Ethridge v. Pittendridge, 2011 ONCJ 717

Sault Ste. Marie Registry No. 17/2011 DATE: 2011·X·31 CITATION: Ethridge v. Pittendridge , 2011 ONCJ 717 ONTARIO COURT OF JUSTICE BETWEEN: ) ) nathan ethridge ) Kristi Whitfield, ) for N. Ethridge (father) ) ) — AND — ) ) ) Ashlee pittendrigh ) Lynn Tegosh, ) for A. Pittendrigh (mother) ) ) ) ) HEARD: October 21, 2011 [ 1 ] JUSTICE J. KUKURIN:— This is a decision on two motions brought in this contested custody-access case.

There is one child involved who is the subject of the parental dispute, Aydan, age one and one-half. [ 2 ] The first (at Tab 8) is brought by the respondent mother for an order: 1. for immediate return of the child to Sault Ste.

Marie; 2. for interim maternal sole custody; 3. for an interim order prohibiting removal of the child from Algoma District; 4. alternatively, for reasonable interim maternal access Fridays 9 a.m. to Monday at 7 p.m.; 5. for a police assistance order to enforce any order made. [ 3 ] The second (at Tab 9) is brought by the applicant father for interim orders for: 1. sole paternal custody; 2. alternatively, for primary residence with him; 3. specified maternal access as follows: (

a) reasonable access in Kingston on reasonable notice to him; (

b) reasonable access in Sault Ste. Marie at Christmas, Easter and during the summer; (

c) access on the child’s birthday in Kingston; (

d) liberal telephone access. 4. that the father contribute up to $200 for each access visit for the mother’s travel expenses to exercise access in Kingston; 5. that the mother ensure proper car seats and a licensed and insured driver while transporting the child; 6. restricting the mother to the city of Kingston or Algoma District while exercising access; 7. requiring the mother to provide the father with her physician’s letter confirming that she is faithfully taking all her prescribed medication and that she is mentally capable of caring for the child; 8. for third party disclosure (production of records relating to the mother in the possession of the Children’s Aid Society of Algoma. [ 4 ] There is substantial disagreement between these parties as to the factual background in this case.

This includes some things as fundamental as whether or not the parties cohabited for two plus years, as claimed by the father, or at no time, as claimed by

the mother. These inconsistent, often diametrically opposed accounts of what happened, pervade the evidence in this case. [ 5 ] However, there are some inferences that can be made regardless of whose version of events are believed: 1. The parties had a relationship which resulted in the birth of Aydan on February 23, 2010. 2. The parties lived in Sault Ste. Marie throughout their relationship. 3. The relationship terminated on January 15, 2011. 4. The child remained with the mother after January 15, 2011. 5. The child was with the father as of January 23, 2011 and has remained with him ever since. 6.

The father started a custody application in this court on January 21, 2011. It was withdrawn on March 1, 2011, possibly never served on the mother. 7. The father started his present application on March 1, 2011. The mother filed her answer on March 30, 2011. 8. On April 4, 2011, a case conference date was set for June 7, 2011. 9. On April 24, 2011, the father relocated with the child to Kingston. 10. The father did not attend at the case conference and his counsel brought a motion to be removed as his counsel of record, which motion was later withdrawn. 11.

The mother has had some contact with the child since January 23, 2011 but never on her own. [ 6 ] The main issue on the two motions before this court is where Aydan will reside, and the secondary issue is the nature of the contact he will have with each of his parents. [ 7 ] The father’s story is that the mother deprived him of any contact with Aydan for about five days following January 15, 2011. She then allowed him to have care of Aydan overnight and virtually abandoned Aydan at that point so that she could party, drink and play bingo.

He claims that she showed very little interest in seeing the child, and made only minimal requests for access. According to the father’s evidence, he was unemployed at the time in Sault Ste. Marie, collecting E.I. benefits and could not find work. An employment opportunity came up in Kingston of which he became aware through his brother-in-law. He moved to Kingston near the end of April 2011, taking Aydan with him, and secured this employment. He apparently works 44 hours per week, earns $21.25 per hour, with prospects of annual increases, and he has other employment benefits. He is a carpenter by trade.

He has a two-bedroom apartment. Aydan attends daycare Monday to Thursday and is babysat on Fridays by his paternal grandmother. Aydan is, according to the father, thriving in his care. [ 8 ] The mother’s story is considerably different. She recounts that on January 15, 2011, in the course of an argument, the father became physical and assaulted her. She called the police. They arrived and escorted the father out of the home. He later came to retrieve some belongings he had stored there. On Friday, January 21, 2011, she dropped off Aydan at the father’s home for an overnight access visit.

Later that evening, the father’s text message to her indicated that he would not be returning the child until the parties got before the court. The mother contacted the police but they told her to see a lawyer. She did so and was apparently in the process of starting her application when she became aware of the father’s application (later withdrawn). The mother has only seen Aydan at a restaurant a few times in the company of the father.

After she entered into a new relationship near the end of February 2011, the father cut off all access to her with Aydan. [ 9 ] There are several aspects of this case that create a judicial concern. [ 10 ] Firstly, the father’s application indicated his intention to reside in Sault Ste. Marie. He clearly changed his mind. However, he did not advise the mother of his changed plan. It is a reasonable inference that he did not even advise his own lawyer. He certainly did not come to the court to file evidence of this change of intention, nor to ask for permission to relocate the residence of the child.

It appears that, in moving the residence of the child to Kingston, he acted arbitrarily, without notice, and without consultation. [ 11 ] Secondly, timing is relevant. The father moved near the end of April (April 24, 2011). He must have been well aware by then of the mother’s claim in her answer for an order prohibiting him from removing the child from Algoma District without a written consent or a valid court order. He had neither. He had been effectively served with her answer on March 30, 2011. [ 12 ] Thirdly, the move was not to another location in Sault Ste.

Marie, nor to another city or town in Algoma District. Kingston is geographically a full day’s travel by car each way from Sault Ste. Marie. While this distance is onerous for adults, it is doubly so for a child not yet two years old. In short, any contact between Aydan and his mother was bound to become more costly, more difficult, and more infrequent than if Aydan had remained in Sault Ste. Marie.

The father’s proposals for prospective maternal access do not materially change the potential impact on the mother-child relationship brought about by this relocation. [ 13 ] Most mobility cases involve judicial permission to relocate. This is a mobility case, after the fact. Moreover, what is before me demands a decision on interim mobility, that is, where the child’s home should be until a final determination of this case. [ 14 ] Ultimately, it may turn out that it will be in the child’s best interests for the father to be his sole custodial parent.

However, that is a determination that may not be made for some time. On an interim determination, I am not persuaded by the evidence of the father that it was in Aydan’s interim best interest to move to Kingston. [ 15 ] I am equally not persuaded that the portrait of the mother depicted by the evidence of the father is altogether an accurate

reflection of the reality. [ 16 ] What seems to be unchallenged is that the child’s residence since birth was always with the mother. Whether the father was or was not a co-resident is still in the air. The father claims he was the main financial provider in the relationship. His work was the source of the family’s monies. He has not, as yet, filed a financial statement with his past three years tax information despite his obligation for the past six months to do so. His evidence suggests he was not only the only bread winner, but also that he was the primary caregiver since Aydan’s birth.

The inference he invites is that the mother earned nothing, did little, if anything, in terms of childcare, and simply partied and misspent his earnings when she was not having arguments with him, or assaulting him. [ 17 ] While this may all be found to be true in time, it lacks an air of reality. The mother filed her tax information which confirms she had an income of about $1,000 per month, likely from ODSP. Since Aydan’s birth, she also qualified for child tax benefits of $475 per month, all of which annualizes to $17,700. So she was obviously bringing some monies into the household.

She has not been employed since 2009 and describes herself as a stay-at-home parent. So she had all day at home with the child and the father was working, presumably full-time during the day. It is a stretch to believe that all that the mother ever did was breast feed this child. [ 18 ] The father’s credibility is also suspect in other things that he says.

At one point, he maintained that over their four year relationship, the mother “never once” regularly exercised her visitation with her four older children (who are in the custody of their biological father), would rarely even call them, and missed, cancelled or failed to show up for visits. At another place in his evidence, he describes himself as the step-parent to these four children, claiming that he prepared meals for them, bathed them, clothed, put them to bed, changed diapers, provided transportation, bought the majority of their special occasion gifts and provided financial support.

This is incredible altruism towards children that were not even his own and which the mother, according to him, seldom saw. [ 19 ] The father’s reason for leaving the relationship also raises some uneasiness. In his affidavit sworn January 19, 2011, he states the reason for the separation “… the respondent had committed adultery, was often out drinking alcohol, going out to bingo, sleeping through the days while I was caring for the child, being abusive to me on a regular basis.” This is repeated in his later affidavit (at Tab 6).

He adds that the mother’s new boyfriend was a drug dealer. [ 20 ] However, the subsequent evidence does not really corroborate this. Firstly, these complaints are not the kind that have just happened. They suggest a pattern of behaviour over time. Secondly, the father did not leave the home taking Aydan with him. In fact, he left the home after the police were called out as a result of the mother’s telephone call to report a domestic dispute. He did not walk out on her. The police escorted him off the property.

Thirdly, how was he caring for the child during the day when he claims he was working as the main breadwinner for the family? He has no credible evidence that the mother’s new boyfriend is, in fact, a drug dealer. [ 21 ] There are red flags with things that the mother says, or more accurately, what she fails to say. [1] She does not respond to the allegations of infidelity, of the drug-dealing new boyfriend, of the bingo, the drinking and the partying. She is very sketchy on the kind of relationship the father actually had with Aydan.

She does not reply to details of the many residences the father claims they both lived in. She provides very little about her efforts to spend time with Aydan after January 21, 2011, and does not deny the father’s statement that she left the child in his care for ten consecutive days after that date. [ 22 ] There is considerable case law on the issue of mobility, but only a much smaller body of case law that deals with interim mobility. [2] Most of these cases deal with prospective moves.

Very few deal with ex post facto relocations. [ 23 ] Generally, courts are reluctant to upset the status quo on an interim basis if there is a genuine issue for trial. They may allow a move where there are compelling circumstances. Courts attempt to minimize disruptions in the lives of children. [ 24 ] A major problem in this case is pinning down the status quo. The status quo generally is that set of circumstances that exist at the time of separation, or at the time the court proceeding was commenced. In this case, the status quo in my view involved: - the child residing in Sault Ste.

Marie; - the child residing in the mother’s home; - both parents residing and intending to reside in Sault Ste. Marie. [ 25 ] The father cannot change the status quo unilaterally. It is not totally clear whether the mother’s intention was for the father to be the custodial parent and for her to be the access parent.

It is very clear, however, that she did not intend, or agree to, a move of the child’s residence to Kingston. [ 26 ] Nor does the elapsing of time make a changed set or circumstances the new status quo, especially when the changes were being opposed. [ 27 ] There is a further consideration that weighs in favour of the mother. That has to do with the need to maintain public confidence in the administration of justice. [ 28 ] Regardless of the subjective bona fides of the father, his proper course of action, when faced with the mobility restriction claim, was to seek judicial permission to relocate from this court.

To give the court’s imprimatur to a unilateral move by the father effected without prior notice or permission would send entirely the wrong message to family law litigants. [ 29 ] I am mindful of the allegation that the child is thriving in his present circumstances and that he has been in Kingston now almost six months. However, I am equally aware that this is evidence only from the father, untested by cross-examination, and with no way for the mother to respond, much less contradict.

I am also aware of the father’s circumstances, particularly his employment. [ 30 ] The father will have to make some hard decisions. It is my intention to order that the child’s residence shall be in the City of Sault Ste. Marie on an interim basis. From the court’s point of view, the child’s interim best interests are served by residing in the care

of one or both parents. If the father returns with the child to live in Sault Ste. Marie, I would be inclined to order week-about residence with each parent on an interim basis, with no order as to interim custody or interim primary residence. The child is not yet two years of age and school is not a factor at the present. If the father opts to remain living in Kingston, I would be inclined to order that the child be returned to the mother within a reasonable time, award interim custody to her, and provide generous access to the father, all on an interim basis. [ 31 ] The choice is that of the father.

It is not an enviable position to be in, but he has put himself in this position by unilaterally moving the child’s residence. [ 32 ] I invite the parties to communicate through their respective counsel with a view to coming to an interim resolution with the guidance of these reasons. [ 33 ] Should the parties not be able to do so within 15 days, I will proceed to make an order. I might add that if the child is not brought back to Sault Ste.

Marie, I would not be averse to making a police assistance order pursuant to section 36(2) of the Children’s Law Reform Act . [3] Released: 31 October 2011 _____________________________________ Justice John Kukurin, Ontario Court of Justice