Court File and Parties
ONTARIO COURT OF JUSTICE DATE: 2022 12 23 COURT FILE No.: Toronto DFO-21-015921
BETWEEN:
Fiona Marion McLaughlin Applicant
— and —
Abshir Yusuf Respondent
Before: Justice Sheilagh O’Connell
Motion Heard on: November 22, 2022 Reasons for Decision released on: December 23, 2022
Counsel: Evan Clemence, for the applicant mother Erika V. Chan, for the respondent father
O’CONNELL J.:
Introduction
1The applicant mother brings a motion seeking an order to temporary relocate “ex post facto” with the child of the parties’ relationship to St. Catharines, Ontario. She also seeks an order that the respondent father’s parenting time with the child be on alternating weekends from Friday after school/daycare to Monday evening and on alternate Sundays overnight to Monday evening when the child is not in the father’s care.
2The father opposes the mother’s motion and seeks the immediate return of the child to Toronto, Ontario, or the Greater Toronto Area, within 20 kilometres of his place of residence.
3The child is 3 years old. St. Catharines is over 100 kilometres away from the child’s habitual residence of Toronto.
4The parties filed very significant materials on this motion. The court read all of the materials.
Summary of Background Facts
5The mother is 40 years of age. The father is 37 years of age.
6The mother is a Support Assistant for the City of Toronto in Community Development. She earns approximately $64,000.00 per year.
7The father is the manager of a residential addiction treatment centre in Toronto. He earns approximately $74,000.00 per year.
8The father pays regular and ongoing child support in accordance with the Child Support Guidelines. He also has agreed, pursuant to a consent court order to pay 54% of the childcare expenses and payments toward retroactive child support.
9The parties met in Toronto in 2016 while studying social work. They began a relationship in 2017 and started living together in May of 2019. They separated in May of 2021.
10Their only child together, Zayn, was born on […], 2019. Zayn is now three years old.
11Zayn was born and raised in Toronto until September 1, 2022 when the mother relocated to St. Catharines, Ontario with him.
12It is not disputed that Zayn’s habitual residence is Toronto. Prior to the mother’s relocation to St. Catharines, she resided in a two-bedroom apartment with Zayn in mid-town Toronto. This was the apartment that both parties and Zayn lived in together prior to their separation. The rent was $2,300.00 per month.
13The mother continues to work for the City of Toronto but states that she is working remotely from St. Catharines. She periodically travels into Toronto for a work meeting, approximately once a week.
14The father continues to live and work in Toronto with his new partner, whom he became involved with after the parties’ separation. They have now married and live together in the North York area of Toronto in a two-bedroom rented condo, with their recently born child, who is now approximately four weeks old.
15At the time the mother relocated to St. Catharines, the father was exercising unsupervised parenting time as follows, as agreed between the parties, with a view to expand:
a. Week one: Tuesdays from 4:30 to 6:30 PM and Saturdays from 9:00 AM to 5:00 PM;
b. Week two: Tuesdays and Thursdays from 4:30 to 6:30 PM and Saturdays from 9:00 AM to 5:00 PM.
The Separation
16At the time of the separation, the child was approximately six months old.
17Following the separation, Zayn’s primary residence remained with the mother. This is a subject of significant dispute between the parties.
18The father states that the mother evicted him from their apartment in May of 2021 leaving him homeless. He stayed with friends for a few months until he was able to secure his own accommodation. He did not see the mother or child for approximately the first month after the separation. He states that he wanted to give the parties a “cooling off” period given the nature of their relationship.
19The mother states that the father was violent and abusive during the parties’ relationship. The mother describes the family violence as being largely verbally abusive, that the father used mocking, demeaning, and degrading language towards her. He was also physically violent. On one occasion, he pushed her, causing her to lose her balance. On another occasion, he lunged at her and threw a book at her across the room while she was holding Zayn.
20The mother denies evicting the father from their apartment. The mother states that while their separation did not come as a surprise, she was “very surprised when the [father] left in May of 2021, virtually abandoning Zayn and I.” The mother states that they had “zero contact thereafter for 37 days.”
21The father vehemently denies being physically violent to the mother or that he engaged in intimidating and bullying behaviour. He denies pushing and shoving or throwing objects at her. However, he states that the parties had a “toxic” relationship in which they both said insulting and hurtful things to each other, but he never threatened her or physically abused her.
22The father states that there were multiple times during the relationship where he left the home and called his friends because the mother was yelling at him, slamming doors and cupboards, chasing him from room to room in their apartment or down the street in their neighbourhood. He states that the mother would “gaslight” him and demand that he return home, or he would never see Zayn again. He states that ultimately, he did not return home after the last time this occurred.
23The father states that when he ended their relationship in May of 2021, he was so desperate to get away that he left all of his belongings.
24The father states that after he left, the mother called his place of work repeatedly on May 17 and 18, 2021 demanding that he return home. She then later showed up unannounced at his workplace on May 18, 2021 asking him to remove his personal belongings from the apartment and take his name off the lease.
Childcare During the Relationship
25The parties have very different narratives regarding Zayn’s parenting during their relationship prior to separation.
26The mother describes the father’s parenting of Zayn as “laissez-faire” or “hands off”. The mother states that she was the primary caregiver throughout and that the father showed little interest in being an involved parent during the relationship. The mother took approximately 14.5 months parental leave after Zayn was born.
27The mother states that although the father also took parental leave at the time of Zayn’s birth, he rarely took any initiative to tend to Zayn’s needs and left almost all of the child-care and domestic responsibilities to her, even after she returned to work after her maternity leave. She also states that he thought it was funny to pretend to “stomp” on the baby’s head when he was lying on the ground and would joke about when the child would be old enough to “smack him around”.
28Further, he was “extremely inept at things such as cooking and running a household.” According to the mother, “he did not even know how to operate the oven when [she] asked him to heat dinner”.
29The father strongly disputes the mother’s description of his parenting during the relationship and states that he was a skillful, dedicated and loving parent who was actively involved in parenting during their relationship.
30The father states that he was excited about the mother’s pregnancy, he planned the entire baby shower and attended all prenatal appointments with the mother. He was very involved in daily caregiving tasks for Zayn. He stayed up doing feeding very two hours, cleaned the home and picked up meals. He attended all medical appointment with the mother until Covid restrictions and registered the child for KidsCrew daycare. When the parties pulled the child out of daycare, he was able to arrange an augmented schedule at work allowing him to work from 1:30 to 9:30 PM so that he could stay home with Zayn and take care of him from morning until his naptime.
The Father’s Parenting Time after the Separation
31The father’s first request to see the child was in June of 2021, approximately four weeks after the separation. Zayn was approximately seven months old. On June 16, 2021, the father sent a formal email to the mother requesting regular in-person parenting time with Zayn and parenting time on Father’s Day.
32On June 25, 2021, very shortly after the father’s first request for post-separation parenting time, he was contacted by the Children’s Aid Society regarding a report about the child’s safety in his care. The father believes that the mother or her counsellor at the time contacted the society. The mother does not deny this.
33The Children’s Aid Society met with the father four days later and completed a lengthy interview with him. On July 7, 2021, the father received information that the file had been closed and the society did not have any concerns about his parenting. Copies of the CAS records regarding the investigation and interview with the father were attached as exhibit to the father’s affidavits.
34On July 11, 2021, the father again requested by email in-person parenting time with Zayn. This request was denied by the mother.
35The father states that he made repeated and multiple efforts to see the child, but the mother refused to allow him to see the child unless his parenting time was supervised by her only. The mother was not agreeable to third party supervisors unless it was a supervised access centre. The father states that the mother only offered him virtual parenting time on her terms or supervised by her.
36The father states that he would only agree to the mother supervising his time with the child if there were other third-party supervisors present. The father states that he did not trust the mother and did not feel safe being alone with her given the false narrative that she has created about him to the Children’s Aid Society.
37The mother states that the father did not make repeated requests to see the child and that he showed little interest in seeing Zayn after the separation. She states that she regularly offered parenting time to the father after the separation and that he would decline to visit Zayn and instead would only Facetime with him.
38On August 13, 2021, the mother invited the father to join her and the child for an in person visit in the park. Again, the father stated that he did not feel safe without a neutral third party also present. The mother declined and advised the father to contact a supervised centre for parenting time.
39The father states that the mother finally agreed to permit an in-person visit with Zayn with another third-party person present on September 25, 2021. The mother agrees that the father and Zayn had a visit on the park on that day with the father’s friend Tony present. The mother also stayed throughout the visit and brought snacks and toys to “try to ensure that the visit went smoothly.’
40Throughout this time, the mother states that she did facilitate nearly daily Facetime calls between the father and Zayn since mid-June of 2021. However, both parties agree that on October 26, 2021, the mother reduced the daily Facetime calls to four times per week.
41Between May 2021 and November of 2021, the father states that he was permitted to have two supervised in-person visits with the child, both visits supervised by the mother.
42The father states that he did not start his own family court application to increase his parenting time because during that time period the mother and he were attempting to resolve their issues outside of court.
The Commencement of Proceedings
43The mother first commenced an application for sole decision-making responsibility and primary care on May 18, 2021. She did not seek to relocate to St. Catharines in that application and the issue of relocation was not raised. However, this application was never served upon the father, nor was the father aware of it, according to the court record.
44On November 29, 2021, the mother emailed the father and advised him that she had decided to relocate to St. Catharines with the child because she believed that this would be in the child’s best interests. This was the first notice that the father received.
45On November 30, 2021, the mother then served the father with a “Notice of Relocation” by email. The father did not file a written formal objection to the Notice.
46However, the father sent the mother a text message and called the mother stating that he would not agree to her request for relocation.
47The mother then amended her court application on December 15, 2021 and at that time sought an order to permanently relocate to St. Catharines with the child. She also sought sole decision-making responsibility, an order that the father have supervised parenting time with the child, and child support.
48The mother did not serve the father with her amended court application until February 17, 2022 by way of substituted service pursuant to the Order of Justice Brian Scully. In her affidavit materials, the mother states that she attempted to serve the father with the amended application and all court documents in December of 2021 but that the father was evading service.
49The parties continued to negotiate the father’s parenting time and have significantly different narratives about whether the mother was resisting the father’s unsupervised parenting time or that the father showed little interest.
50The father retained a lawyer and served and filed his Answer, 35.1 Affidavit and Financial Statement on April 8, 2022, approximately seven weeks after being served.
51In his Answer, the father seeks an order for joint decision-making responsibility, shared parenting, or alternatively, a specified unsupervised parenting schedule including overnights, and video calls, with a view to gradual expansion and shared parenting.
52The father also sought a non-removal order in his Answer stipulating that the mother shall not remove the child from the Greater Toronto Area without his written consent. At paragraph 31 of his Answer the father pleads that he does not agree to the mother’s request to relocate the child to St. Catharines, and sets out the reasons for his disagreement.
53The parties first case conference in this matter occurred on April 14, 2022. The parties attempted to resolve the issues of the father’s parenting time and relocation, but were not successful. Justice Scully granted the father leave to bring a motion for in-person unsupervised parenting time scheduled for June 1, 2022. At that time, it was the mother’s position that the father’s parenting time should continue to be supervised and restricted.
54On May 18, 2022, shortly before the father’s June 1st motion for unsupervised parenting time, the father received a telephone call from a police detective at 13 Division advising that the mother attempted to have the father charged with assault with a weapon. This report was made by the mother on April 29, 2022 regarding an incident that took place in 2021 while the parties were still together. The mother alleged that the father had thrown a book at her while she was holding the baby.
55According to the father, the police conducted an investigation and determined that there was insufficient evidence to lay a charge.
56The father believes that the mother tried to have him charged in advance of his parenting time motion to further strengthen her position at the motion and her case for relocation.
57The mother acknowledges reporting the 2021 book throwing incident to the police on April 29, 2022, but she denies that she did so for strategic reasons in advance of the father’s motion for unsupervised parenting. According to the mother, it is her understanding that the charge was not laid because it could not be proven that the father intended to hit her with the book when he threw it across the room.
58The father served and filed his motion materials for expanded unsupervised parenting time for the motion scheduled June 1, 2022. There is a disagreement regarding whether this hearing was to proceed by way of a motion or case conference and the motion did not proceed. In any event, with Justice Scully’s assistance, the parties agreed that the father would have unsupervised parenting time with Zayn two to three times each week for periods of up to 2 to 3.5 hours each time.
59Justice Scully then adjourned the hearing to the last week of July, or a date agreed upon by counsel, to be scheduled by the Trial coordinator, and encouraged the parties to have further resolution discussions.
60In August of 2022, the parties agreed to further expand the father’s parenting time to unsupervised full-day parenting time on the weekends, with additional unsupervised mid-week parenting time. Overnight parenting time had not yet started, as the mother was not agreeable.
61There is no dispute that the father’s unsupervised weekday and weekend parenting time with Zayn was going well at that time.
The Mother’s Relocation to St. Catharines
62On June 24, 2022, the mother re-served the father with a second Notice of Relocation through the father’s counsel, but this time with a proposed parenting plan attached. In the first Notice of Relocation dated November 30, 2021 there was no proposed parenting plan for the father and the mother decided not to move at that time.
63On June 27, 2022, the father’s counsel sent the second Notice of Relocation to the father with the proposed parenting plan attached and requested his response regarding the parenting plan.
64Given that the issue of relocation was an ongoing contested issue between the parties in the litigation, and the father’s position against relocation was set out clearly in his Answer, the father and his counsel took the position that a formal notice of objection was not necessary or required. They only intended to respond to the parenting plan.
65The mother takes the position that the father did not respond to this Notice of Relocation by filing a formal Notice Of Objection.
66The mother deposes in her affidavit sworn September 22, 2022 that that the father “did not respond within the required 30 days” and that the after the 30 days had passed, she “began the process of relocating to St. Catharines.” [paragraph 15].
67On July 29, 2022, the mother’s counsel at the time (not her current counsel) wrote to the father’s counsel and advised that Zayn would be starting at his new daycare in St. Catharines on September 5, 2022. The mother also terminated her lease in Toronto, effective September 1, 2022.
68Father’s counsel then immediately wrote to the mother’s counsel and advised that he did not consent to the relocation.
69On August 17, 2022, the mother then sought leave to bring an urgent motion for relocation. Leave was granted, and the motion was scheduled to be heard on August 31, 2022. The mother served her motion materials on the father on August 22, 2022. The father served responding materials shortly thereafter.
70On August 31, 2022, the motion was scheduled to be heard before Justice Penny Jones on a busy case management day. Justice Jones’ endorsement on that day reads in part as follows:
“Given the state of the case management list, lengthy motion unable to be reached. Motion adjourned to trial coordinator in consultation with J. O’Connell, administrative judge, to set a temporary relocation motion for a half-day.
Case conference held on the issue of granting a temporary relocation motion in the middle of a proceeding where decision-making and parenting time had yet to be determined and Respondent was objecting to a relocation order.”
71Further consent orders regarding financial issues were also made on that day. The father agreed to pay an additional $4,600.00 in child support arrears (the first half within seven days and the remained within thirty days of August 31st) and 54% of the child’s ongoing day-care expense.
72The temporary relocation motion was subsequently scheduled before this court on November 22, 2022. However, it is not disputed that the mother relocated with the child to St. Catharines on or about September 1st, 2022, the day after the case conference before Justice Jones, and registered him in daycare on or about September 5, 2022.
73The father only learned that the mother had moved to St. Catharines after the August 31st case conference when he went to pick up Zayn at his daycare in Toronto on September 5th, 2022. Zayn was not there, and the father was advised by day-care staff that Zayn had moved to St. Catharines.
74On September 26, 2022, the father then brought an urgent motion seeking an order that the mother return to Toronto pending the hearing of the temporary relocation motion. Both parties filed urgent materials. In her materials and during the court hearing, the mother stated that she could no longer afford to live in Toronto and had terminated her lease.
75In my endorsement at that motion, I confirmed that the motion was scheduled for November 22, 2022 and that it was not disputed that the mother had moved to St. Catharines with the child on September 1, 2022, the day after the case conference before Justice Jones and pending the temporary relocation hearing.
76Notwithstanding the court’s serious concerns, the court made a temporary without prejudice order that the mother and child may be permitted to remain in St. Catharines pending the temporary relocation hearing (given that the mother had already terminated her lease in Toronto), but further ordered that the child shall reside with the father in Toronto on every weekend from Saturday at 9:00 AM to Sunday at 6:00 PM. The court also ordered the mother to facilitate the pick-up and drop off and that the child’s daycare spot in Toronto be preserved pending the temporary relocation motion.
The Mother’s Position
77The mother is opposed to the father’s request for a return of the child to Toronto on a temporary basis pending a trial or a final resolution.
78The mother submits that living in St. Catharines in close proximity to her family’s support while she continues to facilitate parenting between the child and the father, notwithstanding the distance, is in the child’s best interests.
79She states that she had no choice to move to St. Catharines because she is unable to afford to live in Toronto on her salary, even with the father’s table amount of child support, contribution to section 7 expenses and the Canada Tax Child Benefit. Her rent in Toronto was $2,300.00 per month, not including laundry, for a two-bedroom apartment in mid-town Toronto.
80It is her evidence that based on her research, the less expensive rentals that she looked at in Toronto did not include utilities, which can typically range from $250 to $400 each month. Further, these rentals did not look like they were in safe and accessible neighbourhoods for a single mother with a toddler.
81The mother states that she has been able to find a two-bedroom apartment in St. Catharines with laundry in suite for $1550.00 per month all inclusive. This is only a five-minute walk from her parents’ home in a safe neighborhood with access to nature. Zayn will get the enriching support of growing up surrounded by his cousins and a large and attentive network of supportive adults. The mother has been able to secure a daycare spot for Zayn close to the apartment at a cost of $660.00 per month.
82The mother states that she will continue to facilitate a meaningful and beneficial relationship between the child and the father. The mother has now offered “extensive and liberal” unsupervised parenting time to the father, which she states is actually an increase in his current parenting time.
The Father’s Position
83The father states that the mother has not provided any concrete evidence of her efforts to find more affordable housing in Toronto before she made the unilateral decision to move to St. Catharines in the face of his clear objection, pending the temporary motion and the court’s approval.
84The father states that there is affordable housing in the Greater Toronto Area that the mother has not explored. The father is willing to work with the mother in finding housing in Toronto or the Greater Toronto Area that works for the child and both of them in facilitating a co-parenting relationship.
85The father points out that the parties had subsidized and good daycare in Toronto at a fraction of the cost of the mother’s daycare in St. Catharines. The mother’s additional childcare costs in St. Catharines, as well as the cost of transportation back and forth between Toronto and St. Catharines, which the mother states that she will facilitate, is equally, if not more expensive, than living in Toronto or the GTA.
86Further, and most importantly, the father submits that the mother has not acted in good faith throughout these proceedings, and he has little faith that she will facilitate a meaningful relationship between he and Zayn. It will be logistically impossible to spend any mid-week parenting time with Zayn, to pick him up from school or day-care, or to participate in his extra-curricular activities.
87The father fears that the mother will continue to restrict his relationship with Zayn and that the relocation to St. Catharines will diminish his role in Zayn’s life even further.
The Law and Governing Legal Principles
88Any proceeding with respect to children is determined with respect to the best interests of the particular child before the court in accordance with the considerations set out in section 24 of the Children’s Law Reform Act (the Act). The court has considered these factors, where relevant.
89Subsection 24 (2) of the Act provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining best interests.
90Subsection 24 (3) of the Act sets out a list of factors for the court to consider related to the circumstances of the child. It reads as follows:
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
i. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
ii. the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
91Section 24(5) provides that in determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child. 2020, c. 25, Sched. 1, s. 6.
92Section 24 (6) provided that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. 2020, c. 25, Sched. 1, s. 6.
93The Act was amended in 2019 to include provisions addressing the relocation of a child’s permanent residence. The Act now sets out the steps that a parent must take before relocating when the other parent has decision-making responsibility, parenting time, or contact with a child pursuant to a court order.
94The relevant sections are set out under section 39.3 and 39.4 of the Act and read as follows:
Relocation
39.3 (1) A person who has decision-making responsibility or parenting time with respect to a child and who intends a relocation shall, at least 60 days before the expected date of the proposed relocation, notify any other person who has decision-making responsibility, parenting time or contact under a contact order with respect to the child of the intention. 2020, c. 25, Sched. 1, s. 15.
Notice requirements
(2) The notice shall be in the form prescribed by the regulations or, if no form is prescribed, shall be in writing and shall set out,
(a) the expected date of the proposed relocation;
(b) the address of the new residence and contact information of the person or child, as the case may be;
(c) a proposal as to how decision-making responsibility, parenting time or contact, as the case may be, could be exercised; and
(d) any other information that may be prescribed by the regulations. 2020, c. 25, Sched. 1, s. 15.
Exception
(3) On application, the court may in any circumstance provide that subsections (1) and (2) or anything prescribed by the regulations for the purposes of subsection (2) do not apply, or apply with any changes the court specifies, if the court is of the opinion that it is appropriate to do so, including if there is a risk of family violence. 2020, c. 25, Sched. 1, s. 15.
(4) An application under subsection (3) may be made without notice to any other party. 2020, c. 25, Sched. 1, s. 15.
Objection
(5) A person with decision-making responsibility or parenting time who receives notice of the proposed relocation under subsection (1) may, no later than 30 days after receiving the notice, object to the relocation by,
(a) notifying the person who gave the notice of proposed relocation of the objection to the relocation; or
(b) making an application under section 21. 2020, c. 25, Sched. 1, s. 15.
Notice requirements
(6) A notice under clause (5) (a) shall be in writing and shall set out,
(a) a statement that the person objects to the relocation;
(b) the reasons for the objection;
(c) the person’s views on the proposal referred to in clause (2) (c); and
(d) any other information that may be prescribed by the regulations. 2020, c. 25, Sched. 1, s. 15.
Regulations
(7) The Attorney General may make regulations,
(a) prescribing anything in this section that may be prescribed by the regulations;
(b) requiring that a notice under this section be given in a manner specified by the regulations. 2020, c. 25, Sched. 1, s. 15.
Authorization of relocation
39.4 (1) In this section,
(2) A person who has given notice of a proposed relocation in accordance with section 39.3 and who intends to relocate a child may do so as of the date referred to in the notice if,
(a) the relocation is authorized by a court; or
(b) no objection to the relocation is made in accordance with subsection 39.3 (5) and there is no order prohibiting the relocation. 2020, c. 25, Sched. 1, s. 15.
Best interests of the child
(3) In determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with section 24, as well as,
(a) the reasons for the relocation;
(b) the impact of the relocation on the child;
(c) the amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child’s life of each of those persons;
(d) whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement;
(e) the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside;
(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses; and
(g) whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance. 2020, c. 25, Sched. 1, s. 15.
Factor not to be considered
(4) In determining whether to authorize a relocation of the child, the court shall not consider whether, if the child’s relocation were to be prohibited, the person who intends to relocate the child would relocate without the child or not relocate. 2020, c. 25, Sched. 1, s. 15.
Burden of proof
(5) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child. 2020, c. 25, Sched. 1, s. 15.
(6) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend the vast majority of time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child. 2020, c. 25, Sched. 1, s. 15.
(7) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child. 2020, c. 25, Sched. 1, s. 15.
Burden of proof, exception
(8) If an order referred to in subsection (5) or (6) is an interim order, the court may determine that the subsection does not apply. 2020, c. 25, Sched. 1, s. 15.
Costs of relocation
(9) If a court authorizes the relocation of a child, it may provide for the apportionment of costs relating to the exercise of parenting time by a person who is not relocating between that person and the person who is relocating the child.
Relocation on a Temporary Motion
95The case law also requires the court to conduct a stringent analysis before permitting a party to relocate a child on a temporary basis. These legal principles still apply notwithstanding the 2019 amendments to the legislation. See N.P. v. D.H., 2022 ONCJ 535, at para. 53, per Justice Stanley Sherr; Jennings v. Cormier, 2022 ONCJ 338 at para. 37, per Justice Melanie Sager.
96The leading case for determining if a relocation should be permitted on a temporary motion before a trial or final resolution is Plumley v. Plumley, [1999] O.J. No. 3234 (S.C.J.), 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.
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.
97The 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. See: Mackenzie v. Newby, [2013] O.J. No. 4613 (OCJ).
b) 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. See: Goodship v. McMaster, [2003] O.J. No. 4255 (OCJ).
c) 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. See: Fair v. Rutherford-Fair, 2004 CarswellOnt 1705 (Ont. S.C.J.). In such cases, the court requires a full testing of the evidence. See: Kennedy v. Hull, [2005] ONCJ 275.
d) 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. See my comments in: Downey v. Sterling, 2006 ONCJ 490, [2006] O.J. No. 5043 (OCJ) and Costa v. Funes [2012] O.J. No. 3317 (OCJ).
e) Courts will be more cautious in permitting a temporary relocation in the absence of a custody order. See: Mackenzie v. Newby, supra.
f) Courts will permit temporary relocation where there is no genuine issue for trial (see: Yousuf v. Shoaib, [2007] O.J. No. 747 (OCJ)), or where the result would be inevitable after a trial (see: Mackenzie v. Newby, supra, where the court observed that the importance of the father’s contact with the child could not override the benefits that the move would have on the child).
g) In assessing the three considerations in Plumley, the court must consider the best interest factors set out in subsection 24 (2) of the Children’s Law Reform Act (the Act) and any violence and abuse in assessing a parent’s ability to act as a parent as set out in subsections 24 (3) and (4) of the Act as well as the leading authority on mobility cases, Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.).
98There is a difference in a temporary relocation analysis when permitting a temporary move or when sanctioning a move that has already happened, particularly when the move is in the face of a written objection by the other parent and not yet authorized by the court. Courts should be very cautious in sanctioning this conduct. See Jennings v. Cormier, supra, at paragraph 40.
Application of the Law and Legal Principles to this Case
1. The Onus in Temporary Relocation Cases:
99The mother submits that the father bears the burden of proving that the temporary relocation to St. Catharines is not in the child’s best interests in accordance with subsection 39.4 (6) of the Act.
100I disagree. Subsection 39.4 (6) of the Act creates an onus on the person opposing the relocation if the child spends the vast majority of their time with the other person. However, the onus set out in this subsection does not apply here.
101First, there is no final order in this case confirming that the child spends or should spend the vast majority of the time with the mother. This is a highly contentious issue in ongoing court proceedings which have not been finalized between the parties.
102It is the father’s position that the child only spends the vast majority of his time with the mother because the mother has unilaterally frustrated and restricted the child’s parenting time with him since the parties separated. A party should not be allowed to use self-help to establish this status. N. P. v. D.H., 2022 ONCJ 535, per Justice Stanley Sherr at paragraph 71.
103Secondly, subsection 39.4 (8) of the Act also permits the court to disregard the onus provisions in 39.4 (5) and (6) of the Act on a temporary relocation motion.
104In temporary relocation cases, both parties bear the onus of proving whether temporary relocation is in the child’s best interests. See: Aspden v. Blinn, 2022 ONCJ 507, per Justice Aubrey Hilliard at paragraph 16; N. P. v. D.H., 2022 ONCJ 535, per Justice Stanley Sherr at paragraph 71.
105However, the legal principles that have developed in the caselaw regarding temporary relocation cases also still apply, as set out previously in this decision.
2. Temporary Relocation Analysis
106The court finds that the mother improperly relocated the child to St. Catharines in the midst of court proceedings and pending a temporary relocation motion directed by the court to be scheduled.
107The mother has not established compelling circumstances to relocate on a temporary basis. There are genuine issues for trial with significant material facts in dispute between the parties, and it is not clear at all that the mother’s position will prevail at trial following a full testing of the evidence.
108The court finds that the mother did not act in good faith. The mother deposes in her affidavit sworn September 22, 2022 that that since the father “did not respond within the required 30 days” after she served a second Notice of Relocation on June 24, 2022 during these court proceedings, she “began the process of relocating to St. Catharines.”
109The father served and filed an Answer in these proceedings on April 8, 2022. In his Answer he sought court orders for a non-removal of the child from Toronto, joint decision-making responsibility and shared parenting.
110The father also set out clear and detailed reasons for his objection to the mother’s proposed relocation to St. Catharines with the child. The parties were engaged in contentious litigation regarding this issue and the father’s parenting time. The parties had scheduled a motion on these issues, and it was very clear that the father was strongly opposed to the mother’s proposed relocation.
111The mother’s position that the father did not respond with a formal “Notice of Objection” to the second Notice of Relocation is disingenuous, or at best, an incorrect interpretation of section 39(5) (b) of the Act, which provides that a party may respond to a Notice of Relocation by making an application under section 21.
112The father’s Answer and his claims therein is by analogy an application under section 21 of the Act. His clear reasons for objection set out in his Answer meet the requirements under section 39 (6) of the Act.
113The mother has not provided any independent evidence that she has been unable to find affordable housing in Toronto which necessitated her move to St. Catharines, nor is there sufficient evidence to establish that she made any efforts to look for alternative housing before she moved unilaterally to St. Catharines in the midst of these court proceedings. It is not disputed that the mother terminated her lease in Toronto well in advance of her motion to relocate.
114The mother earns employment income of at least $64,000.00 annually. In addition to the Canada Child Tax Benefit, the mother also receives $691.00 per month in ongoing basic child support from the father, as well as monthly payment towards retroactive child support owed by the father. This is additional tax-free income of $1,000.00 per month, not including the child tax benefit. The mother has also received, on consent, lump sum payments towards retroactive support owing by the father following the case conference before Justice Jones on August 31, 2022.
115It is not disputed that the father pays his ongoing child support obligations regularly, and that he will continue to comply with his support obligations. He has also agreed to pay 54% of any ongoing child-care expenses.
116It is likely that Toronto housing is more expensive than housing in St. Catharines, but the mother has not established that her overall expenses will be significantly lower, given other expenses that she has now incurred. The mother now has significantly higher childcare costs in St. Catharines as she lost her Toronto daycare subsidy when she moved there. In addition, the costs of transporting the child back and forth to Toronto to facilitate the father’s parenting time will cost of at least two or three hundred dollars each month, if not more. The mother does not have a car but has advised that she will now need to purchase one to facilitate travel.
117In addition to this issue, there are genuine issues for trial regarding the father’s parenting and the mother’s ability to facilitate a loving and meaningful relationship between the child and his father.
118The court had difficulty with the mother’s evidence that the father is a violent and abusive man given her proposal for generous, liberal and unsupervised parenting time between the child and the father, as well as her insistence that she alone supervise the father’s parenting time after the parties first separated, rather than other third parties.
119The court also had difficulty with the mother’s evidence that the father is an uninvolved and uninterested parent. This evidence is contradicted by the independent records from the Children’s Aid Society investigation prompted by the mother. The records demonstrate that the father appeared as an engaged parent with a good understanding of parenting skills and the child’s daily routine.
120The court is concerned after a careful reading of the whole of the evidence that the mother is not willing to facilitate a relationship between the father and the child and was in fact very restrictive of the father’s parenting time after the separation.
121The court is concerned that the mother appeared not to understand or care that her unilateral move to St. Catharines frustrated the father’s twice weekly mid-week parenting time in Toronto, to which the parties had agreed, and will make co-parenting very difficult.
122The court is also concerned with the mother’s claim that the move to St. Catharines will provide the father with more meaningful parenting time. She appears to have little insight that a permanent move to St. Catharines will:
Frustrate and eliminate the father’s mid-week parenting time with Zayn;
Place significant barriers on the father’s ability to be fully involved with the child’s doctors, teachers, daycare providers and service providers. It will make it difficult for the father to attend school events or to participate in the child’s activities mid-week or on weekends.
Place a significant travel burden on him and the child to maintain their relationship.
123The court is very concerned that if it permits the relocation prior to a trial of the issue, the likely outcome will be that the child’s relationship with the father will be inappropriately diminished and significantly frustrated by the mother. This is not in the child’s best interests.
Conclusion and Order
124In considering all of the factors above, the court makes the following temporary orders:
The child shall be returned to the City of Toronto or the Greater Toronto Area that is no further than 20 kilometres from the father’s home address no later than January 31st, 2023.
The child shall then reside in the City of Toronto or the Greater Toronto Area that is no further than 20 kilometres from the father’s home address pending further court order. If the mother resides outside of the City of Toronto, or the Greater Toronto Area that is 20 kilometres from the father home address, then the child shall have his primary residence with the father.
The parenting time schedule set out in the Court Order dated September 26, 2022 order shall remain in place pending further court order, with the exception of the Winter and Christmas holiday period. During the Christmas and Winter holiday period, the parenting schedule will be as follows:
a. The father shall have parenting time with the child from December 25, 2022, at 2 p.m. until December 31, 2022, at 2 p.m.
b. The mother shall have parenting time with the child from December 31, 2022, at 2 p.m. until January 6, 2023, at 6 p.m.
The father’s parenting time as set out in the September 26, 2022 order shall resume on Saturday January 7, 2023 at 6 p.m. pending further court order or agreement between the parties that has been approved by the court.
The parties shall return before me at a date in January of 2023 to set timelines for trial and to address the parenting schedule after January 31st, 2023.
The child’s residence, once he is returned to Toronto, shall not be changed outside of the City of Toronto, without prior court order, or the notarized written consent of the other party.
If the father seeks his legal costs, then he shall serve and file written submissions, limited to three single spaced pages, not including any bill of costs and offers to settle, no later than January 15, 2023. Any response shall be served and filed on January 30, 2023 with the same restrictions.
Released: December 23, 2022 Signed: Justice Sheilagh O’Connell