J. Q.B. A.D.1994 No. 016328 J.C. R. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: WAYNE JOSEPH DOROSH and MONICA LYNN DOROSH RESPONDENT Colleen J. Carter for the applicant Bruce K. Campbell for the respondent JUDGMENT McINTYRE J. July 31, 1997 This is an application to vary the terms of a consentjudgment of May 2, 1995, such that the applicant would havesole custody of his daughter, Letitia. In the alternative theapplicant seeks an order preventing the respondent fromremoving their daughter from the Province of Saskatchewan. The application arises out of the respondent's declared intention to move to Kelowna, British Columbia. The parties separated in October, 1994. The daughter, Letitia, age 7, has been in the care of her mother (the respondent) since that time. Under the terms of the consent judgment of May 2, 1995, the respondent has custody of Letitia. The applicant has reasonable access at all reasonable times upon reasonable notice, including every second weekend and every Wednesday evening. The respondent says, and the applicant did not take issue with the fact that she had always been the primary care giver. During the marriage she was stay-at-home mom and raised their daughter. The applicant says he has exercised his access rights on regular basis. He says he and his daughter have close and loving relationship. They engage in various activities together. Letitia also has an ongoing relationship with members of her father's extended family. The respondent does not deny this and says she has made efforts to ensure the applicant has access beyond the minimum prescribed by the consent judgment. The applicant says that the respondent advised him she was moving to Kelowna because she needed change. He claims she has no good reason to move. The respondent says she has planned the move to Kelowna as her life there will be better than it is in Regina. She will be working as financial adviser and has made arrangements to enroll Letitia in Christian private school. The respondent says she first advised the applicantof her intended move in early June of this year. She says that at that time she and the respondent had discussions about the possibility that he could buy some of the furniture that she would not need. They also discussed the possibility of the applicant moving into the matrimonial home. She says that as long as she was interested in selling the furniture and allowing him to move back into the home the applicant was not opposed to her leaving for Kelowna. Under the terms of the consent judgment the respondent had exclusive possession, use and enjoyment of the matrimonial home. The judgment contemplated that in due course the home would be listed for sale and the net proceeds divided between the parties. Indeed, in the applicant's notice of motion, the applicant sought exclusive possession of the matrimonial home and its contents. These claims were abandoned upon hearing of the motion. As the respondent pointed out, subsequent to the consent judgment the applicant went through bankruptcy proceedings in which he transferred his interest in the matrimonial home to the trustee. The trustee then sold that interest to the respondent such that the applicant no longer had an interest in the matrimonial home. The applicant agrees that the respondent is good mother. He says he consented to the judgment of divorce and its provisions with respect to custody and access as he did not wish to expose his daughter to custody dispute and wished for her to remain in the home she had always lived in. The applicant also acknowledges in his affidavit that he and the respondent did, in fact, have discussions about him taking furniture which she did not need when she moved to Kelowna and that in exchange he was to assume her car payments. He also acknowledged that they discussed his living in the matrimonial home and an arrangement by which he would pay off the equity. He further says they had discussions that if she moved back to Regina that she could move back into the house. On July 2, the applicant sought and obtained an ex parte order preventing the respondent from removing Letitia from the Province of Saskatchewan until the return date of the notice of motion. The motion was brought returnable July 16. The issue of mobility rights and an application to vary an existing custody arrangement are addressed in Gordon v. Goertz (1996), 1996 CanLII 191 (SCC), 19 R.F.L. (4th) 177 (S.C.C.). adopt the following from Cote v. Cote, [1996] O.J. No. 2552 (Q.L.), File No. 71513/96 (Ontario Court of Justice (General Division)), July 9, 1996, which appropriately summarizes the approach to be taken at paras. 22 and 23: On the whole, the principle of mobility rights, as articulated in Goertz, begins with the following: Barring situation which amounts to material change in circumstances, the custodial parent may take the child wherever he or she pleases. When, however, the proposed move amounts to material change, Parliament has decreed that the access parent is entitled to ask judge to review the matter [1996 CanLII 191 (SCC), [1996] S.C.J. No. 52, para. 35]. Further on the court states: Until material change in the circumstances of the child is demonstrated, the best interests of the child are rightly presumed to lie with the custodial parent. The finding of material change effectively erases that presumption. [[1996] S.C.J. No. 52, para. 40]. And finally, in this regard the court concludes the issue as follows: The parent seeking the change bears the initial burden of demonstrating material change of circumstances. Once the burden has been discharged, the judge must embark on fresh inquiry in light of the change and all other relevant factors to determine the best interests of the child. [[1996] S.C.J. No. 52, para. 47]. McLachlin J. reviewed some of the authorities which she concluded collectively provided definition for what constitutes material change in circumstances. Upon completion of her analysis she determined that: It follows that before entering on the merits of an application to vary custody order the judge must be satisfied of: (1) change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could have been reasonably contemplated by the judge who made the initial order. [1996 CanLII 191 (SCC), [1996] S.C.J. No. 52, para. 13]. McLachlin J. in Gordon went on to summarize the law as follows at paras. 49 and 50: The law can be summarized as follows: 1. The parent applying for change in the custody or access order must meet the threshold requirement of demonstrating material change in the circumstances affecting 2. If the threshold is met, the judge on the application must embark on fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them. 3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 4. The inquiry does not begin with legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect. 5. Each case turns on its own unique circumstances. The only issue is the best interests of the child in the particular circumstances 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 of the child; (f) disruption to the child of 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 new location 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? The application was heard in chambers on affidavit evidence. In determining whether the matter can be disposed of on the basis of affidavit evidence, the approach is as set forth in the judgment of Gerein J. in Dufour v. Dufour, [1995] S.J. No. 293 (Q.L.) as follows: Since the application was brought by motion, the evidence has been presented by way of affidavits. These documents contain allegations and denials. Most often court refuses to make findings of fact when affidavit evidence is in conflict. Instead, an order is made directing the trial of an issue. This in turn brings about pre-trial conference. view the situation in this instance to be different. While there is disagreement and even contradiction or conflict in the affidavits, from my reading of those documents and consideration of their contents, am satisfied that can determine the facts. This being possible, it is appropriate that proceed to do so. If the material enables me to determine what is in the best interests of the child, should proceed directly to that determination. This approach saves both time and money and more quickly removes the troublesome uncertainty from everybody's life. Insofar as the threshold is concerned, McLachlin J. in Gordon observed at para. 14: Relocation will always be "change". Often, but not always, it will amount to change which materially affects the circumstances of the child and the ability of the parent to meet them. Where, as here, the child enjoyed frequent and meaningful contact with the access parent, move that would seriously curtail that contact suffices to establish the necessary connection between the change and the needs and circumstances of the child. In this instance, it is not in dispute that the applicant exercised regular and frequent access. There is nothing to dispute the applicant's claim to close relationship with his daughter and relationship which included extended family members. As there was nothing tosuggest relocation was either foreseen or would have beenreasonably contemplated by the judge who made the initialorder, the threshold criteria is satisfied. The threshold having been met, the Court is then required to embark on fresh inquiry. The question iswhether the inquiry, in the circumstances of this case, can beconducted on the basis of the affidavit evidence before theCourt. The inquiry involves an assessment of various matters including the nature of the relationship between the child and both parents and an assessment of the disruption of either change in custody or removal of the child from family and the community in which the child was raised. In this particular instance it appears the child hasa close relationship with both parents, however that onlyscratches the surface in terms of the relationship between thechild and each parent. I am also not able in this instance toassess the effect of a disruption as a result of a change incustody or removal of the child from the community. As aresult the trial of an issue will be required. The question then becomes whether to grant the applicant interim relief. The interim relief requested would amount to an order that the child remain in the jurisdiction until trial. As is often the case, the respondent has indicated that if there is an order made that the child not be removed from the jurisdiction until trial, she will not move to Kelowna. In terms of the request for interim relief agree with the Court in Cote, supra, that the child's best interest is the proper test to be applied. In doing so, the Court must have regard to the factors identified by the Supreme Court of Canada in Gordon, supra. In determining whether to grant interim relief have considered the following: (a) While there is no legal presumption in favour of the custodial parent, her views are entitled to great respect; (b) There has been an existing custody arrangement for almost three years. The applicant concedes the respondent is good mother and there is nothing which puts into dispute the close relationship which exists between the respondent and her (c) To permit the child's residence to be changed pending trial, will impact negatively upon the existing access arrangements and the relationship between the applicant and his daughter; (d) To permit change in residence pending trial will result in disruption to the child consequent upon removal from the community she has grown up in. As the applicant is seeking interim relief without determination on the merits, feel compelled to consider the context in which the request for interim relief arises. It isclear from the material that the applicant became aware inearly June of the respondent's intention to move to BritishColumbia. He does not deny that he had discussions with the respondent at that time about his moving into the matrimonial home and purchasing the same. At the time those discussionstook place, there was no evidence that the applicant raisedobjection to the move and indeed his affidavit suggests he wasprepared to allow the respondent to move back into thematrimonial home in the event she chose in the future toreturn to Regina. The timing of the application , a few weeksprior to the proposed move, certainly raises the suspicionthat it was the respondent's decision to sell the matrimonialhome which prompted this application. While to permit the move, pending trial, will impact upon existing access arrangements the applicant will still be able to exercise meaningful access. If the move proceeds and the applicant is awarded custody after trial there will be disruption to Letitia. However, in the circumstances of this case the factor does not outweigh other considerations. The applicant's request for interim relief is denied. There will be trial of an issue. The issue is whether there should be variation of the custody provisions of the consent judgment. pre-trial conference should be scheduled upon the filing of joint request of the parties. If the respondent proceeds with her move to Kelowna, revision of the access provisions will be appropriate. If the parties are unable to agree, an application may be made to the Court. Costs are left to the trial judge.
An application to vary the terms of a 1995 consent judgment such that the applicant would have sole custody. Alternatively he sought an order preventing the mother from removing their daughter from Saskatchewan. The father obtained an ex parte order preventing the mother from removing the child from the province until the return date of the motion. The mother had always been the primary caregiver and had custody since the separation in 1994. The father had exercised regular and frequent access. She was given exclusive possession of the matrimonial home under the terms of the consent judgment which contemplated the home would be listed for sale and the net proceeds divided between the parties. Subsequent to the consent judgment the applicant went through bankruptcy proceedings in which he transferred his interest in the home to the trustee who then sold that interest to the respondent such that the applicant no longer had any interest in the home. HELD: 1)Relocation was neither foreseen nor reasonably contemplated by the judge making the original order. The threshold criteria was thus satisfied. 2)The trial of an issue was required as the matter could not be decided on the basis of affidavit evidence. The child had a close relationship with both parents. The disruption as a result of a change in custody or removal of the child from the community could not be assessed. 3)The applicant's request for interim relief was denied. If the mother proceeded with her move a revision of the access provision would be appropriate. 4)The child's best interest is the proper test to be applied (Cote) having regard to the factors identified by the Supreme Court of Canada in Gordon. 5)The applicant became aware in early June of the mother's intention to move to British Columbia and did not object. The timing of the application, a few weeks prior to the proposed move, raised the suspicion that it was the respondent's decision to sell the matrimonial home which prompted this application.  6)Costs were left to the trial judge.