Moreland v. Latimer, 2024 ONCJ 60

ONTARIO COURT OF JUSTICE DATE: 2024 01 31 COURT FILE No.: Chatham FO 87-20-0001

BETWEEN:

Jamie-Lee Moreland Applicant (Responding Party)

— AND —

Bryan Keith Latimer Respondent (Moving Party)

Before: Justice M. Vickerd

Heard on: January 17, 2024 Reasons for Judgment released on: January 31, 2024

Counsel: Brian P. Coulter......................................................................... counsel for the applicant(s) Camille E. Riggs................................................................... counsel for the respondent(s)

VICKERD J.:

Overview

1This is a Motion to Change proceeding began by the Respondent Bryan Keith Latimer. He is the moving party for the interim motion to be determined.

2For the motion, Mr. Latimer seeks an interim order, with three options, summarized as follows:

a. Jax’s primary residence shall be in Wallaceburg. In this case, the parties shall have shared care, splitting care of the child equally; or

b. Jax’s primary residence shall be in Wallaceburg. The child’s primary residence shall be in the care of Mr. Latimer with a regular schedule of parenting time for Ms. Moreland; or

c. Jax’s primary residence shall remain in London in his mother’s care. Mr. Latimer shall have regular parenting time to occur every weekend with Ms. Moreland providing transportation for care exchanges;

d. Regardless of the care schedule the parties shall share the holiday periods.

3Ms. Moreland seeks for an interim order to maintain Jax in her primary care in London, with Mr. Latimer to have parenting time occurring on alternate weekends. She also offers a mid-week visit to alternate between Wallaceburg and London. She also acknowledges that she would support Mr. Latimer having care of Jax every weekend and that she will provide transportation for his care periods between London and Wallaceburg and return. She agrees that the parties should share equally care of Jax in the summer holiday period.

Issues for Motion

4The following are the issues to be decided for the motion:

a. Has there been a material change warranting a variation of the current Parenting Order?

b. Is an interim relocation of Jax’s residence from Wallaceburg, ON to London, ON in his best interests?

c. What parenting schedule is in Jax’s best interests?

Procedural Context

5This proceeding was started by Application advanced by Bryan Latimer. In his Application, he seeks an order returning the child’s residence to Chatham-Kent “close to his family.”

6At the Case Conference convened on November 24, 2023, Justice R. Horton endorsed that the Application would be adopted as a Motion to Change and confirmed B. Latimer as the Respondent (moving party) and J. Moreland as the Applicant (responding party). Justice R. Horton also confirmed this matter would proceed under the originating court file number. Justice R. Horton endorsed that there was urgency to the father’s claims surrounding mobility and that counsel should contact the Trial Coordinator to obtain an early motion hearing date with a time estimate of 1.5 hours.

7The most current custody order is that of Justice P. Kowalyshyn dated February 8, 2021, which is marked on its face as a “interim” order. This is the order at the heart of the Motion to Change. There is a dispute between the parties whether that order was intended to be a “final” order or if it is in fact “interim”. Regardless, there is no motion to amend that order and no party appealed it. It does not appear that the nature of the order, whether “final” or “interim” was an issue raised at the Case Conference.

8In the originating Application in 2020, the Applicant Moreland claimed: joint custody; primary residence with her; access to occur on alternate weekends and two mid-week visits; as well as a share of holiday time. The Respondent Latimer did not dispute her claims and did not file an Answer.

9There is no explanation provided by Ms. Moreland about how, despite a claim for joint custody in her Application, she obtained an order for custody without notice to Mr. Latimer.

10Given the foregoing, I accept that the current order is “interim” in nature as noted on the face of the order. This is a procedural issue that merits determination later. But, I find that this issue is not an impediment for the issues to be addressed on the current motion as there is urgency to the resolution of the location of the child’s residence and parenting time.

Family Background

11The subject child of this proceeding is Jax Michael Bryan Latimer born March 15, 2017.

12The Respondent (moving party) is the child’s father.

13The Applicant (responding party) is the child’s mother.

14The parties engaged in a cohabitation relationship from 2015 to May 2018. They were married on May 28, 2016. The parties are now divorced. Of their relationship, one child was born- Jax. The parties have been separated since Jax was one year old.

15Since the parties’ separation, they have collaborated on Jax’s care schedule. Until Ms. Moreland removed Jax from this jurisdiction, the regular care schedule was the following:

• Alternate weekends from Friday after school to Sunday at 7:00pm. extended to include Mondays until 7pm, if it was a holiday.
• Mondays and Wednesdays from after school to 7:00pm. following the mother’s weekend care of Jax.
• Tuesdays and Thursdays after school to 7:00pm. following the father’s weekend care of Jax.
• For holiday periods, the parties were able to make arrangements that suited both parents as follows: a. March Break followed the regular schedule with extra time as arranged based on the parents’ schedules; b. Easter and Thanksgiving weekends were shared to allow Jax to celebrate with both families; c. Summer holidays followed the regular schedule with extended care for Jax with each parent arranged as agreed between the parents; d. Christmas celebrations are divided such that the father has care of Jax on December 24th, December 26th to 30th . Mr. Latimer states that the parties rotate New Years’ Eves, but this is disputed by Ms. Moreland. The mother had care of Jax for the other periods.

16Additionally, until September 1, 2023, when both parents were living in Wallaceburg, they resided five minutes apart. Mr. Latimer deposes, and it is uncontested by Ms. Moreland, that due to their proximity, they enjoyed the benefit and mutual convenience of additional unstructured care arrangements. He provides an example that if Ms. Moreland had a dentist appointment, he would care for Jax. He confirms that they regularly accommodated each other’s schedules so they both had frequent contact with Jax.

17Due to Jax’s participation in many extracurricular activities, including baseball, hockey, gymnastics, and soccer, both parents had daily contact with Jax when he was not in their care. Mr. Latimer confirms that he attended Jax’s practices and games during the week and on weekends. More specifically, Mr. Latimer confirms that this resulted in him having almost unlimited contact with Jax.

18Until September 1, 2023, Jax resided in Wallaceburg for the entirety of his life. He attended elementary school at St. Elizabeth Catholic Elementary School.

19Ms. Moreland re-partnered and cohabits with Sotha Sum. They resided in Wallaceburg together for about one year prior to September 2023. Mr. Sum has three children. Sotha Jr (age 10 years) and Addilyn (age 8 years) reside primarily with Mr. Sum and Ms. Moreland. Haiden (age 6 years) resides with his mother and has parenting time with Mr. Sum on alternate weekends. Ms. Moreland is a stay-at-home mother, caring for all the children in their household.

20Mr. Latimer has also re-partnered, and he resides with Collette O’Neil. Ms. O’Neill has a nephew, Carter, who spends alternate weekends in their care. Carter is the eleven-year-old child of Ms. O’Neill’s deceased brother. Carter has also lived with Mr. Latimer and Ms. O’Neill for periods when his mother was unable to care for him.

21On August 7, 2023, Ms. Moreland first notified Mr. Latimer of her intention to relocate Jax’s residence to London. This notice was provided verbally.

22On August 9, 2023, Ms. Moreland communicated to Mr. Latimer by text message that due to her relocation of Jax’s residence, Mr. Latimer could have care of Jax every weekend unless she had a trip planned. Further, she initially said that Jax could continue to play hockey in Wallaceburg, where he was already registered.

23By August 18, 2023, Ms., Moreland she was pressing Mr. Latimer to allow Jax to play hockey in London. By August 28, 2023, she had reneged on her offer to allow Mr. Latimer to have care of Jax each weekend.

24On August 28, 2023, at 7:37pm. Mr. Latimer served Ms. Moreland with his formal Objection to Relocation. Ms. Moreland then denied care of Jax to Mr. Latimer as scheduled for the weekend of September 8, 2023, citing concerns that Mr. Latimer would” kidnap” their child as she did not have a certified copy of the court order granting her custody.

25On August 28, 2023, by text communication, Ms. Moreland rescinded her initial commitment to allow Mr. Latimer to have care of Jax each weekend and her commitment to provide transportation for his parenting time, writing: “You can come get him every other weekend.”

Evidence

26This is a motion determined with evidence from Affidavits filed by the parties. The evidence filed bears some comment at the outset.

27Ms. Moreland has appended as an Exhibit to her Affidavit correspondence from Dr. Jradi dated November 29, 2023. This is unsworn evidence and is not admissible on this motion.

28Further, each party purports to relay comments they attribute to the child in their respective affidavits. These statements bear little weight for this court given their nature.

29Mr. Latimer filed excerpts of text message communications between the parties in support of statements provided in his Affidavits. A review of the case law confirms that copies of text messages appended to an Affidavit are not always accepted as appropriate evidence. In this case, Ms. Moreland did not dispute the nature or content of this evidence nor did she suggest it was an inaccurate representations of their communications. As such, I have considered these exhibits in the evidence.

Positive Notes

30It is worth noting that prior to Mr. Latimer’s objection to Ms. Moreland’s relocation of their child’s residence, the parents were functioning very well as co-parents. They had achieved a schedule of care, without court intervention, which was benefitting Jax.

31Despite the animosity which has grown in a short period of time since August 2023, both parents made positive and complimentary comments of each other and the relationship they share with Jax in their Affidavits.

32For example, Mr. Latimer makes statements in his Affidavit such as:

“The success of our parenting arrangements had a lot to do with Jamie [Ms. Moreland] being a really good mother to Jax and recognizing that it made Jax’s life better to have me involved.”

“There are a lot of things that she did really well. For example, she kept me informed and she gave me many opportunities to be involved with Jax outside of our regular schedule.”

“Everyone worked together for the good of Jax.”

“She [Ms. Moreland] is a good person and expresses concern where appropriate.”

“Sotha [Ms. Moreland’s partner] has been good to my son and I respect him for that.”

33On Father’s Day in 2023, there was an exchange of text messages between the parties which is summarized as follows:

Ms. Moreland’s text to Mr. Latimer: “Happy father’s Day. Thank you for the things you do with Jax.”

Mr. Latimer’s text to Ms. Moreland: “Thanks happy Father’s Day to Sotha for being a great dad and a great role model for Jax”

34Ms. Moreland deposes in her own affidavit that the parties were able to work out the care schedule, including holiday periods “fairly well” and that they did “accommodate each other fairly well when it came to birthdays and special events such as dinner celebrations, in either parent’s family.”

35Further, with the current motion, the parties agree that prospectively, they should rotate care of Jax in the summer holiday period in alternate weeks.

36It is clear from the parties’ pleadings that from their separation until August 2023, they were able to act cooperatively in the best interests of their son. Further, they clearly recognized the benefit of Jax having both parents involved in his daily life. Obviously, this co-parenting relationship has benefited Jax immensely.

Analysis

Has there been a material change warranting a variation of the current Parenting Order?

37Section 29 of the Children's Law Reform Act (the “Act” or “CLRA”) provides the statutory authority for changing a parenting order on either a temporary or final basis. It states:

29 (1) A court shall not make an order under this Part that varies a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order. 2020, c. 25 , Sched. 1, s. 6.

38Subsection 29 (2) of the CLRA adds a further consideration in relocation cases. It states:

(2)For the purposes of subsection (1), the relocation of a child in accordance with section 39.4 constitutes a material change in circumstances unless the relocation had been prohibited by a court, in which case the relocation does not, in itself, constitute a material change in circumstances. 2020, c. 25 , Sched. 1, s. 6.

39A closer examination of the legislative wording of this section is valuable as noted in McIsaac v. Pye, 2011 ONCJ 840:

Section 29 does not say that a court may vary an order if there has been a material change in circumstances. What it says is that a court shall not vary an order unless there has been a material change in circumstances. This difference is significant. A change in circumstances is not sufficient. The change must be "a material change". This means it must be "substantially important".

Shapovalov v Pantelousis, 2023 ONCJ 323

40In summary, a change in circumstances is not sufficient. The change must be "a material change". This means it must be "substantially important" (McIsaac v. Pye, 2011 ONCJ 840).

41The mother has moved Jax’s residence from Wallaceburg to London, without proper notice to the father, and over his objections. This move results in the father being unable to exercise the long-established regular parenting time schedule. This change was not foreseen or reasonably contemplated at the time of the last order. This constitutes a change in the means, needs and circumstances of the child and the parents’ ability to meet those needs. The change materially impacts the child. Such a change can warrant a review of the Parenting Order (Barrett v. Watson, 2023 ONSC 7046, [2023] O.J. No. 5704).

42Given the foregoing, I find that the unilateral relocation of the child’s residence by his mother impacting parenting time between Jax and his father constitutes a material change warranting a review of the Parenting Order.

Is an interim relocation of Jax’s residence in his best interests?

43The issue of relocation of a child’s residence over the objections of a parent is a very difficult determination for any court. Ultimately, the best interests of a child is the primary consideration, decided on a case-by-case basis. As stated by the Ontario Court of Appeal in Reeves v Brand, 2018 ONCA 263, at para. 17,

[r]elocation or mobility cases, where one parent wants to take a child and move some distance away from the other parent, are among the most difficult cases in family law. If the custodial parent is permitted to move with the child , inevitably the relationship between the non-custodial parent and the child will be affected and may suffer. Typically, the court must balance the custodial parent's legitimate interest in relocating with the non-custodial parent's legitimate interest in maintaining a relationship with the child. But in every case, the ultimate question is what is in the best interests of the child . [emphasis added]

44Further, the SCC in Barendregt v Grebliunas, 2022 SCC 22, [2021] SCJ No 101, confirmed that

8 Determining the best interests of the child is a heavy responsibility, with profound impacts on children, families and society. In many cases, the answer is difficult -- the court must choose between competing and often compelling visions of how to best advance the needs and interests of the child. The challenge is even greater in mobility cases. Geographic distance reduces flexibility, disrupts established patterns, and inevitably impacts the relationship between a parent and a child. The forward-looking nature of relocation cases requires judges to craft a disposition at a fixed point in time that is both sensitive to that child's present circumstances and can withstand the test of time and adversity.

9 The law relating to the best interests of the child has long emphasized the need for individualized and discretionary decision making. But children also need predictability and certainty. To balance these competing interests, the law provides a framework and factors to structure a judge's discretion. This case calls on the Court to examine how some of those considerations apply in mobility cases. In particular, I clarify that a moving parent's reasons for relocation and the "maximum contact factor" are relevant only to the extent they bear upon the best interests of the child; a parent's testimony about whether they will move regardless of the outcome of the relocation application should not be considered; and family violence is a significant factor impacting the best interests of the child.

45Although it was a final relocation decision, the Supreme Court of Canada in Barendregt v. Grebliunas, above, set out principles for consideration in relocation cases, which were summarized by the court in Shapovalov v Pantelousis, above. These considerations have direct applicability to this motion. They are the following:

a . The difficulties inherent to the best interests principle are amplified in the relocation context. Untangling family relationships may have profound consequences, especially when children are involved. A child's welfare remains at the heart of the relocation inquiry, but many traditional considerations do not readily apply in the same way (par. 98)

b. Even where there is an existing parenting order, relocation will typically constitute a material change in circumstances and therefore satisfy the first stage of the Gordon framework (par. 113).

c. The so-called second stage of the Gordon framework is often the sole issue when determining a relocation issue. The crucial question is whether relocation is in the best interests of the child (par. 115).

d. In all cases, the history of caregiving will be relevant. And while it may not be useful to label the attention courts pay to the views of the parent as a separate "great respect" principle, the history of caregiving will sometimes warrant a burden of proof in favour of one parent (par. 123).

e. The court should avoid casting judgment on a parent's reasons for moving. A moving parent need not prove the move is justified. And a lack of a compelling reason for the move, in and of itself, should not count against a parent, unless it reflects adversely on a parent's ability to meet the needs of the child: Ligate v. Richardson (1997), 34 O.R. (3d) 423 (C.A.), at p. 434.

f. Relocation that provides a parent with more education, employment opportunities, and economic stability can contribute to a child's wellbeing. These considerations all have direct or indirect bearing on the best-interests-of-the-child assessment (par. 171).

Shapovalov v Pantelousis, 2023 ONCJ 323

46There are many factors for a court to consider specific to the authorization of a relocation of a child’s residence. In the CLRA, section 39.4(3) provides:

( 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

47Section 24(3), as referred to above in section 39.4(1), provides a non-exhaustive list of factors for a court’s consideration of best interests. This best interests test is ubiquitous in the legislation and case law. But, it also requires a case specific contextual review of the evidence particular to a child’s circumstances. The circumstances of a child are “amplified” in situation where a parent seeks to relocate the child’s residence over the objections of the other parent. As noted in Barendregt v Grebliunas, above,

96 The best interests of the child are an important legal principle in our justice system: Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76, at para. 9. It is a staple in domestic statutes, international law, and the common law: see, for example, Divorce Act, s. 16; Convention on the Rights of the Child, Can. T.S. 1992 No. 3, art. 3(1); Gordon; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181; Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909.

97 But, even with a wealth of jurisprudence as guidance, determining what is "best" for a child is never an easy task. The inquiry is "highly contextual" because of the "multitude of factors that may impinge on the child's best interest": Canadian Foundation for Children, Youth and the Law, at para. 11; Gordon, at para. 20.

98 The difficulties inherent to the best interests principle are amplified in the relocation context. Untangling family relationships may have profound consequences, especially when children are involved. A child's welfare remains at the heart of the relocation inquiry, but many traditional considerations do not readily apply in the same way.

48The ”best interest” factors are found in section 24(3) of the CLRA and are as follows:

(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 co-operate 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. 2020, c. 25 , Sched. 1, s. 6.

49In deciding Jax’s best interests relative to the relocation of his residence, I have considered the application of the relevant legislation set out above and the authorities provided in case law, identified herein.

Reason for Relocation

50An analysis under section 39.4(3) includes a review of the parent’s reason for relocation. A court must only consider the reason for the move in the context of the child’s best interests. It is not an opportunity for a court to require a parent to prove that the move was justified. This approach is confirmed in Barendregt v Grebliunas, above wherein the court provides:

128 Indeed, isolating the custodial parent's reasons for the move from the broad, individualized inquiry of the child's best interests has frequently proven impractical. There will often be a connection between the expected benefits of the move for the child and the relocating parent's reasons for proposing the move in the first place. Relocation for financial reasons, for instance, will clearly carry implications for a child's material welfare. Considering the parent's reasons for moving can be relevant, and even necessary, to assess the merits of a relocation application.

129 That said, the court should avoid casting judgment on a parent's reasons for moving. A moving parent need not prove the move is justified. And a lack of a compelling reason for the move, in and of itself, should not count against a parent, unless it reflects adversely on a parent's ability to meet the needs of the child: Ligate v. Richardson (1997), 34 O.R. (3d) 423 (C.A.), at p. 434.

130 Ultimately, the moving parent's reasons for relocating must not deflect from the focus of relocation applications -- they must be considered only to the extent they are relevant to the best interests of the child.

51In case law, it is confirmed that a court may deny a relocation if plans for the move are poorly thought out and fraught with uncertainty (Maillet v. Gauld, 2005 NBQB 23 and Shapovalov v Pantelousis, 2023 ONCJ 323).

52Ms. Moreland addresses the reason for her relocation of Jax’s residence to London in her Affidavit sworn December 21, 2023, at paragraph 42:

My decision to relocate from Wallaceburg to London was based on the fact that Sotha’s new employer wanted him in Brantford. His previous employer was not paying him his compensation as agreed. He applied and interviewed for several jobs in Chatham-Kent and in Lambton before receiving the offer from Rotalec. His job is the primary source of income for our family of five.

53She further notes that she did not relocate with the intent to frustrate Mr. Latimer’s parenting time or to pursue a new relationship. She states that her established family unit moved to London in pursuit of financial benefit.

54Mr. Latimer does not dispute this assertion by Ms. Moreland, writing in his own Affidavit that:

I do not believe that Jamie moved to London to frustrate my parenting time. We had a very cooperative and beneficial co-parenting relationship under which Jax was thriving. There was no reason for her to want to frustrate that. I believed that she moved to London so that it would be more convenient for her new partner….

Ms. Moreland, as the parent having care of Jax and seeking to relocate with him, bears an onus to establish that such a move is in Jax’s best interests. The only global submission on this point made by her counsel and found in her pleadings is that Jax will continue to have the benefit of a financially healthy household. She does not identify specifically the net financial benefit to the family. She references a change of employment for her partner. But, absent in the evidence is any cooperative analysis or their lifestyle before and after the relocation or details about her partner’s salary, increased access to client base etc. In relation to this claim, I note that the family unit’s financial health is contingent on the ongoing relationship that Ms. Moreland enjoys with her partner, who is the family’s sole source of income. I also note that Ms. Moreland’s cohabitation with Mr. Sum is noted as being approximately one year long at the time of the relocation of their family home to London. There is no detail offered about the stability or security of this relationship, their roles in the relationship, or how their finances are arranged. I have not received any evidence about future plans relating to their relationship or Ms. Moreland’s employment prospects outside of their shared home. There is no evidence that this move benefits Jax in other areas such as better opportunities in education or activities. There is no evidence that Jax receives any other benefits. I find that the mother's proposed relocation has several uncertainties and may have serious negative consequences for Jax.

55While I accept that the relocation has improved the mother’s personal situation, I find that her reason for the relocation of the Jax’s residence focused on her own personal circumstances with little consideration for what was in the best interests of the child and the impact that such a move would have on the child’s contact with his father. There is a notable absence in the mother’s pleadings of references to Jax’s best interests.

56It is undisputed that since the parties’ separation, Ms. Moreland has been Jax’s primary caregiver providing him with daily care. She has ensured that Jax has a regular daily routine, and she has addressed his health care and other needs. She has also attended to his dental needs which included an unusual number of appointments due to his specific needs. It is also conceded that Mr. Latimer has attended with Jax at some of his dental appointments. While the mother has been the designated “primary care” parent, the evidence supports a finding that the father has been involved in the child’s care and seeks to be further involved in parenting. This is not a situation where Mr. Latimer was relegated to the role of a “weekend dad” but Jax has enjoyed frequent, almost daily involvement of his father in his care. The evidence confirms that both parents have been involved in the child’s care.

Impact of Relocation on the Child

57Ms. Moreland’s unilateral decision to relocate Jax’s residence has resulted in the following:

• Jax and his father can no longer enjoy their twice mid-week scheduled visits;
• Jax cannot reasonably participate in the hockey program located in Wallaceburg with which he has been involved for three years or his other extra-curricular team sports;
• Mr. Latimer cannot easily attend and support Jax at his practices or games for his extra-curricular activities. The same is true for extended family members.
• Mr. Latimer will not have easy contact with Jax’s school teachers or an ability to participate in school activities. Mr. Latimer notes having contact with Jax’s teachers 2–3-times per week when he retrieved Jax after school;
• Jax does not have the benefit of informal, easy arrangements between his parents to make alterations to the care schedule to accommodate any periods that the parents are unavailable to care for him. If his mother is not able to care for him, she will need to rely on others in London, who are not related to Jax;
• Jax has lost the easy proximity to his maternal and paternal family members located in the Wallaceburg region.
• Jax has lost his Catholic school community.

58Ms. Moreland proposes that if Jax’s residence were to remain in London, she would support Mr. Latimer having parenting time each weekend and mid-week. Her proposal glosses over the fact that in order for this contact to occur, Jax will spend many hours each week travelling between London and Wallaceburg. This commitment for Jax is not inconsequential as the travelling time between the parties’ homes is about 1.5 hours. The convenience which attracts Ms. Moreland and her partner to relocating their family home to London given the proximity to his employer results in significant inconvenience in travel time to Jax. The proposed relocation places the burden of long car rides on a young child. If the current schedule were maintained as proposed by the mother, Jax would be required to sit in a car for approximately 1.5 hours each Friday, Sunday and for any mid-week visits occurring in Wallaceburg.

59Further, Ms. Moreland’s proposal to have Jax in the care of his father on alternate weekends or each weekend, would impact Jax’s ability to participate in extra-curricular activities. This is significant given Jax’s significant participation in extra-curricular activities to date which have included hockey, baseball and soccer. Generally sporting activities are not limited to only weekends. Practices and games may occur during the week. If Jax remains in his mother’s primary care in London and spends weekends in the care of his father, Jax will lose any opportunity to participate in his extra-curricular activities in a meaningful way.

60Also, there was much conflict between the parties about Jax’s participation in hockey for the current season after the mother’s relocation of his residence to London. Initially, the mother promised that Jax would remain enrolled in Wallaceburg hockey. She then suggested that Jax register to play hockey in London. When Mr. Latimer objected, Ms. Moreland asserted that Jax could no longer play hockey due to a medical condition. She stated that Jax can no longer play hockey due to a leg length discrepancy causing back pain. I am suspicious of this assertion. At Jax’s age, hockey is not a contact sport. Further, her assertion is undermined by the fact that she enrolled Jax in ball hockey which also involves running, significant physical exertion and potential physical contact. This concern raised by Ms. Moreland, wielded as a reason to sever his ties with activities in Wallaceburg, is simply without merit. Again, it is another loss suffered by Jax due to Ms. Moreland’s decision to relocate her family residence.

Parenting Time

61I find that while Ms. Moreland’s proposal for parenting time between Jax and his father may be comparable in days to the father’s current parenting time, the proposal is not in Jax’s best interest.

62Ms. Moreland’s proposal focuses on the quantity of days rather than the quality of the parenting time. While the proposal is convenient for Ms. Moreland because she can maintain her cohabitation with Mr. Sum, it means that Jax would go for lengthy periods without seeing his father.

63This proposal would transform the relationship that Jax and his father share. If the mother’s proposal were accepted, Jax would not have the opportunity to develop the same type of bonding that comes with daily engagement. Moreover, the proposed schedule excludes Mr. Latimer from experiencing and sharing in the Jax’s growth through his daily life, whether at school, with friends, or through extra-curricular experiences.

64The transformation of the child and father relationship that comes with the mother’s proposal is simply not in Jax’s best interests.

Compliance with Notice Provisions

65As confirmed in Barrett v Watson, 2023 ONSC 7046, [2023] O.J. No. 5704:

35 Section 39.3(2) CLRA requires that a parent who has decision-making responsibility or parenting time for a child must provide 60 days notice of their intent to relocate to any person who may have parenting time or contact with a child. The notice is to be in writing and must set out the expected date of the proposed relocation as well, the address of the new residence and contact information of the person or child, a proposal on how decision-making responsibility or parenting time could be exercised, and other information prescribed by the regulations.

66In this matter, it is not disputed that Ms. Moreland failed to provide the father with the requisite written notice as required under the governing legislation. Ms. Moreland’s counsel argues that latitude should be given to her could not be expected to know the precise requirements of the legislation. Ms. Moreland provides that before discussing the planned relocation with Mr. Latimer, she consulted the Ontario Courts website and found a form published by the Attorney General. She provides that it was her understanding that she was not obliged to provide notice to Mr. Latimer as he did not have a court order confirming his parenting time with Jax.

67I respectfully disagree with Ms. Moreland’s assessment of her obligations. The notice provisions are legislated precisely to prevent parents from relocating without informing or giving proper notice to the other parent who exercises parenting time. The onus is on parents subject to parenting orders to inform themselves of the requirements of the governing legislation around relocation.

68I note that Ms. Moreland does not confirm in her evidence if she obtained legal advice about this matter. Further, her interpretation of the information and documents was clearly in her favour. By Ms. Moreland’s interpretation that no duty was owed by her to Mr. Latimer, she was able to escape the scrutiny that would come with proper notice. She was able to put a relocation of residence into effect and create a new status quo.

69Based upon the foregoing, I find that Ms. Moreland did not comply with the notice requirements in the legislation. However, compliance with the notice requirements under section 39.3 of the Act is only one of the several factors that the court is required to assess in addressing the relocation issue. The overriding factor is always the best interests of the child (Reade v. Reade, 2022 ONCA 637; Shapovalov v Pantelousis, above).

Proposals for Care

70Mr. Latimer’s plan for care of Jax occurs in two parts. In the first instance, if Jax’s residence returns to Wallaceburg and his mother moves with him, Mr. Latimer suggests that the parties share care of Jax equally. In the alternative if Ms. Moreland remains in London, Mr. Latimer offers that he care for Jax full-time, with the mother having parenting time. Mr. Latimer explains in his materials that he resides with his partner. They have a nephew, Carter, who visits regularly in their home. Jax and Carter are bonded, this is not disputed. Further, there is no concern raised by Ms. Moreland about Mr. Latimer’s capacity to care for their son and meet Jax’s needs. Ms. Moreland’s complaints about Mr. Latimer relate to a different style of communication. She also cites concerns that he has not been as active in parenting as she has been. These concerns are not related to his abilities as a parent and are also typical complaints raised in a co-parenting situation. It is clear from Mr. Latimer’s Form 35.1 that he has not been involved with a child protection agency in relation to his parenting and he has no criminal record that would form an impediment to his care of a young child. Mr. Latimer’s plan for care of Jax would include Jax returning to his former elementary school, registration in his usual extra-curricular activities, and contact with all extended family members. Mr. Latimer has the support of his partner and his family in his plan to care for Jax. Of most importance, Mr. Latimer’s plan for care of Jax includes regular and frequent contact with his mother on a schedule consistent with that proposed by Ms. Moreland for his parenting time.

71In contrast, Ms. Moreland’s plan for Jax is compelling in the fact that it maintains Jax with his primary caregiver. Mr. Latimer acknowledges that Ms. Moreland is a good mother, and he has no concerns with her care other than her unilateral decision to relocate Jax’s residence. Ms. Moreland’s plan for care involves keeping Jax in a family unit that has been maintained for the last year. In this unit, Jax has the benefit of a stepparent and stepsiblings. Ms. Moreland’s plan involves regular contact between Jax and his father. At this time, she acknowledges that regular contact may be more than alternate weekends and she further acknowledges that the court may find her responsible to provide all transportation for the care exchanges. She expresses a willingness to cooperate. Ms. Moreland has registered Jax in extra-curricular activities in London. The ball hockey season has ended but it appears that he has begun indoor soccer. Ms. Moreland also commits to maintain Jax’s connections with extended family noting that her brother’s family has visited their home in London and that she transports Jax to visit family in the Wallaceburg region. Unfortunately, Ms. Moreland’s plan involves Jax relinquishing all other constants in his life beyond her primary care of him, including his community, school, friends, his regular activities, proximity to extended family members – and most importantly, his almost daily contact with his father.

Willingness to Support Child’s Relationship with the Other Parent

72Mr. Latimer notes, and it is not contested, that since the relocation of Jax’s residence to London, the care schedule has become uncertain and challenging. As confirmed in the evidence:

• His care weekends have been cancelled and truncated. For example, after Mr. Latimer served the Objection to Relocation on Ms. Moreland on August 28, 2023, she cancelled his weekend parenting time scheduled to begin on September 8, 2023. Initially she asserted concerns that Mr. Latimer would “kidnap” their child. On September 2, 2023, she explained by text message that she cancelled the weekend so that Mr. Latimer would “learn responsibility for his actions” and that she would not allow Jax “to be traumatized by being away from her partner and his kids.”
• Mr. Latimer’s two weekly mid-week periods and all weekday contact has ceased;
• Transportation between homes has become an issue;
• Once Ms. Moreland had established her family in London, she unilaterally changed the weekend parenting time schedule. She has rescinded her offer to Mr. Latimer that he could have care of Jax each weekend;
• She had further resiled from her initial commitment to transport Jax each weekend between London and Wallaceburg to facilitate Mr. Latimer’s parenting time.

73These actions by Ms. Moreland support a bigger concern about her willingness to facilitate the relationship between Jax and his father when it becomes difficult from her. It also lends to a conclusion that she may make commitments in good faith, but she may not be willing or capable of following through on those promises. A specific example of this is that although she promised Mr. Latimer in August 2023 that he could have care of Jax each weekend, she cancelled some September weekend visits by messages of August 14, 2023. In the messages, Ms. Moreland stated that she would need to have care of Jax for a “few weekends” stating they had a trip booked to Niagara Falls for her spouse’s golf tournament. Essentially, her family vacation plans based around her spouse’s golfing, took priority over Jax’s right to have weekend contact with his father during a difficult period for Jax – being his relocation to London.

74In the larger context, I have several concerns with Ms. Moreland’s actions and how they reflect on her failure to recognize the importance of Mr. Latimer’s role in Jax’s life. They include the following:

• Ms. Moreland did not consult with Mr. Latimer about relocating Jax’s residence when it was contemplated. She simply announced to Mr. Latimer the move when it was in progress. In fact, she sold her home in Wallaceburg before even advising Mr. Latimer that she was moving with Jax.
• As noted previously, Ms. Moreland obtained a court order in 2021 granting her sole custody of Jax when she had given notice to Mr. Latimer that she was seeking joint custody. She also obtained an order that was silent on the issue of parenting time when she had pled to maintain the parties’ agreed upon schedule. She obtained an order that was significantly different than what was found in her Application and without notice to Mr. Latimer. She then attempted to rely upon that order to release her from an obligation to provide notice of a relocation of the child’s residence.
• Ms. Moreland withdrew Jax from his participation in the Wallaceburg hockey program after the 2023/2024 season began and despite Mr. Latimer’s objections;
• It is apparent in the text messages that when Mr. Latimer registered his objection to Ms. Moreland’s relocation of Jax’s residence to London by serving her with his Notice of Objection, she became quite angry and vindictive. Not only did she deny him parenting time, but she also engaged in threatening to deny future parenting time, she made condescending and offensive comments and devolved to name calling. These comments included: “Ps [sic] not moving back so hope you have lots of money to fight” “No wonder you have failed marriage’s. And drink. Good luck in life, Such a loser.” “Karma is coming you ass hole [sic]”

75Based upon the foregoing, I find that the mother’s unilateral relocation and failure to facilitate the child’s meaningful contact with his father since the move, demonstrate that she is not willing to support the development and maintenance of the child’s relationship with his father.

76I have no confidence that Ms. Moreland will facilitate Mr. Latimer’s parenting time if the relocation is approved. I am concerned that if I permit the relocation of the child’s residence prior to trial, the likely outcome will be that the child’s relationship with his father will be diminished, if not totally frustrated by Ms. Moreland.

Cultural/Religious Upbringing

77Jax was baptized Catholic. The parties had agreed that he would attend Catholic school. This was important to Mr., Latimer as he is a practicing Catholic who attended Church with Jax on his weekends. With the residential relocation to London, Ms. Moreland unilaterally decided to register Jax in a non-denominational elementary school at Summerside Public School despite her prior commitment to Jax’s registration in the Catholic school board. This change resulted in Jax’s losing the opportunity to receive religious education and to participate in liturgical celebrations at school. As a grade one student, he was preparing for the sacraments of his faith which included First Holy Communion and First Reconciliation which would occur in grade two.

78Upon her relocation of Jax’s residence to London, Ms. Moreland initially advised Mr. Latimer that Jax could not remain in Catholic school as neither she nor her partner were Catholic. She attempted to manage this situation by advising Mr. Latimer that Jax did not qualify for admission. This was clearly the wrong information as easily shown from the London District school Board website. In submissions, I heard that Mr. Sum’s children attend the public school where Jax was enrolled in London. It appears that enrolling Jax in the same school as his stepsiblings was simply a convenience for Ms. Moreland.

79This change of schools is significant for Jax. Beyond a change in community, Jax has endured a change of school programming moving from a faith-based program into a non-denominational setting. This change is dysregulating for a primary school student including modifications to his daily school routine which in the past would have included religious teachings, daily prayers and school masses. It also severed his contact with teachers, friends and support staff at his previous school. The mother’s trite dismissal of this change underscores the fact that she does not appreciate how her decision to move with her partner has created a much bigger challenge for Jax. This type of change is simply not in Jax’s best interests.

Delay and Impact on Jax

80In addition to the factors set out in the legislation, I am also mindful of the impact of delay on Jax. Ms. Moreland first gave oral notice to Mr. Latimer on August 7, 2023 that she intended to relocate Jax’s residence to London. Although this notice did not comply with the provisions of the CLRA, Mr. Latimer served an Objection to Relocation on August 28, 2023. Despite the Objection, on September 1, 2023, Ms. Moreland moved with Jax to London. By this time, Ms. Moreland had already enrolled Jax in a new school.

81Mr. Latimer, reasonably, and without counsel at the time, advanced an Application issued September 14, 2023 seeking a court order to restore Jax’s residence to Chatham-Kent.

82By the time this motion was argued on January 17, 2024, Jax has been enrolled in a new school, in a different community and participating in other activities. Any change of residence again at this point will be disruptive to Jax in the short term. This circumstance is exactly the situation which the current legislation is intended to avoid.

83The case law confirms that courts are quite reluctant to adopt a status quo that has been unilaterally changed by one parent. As noted by Justice Pazaratz in Fallis v Decker, 2013 ONSC 5206, [2013] OJ No 3596:

I am also mindful of the fact that the Respondent says she has already relocated, with the obvious inference that the status quo is already a thing of the past. But of all the considerations, the suggestion that "it's too late to change things now" has to be given the least weight. Parents take unilateral action at their own peril. The court simply cannot sanction self-help in circumstances where the best interests of children may potentially have been jeopardized.

84Also, Justice Kurz in Phillips v Phillips, 2021 ONSC 2480, [2021] OJ No 2027 provides:

Here, the mother attempted to unilaterally create her own new status quo , brazenly asserting that her unilateral right to remove the child was "non-negotiable". She may have done better by making it negotiable.

Each parent has much to offer the child. She should not be deprived of that opportunity because the mother felt entitled to act unilaterally.

I also worry about the mother being able to perpetuate a new status quo that allows her to control the father's parenting time and ultimately limits the child's ability to have a close relationship with both parents.

85Ms. Moreland’s failure to comply with the notice requirements in the current legislation has resulted in an unfortunate and difficult situation for Jax. She relocated his residence without the consent of Mr. Latimer and without court order authorizing her to do so. Her unilateral actions and creation of a new status quo cannot be condoned by this court. As noted in prior case law, she has undertaken this action at her own peril.

Application of Section 39.4(4)

86Section 39.4(4) provides that in determining whether to authorize the relocation of a 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.

87Ms. Moreland has not provided any comment about how she will proceed if this court orders Jax’s residence to be returned to Wallaceburg. The evidence that I have is that she moved with the child and is caring for her partner’s children. I have no evidence is she will consider a return to Wallaceburg to care for Jax. This is a difficult decision that she will need to make. But, I note that she has created this conundrum. Ms. Latimer’s plans regarding her own residence in the context of this motion has not factored into my determination of Jax’s best interests.

88Regardless, I am structuring an order that contemplates care of Jax if his mother returns with him to Wallaceburg and care of Jax if Ms. Moreland deems to remain in London. Either way, Jax will be living in Wallaceburg.

Summary

89I find that the net benefit to Jax from any financial gains attributed to his family unit with his mother does not outweigh the losses which he suffers in a relocation of his residence to London. A consideration of his best interests weigh in favour of his residence remaining in Wallaceburg.

90The parents managed to work out a parenting schedule and decision-making to best meet Jax’s needs until August 2023. Their hard work and dedication to their son is evident-- post-separation they had a happy, well-adjusted child with two loving homes.

91Regrettably, Ms. Moreland’s unilateral decision means Jax has undertaken a transformative change. He has experienced many changes in his life due to Ms. Moreland’s decision to move him away from Wallaceburg.

92Given the foregoing, I am satisfied that it is in Jax’s best interests to have his primary residence in a community that he knows, to continue to have proximity and easy regular contact with his father and other extended family members; and to attend the school he is familiar with. I find that it is in Jax’s best interests to have his residence returned to Wallaceburg.

Order

93Given the foregoing, an interim order is made as follows:

(a) The child Jax Michael Bryan Latimer born March 15, 2017 residence shall be restored to Wallaceburg, ON. His residence shall be returned to this jurisdiction no later than February 9, 2024. The child’s residence shall remain in Wallaceburg, ON pending further court order.

(b) The child Jax Michael Bryan Latimer born March 15, 2017 shall be re-enrolled at St. Elizabeth Catholic Elementary School in Wallaceburg, Ontario no later than February 9, 2024.

(c) Paragraph 2 of the interim order of Justice Kowalyshyn dated February 9, 2021 shall be varied such that the parties shall have joint decision-making responsibility for Jax Michael Bryan Latimer born March 15, 2017;

(d) The parents shall have equal access to information concerning the child Jax Michael Bryan Latimer born March 15, 2017 directly from his service providers including, but not limited to, teachers, doctors, coaches, dentists etc.

(e) The parents shall ensure that Jax Michael Bryan Latimer born March 15, 2017 is registered for his regular extra-curricular activities such as hockey, baseball, soccer as the opportunity presents for the child Jax Michael Bryan Latimer born March 15, 2017.

(f) If Ms. Moreland decides to relocate her residence back to Wallaceburg, the parties shall resume the parenting schedule as follows:

i. Ms. Moreland shall have primary care of the child Jax Michael Bryan Latimer born March 15, 2017;

ii. Mr. Latimer shall have parenting time to occur:

• Alternate weekends from Friday at 4:30pm. to Sunday at 7:00pm. Any weekend that is immediately preceded or followed by a PD Day or statutory holiday shall be extended by 24 hours; and
• Mondays and Wednesdays from after school to 7:00pm. following the mother’s weekend having care of Jax.
• Tuesdays and Thursdays after school to 7:00pm. following the father’s care of Jax.
• Mr. Latimer may attend at any of the child’s scheduled extra-curricular activities including, games, practices and other events;
• Other times as can be agreed between the parties.

(g) If Ms. Moreland determines that her residence shall remain in London, the parenting schedule shall be as follows:

i. Mr. Latimer shall have primary care of the child Jax Michael Bryan Latimer born March 15, 2017;

ii. Ms. Moreland shall have parenting time with the child to occur:

• Alternate weekends from Friday 4:30pm. to Sunday at 7:00pm. Any weekend that is immediately preceded or followed by a PD Day or statutory holiday shall be extended by 24 hours;
• Ms. Moreland may attend at any of the child’s scheduled extra-curricular activities including, games, practices and other events;
• Ms. Moreland shall have other parenting time to be exercised in Chatham-Kent when she is available. Parties shall cooperate to maximize the time that Jax and Ms. Moreland can spend together.
• Ms. Moreland shall bear responsibility for all transportation for her parenting time.

(h) Care of Jax for March Break in 2024 shall be divided equally between the parties and to incorporate their regular care weekend schedule;

(i) On consent, the parties shall equally share parenting time in the summer holiday period by rotating care of the child on a weekly basis beginning on the Friday following the last day of school;

(j) Regardless of this order, the parties shall make arrangements to ensure that Ms. Moreland has care of Jax for Mother’s Day and Mr. Latimer has care of Jax on Father’s Day.

(k) Care of Jax Michael Bryan Latimer born March 15, 2017 shall be divided equally for the Easter holiday weekend as can be arranged between the parties.

(l) Mr. Latimer is the successful party on this motion and presumptively entitled to costs. The parties are encouraged to resolve the issue of costs. If the parties cannot resolve the issue of costs for this motion, they may file brief written submissions not exceeding three pages exclusive of the Bill of Costs and other attachments. The father shall file his submissions by February 14 2024 at 4:00pm. The mother shall file her submissions by February 28, 2024 at 4:00pm. The father shall have until March 7, 2024 at 4:00p.m. to file a brief reply.