 16 ] The first obstacle the respondent has is to establish that there has been a material change in circumstances since Justice Allen’s orders of 15 January 1998 (thirteen years ago). [ 17 ] Ms. Buck argued that such a change is apparent by the difference in Tanner between 1998 and the present, where once he was a toddler and is now a teenager, where his views and preferences are important considerations.

The other differences argued by counsel were the deterioration in the conflict between the parties, and the discord on occasion between the applicant and Tanner. [ 18 ] Ms. Sachs contended that there was no material change since 1998, other than the simple fact that Tanner was older. It was submitted that the applicant was a fit and caring mother, who very adequately met her son’s needs. [ 19 ] Since the hearing before Justice Baldock on 15 July 2011, Ms. Holder completed her investigation to her professional satisfaction.

The Children’s Lawyer had compelling recommendations, which have been stated previously herein. [ 20 ] The court will find that there has been a material change in circumstances since the 1998 order by Justice Allen. In the thirteen years between the granting of the order and now, Tanner’s living circumstances and opinions have altered dramatically. He has gone from virtual infancy to young adulthood as a teenager. At the time of the 1998 order, the applicant’s and respondent’s residences were places where he grew physically and received care.

Now they are sites where he learns independence and rule observance and personality development. As a toddler, Tanner was not very affected by parental discord; whereas now, he apparently is very frustrated by it. [ 21 ] I do not view this as a case where a teenager is dictating in areas where adults should make decisions. The Children’s Lawyer’s investigation established that Tanner’s views were reached independently, and without outside influence, and they have been extant for several months. [ 22 ] I also do not see the case as being based solely on Tanner’s views and preferences. The concern of Ms.

Holder was that without remedial intervention, there will be further deterioration of the relationship between the applicant and Tanner. In other words, forcing the boy to remain in Orangeville could further undermine what once was a powerful bond between mother and son. [ 23 ] Now the court will consider what is in Tanner’s best interests, having found that there has been a material change in circumstances. Referring to

section 24 of the Children’s Law Reform Act . The court shall consider: Clause 24(2) (a): the love, affection and emotional ties between the child and, (

i) each person claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing. [ 24 ] For thirteen years, the respondent has had active involvement with his son. After his separation with the applicant, Mr.

Myles remained a part of Tanner’s life since 2003 when Tanner was seven years old. The respondent’s mother, brothers and other family live in his neighbourhood and would assist with Tanner’s care. The applicant and Mr. Emter (since about 2008) also have a close tie to Tanner. However, the Children’s Lawyer suggested that there has been a strain in the boy’s relationship with the applicant over the past several months. (

b) the child’s views and preferences, if they can reasonably be ascertained. [ 25 ] This area of consideration has already been stated. (

c) the length of time the child has lived in a stable environment. … (

f) the permanence and stability of the family unit with which it is proposed that the child will live. [ 26 ] Tanner’s residence with the applicant was apparently stable up until or before the summer of 2011. Thereafter, it would appear that his strong desire to live with the respondent may have been destabilizing his placement with the applicant. The respondent’s position was that living with the applicant was a “caustic” and unhappy environment. I do not accept that designation.

Tanner may not have wanted to live at the applicant’s, but certainly his physical and education needs would have been met, and the applicant and Mr. Emter loved him and I think he understands the good they have done for him. [ 27 ] It was the applicant’s view that placement with the respondent would not be a stable home environment. Tanner would set his own rules without adequate supervision. That was not the finding of Ms. Holder. There will be adjustments no doubt as Tanner becomes accommodated to the new school routine and the complexity of a long term placement.

However, there is a strong indication that the respondent can provide a stable home environment for Tanner. (

d) the ability and willingness of each person applying for custody…to provide the child with guidance and education, the necessaries of life and any special needs of the child. [ 28 ] The applicant and the respondent are equally able to give Tanner the necessaries of life. At this point, the parties’ son may be more willing to accept guidance from the respondent rather than from the applicant. Although the applicant would not accept that the respondent would be diligent about providing for and supervising Tanner’s education, it was Ms. Holder’s opinion that he would.

Arrangements for a school placement had not yet been made, but it would be a priority for the respondent. It was a compelling feature of this case that Tanner was willing to transfer schools from one with which he was familiar in Orangeville to one in Toronto that he did not know. That is supportive of his position that the move is important to him and that he is willing to support transitional changes. [ 29 ] Tanner has special needs. They are his deep desire to reside with the respondent, and the necessity to repair the bond between the applicant and the boy. The respondent can meet both requirements.

A structured environment at the respondent’s could put a positive focus on Tanner’s preferences being respected and acknowledged, leaving him free to apply himself to his studies and to rekindle through counselling his attachment with the applicant. (

e) the plan proposed by each person applying for custody…for the child’s care and upbringing.

[ 30 ] Essentially, the parties’ plans are identical; each party would strive to meet Tanner’s physical and educational needs. The respondent could be considered the better party to allow the boy to focus on ameliorating his emotional needs, provided the respondent can put aside his distrust of the applicant. (

g) the ability of each person applying for custody…to act as a parent. [ 31 ] Certainly the applicant has acted as a parent committed to meeting Tanner’s needs. She had strong doubts whether the respondent wants anything more to do with Tanner than to have fun with him. Based on the observations of Ms. Holder, it would appear that the respondent is fully prepared to be a very active parent. [ 32 ] After due consideration of counsels’ submissions and the affidavits filed, the court concludes that on a temporary basis, primary residence should be with the respondent. [ 33 ] I considered Ms.

Sachs’ proposal that if there has to be a change in residence, it should have to be after the fall term. On its face, that is a sensible suggestion. However, Tanner has only had a very few number of weeks in his Orangeville school, and therefore is in an acceptable position to do a transfer. Also, Ms. Holder advocated an immediate placement with the respondent in order to meet the boy’s emotional needs. [ 34 ] Another question that arose was the frequency of visits Tanner would have with the applicant if he is placed in Toronto.

I fear that the respondent might not appreciate the need for Tanner to keep in regular contact with the applicant, despite what misgivings the boy might have from time to time. The respondent and Tanner and Mr. Myles must realize that an order of this court for access by the applicant to Tanner is enforceable by sanctions. [ 35 ] Ms. Sachs questioned the bona fide intentions of the respondent in bringing his motion. The applicant’s counsel suggested that the real thrust behind the respondent’s intentions was to avoid paying child support. I do not agree with that contention. Ms.

Holder determined to her satisfaction that the issue of a transfer in residence emanated from Tanner’s upset in living at the applicant’s. The respondent’s motion was brought in support of his son’s best interests. [ 36 ] There will not be a specific order for access by Mr. Myles because that can be arranged readily between the respondent and Mr. Myles. [ 37 ] The following temporary orders shall issue: 1. The respondent shall have custody of Tanner Mortimer, born 3 July 1996. 2. Tanner will take up residence with the respondent within four days after the release of these Rulings. 3.

The applicant will have access to Tanner on alternate weekends from Fridays at 6:00 p.m. to Sundays at 5:00 p.m. or at such other times as the parties may agree upon. The first alternate access weekend will begin on the second weekend after Tanner begins to live with the respondent. 4. The applicant shall have such other access as the parties may agree upon. 5. The parties shall share in the transportation arrangements. 6. The respondent is required to facilitate regular reasonable telephone contact between the applicant and Tanner when Tanner is residing with the respondent. 7.

The respondent is required to avoid telephone calls to Tanner when he is living with the applicant, unless emergency arrangements need to be made.

8. The 6 March 2001 orders of Justice Jones that required the respondent to pay child support of $300. a month is vacated effective 1 October 2011. A Support Deduction Order shall issue. [ 38 ] I thank all counsel for their careful presentations. Released: 29 September 2011 Justice Patrick W. Dunn