) ) SEAN PATRICK KELLY Applicant – v. –, 2013 ONSC 6030

CITATION : Kelly and Yantha, 2013 ONSC 6030 COURT FILE NO.: 12-582 DATE: 2013/09/25 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) SEAN PATRICK KELLY Applicant – and – TAMMY MARIE YANTHA Respondent ) ) ) ) ) ) ) ) ) John Mastorakos, for the Applicant Mary Fraser, for the Respondent ) ) Chantal Carvallo, for the Children ) ) HEARD: September 18, 2013 DECISION McNamara j. [ 1 ] The primary relief sought by the applicant on his motion is a temporary order that he have sole custody of the children. He also seeks a temporary order permitting him to move the children to the City of Belleville.

Background Facts [ 2 ] The applicant and the respondent were married on June 21 st , 1997. They separated on April 8, 2012. As indicated the parties have two children, a son Liam who just turned 13, and a daughter Taylor who turned 12 this month. The father is currently 48 years of age and the mother is 46. [ 3 ] The father has been employed for some years as a radio host in Belleville. He is currently a manager and is on the air every weekday from 6 a.m. to 9 a.m.

During the marriage the father regularly commuted from the matrimonial home to his work in Belleville which is about 2 ½ hours each way. [ 4 ] The mother has always practiced law in the Barry’s Bay area, and has been a sole practitioner since 2009. [ 5 ] Throughout the marriage, the matrimonial home has been located in the Township of Madawaska Valley. The children have never resided anywhere but Barry’s Bay and have attended the same school since they began their schooling.

Position of the Parties [ 6 ] It is the position of the applicant, supported by counsel for the Office of the Children’s Lawyer (OCL) that the children’s preference is to move. The applicant also alleges that the respondent suffers from mental health issues, specifically depression, that that condition worsened in 2009 after her mother’s death, and continues to deteriorate. This has led to a “disconnect” between the mother and her children.

In these circumstances, it is submitted, it is in the children’s best interest that they move to Belleville to reside with their father. [ 7 ] The respondent in her materials disputes virtually all of the important allegations of the applicant, particularly with relation to her mental health. She concedes she has seen a psychiatrist, as a result, she alleges, of the effects of abuse by the applicant as well as her mother’s illness and death, but she categorically denies that there are mental health issues that affect her ability to parent her children.

The respondent also alleges that the applicant has influenced the children in their views and that their input to the OCL must be viewed in that context. She points to some of the phraseology purportedly used by the children in their discussions with the OCL in support of this submission. Analysis [ 8 ] There is no issue that interim applications seeking sole custody and mobility pose unique challenges and have been frequently

commented upon by the courts. In Potter v. Potter

(2010) O.N.S.C. 5113 Fregeau, J of this court provided a useful overview of theframework for analysis on interim motions of this nature. At paragraph 27 through 30 of that decision he states: 27. The framework established in Gordon v. Goertz dealt with an application to vary an existing custody and access order. The motionbefore this court deals with temporary custody and the issue of mobility on a temporary basis and is the first time either party has soughtan order regarding custody of these children. The Ontario Court of Appeal has held in Bjornson v.

Creighton, (2002), (ON CA), 62 O.R. (3d) 236 that the Gordon v. Goertz principles and analytical methodology is also to be applied to first instancecustody cases. Gordon v. Goertz mandates an extensive child-focused inquiry which is very difficult to accomplish at the interim stagegiven the typical conflicting affidavit evidence on interim motions. The general reluctance of the court to effect fundamental changes ina child's circumstances on interim motions has resulted in a slightly more restrictive approach to interim mobility cases, in recognition ofthe short term nature of interim orders and the

summary nature of interim motions. 28. The standard that ought to be applied when dealing with the issue of mobility on an interim basis pending trial is set out in Plumleyv. Plumley (ON SC), [1999] O.J. No. 3234, (Ont. Fam. Ct.). The court observed that a court will necessarily be morereluctant to upset the status quo and permit the move on an interim basis when there is a genuine issue for trial. At para. 7 of theJudgment, Justice Marshman indicated:

(7) It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis: 1. A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial. 2. There can be compelling circumstances that might dictate that a judge ought to allow the move. For example, the move may result in afinancial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate thatthey 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 strong probability that thecustodial parent's position will prevail at trial. 29. In Terris v. Terris, Court File Number 02-FL-502, (ON SC), [2002] O.J.

No. 3018, dated June 21, 2002, thecourt made the following observations with respect to interim mobility motions: • The other point of distinction that must be mentioned in this case is the fact that this decision is being made on a temporary basisuntil the court can deal with the matter at trial with the benefit of examination and cross-examination of witnesses. This is particularlyrelevant where evidence is conflicting and there is a triable issue of whether a parent should be permitted to change the residence of thechild.

I accept the wisdom of the jurisprudence that establishes that on a temporary basis, there must be a pressing reason for animmediate move and there is case law cited in support of that and that is also provided in counsel's material. This does not in any wayaffect the overriding test of the best interest of the children in any decision, temporary or permanent. 30. The decision made on an interim motion in a mobility case will often have a strong influence on the final outcome of the case,particularly if the interim order permits relocation.

The reality is that courts do not like to create disruption in the lives of children bymaking an order that may have to cause further disruption later if the order has to be reversed. See Goodship v. McMaster (2003), (ON CJ), 126 A.C.W.S. (3d) 815. [9] Having carefully considered the materials and the submissions of counsel there is, in my view, a triable issue in this case. [10] Central to the applicant’s case is the mother’s alleged mental health issues, and the wishes of the children as confirmed by theOCL.

In his affidavit the applicant indicates that in 2009 the respondent saw a psychiatrist in Ottawa, that in December 2011 an aunttook the respondent to the emergency department at the Barry’s Bay hospital reporting she thought that the respondent was on the vergeof a nervous breakdown, and that in March 2012 the respondent was sent to the Ottawa General Hospital for an assessment.

Therespondent, in her affidavit states that the applicant’s allegations about her mental health are inflammatory, false and unfounded, and thatwhile she has suffered from depression rooted in stress, she has handled it well during years of stressful circumstances including stresscaused by the applicant’s conduct. She further states that with relation to the most recent attendance at hospital in Ottawa, there were norecommendations as a result of the assessment done. None of these medical documents were amongst the materials filed in this motion. [11] In the affidavit of the OCL’s clinical agent, Ms.

Claridge, she indicates she spoke with the family doctor, Dr. Cybulskie, and “hesaid he was aware that Ms. Yantha has suffered from stress, anxiety and that her father, Mr. Tony Yantha has arranged psychiatric carefor her in the Ottawa area. Dr. Cybulskie said he has not received any documentation from her involvement in Ottawa.” [12] There is nothing more specific than that. In my view there is a triable issue as to whether or not the mother’s ongoing medicalissues, if any, affect her ability to parent the children.

In my view the court will require medical records from at least some of thesemedical professionals, as well as updated input vis-a-vis the respondent’s current situation. The court will also need to hear viva voceevidence, both in chief and on cross-examination, particularly from the applicant and respondent, prior to being in a position to make adetermination on this critical issue.

[ 13 ] It is also my view that based on the materials before me there are no pressing reasons to make the orders sought. [ 14 ] As indicated earlier the children have lived in the Barry’s Bay area their entire lives and have attended the same school. They are now almost a month into the current school year. It is true the applicant scheduled this motion for hearing in late August prior to the commencement of school, but it could not proceed because the assigned Justice was taken ill. None the less, the school year is now well underway.

There is no reliable evidence of any recent worsening of the respondent’s alleged medical condition. Furthermore, this matter is scheduled for trial during this coming November. That’s less than 2 months away. There is no doubt that the issues in this matter are important and need a timely determination, and to that end I would recommend that this case be given priority during the upcoming concentrated sittings. [ 15 ] Finally as to the third factor in the analysis, I am not persuaded on the materials before me that there is a “strong probability” that the applicant’s position will prevail at trial.

On this issue, there is no doubt that the report of the OCL is supportive of the applicant’s position and that that is an issue the respondent will have to deal with. Having said that, however, it is also alleged the children were coached and that is another issue upon which the viva voce evidence of the applicant and respondent will be required. [ 16 ] In conclusion, I am not persuaded on the materials before me that the best interests of the children are served by deciding the difficult issues of custody and mobility on this interim application.

That determination should be made after a full and complete hearing of all the evidence. [ 17 ] Costs reserved to the judge hearing the trial. The Honourable Justice J. McNamara Released: September 25, 2013 CITATION : Kelly and Yantha, 2013 ONSC 6030 COURT FILE NO.: 12-582 DATE: 2013/09/25 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Sean Patrick Kelly Applicant – and – Tammy Marie Yantha Respondent DECISION McNamara J. Released: September 25, 2013