Oickle v. Beland, 2012 ONCJ 778

COURT FILE No.: Sudbury D-291-06 DATE: 2012-12-13 Citation: Oickle v. Beland , 2012 ONCJ 778 ONTARIO COURT OF JUSTICE BETWEEN: MICHELINE LOUISE OICKLE Applicant — AND — ERICK BELAND Respondent Before Justice Randall W.

Lalande Heard on October 15, 2012 Reasons for Judgment released on December 13, 2012 Craig Ticalo ........................................................................................................... for the applicant Pierre Ranger ...................................................................................................... for the respondent LALANDE J.: 1: INTRODUCTION [ 1 ] The applicant, Micheline Louise Oickle (the “mother”) and the respondent, Erick Beland (the “father”), are the biological parents of Brianna Grace Beland born on July 23, 1998. [ 2 ] The mother and the father resided in a common-law relationship for a period extending approximately from 1997 to January 2004. [ 3 ] The mother is now married.

She resides with her spouse, Scott Oickle. They live in a comfortable single residential home at Capreol, Ontario. Capreol is a small town located just north of Sudbury (30 to 35 minutes by vehicle) and is now is part of the City of Greater Sudbury. The mother is employed full-time at “Contact North” (Ontario Distance Education and Training Network). [ 4 ] The father resides with his common-law spouse, Manon Lépine at Gatineau, Québec. They live in a newly purchase single residential home. Ms. Lépine has known Brianna since 2009 when she first met Mr. Beland.

The father is employed full-time by the federal government. [ 5 ] Brianna resides with her mother and step-father in accordance with the terms of an order granted by Justice Renaud on December 11, 2006. Justice Renaud granted sole custody to the mother with specified access to the father including generous summer access. [ 6 ] In the 2011-2012 school year, Brianna attended elementary school at Ecole Felix Ricard at Sudbury where she successfully completed grade 8.

She is now enrolled as a full-time secondary school student at College Notre Dame (grade 9) Sudbury. [ 7 ] The issue to be determined by the court is whether Justice Renaud’s order should be changed to permit Brianna to now reside with her father. Mr. Pierre Bradley was appointed by the Office of the Children’s Lawyer as counsel to represent Brianna. At the commencement of these proceedings, he highlighted Brianna’s strong wish to reside with her father.

He also provided comments (to be touched upon later in these reasons) in support of her position. [ 8 ] In essence, Brianna (the “child”) maintains a strong wish to reside with her father. The mother wishes to continue to parent Brianna and deems the status quo to be in her best interest. 2: HISTORY OF PROCEEDINGS

[ 9 ] The mother brought a motion for contempt on December 2, 2011 returnable on December 12, 2011. The matter was spoken to on December 12, 2011 and adjourned to January 6, 2012 for proof of service and to be spoken to. [ 10 ] On January 6, 2012, the court allowed service by ordinary prepaid mail but also noted that the motion was to be withdrawn and recommenced as a motion to change. [ 11 ] On February 14, 2012, the mother issued a motion to change with a first court date of March 28, 2012.

The gist of her motion dealt with the issue of child support and the obtaining of disclosure regarding the father’s financial circumstances. [ 12 ] The father filed a response to the motion to change on March 22, 2012. He advanced his own claim seeking to vary the custody provision of Justice Renaud’s order. He is asking that the child be placed in his custody and care. [ 13 ] On March 28, 2012, the matter was set over to a settlement conference scheduled for April 10, 2012 at 2:00 p.m. before Justice Guay. Justice Guay commenced but did not complete the conference on that date.

The conference was rescheduled for continuation to May 1, 2012 at 10:30 a.m. Justice Guay also scheduled May 8, 2012 as a date for a motion to appoint counsel to represent the child if required. [ 14 ] On May 1, 2012, Justice Guay cancelled the motion scheduled for May 8, 2012 and directly ordered that counsel be appointed to represent the child. The settlement conference was further adjourned to August 8, 2012. [ 15 ] On August 8, 2012, Justice Guay held both a settlement conference and trial management conference. He adjourned the case to October 15, 2012 for trial with the following directives: (

a) trial by viva voce evidence for the parties and their spouses; (

b) Children’s Lawyer to give the child’s views without the need to call such evidence. [ 16 ] The trial proceeded before myself on October 15, 2012. Because of time constraints, counsel were permitted to supplement their submissions by providing brief follow-up submissions and relevant case law on or before October 26, 2012. 3: OVERVIEW [ 17 ] By way of overview, I shall summarize some of the evidence given by the parties and their witnesses. All of the evidence has been considered for the purpose of these reasons.

It should not be taken that evidence not specifically mentioned or referred to in these reasons has been given less weight. 3.1: Micheline Louise Oickle (the mother) [ 18 ] Since the parties separated, the mother has always been the child’s primary care giver. There is no indication that she has been less than diligent in discharging her duties as a devoted parent.

It is obvious that the mother loves her child and speaks from the heart in wanting what is best for her. [ 19 ] Although the mother understands her daughter’s wishes (to now live with the father), she categorizes those wishes and aspirations as stemming from an ill-conceived and immature plan. In the mother’s view, the child is failing to recognize or is underestimating the risks and ramifications associated with her decision to uproot herself and move. To her credit, the mother was cautious to not overstate the benefits of the status quo .

She did, however, accentuate the fact that the child is protected, enrolled in an excellent school, socially acclimatized and living in a household which promotes routine and stability.

To use the vernacular, the mother is saying that “the stage is set” and that there is no reason to “upset the apple cart” at this time. [ 20 ] In her evidence, the mother advanced a number of specific concerns militating against the idea of her daughter moving to Gatineau which I shall highlight without reference to any particular level of importance, as follows: • That the current access regime is working fine; • That once the child moves away, there will be less opportunity for her (mother) to be usefully hands-on especially at this important age juncture in her (child’

s) life; • That the child has been exposed to risk issues in the past while in her father’s care including a family member sexual assault allegation; • That the child is very busy socially while at her father’s home such that at times it is be most difficult to keep track of her; • That she (the child) is succeeding quite well at school at this time and that the education system in Quebec may be different, hence, possibly causing her to academically regress; • That her (the child’

s) usual social life is solid in terms of colleagues and friends. She is fully integrated in her new high school student life and this has a salutary effect on her school results; • That she (the child) is exposed to structure in her life. She adheres to the family’s daily living routine and is assigned chores to do around the home.

This contributes to her sense of responsibility and development; • That she (the child) is less mature than she thinks and that she has failed to measure the consequences of moving away; • That she (the child) may be confused over the entire matter and even suffering from peripheral medical issues such as stomach cramps or ulcers; • That by virtue of her lack of maturity, she may be led by others ( i.e. , her peers) and that ultimately this may not be in her best interest; • That a number of her cousins are at different age levels including one cousins who is 17 years of age and dating a boyfriend several years older than her. [ 21 ] As was touched upon in cross-examination, the mother also recognizes that her daughter has solid life skills and is

competent to make proper age-appropriate decisions. On the other hand, in speaking about her daughter’s desire to move, the mother stated: “I spoke to the lawyer (Mr. Bradley) and informed him that she was not old enough to make ‘that’ decision and that I wanted her to stay with me”. The mother also confirmed that she would be prepared to agree to more access in exchange for her daughter’s not moving away. [ 22 ] The mother admitted that she felt confused about the fact that her daughter was excited about her new school (College Notre Dame) and at the same time, still wanted to be with her father.

The mother remains disappointed at the prospect of her daughter’s leaving and disapproves of her doing so. She sees no long-term advantage in her daughter’s moving at this time. She remains supportive of her daughter, is careful not to wrongly denounce the father’s parenting credentials and accepts that her daughter’s wish to move results from a decision that her daughter made on her own. In response to the question: “Do you agree she decided independent of influence?” The mother responded: “I believe yes, it’s her own decision”. [ 23 ] By and large, the court considered the mother to be a good witness.

She did not embellish her evidence, she was well- motivated, she avoided exaggeration, she sought to only accentuate points relevant to the case, she did not dwell on any past acrimonious issues and she did her best against the backdrop of having provided a functional and loving home to underscore and explain her reasons for opposing the change being sought. 3.2: Scott Oickle [ 24 ] Mr. Oickle presented himself as a very co-operative witness. He supported the mother and at the same time did his best to provide neutral, yet insightful evidence.

Generally speaking, he supports whatever is in the child’s best interest. [ 25 ] In response to a direct question about the child’s happiness, Mr. Oickle provided the following telling response: Yes it is possible that she is not happy because she wants to go and live with (or be with) her dad. 3.3: Erick Beland (the father) [ 26 ] The father is 40 years of age and employed full-time with the federal government. He resides with his common-law spouse, Manon Lépine at Gatineau. [ 27 ] The father stated that Brianna has expressed a desire to live with him since 2007 or 2008.

When Brianna first stated talking about wanting to live with him, he was single. He therefore chose to put the issue off. [ 28 ] The father met Ms. Lépine in 2009. They commenced residing together in 2010. They have recently purchased a residential home and are poised to provide the child with all the amenities she needs. From the gist of the evidence heard, Brianna gets along very well with Ms. Lépine. [ 29 ] The father disclosed that the child has become more assertive about the prospect of moving since the summer of 2011. While at his home, she called her mother during a summer access visit.

She discussed the idea of attending school at Gatineau. Her mother advised that they would talk about the matter later upon her return. According to the father, nothing really further evolved. [ 30 ] In the father’s view, Brianna is aware that her mother is not in favour of the idea of her moving to Gatineau. Therefore, she is faced with the ongoing challenge of trying to implement her plan without impacting the relationship which she values with her mother. [ 31 ] The father highlighted efforts made to ensure the child’s comfort in his home. He also emphasized that he and the child share a passion for music.

He has recently purchased a portable electric piano for her room. [ 32 ] The father maintains that he has not influenced the child in any way respecting her decision. Moreover, he would fully support her if she changed her mind about moving or if at any time she wished to return to reside with her mother. From his perspective, the child is not making a hasty decision. She has had the benefit of consulting her own lawyer and is old enough to make up her own mind. [ 33 ] In terms of the 2009 “incident”, the father said that he confronted his own father as the perpetrator.

He considered this as a “tough” thing to do. Police were notified. At no time was he ever dissuaded from doing what he thought was proper after having found out what occurred. He supported the child throughout. As a final note, he indicated that his father confessed on May 11, 2009. 3.4: Manon Lépine [ 34 ] Manon Lépine testified that she has a very positive relationship with the child. She confirmed that the father favours reasonable household rules such as a curfew (especially after dark), clean rooms and shared chores. [ 35 ] Ms.

Lépine stated that she recalled that, during Brianna’s last visit in 2012, she (Brianna) had expressed hope that her mother would accept the custody change. She indicated that Brianna was reluctant to leave her father’s home after the visit but respected the status quo and the legal obligation under which her parents were bound. [ 36 ] According to Ms. Lépine, there is little doubt that Brianna would integrate well with the family and extended family with whom she gets along very well. Extended family would include Ms. Lépine’s son, her parents and siblings. [ 37 ] Ms. Lépine was an impressive witness.

She spoke sincerely and appeared to be properly motivated in providing her evidence.

3.5: Pierre Bradley [38] Mr. Bradley is a lawyer. He practises law in Sudbury. He was appointed by the Office of the Children’s Lawyer torepresent the child. He provided the court with details regarding several meetings he had with her in preparation for court. [39] Mr. Bradley found Brianna to be independent-minded and mature for her age. In that context, he did not necessarily agreewith the mother’s comments respecting the child’s level of maturity. Mr. Bradley assessed the child as having attained a solid andadequate maturity level for her age.

Unlike the mother, he felt that Brianna was mature enough to make the decision that she arrived at. [40] Mr. Bradley confirmed that Brianna is adamant about wanting to reside with her father and at no time spoke negativelyabout her mother. He related that she is of the view that she has lived most of her life with her mother and now wants the opportunity ofliving with her father. [41] In essence, it appears from Mr. Bradley’s comments that Brianna is looking forward to a change of environment and isanxious to meet the challenges of attending a new school.

It also appears that she is anxious to expand her relationship with her step-siblings. [42] Mr. Bradley wanted the court to know that he did not have “a light discussion” with Brianna. The issue before the courtwas thoroughly canvassed with her. He also indicated that he is unaware of any extraneous influence impacting her decision one way orthe other. There is no reason to think that she is improperly motivated. She has a good understanding of the possible pitfalls and ispoised to adjust to any required changes. [43] Mr.

Bradley acknowledges that Brianna was the victim of a sexual assault sadly involving her paternal grandfather in2009. This occurred during an access visit with her father. She told her father. The matter was fully investigated. There has been nofurther communication with the grandfather although contact with the grandmother remains ongoing. [44] Mr. Bradley was quite clear in stating that this is not a case of a parent “luring” a child away from another parent.

To thecontrary, this is a decision in which a child (now 15 years) has arrived at independently and from the vantage point of having twocompetent parents each of whom are fully equipped to provide adequate care. 4: ANALYSIS [45] Under

section 29 of the Children’s Law Reform Act, the court may change a final custody or access order if there is amaterial change of circumstances affecting the best interests of the child. This is a two-step process: (

a) The moving party must first meet the threshold requirement of demonstrating that, since the last order was made, there hasbeen a material change in circumstances that affects or is likely to affect the child. The previous order is presumed to becorrect. The change must have not been foreseen or reasonably contemplated by the judge who made the original order. The change must be to the condition, needs, means or circumstances of the child and the ability of the parent to meet thoseneeds. If this test is not met, the inquiry goes no further. (

b) Second, if the threshold is met, the court must embark on a fresh inquiry into the best interests of the child, having regardto all of the circumstances in

section 24 of the Children’s Law Reform Act. In this fresh inquiry, both parties bear theevidentiary burden of demonstrating where the best interests of the child lie. The court should consider the matter afreshwithout defaulting to the existing arrangement. [46] This two-step process was adopted by the Saskatchewan Court of Appeal in Talbot v. Henry, , 84 Sask. R.170, [1990] 5 W.W.R. 251, 25 R.F.L. (3d) 415, [1990] S.J. No. 159, 1990 Cars​well​Sask 161; by the British Columbia Court of Appeal inWatson v. Watson, , 35 R.F.L. (3d) 169, [1991] B.C.J.

No. 2604, 1991 Cars​well​BC 548; by the Alberta Court of Appealin Kubel v. Kubel, 1995 ABCA 229, 169 A.R. 295, 97 W.A.C. 295, 15 R.F.L. (4th) 356, [1995] A.J. No. 637, 1995 Cars​well​Alta 403;and by the New Brunswick Court of Appeal in Hayes v. Hayes (1995), (NB CA), 166 N.B.R. (2d) 1, 425 A.P.R. 1,14 R.F.L. (4th) 296, [1995] N.B.J. No. 242, 1995 Cars​well​NB 33. [47] Although not directly affecting the approach taken on these facts, the court remains mindful of Justice Aston’s commentsin Lehman v.

Lehman (Oncz) (1996), (ON SC), 62 A.C.W.S. (3d) 326, where he mentions that the legal test as itrelates to changing a final custody or access order is not quite so clear in Ontario because of the decision in Montgomery v. Montgomery(1992), (ON CA), 59 O.A.C. 19, 97 D.L.R. (4th) 437, 42 R.F.L. (3d) 349, [1992] O.J. No. 2299, 1992 Cars​well​Ont295 (Ont. C.A.); permission to appeal to the Supreme Court of Canada refused: Montgomery v. Montgomery, [1993] 3 S.C.R. vii, 157N.R. 348n, 65 O.A.C. 290n, 106 D.L.R. (4th) vii, 48 R.F.L. (3d) 232n, [1993] S.C.C.A.

No. 65. [48] In discussing the Montgomery case, Justice Aston stated as follows: “In that particular case, the court held that a custody or access order should only be varied if a material change in circumstance hasoccurred, but that the court is not limited to the evidence of facts and circumstances that have happened since the original order.

Thecourt held that continuous and unrelenting stress and its effect on the child going back to a point in time earlier than the last custody andaccess order amounted to a “material change in circumstances”, so as to open the door to a consideration of what order would be in thebest interests of the child. The dissenting opinion of Appeal Justice George Finlayson adopted the two-step analysis and stated that thereis a material change in circumstances only if the facts are materially different.

The two-step analysis starts with the question, “Whatfacts and circumstances have occurred since the last order that might amount to a `material change in circumstances’?” The majorityopinion expressed by Appeal Justice Rosalie Abella emphasized that any decision concerning custody of or access to a child starts andends with the question “What is in the best interests of the child?”, whether it is a variation application or an original application that isin issue.”

[49] The requirement of a material change in circumstances means that a change motion cannot be an indirect route of appealfrom the original custody order. The court cannot retry the case, substituting its opinion for that of the first judge. It must assume thecorrectness of the decision and consider only the changed facts since the first order was made. See Docherty v. Beckett (1989), (ON CA), 21 R.F.L. (3d) 92, [1989] O.J. No. 872, 1989 Cars​well​Ont 254 (Ont. C.A.). [50] Custody and access decisions are inherently an exercise in discretion.

Case-by-case consideration of the uniquecircumstances of each child is the hallmark of the process. This discretion vested in the trial judge enables a balanced evaluation of thebest interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect achild. See Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, 275 N.R. 52, 156 B.C.A.C. 161, 94 B.C.L.R. (3d) 199, [2001]11 W.W.R. 1, 255 W.A.C. 161, 204 D.L.R. (4th) 257, 19 R.F.L. (5th) 396, [2001] S.C.J. No. 60, 2001 Cars​well​BC 1999. [51] As pointed out in the decision of Gray (Wiegers) v.

Wiegers, 2008 SKCA 7, 307 Sask. R. 117, 417 W.A.C. 117, [2008] 4W.W.R. 225, 291 D.L.R. (4th) 176, 47 R.F.L. (6th) 1, [2008] S.J. No. 12, 2008 Cars​well​Sask 10 (Sask. C.A.), the aging of a child doesnot necessarily constitute a material change in circumstances. The change must have altered the child’s needs or the ability of the parentto meet those needs. The last order is presumed to be correct. That is not to say that the aging of a child cannot be an important and evenpivotal factor in considering whether there has been a material change in circumstances.

As discussed in a number of decisions providedby counsel during submissions, the court must be cautious to not allow a child’s comments to be the sole basis of the case whiledisregarding other evidence relevant to what actually may be in the child’s best interest. Ultimately, the weight to be attached to anexpression of preference depends on the facts and is a function of age, intelligence and apparent maturity of the child.

The court, ofcourse, may have to measure these factors against the background of other issues such as influence, motivation and the ability of theparent with whom the child wants to live, to provide a stable home. There have, for instance, been cases where a child’s wishes havebeen given less weight where one parent has undermined the relationship with the other parent. This is not the case at hand. [52] Reference has been made to the decision of A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30,[2009] 2 S.C.R. 181, 390 N.R. 1, 240 Man.

R. (2d) 177, [2009] 7 W.W.R. 379, 456 W.A.C. 177, 66 C.C.L.T. (3d) 1, 191 C.R.R. (2d)300, 65 R.F.L. (6th) 239, [2009] S.C.J. No. 30, 2009 Cars​well​Man 293. The case dealt with the right of a child under 16 years of age torefuse medical treatment in the context of the child protection proceeding. Justice Roselyn Zisman in Kavaner v. Jancsurak, 2012 ONCJ543, [2012] O.J. No. 4040, 2012 Cars​well​Ont 10675 (Ont. C.J.), followed Justice Abella’s comments at paragraphs 87 to 88 and 92 to93: [87] . . .

In some cases, courts will inevitably be so convinced of a child’s maturity that theprinciples of welfare and autonomy will collapse together and the child’s wishes will become thecontrolling factor. If, after a careful and sophisticated analysis of the young person’s ability to exercisemature, independent judgment, the court is persuaded that the necessary level of maturity exists, it seemto me necessarily to follow that the adolescent’s views ought to be respected. . . . [88] As L’Heureux-Dubé J. said in Young v.

Young, (SCC), (SCC), [1993] 4 S.C.R. 3, “courts must be directed to create or support the conditions which are mostconducive to the flourishing of the child” (p. 65 (emphasis added))… When applied to adolescents,therefore, the “best interests” standard must be interpreted in a way that reflects and addresses anadolescent’s evolving capacities for autonomous decision making.

It is not only an option for the courtto treat the child’s views as an increasingly determinative factor as his or her maturity increases, it is, bydefinition, in a child’s best interests to respect and promote his or her autonomy to the extent that his orher maturity dictates. . . . [53] It should be noted that counsel for the father (Mr. Ranger) did make mention of Justice Abella’s comments in A.C. v.Manitoba (Director of Child and Family Services), supra. The following was referred to: [3] The main issue in this appeal is whether those provisions of the Child and Family Services Actare constitutional.

In my view, if the young person’s best interests are interpreted in a way thatsufficiently respects his or her maturity in a particular medical decision-making context, theconstitutionality of the legislation is preserved. [4] I acknowledge that because we are dealing with the inherent imprecision of childhood andadolescent development, maturity is necessarily an imprecise standard.

There is no judicial divining rodthat leads to a “eureka” moment for its discovery; it depends on the court’s assessment of theadolescent, his or her circumstances and ability to exercise independent judgment, and the nature andconsequences of the decision at issue. But I am nonetheless strongly of the view that in order to respectan adolescent’s evolving right to autonomous medical decision-making, a thorough assessment ofmaturity, however difficult, is required in determining his or her best interests. [54] Counsel representing the mother (Mr.

Ticalo) indicated that the child has the benefit of two loving and caring families. He stated: “Both the father and the mother of the child have shown and demonstrated that they love and care for their daughter and thatthey have the skills and abilities necessary to be a proper parent to her.” In the court’s view, there is no reason to disagree with thissubmission.

The evidence supports the conclusion that she will be properly loved and cared for whether she resides with her mother orher father. [55] Counsel for the mother also indicated that he does not agree that the child has the maturity to make the decision to movefrom Capreol to Gatineau. In that regard, he is not in agreement with the position by the child’s counsel (Mr. Bradley). In terms of thechild’s level of maturity, the court takes into account the following: • Brianna has remained consistent with her position.

She has been wanting to reside under her father’s care at least since thesummer of 2011 and likely before that time. She has no apparent ulterior motive. The explanation(

s) provided to hercounsel on its face is reasonable and plausible;

• According to Mr. Bradley, Brianna is mature for her age. She has articulately expressed her wishes. All indications are that she has, in the process, remained calm, followed proper advice and respected the terms of the current order with which her parents must abide; • There is every indication that Brianna’s preference to live with her father has been reached independently. This fact is directly supported by both parents. The idea of her not being “coached” is most important. This indeed adds a positive feature to Brianna’s position; • Brianna does have a plan regarding her residence at Gatineau.

She knows she may be facing some academic challenges by changing school mid-term. She is not dissuaded. Her plan is to reside with her father, change schools and get into a new routine. • Brianna gets along well with her extended family at Gatineau. She is most familiar with the residence where she would be living. She has (with her father’s assistance) made inquiries regarding the school where she would be attending. There are persons her age at Gatineau (including cousins) with whom she has been socializing during summer access visits; • The father’s home does have “rules”. This was confirmed by Ms. Lépine.

The household rules are reasonable, Brianna knows what the rules are and there is every reason to expect that she will accept and follow them; • Mr. Bradley is of the view that Brianna’s wish to live under the care of her father (and his spouse) is legitimate. He found her to be honest. She did not vacillate nor did she react badly when told that there would be a delay in obtaining a decision on whether the order would be changed. [ 56 ] In looking at the totality of the evidence, there is nothing to indicate that Brianna is less than mature for her age level.

In other words, she has acted and responded in a fashion that would objectively be considered most appropriate for someone her age. Understandably, her mother has legitimate reservations and from the viewpoint of a concerned parent, cannot help but ponder the maturity level of her daughter who aspires to leave the comfort of her existing home. The court is, however, confident that the mother also has a broader perspective (touching upon emotions, feelings and her child’s equal love for her father) which may, to some extent, have been left unexpressed. [ 57 ] Justice Abella’s comments are most appropriate.

There is no judicial divining rod that leads to a “eureka” moment for its discovery ( i.e. , maturity). Brianna is 15 years old. The totality of the evidence points to her being mature for her age. Considering all factors, there is nothing in the evidence to indicate that her plan to move would be contrary to her best interests. [ 58 ] The court is mindful that school routines may differ in the province of Quebec. The court is not convinced, however, that “academic standards” measured against a child’s age and qualifications would be much different.

While it is true that Brianna may require modest leeway to accommodate transitioning to a new school, there is no reason to think that her new school would be less than enthusiastic to assist her. In the broader picture, all evidence points to Brianna’s being a bright student who can meet the challenge of re- adapting to a new school environment without much difficulty. [ 59 ] Based on the evidence there are no protection concerns. It is most unfortunate that the 2009 “incident” occurred.

Even the most conscientious, well-meaning and protective parents cannot always forecast situations that may result in a child’s exposure to danger. The father had no expectation that Brianna would be at risk in these circumstances. Upon learning about the matter, he did what he thought was best and reacted responsibly. He remains fully committed to ensure that Brianna, while under his care, will not be at risk in the future. [ 60 ] The mother has expressed concern for her daughter and remains unconvinced that her decision to reside with her father has been wisely arrived at.

She does not think that her daughter has considered the full scope of all ramifications attached to moving to Gatineau. Nonetheless, there is every indication that the mother’s love and support will remain unwavering in the future and that she will continue to be a strong, constant presence in her daughter’s life. She will have much opportunity to stay involved and spend quality time with Brianna. 5: DECISION [ 61 ] Brianna is 15 years of age. She has expressed a strong wish to reside under the care of her father at Gatineau. She has had the benefit of consulting her own lawyer.

She is aware that in moving to Gatineau, she will have to adapt (mid-term) to a new school setting in a different province. Her decision has been arrived at independently. She enjoys a proper level of maturity for her age. She enjoys the support and love of two devoted parents. She knows that she will continue to benefit from the input of both parents irrespective of her actual “primary residence”. Her father is more than able to provide a stable home.

There are no ongoing protection concerns. [ 62 ] Brianna does not portray a child who is trying to be manipulative or who is seeking an unwarranted change for some ulterior motive. To the contrary, she appears to be a pleasant, courteous and sincere young person with a plan. As indicated to her counsel, she is looking forward to a change of environment and is anxious to meet the challenges of attending a new school. She has lived most of her life with her mother and now seeks the opportunity to live with and be under the care of her father.

As already discussed, both parents agree that Brianna is not acting under adverse influence. [ 63 ] The court is mindful that the aging of a child does not necessarily constitute a material change in circumstances.

However, in the circumstances of this case, the court is satisfied given Brianna’s age and all other factors mentioned in these reasons that there has been a material change in circumstances upon which a change in the final order as granted by Justice Renaud on December 11, 2006 may be made. [ 64 ] In the final analysis, based on a review of the totality of the evidence and for the above reasons, Brianna should be allowed at this stage to reside under the care of her father at Gatineau. [ 65 ] The court is sensitive to the fact that immediate measures must be taken to implement Brianna’s move to Gatineau in order to accommodate the school term commencing in January 2013.

At the same time, the court is not privy to certain important details

that may impact the “timing” of Brianna’s move. For instance, in early January 2013, Brianna may well be required to write exams in completion of her first term at College Notre Dame at Sudbury. Although the change in custody will commence as at January 1, 2013, the court is aware that it may be necessary for there to be an actual delay in Brianna moving to Gatineau. Therefore it shall be necessary for both parents, in their discretion, between now and January 2013 to accommodate Brianna with her move. [ 66 ] Counsel have not made submissions on the issue of child support, arrears of child support and access.

Because of these outstanding issues and in deference to Brianna’s educational commitment at College Notre Dame which may extend into January 2013, the court shall at this time only grant a “temporary order”. [ 67 ] The court shall provide a return date so that the case may be spoken to.

The parties are expected to make their best efforts to resolve the following: • the timing of Brianna’s move to Gatineau; • the issue of child support and child support arrears; • the issue of access. [ 68 ] In the court’s view, it may be an advantage to the parties to be governed by one all encompassing final order replacing the existing order granted on December 11, 2006. In the meantime, counsel shall be provided with a return date so that this matter may be spoken to and hopefully finalized.

If there is any urgency to obtain directives prior to the next scheduled date, counsel are at liberty to contact the trial co-ordinator. 6: TEMPORARY ORDER [ 69 ] Therefore there shall be a temporary order as follows:

(1) Paragraph 1 of the order of Justice Renaud granted on December 11, 2006 shall be deleted and replaced as follows: (

a) The respondent father, Erick Beland, shall be entrusted sole and permanent custody of the child, Brianna Grace Beland born on July 23, 1998 commencing on January 1, 2013. The parties are at liberty to agree to a date to accommodate the child’s move to Gatineau to reside with her father on or before January 15, 2013. The parties shall take into account the child’s school requirements.

(2) The respondent father shall keep the applicant mother promptly informed of all major decisions affecting the child and regularly provide the applicant mother with copies of the child’s report cards and without limiting the generality of the foregoing, any other important documentation pertaining to her education, health, extra-curricular activities and any other matter of significant interest pertaining to her.

(3) Paragraph 3 of the order of Justice Renaud granted on December 11, 2006 shall be deleted.

(4) Paragraphs 6 and 7 of the order of Justice Renaud granted on December 11, 2006 shall be suspended. The parties shall make their best efforts to agree to terms of regular and summer access.

(5) The respondent father’s requirement to pay child support in accordance with paragraph 9 of the order of Justice Renaud granted on December 11, 2006 is terminated as at December 31, 2012.

(6) The parties shall make their best efforts to resolve the issue of ongoing child support and/or arrears if any under the order of Justice Renaud granted on December 11, 2006.

(7) This matter is otherwise scheduled to be returnable on March 6, 2013 at 9:30 a.m., to be spoken to and for the purpose of giving such directives as may be required. Released: December 13, 2012 Signed: “Justice Randall W. Lalande”