Court File and Parties
Date: 2020-12-02 File: D 31198/19 Ontario Court of Justice
Re: Maimouna Djalal v. Marc Ethan D'Alessandro
Before: Justice Carole Curtis
Endorsement
Motion Overview
Mother's motion to be permitted to relocate on a temporary basis with the children to Ottawa.
Background
[1] This court case, started by the mother on 10 September 2019, has involved a great deal of litigation, large amounts of material filed with the court, and many court appearances. This is a high conflict separation and high conflict litigation.
[2] This case is headed for trial. The next trial sittings are the week of 22 February 2021, and this case has been sent to the assignment judge for scheduling during that sittings (see detailed endorsement of 27 November 2020 on this issue).
[3] The mother (now 39) and the father (now 45) were married on 25 August 2015 and separated on 12 August 2019.
[4] There are 2 children:
- Isadora Sanaz, born 4 March 2016 (now 4 years old); and,
- Ayten Sophia, born 12 December 2019 (now 12 months).
Parties' Financial and Personal Circumstances
[5] The mother works for the Government of Canada since 2004, and earns about $67,000 per year. She is currently on maternity leave until June 2021, earning about $61,000.
[6] The father is a retired American Army veteran. He served three tours of duty (two in Afghanistan, and one in Iraq). His mental health deteriorated significantly after his third deployment. He has been diagnosed with Post Traumatic Stress Disorder, chronic depression, and Intermittent Explosive Disorder, and is permanently disabled. He retired from the Army on 9 May 2018 (with an honourable discharge due to mental health issues). He receives military benefits, a pension from the U.S. Army, and social security payments of about $67,000 (U.S.) per year, income which is not taxable in either the U.S. or Canada.
[7] The mother was raised in Ottawa, and moved to Toronto in 2009. Her immediate family members (her mother, her brother and sister-in-law and their three children (ages 4, 2, and 3 months)) were living in Toronto, but all moved back to Ottawa recently (spring 2020). While they were in Toronto, the mother's family were a significant source of support and help to the mother. The maternal grandmother visited her almost daily, and helped with the home, cleaning and cooking, and childcare. The mother was also completing the final semester of a Degree in Public Administration and Governance at Ryerson University (she graduated in June 2020).
[8] The mother recently had to leave her Toronto apartment due to health and safety issues. It was reasonably priced and she is having difficulty locating comparable housing. Both the maternal grandmother and the maternal uncle have offered that the mother and the children can live with them for free in Ottawa.
[9] The mother states that she has wider career opportunities in Ottawa than in Toronto. She speaks English, French and Arabic, as do the children. She will also more easily be able to afford housing, and even buying a home.
[10] Despite a court order for support made 10 January 2020, the father has not paid child support since July 2020. The mother is struggling financially. The "top-up" she receives from her employer to her employment insurance maternity benefits will end at year end 2020.
Father's Circumstances and Access
[11] The father moved to Toronto to be with the mother and the child (there was only one child at the time) on 3 March 2018. He does not have legal immigration status in Canada. He is here on a visitor's permit, which requires that he leave Canada every 6 months, and re-enter as a visitor. He cannot work in Canada and is not eligible for OHIP. To the mother's knowledge, he has no ties in Toronto, other than the children.
[12] The father's access is pursuant to a consent order made 24 February 2020 for supervised access, with the assistance of a Toronto military family support group. The current access has been remote video access during the health emergency.
[13] The mother says that she would welcome the father moving to Ottawa to be with the children. There are military resources there similar to those he has accessed in Toronto (including a resource that would assist with supervised access), and several colleges and universities, should he choose to return to school.
[14] The father opposes the mother's request for permission to move to Ottawa on a temporary basis. He sees the step as further marginalizing his status as father, and pushing him out of the children's lives. He believes the move would prejudice his position at trial.
[15] The father states that he cannot afford to move to Ottawa and that his personal supports are in Toronto. He has attended weekly therapy since October 2018. He plans to attend college. He states that the mother has not complied with the video access that is in place, and he has brought a contempt motion (this motion was ordered stayed on 27 November 2020 until the father pays an outstanding costs order of $1,500 made 10 January 2020).
The Law On Temporary Relocation
[16] Courts recognize the need to be cautious before making a temporary relocation order. Courts are generally reluctant to permit relocation on a temporary basis. The decision will often have a strong influence on the final outcome of the case, particularly if the order permits relocation. The reality is that courts do not like to create disruptions in the lives of children by making an order that may have to cause further disruption later if the order has to be reversed.
[17] A leading case for determining if a relocation should be permitted on a temporary motion is Plumley v. Plumley, where the court set out the following principles:
(a) A court will be more reluctant to upset the status quo on an interim motion and permit the move when there is a genuine issue for trial;
(b) There can be compelling circumstances which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial of the best interests of the children or the best interests of the children might dictate that they commence school at a new location; and,
(c) Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong possibility that the custodial parent's position will prevail at trial.
[18] The following are additional principles regarding temporary relocation cases:
(a) The burden is on the parent seeking the change to prove compelling circumstances exist that are sufficient to justify the move;
(b) Courts will be more cautious about permitting a temporary relocation where there are material facts in dispute that would likely impact on the final outcome. In such cases, the court requires a full testing of the evidence;
(c) Courts will be even more cautious in permitting a temporary relocation when the proposed move involves a long distance. It is unlikely that the move will be permitted unless the court is certain that it will be the final result;
(d) Courts will permit temporary relocation where there is no genuine issue for trial or where the result would be inevitable after a trial;
(e) The financial security of the moving parent is a relevant factor in relocation cases;
(f) Several cases have recognized that requiring a parent to remain in a community isolated from his or her family and supports and in difficult financial circumstances will adversely impact a child. The economic and financial benefits of moving to a community where the parent will have supports, financial security and the ability to complete their education and establish a career are properly considered in assessing whether or not the move is in the child's best interests. In MacKenzie v. Newby, Justice Roselyn Zisman also accepted the following passages from Lebrun v. Lebrun, where the court wrote at paragraphs 32-34 as follows:
32 The children's need for shelter, food and clothing which could be provided by adequate earnings by the mother must take priority over the disruption of a move, and reduced contact with the father and his family. The intellectual and emotional flowering of these children cannot occur until their basic physical needs are met.
33 The economic realities require that the mother be free to pursue employment which will permit her to escape the welfare rolls. I am confident she will manage the move in a way which promotes the children's best interests.
34 An order restricting the residence of the children would, as in Woods v. Woods, condemn the mother and children "to a life of penury with a dissatisfied [mother] bereft of work and dignity. The alternative is to empower the [mother] to improve their lives from both a material and psychological standpoint." While the security of the positions offered to the mother cannot be assured, I am satisfied that the prospects of good, full-time employment are much better in southern Ontario. Leave is granted to the mother to move the residence of the children within Ontario.
(g) There is case law that says that if a primary caregiver is happier, this will benefit the child.
The Facts Regarding the Relocation
[19] These facts address some of the relevant factors set out in Gordon v. Goertz:
(a) The mother was the children's primary care-giver before and after the separation;
(b) The children are thriving in the mother's care;
(c) The mother is the custodial parent. The wishes of the custodial parent are to be given considerable respect. The children have always lived with the mother. She has been the parent who has exclusively attended to their physical, mental and emotional development since the parties separated. She is the parent to whom the children are attached and who provides their sense of security and safety. There is no evidence that the children are not happy, healthy and well-adjusted, or that the mother is not a good mother;
(d) The mother has proposed that the father have access in Ottawa similar to the access that he exercises in Toronto. She has urged the father to move to Ottawa to be with the children, and supports this. Ottawa is not that far away (relative to many relocation requests this court hears);
(e) The mother provided evidence to show that the move was necessary to best meet the needs of the children. This evidence included the following:
i. The mother is isolated in Toronto. The mother's support network is in Ottawa – her family lives there. She has no family in Toronto;
ii. The mother will be well-supported in Ottawa. She will receive more support in Ottawa to assist her in raising the children. She can live with either her mother or her brother and sister-in-law (and their three children). A stronger support network will assist the mother in parenting the children, ensuring their physical and emotional well-being;
iii. The mother will be more financially secure in Ottawa. Despite a court order for child support made 10 January 2020, the father stopped paying support in July 2020. The evidence indicates he can't be relied upon to be a consistent financial support for her. He is significantly in arrears of support. He has not paid the costs order of this court. The mother's financial security is an important issue. The move to Ottawa will permit her to provide for the children's needs and remove stressors that will assist her parenting and benefit the children;
iv. The financial benefits of moving to Ottawa include the fact that the mother will receive direct financial assistance from her family in Ottawa. She will be living rent-free. And her housing will be secure; and,
v. The evidence shows that the mother has made responsible decisions for the children. The court has confidence that her decision to move to Ottawa is responsible and well-considered.
(f) There is no disruption in custody arising from the proposed move;
(g) There will be little, if any disruption to the children in moving to Ottawa. Neither child is of school age yet (they are 4 and 12 months). They are not leaving a school or school friends;
(h) The mother will likely be a happier and better-functioning parent in Ottawa. This will benefit the children; and,
(i) The mother has put forward a parenting plan in the children's best interests. It is a plan that will meet the children's developmental needs and need for safety, security and continuity.
Analysis
[20] This case meets part 2 of the test set out in Plumley v. Plumley, as there are compelling circumstances in this case to permit the mother to move to Ottawa with the children pending the trial. These circumstances are as follows:
(a) The mother's parents live in Ottawa and are best suited to provide the necessary financial, emotional and practical support for her. The children's need for security, continuity and stability will best be met by the mother living with her family in Ottawa;
(b) The mother is under considerable stress to find suitable housing and financially support herself in Toronto. She is psychologically isolated. This would likely have a negative impact on the children's emotional well-being; and,
(c) The mother will be much happier and settled in Ottawa. A primary caregiver's happiness is a relevant factor in relocation cases as it will have a considerable impact on the children. Financial security is also a relevant factor in these cases.
[21] On the basis of the evidence provided to date, there is also a strong probability that the mother would succeed in her relocation claim at trial, if she facilitates the father's relationship with the children, thereby meeting part 3 of the test in Plumley v. Plumley. In addition to the circumstances set out above, the following factors support permitting the mother to move temporarily to Ottawa:
(a) The jurisdiction the children resides in has no meaning to children of this age;
(b) The distance of the move, while awkward in facilitating access, is not prohibitive and can be adequately addressed;
(c) The views of the custodial parent will be given great respect. It is highly likely that the mother will be granted custody on the basis of the evidence provided to date;
(d) The mother's roots are in Ottawa. She was raised there; and,
(e) There is nothing preventing the father from moving to Ottawa so that he can see the children more frequently. He is retired. He is not from Toronto and has only lived here for two years. He does not have ties in Toronto.
Orders
[22] The mother may move to Ottawa with the children on a temporary basis.
[23] The father's access is supervised pursuant to a consent order 24 February 2020. A military family support group assisted with this, until the health emergency in March 2020. There has been remote video access since then (which is the subject of conflict). As well, at the time this endorsement was released both Toronto and Ottawa are in high level lockdowns by order of the provincial government. The father's access shall be reviewed when the health and safety restrictions are loosened.
[24] The case is set for trial for the week of 22 February 2021.
Justice Carole Curtis