Shah v. Shah, 2025 ONCJ 5

Shah v. Shah, 2025 ONCJ 5

Introduction

1This is a trial decision following a three-and-a-half-day trial.

2The Child at the centre of the court’s decision is A.V.S., born […], 2011, currently 13 years old (the “Child”) who currently resides primarily with the Mother.

3The Father is seeking sole decision making or, alternatively, shared decision making, increased parenting time, and a non-removal order preventing the Child from relocating to India. The Father seeks to set aside the parties’ Separation Agreement.

4The Mother is seeking to relocate the Child to India and sole decision-making with parenting time for the Father virtually and in-person during school holidays in India or Canada. The Mother seeks to uphold the parties’ Separation Agreement.

5The issues the court has been asked to decide are as follows:

1. Whether the parenting provisions of the parties’ Separation Agreement are valid and enforceable?

2. Is it in the Child’s best interests to relocate to India?

3. Considering the decision on relocation, what decision making and parenting time orders are in the Child’s best interest?

6The Supreme Court of Canada held in Barendregt v. Grebliunas, 2022 SCC 22, at paragraph 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.

7Throughout the trial, the court was mindful of its obligation to assist the Father given that he was a self-represented litigant.¹

8The court provided the following procedural assistance:

1. the court spent additional time explaining the trial procedure;

2. the court provided the Father with Information and Resources for summary legal advice and requested the assistance of duty counsel, who were not available to assist;

3. the court provided the Father with the Ontario Court of Justice Guide to Conducting Trials for Self-Represented Litigants;

4. the court took additional time during the trial to explain legal terminology and process;

5. the court provided the parties with copies of the relevant legislation and leading Supreme Court of Canada cases on relocation to frame the issues;

6. the court ensured that copies of documents were made for each party; and

7. the court arranged for a settlement conference, at the Father’s request, mid-trial with the previous settlement conference judge.

9The court received the following affidavit evidence at the trial:

1. Affidavit of Qaswar Abbas, sworn October 23, 2024

2. Affidavit of Khusboo Desai, sworn October 24, 2024

3. Affidavit of Vismay Vijay Shah (the “Father”), sworn October 25, 2024

4. Affidavit of Ruchi Shah, sworn November 18, 2024

5. Affidavit of Chandni Shah (the “Mother”), sworn November 19, 2024

6. Affidavit of Anand Shah, sworn November 19, 2024

10All witnesses also testified and were subject to cross-examination.

11Dr. Michael Muller, a clinical psychologist, prepared an Autism Spectrum Disorder (“ASD”) Evaluation report dated August 9, 2024. This report was not prepared for litigation purposes. Dr. Muller’s report was filed in the joint documents brief, and he was cross-examined by both parties, as ordered during the settlement conference by Justice Beasley on October 4, 2024.

12Ghania Yamin, the Child’s therapist, prepared a letter, dated September 8, 2024. Ms. Yamin’s letter was filed in the joint documents brief and she was cross-examined by both parties, as ordered during the settlement conference by Justice Beasley on October 4, 2024.

13Dr. Muller and Ms. Yamin were called by the Mother.

14The Office of the Children’s Lawyer (“OCL”) clinician, Claudette Bled, completed a Voice of the Child Report, dated September 5, 2024. Ms. Bled testified and was cross-examined.

Facts

15The parties are from the same part of Mumbai, India. They were married there on April 2, 2004.

16The parties immigrated to Canada in 2010.

17On […], 2011, the Child was born in Ontario.

18The Father states that he is an engineer and a project manager.

19The parties separated in November 2018.

20In November 2018, the parties signed a Separation Agreement (the “Separation Agreement”) shortly after their separation, which contains the following parenting provisions:

1. The Mother will have sole custody. Sole custody is when one parent has physical and legal custody of a child. The Child will reside primarily with the Mother, who will be responsible for making all of the important decisions in the Child’s life.

2. The Child will reside with the Father from 2:00 p.m. pick up to 8:00 p.m. drop off every second Saturday.

3. The Child may contact either parent whenever he wishes. The Father irrevocably agrees to the Mother’s right to travel freely for any period of time that she chooses and/or to relocate with the Child. The Mother is required to inform the Father of any such plans to do so and must provide the Father with the Mother’s contact information.

4. The Father agrees not to pressure or convince the Child to live with him at any point.

21The Father signed the Separation Agreement on November 4, 2018, and the Paternal Grandfather witnessed his signature. The Father also signed a waiver of independent legal advice on November 4, 2018, and the Paternal Grandfather also witnessed his signature.

22The parties acknowledged the following in the Separation Agreement:

1. the Mother had independent legal advice;

2. the Father acknowledged being given the opportunity to obtain legal advice;

3. the parties understand their respective rights and obligations, its nature and consequences;

4. the parties are not under undue influence or duress and are signing the Agreement voluntarily; and

5. the Father specifically acknowledges and declares that he is executing the Agreement of his own volition and without fear, threats, compulsions or influence.

23The Father disputes the enforceability and validity of the Separation Agreement and seeks to set it aside. Specifically, the Father submits that he did not understand the Separation Agreement, he did not have a lawyer and there are a lot of anomalies within and surrounding the drafting and executing of the Separation Agreement. For example, the Father asserts that the Separation Agreement contains an error stating that the date of separation was November 10, 2018, despite the parties’ signatures on November 4, 2018. Further, the Father submits that he was under serious duress at the time the Separation Agreement was signed. Finally, the Father also suggests that the Separation Agreement was meant to be temporary.

24Since separation, the Child has resided primarily with the Mother and has had parenting time with the Father on the weekend, during the day and occasional overnights, although more recently the Child’s relationship with the Father has been strained and visits have been sometimes shortened at the Child’s request.

25Notwithstanding, the Father’s position in this litigation about the Separation Agreement, the parties substantially complied with the parenting terms in it for over five years.

26On January 2, 2019, in an email the Father sent to the Mother, the Father stated:

“Although I strongly believe that our relationship was not fair, and even the settlement or the way about it was not fair. But how do I understand the universe way of fairness. Maybe it was fair after all, from karmic perspective.

…Also I don’t regret any single aspect of our relationship, including this last phase…Although you have fair bit of challenge (in managing home, [the Child] and all that in between) ahead of you, I think you should be able to pull it with all that support from people around you…”

27On July 3, 2021, in an email the Father sent to the Mother, the Father stated:

“…Going Forward, kindly advise me times for [the Child’s] visitation. Ideally it should be as per our agreement, but I have been flexible throughout.”

28On December 22, 2021, in an email the Father sent to the Mother, and others, the Father stated:

“…I am fine with all points in our Separation agreement except Parenting … This is not an obligation, but a kind request for overall good and healthy balance for all (more so for [the Child]). Feel free to do what brings peace and grace to you.”

29In February 2024, the Mother began to discuss with the Father the topic of relocation to India.

30On February 11, 2024, the Father texted the Mother indicating that he was “glad” she was exploring the “India option”, after the Mother began raising the possibility of relocation.

31On February 19, 2024, the Father texted the Mother offering to help the Mother secure the Child’s school admission to a school located in India named “Utpal Sanghavi.”

32On March 13, 2024, the Father’s Application was issued seeking sole decision-making, parenting time, and a non-removal order for the Child from Peel Region. The Application does not plead any facts. However, the Father’s Reply indicates that he disputes all aspects of the Separation Agreement.

33On July 19, 2024, during a combined settlement and trial management conference before Justice Cheung to advance the matter to the next trial “Ready List”, the court appointed the OCL to complete a Voice of the Child Report (“VOCR”). At this appearance, the Father had legal counsel. Additionally, the parties signed a Statement of Agreed Facts, which states:

1. the Separation Agreement was dated November 4, 2018;

2. the Child has been designated as “gifted”; and

3. the Child has indicated to both parents that he would like to relocate to India for his education.

34On August 13, 2024, the matter was scheduled for a settlement conference before Justice Cheung, but it did not proceed as the VOCR was not yet available. The Father requested that the trial be adjourned from the September sittings, which was contested by the Mother. The Mother submitted that the issue of relocation was urgent. The Father indicated that he needed further time to obtain information from the school and legal assistance to prepare for trial. The Father was granted an adjournment, but the case was scheduled for the November trial sittings on a peremptory basis. The deadlines for the Father’s Reply and the trial records were re-set.

35On October 4, 2024, a settlement conference was held before Justice Beasley. Justice Beasley denied the Father’s request to amend his Application and denied his request to adjourn the November trial.

36Additionally, the parties signed a second Statement of Agreed Facts on October 4, 2024, which states as follows:

1. The Separation agreement signatures are dated on November 4, 2018 however Agreement states Separation on November 10, 2018 [sic].

2. Fees for Separation Agreement were paid by [the Mother] [sic].

3. [The Child] is undergoing stress recently after Father filed [a] court case and has undergone stress counselling session with Peakminds [sic].

4. [The Mother’s] parents have not visited her in Canada since 2018.

5. The [Father’s] original Application signed by him on March 13, 2024, indicates on page 2 that the date of separation is November 4, 2018.

6. During the month of November 2018, the following individuals stayed with the [parties] in the former Matrimonial Home, …:

i. [Paternal Grandmother];

ii. [Paternal Grandfather];

iii. [Paternal Aunt].

7. The [Father’s] parents stayed with the [Father] and [Mother] in the former Matrimonial Home between September 2018 with the [Paternal Grandfather] departing on or about November 28, 2018, and the [Paternal Grandmother] departing on or about January 16, 2019. The [Maternal Grandparents] stayed with the [Maternal Uncle] from August 2018 until on or about November 17, 2018.

8. The [Father’s] cousin, Rajesh Rao, visited and stayed with the [parties] in the former Matrimonial Home from October 26-28, 2018.

9. Rajesh Rao assisted the parties with drafting a first draft Separation Agreement.

10. The [Father’s] witness for his signature on pages 9 and 11 of the Separation Agreement was “Vijaykumar Kantilal Shah”, who is the [Paternal Grandfather].

11. The [Mother’s] witness for her signature on page 9 of the Separation Agreement was [“] Sudhakar Kanaiyalal Sha”, who is the [Maternal Grandfather].”

12. From 2012 until 2018, the [Mother] did not have full-time employment and was dependent on the Applicant.

13. The Former Matrimonial Home and joint Mortgage was transferred into the [Mother’s] sole name on or about 30 November, 2018.

14. The [Father] moved out of the former Matrimonial Home on 1 January 2019.

15. The [Mother] renovated the former Matrimonial Home, at her costs, between 2019 and 2021.

16. The [Mother] sold the former Matrimonial Home in or around December 2021.

17. The [Mother] retained the net proceeds of sale from the former Matrimonial Home.

18. The [Father] has never paid child or spousal support to the [Mother].

Credibility and Reliability Assessments

37The Mother was a credible and reliable witness. The Mother was balanced, responsive and fair in her testimony. She was patient during the Father’s cross-examination and made significant efforts to respond to areas of confusion for the Father. She recognized the importance of the Child having a relationship with the Father as well as the paternal family. Her primary focus was the Child’s well-being and academic performance.

38The Father was not a credible or reliable witness. The Father indicated he had a poor recollection of events particularly during stressful times. The Father stated that he has very few recollections of the negotiating and drafting of the Separation Agreement because he was going through stress. Moreover, he stated that his “observation and awareness goes down significantly” when he is stressed.

39The Father refused to answer questions that would undermine his case. The Father took the position that those questions were irrelevant. For example, the Father refused to answer questions about text messages he sent the Mother because he took the position that they were private communications that should not be before the court, or are irrelevant. Email and text messages contradicted his evidence. Additionally, the Father suggested that his emails and text messages should not have been interpreted by the Mother and others, as his actual feelings or positions on issues. The Father stated he was using sarcasm in his messages, and it was “immature” for the Mother to add these messages to the evidence. Additionally, the Father stated that the messages are personal private things and they cannot be taken literally.

40In his testimony the Father claimed he did not sign the Separation Agreement, but under cross-examination he admitted he signed it but was distracted because otherwise he felt that he would have caught the reference to the parties separation date as November 10, 2018. He admitted that the initials on the pages of the separation agreement looked like his, but he was not in the right state of mind.

41The Father refused to answer questions in cross-examination related to the draft of the Separation Agreement.

42The Father was focused on many financial and other issues that were not relevant and this court has no jurisdiction to decide, which significantly prolonged the trial.

43The Father alleged that the Mother repeatedly travelled to India with the Child without his knowledge and consent, however, during cross-examination he admitted that he pick-up and dropped off the Mother and Child at the airport for their trips.

44The Father denied it was the Father’s behaviour that was impacting the Child’s relationship with him and claimed the Mother was brainwashing the Child against him. The Father testified that the Mother is the reason that the Child is so sensitive.

45The Father alleged that the Mother has engaged in a lengthy conspiracy to remove the Child to India. While the Mother admitted that she had been thinking about relocating to India for years, the evidence does not support a conspiracy to do so or with the goal of alienating the Child from the Father. The Father presents as a complex person who is intelligent, but the Father struggles with straightforward communication, as well as understanding the perspectives of others and the impact of his behaviour on others, most importantly on the Child and Mother.

46The Father focused on very minor typographical errors to attempt to undermine the evidence or credibility of other witnesses.

47Where the evidence of the Father conflicted with the evidence of the Mother, the court preferred the Mother’s evidence.

48The court found the testimony of the OCL and the participant experts to be relevant, credible, and reliable.

49The court found that the evidence of Qaswar Abbas was largely not relevant, as he had almost no direct observations of the Child and largely testified as a character witness for the Father.

50The court found the evidence of Khusboo Desai was not reliable. Ms. Desai was previously married to the Maternal Uncle and her testimony appeared to be impacted by her own negative interactions with the Maternal family. Ms. Desai’s evidence about the Mother’s parenting abilities was not consistent with any other evidence. Additionally, Ms. Desai has very limited observations of the Child historically or currently.

51The court found the testimony of the Paternal Aunt to be credible and reliable. The court accepts that the Paternal Aunt has love and affection for both parties. The Paternal Aunt was child-focused and did not display animosity towards either party during her testimony or cross-examination. The Paternal Aunt was forthright and balanced in her evidence. The Paternal Aunt described a lengthy involved caregiving role towards the Child, which was not disputed by the Father, and which the court accepts as fact.

52The court found the testimony of the Maternal Uncle to be credible and reliable. The Maternal Uncle was straightforward and calm during his testimony and cross-examination despite repeated questioning by the Father on tangential subjects. The Maternal Uncle described having a very positive relationship with the Child, which the court accepts as fact.

53Both the Paternal Aunt and the Maternal Uncle were child-focused when they provided their evidence and did not display disrespect or unkindness to either party during their cross-examinations.

The SCJ Application and Stay of Proceedings

54On November 6, 2024, a trial audit took place before Justice Cheung. Counsel for the Mother advised the court that the Father had commenced proceedings in the Superior Court of Justice, but in counsel’s view, there was no automatic stay nor was there a stay order. Justice Cheung ordered the parties/counsel to advise this court immediately if there is any stay impacting the ability of this case to proceed in this court. The timetable for the exchange of materials was adjusted and the trial was scheduled for two days.

55No one provided the court with the pleadings from the proceeding in the Superior Court of Justice; however, counsel for the Mother advised that the relief sought in that proceeding is the same as the relief sought in this court.

56At trial, neither Mother’s counsel nor the Father advised this court that any stay impacted the ability of the trial to proceed in this court.

57The Father indicated he would proceed in the Superior Court of Justice as soon as the trial decision was released.

58The Father did not ask to transfer the parenting issues to the Superior Court of Justice because of the multiplicity of proceedings. Even if there had been a request to transfer the case, the court would have denied it because the issued Application in this court, brought by the Father was set for a peremptory trial after intensive case management, and it is in the Child’s best interests to have the issues resolved on the evidence without further delay.

59Section 27 of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 (the “CLRA”) states:

If an action for divorce is commenced under the Divorce Act (Canada), any application under this Part in relation to decision-making responsibility, parenting time or contact with respect to a child that has not been determined is stayed except by leave of the court.

60In Lepper v. Lepper (Ont. Fam. Ct.), Justice Kirkland established the following principle with respect to avoiding a multiplicity of proceedings:

The dominant principle in dealing with this issue appears to be the wisdom of dealing with similar matters simultaneously in one court. Clearly, the “staying” provision is designed to prevent inconsistent results among courts, redundant litigation, constitutional entanglements and delay in finality.

61This principle was quoted in Zhong v. Yang, 2014 ONCJ 487 at paragraph 19 by Justice Zisman who also identified three factors to be considered in addition to the dominant principle, which provide guidance as to when or why a court should lift a stay/grant leave to continue a proceeding under the CLRA after a divorce proceeding has been commenced:

(a) bad faith with respect to the issuance of the divorce application (for example, to gain a strategic or tactical advantage);

(b) prejudice to one of the parties if the stay is not lifted;

(c) a waste of court resources contrary to Rule 2 of the Family Law Rules, O. Reg. 114/99.

62Justice Zisman, also noted, at paragraph 18, that pursuant to s. 138 of the Courts of Justice Act, R.S.O. 1990, c. C.43, the court is to avoid a multiplicity of proceedings “as far as possible.”

63If there was a statutory stay pursuant to section 27 of the CLRA the court is lifting that stay for the following reasons:

1. The issues before this court are parenting and relocation, which were brought by the Father originally in his Application to this court, the Father would be creating a multiplicity of proceedings by commencing an application in the Superior Court of Justice for the same relief.

2. There is prejudice to the Mother in not proceeding with the trial because of the ongoing delay, but also to the Child who is aware of the court proceeding and awaiting a very serious decision about his future. It is not in the Child’s best interests to continue to have these matters unresolved, as the court proceeding has impacted the Child’s well-being already and the parties agree the Child is undergoing stress as a result of the court proceeding.

3. Finally, the court must be conscious of the waste of court resources. The primary objective of the Family Law Rules, O. Reg. 114/99, (the “Rules”) is “to enable the court to deal with cases justly”: subrule 2(2). Dealing with cases “justly” requires that the court consider, amongst other factors, that the procedure is fair to all parties and the potential to save expense and time: subrules 2(3)(a) and (b), respectively. The court, counsel, and parties have an obligation to promote the primary objective of the Rules, according to Subrule 2(4). In addition, the court must promote the primary objective through its management of cases according to Subrule 2(5). The relocation and parenting issues have been extensively case managed in this court.

64The court is of the view that the parenting and relocation issues can be bifurcated from the financial issues to avoid a waste of court resources.

65However, the court recognizes there may be some overlap on some of the issues related to the enforceability and validity of the Separation Agreement and is restricting to the parenting provisions the request to set aside the Separation Agreement.

Law

3.1 Setting Aside Domestic Contracts

66Subsection 55 (1) of the Family Law Act, R.S.O. 1990, c. F.3, (“FLA”) requires that a separation agreement is unenforceable unless it is made in writing, signed by the parties, and witnessed.

67Subsection 54(4) of the FLA states:

A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract.

68Subsection 56(1) of the FLA permits the court to disregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child.

69Where the parties have reached an agreement, a court should respect the agreement unless the agreement is not in the child’s best interests: McGuire v. Tyrell, 2024 ONCJ 643 at paragraph 37, citing, Hartwick v. Stoneham; Shaikh v. Matin, 2017 ONSC 5842.

70The burden of proof is on the party seeking to set aside the agreement, in this case the Father, to persuade the court to exercise its discretion to set aside the agreement under one of the paragraphs of subsection 56(4): LeVan v. LeVan, 2008 ONCA 388 and Dougherty v. Dougherty, 2008 ONCA 302.

71The Court of Appeal for Ontario recently emphasized the “strong and well-known policy reasons for respecting agreements made between parties to family law proceedings whenever feasible. Chief among these are access to justice issues. Given the reality that many families cannot afford legal representation, and the fact that agreements between parties lessen the strain on scarce judicial resources, courts should attempt to give effect to such agreements.” Zhao v. Xiao, 2023 ONCA 453 at paragraph 14 (leave to appeal to the SCC was dismissed in Zhao v. Xiao).

72Where the parties have reached an agreement on parenting issues, a court should respect the agreement unless the agreement is not in the child’s best interests: McGuire v. Tyrell, 2024 ONCJ 643 citing, Hartwick v. Stoneham at paragraph 13, and Shaikh v. Matin, 2017 ONSC 5842 at paragraph 95.

73The lack of legal advice, while it is a factor to consider in the analysis, does not create a presumption that the unrepresented party did not understand the nature and consequences of the separation agreement: Geishardt v. Ahmed, 2017 ONSC 5513 at paragraph 136.

74In Strifler v. Strifler, 2014 ONCJ 69 at paragraph 67, Justice O’Connell held:

… An absence of independent legal advice does not automatically impugn the validity of a separation agreement, but rather is one factor to consider along with all other circumstances. See Dougherty v. Dougherty, supra. Independent legal advice is not a prerequisite to a valid domestic contract. There are many cases where one or both of the parties have not had legal advice and the courts have upheld a separation agreement: Settle-Beyrouty v. Beyrouty (1996), 24 R.F.L. (4th) 318, [1996] O.J. No. 3343, 14 O.T.C. 312, 1996 Cars­well­Ont 3550 (Ont. Gen. Div.); Gregory v. Brown, 2005 ONCJ 284, 21 R.F.L. (6th) 289, [2005] O.J. No. 4565, 2005 Cars­well­Ont 6799 (Ont. C.J.); Rosen v. Rosen, 1994) 641, 72 O.A.C. 342, 3 R.F.L. (4th) 267, 1 L.W.R. 629, [1994] O.J. No. 1160, 1994 Cars­well­Ont 390 (Ont. C.A.); Mercer v. Mercer (1978) (1978), 5 R.F.L. (2d) 224, [1978] O.J. No. 128, 1978 Cars­well­Ont 276 (Ont. H.C.).

75In Miller v. Miller, 2020 ONCJ 530, Justice Hilliard wrote at paragraphs 15 and 16:

[15] It is well established that the setting aside of a domestic contract by a court is done in only exceptional circumstances. It would undermine the entire process of domestic contracts if they were to be routinely set aside by courts upon application by one of the parties, and such action by the courts would erode confidence in the certainty that comes with the execution of a domestic contract.

[16] Courts must also be careful not to set aside a domestic contract simply on the basis that one party has changed their mind about some or all of the terms after the fact. Domestic contracts are acted and relied upon by the parties after execution and the certainty that creates must not be undermined by the courts. A court application is not an opportunity for a party who has had a change of heart after having executed a domestic contract, to seek a de novo hearing on the issues.

3.2 Order of Determination – Custody or Relocation

76The Court of Appeal for Ontario in Moreton v. Inthavixay, 2021 ONCA 501, stated there is no absolute rule or requirement that the issue of custody must be determined before the issue of relocation. Rather, the sequence depends on the circumstances of the case and the best interests of the children. The important approach is to conduct a very thorough enquiry.

77The Court of Appeal also observed in Moreton v. Inthavixay, 2021 ONCA 501, at paragraph 10, that in relocation cases it was in children’s best interests to have “the issue determined as quickly as possible to provide stability to [the children’s] living arrangements, finality and closure.”

78In determining what parenting orders are the Child’s best interests, the logically prior issue is where the Child should primarily reside: LaBonte v. Godin, 2023 ONSC 2767 at paragraph 47, Zorab v. Zourob, 2021 ONSC 6552 and Credland v. Cymbalisty, 2022 ONSC 433, at paragraph 23.

3.3 Relocation

79In Reeves v. Brand, 2018 ONCA 263, the Court of Appeal for Ontario stated, at paragraph 17:

Relocation 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.

80In the Supreme Court of Canada’s decision Barendregt v. Grebliunas, 2022 SCC 22, Justice Karakatsanis, writing for the unanimous majority of the court, gives a historical overview of the legislative framework governing relocation applications, whether initiated under the provincial legislation, such as the CLRA, or the Divorce Act, R.S.C. 1985, c. 3 (2nd supp).

81Justice Karakatsanis sets out, at paragraphs 105 to 108, the legal principles established in the court's decision in Gordon v. Goertz, [1996] 2 SCR 27 in considering mobility cases.

82Justice Karakatsanis also noted at paragraph 112 that when mobility issues are raised at first instance, as in this case, “[w]ithout a pre-existing judicial determination, a parent’s desire to relocate is simply part of the factual matrix in the assessment of what parenting arrangement is in the best interests of the child.”

83At paragraph 123, Justice Karakatsanis states as follows:

"[i]n all cases, however, the inquiry remains an individual one. The judge must consider the best interests of the particular child in the particular circumstances of the case."

84At paragraphs 148 to 155, Justice Karakatsanis provides a summary of the framework for determining whether relocation is in the best interest of a child. The relevant paragraphs are as follows:

[152] The crucial question is whether relocation is in the best interests of the child, having regard to the child's physical, emotional and psychological safety, security and well-being. This inquiry is highly fact-specific and discretionary."

[153] … A court shall consider all factors related to the circumstances of the child, which may include the child's views and preferences, the history of caregiving, any incidents of family violence, or a child's cultural, linguistic, religious and spiritual upbringing and heritage. A court shall also consider each parent's willingness to support the development and maintenance of the child's relationship with the other parent, and 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. These examples are illustrative, not exhaustive. While some of these factors were specifically noted under Gordon, they have broad application to the best interests of the child.

[154] However, traditional considerations bearing on the best interests of the child must be considered in the context of the unique challenges posed by relocation cases. In addition to the factors that a court will generally consider when determining the best interest of the child and any applicable notice requirements, a court should also consider:

• the reasons for the relocation;

• the impact of the relocation on the child;

• the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child's life of each of those persons;

• the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;

• the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and

• whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, agreement, and the likelihood of future compliance.

The court should not consider how the outcome of an application would affect either party's relocation plans - for example, whether the person who intends to move with the child would relocation without the child or not relocate…

85Effective March 2021, the CLRA provides a comprehensive framework that governs relocation matters. The subsections of the CLRA that address relocation are 39.3 and 39.4.

86In determining whether to authorize the relocation of a child, the court is required to consider the best interests of the child in accordance with section 24 of the CLRA, as well as the factors at subsections 39.4(3) of the CLRA, which are as follows:

(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.

87The failure to provide written notice is not fatal to a relocation request when oral notice was given, and no prejudice could be shown. It is just one factor to consider: Reade v. Reade, 2022 ONCA 637 at paragraph 10.

3.4 Burden of Proof

88The CLRA framework specifically defines the circumstances in which one of the parents bears the burden of proof on relocation issues at subsections 39.4 (5), (6), (7), as follows:

Burden of proof

39.4(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.

Same

(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.

Same

(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.

3.5 Decision-Making and Parenting Time

89Subsection 24(1) of the CLRA mandates that in making a parenting order or contact order with respect to a child, the court shall only consider the best interests of the child.

90Subsection 24 (2) of the CLRA 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.

91Subsection 24(3), and if applicable subsection 24(4), of the CLRA set out the relevant factors related to the circumstances of the child that the court is to consider.

92Application of the best interests test is a flexible and fact-driven exercise, tailored to the needs and circumstances of the child whose well-being is under consideration – “case by case consideration of the unique circumstance of each child is the hallmark of the process”: Van de Perre v. Edwards, 2001 SCC 60 at paragraph 13.

93The analysis must remain centred on the rights of the child, from a child-centred perspective. The ‘rights’ of a parent are not a criterion: Young v. Young.

94Moreover, adult preferences or “rights” do not form part of the analysis except insofar as they are relevant to the determination of the best interests of the child: Young v. Young; E.M.B. v. M.F.B., 2021 ONSC 4264. Therefore, the court must ascertain a child’s best interests from the perspective of the child rather than that of the parents: Gordon v. Goertz, [1996] 2 S.C.R. 27.

95The court is required to undertake a broad analysis of each child’s specific situation. The child’s best interests are not merely “paramount” – they are the only consideration in this analysis: Gordon v. Goertz, [1996] 2 S.C.R. 27 at para. 28; Mattina v. Mattina, 2018 ONCA 641; E.M. v. C.V., 2022 ONSC 7037.

96In assessing how much weight to give to children’s wishes in family court proceedings, the Court of Appeal for Ontario held, in Decaen v. Decaen, 2013 ONCA 218 at paragraph 42, that a court should consider:

a. Whether the parents are able to provide adequate care;

b. How clear and unambivalent the wishes are;

c. How informed the expression is;

d. The age of the child;

e. The child’s maturity level;

f. The strength of the wish;

g. How long they have expressed their preference;

h. The practicalities of the situation;

i. Parental influence;

j. Overall context; and

k. The circumstances of the preference from the child’s point of view.

97Subsection 24(6) of the CLRA states that the court shall give effect to the principle that a child should have as much time with each parent as is consistent with that child’s best interests.

98In Barendregt v. Grebliunis, 2022 SCC 22, the Supreme Court of Canada wrote the following about the “maximum time principle” at paragraph 135:

[135] … It is worth repeating that what is known as the maximum contact principle is only significant to the extent that it is in the child’s best interests; it must not be used to detract from this inquiry. It is notable that the amended Divorce Act recasts the “maximum contact principle” as “[p]arenting time consistent with best interests of child”: s. 16(6). This shift in language is more neutral and affirms the child-centric nature of the inquiry. Indeed, going forward, the “maximum contact principle” is better referred to as the “parenting time factor.”

99The application of the “parenting time factor” within the CLRA was reviewed in J.T. v. E.T., 2022 ONSC 4956 at paragraph 99, where it was held:

[99] As noted above, section 24(6) of the CLRA requires that in allocating parenting time, the court must 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. This principle, referred to in the past as “the maximum contact principle,” recognizes that generous and meaningful parenting time with each parent is usually important and should be encouraged to the extent that it benefits the child. However, the principle is simply a guide, and it does not create a presumption in favour of equal time or maximum time with each parent (Barendregt v. Grebliunas, 2022 SCC 22), at para. 125; Knapp v. Knapp, 2021 ONCA 305 (C.A.), at para. 34). It is subject to the overriding best interests test, and to the paramount consideration set out in section 24(2) of the child’s physical, emotional and psychological safety, security and well-being. As a guiding principle, it is only relevant to the extent that it bears on the best interests of the child (Barendregt, at paras. 9, 135). The courts have clearly emphasized over the years that if increasing parenting time with a parent would not in fact support the child’s best interests, it should not be ordered (Young, at para. 40; Gordon, at p. 49; Barendregt, at para. 9, 135; B.V. v. P.V., 2012 ONCA 262 (C.A.), at para. 15; Rigillo v. Rigillo, 2019 ONCA 548 (C.A.), at para. 4; Knapp, at para. 30). In Barendregt, the Supreme Court of Canada directed that going forward, the principle should be referred to as “the parenting time factor” rather than the maximum contact principle” to reinforce the child-centric nature of the inquiry (at para. 135).

Analysis

4.1 The Separation Agreement

100Pursuant to subsection 55(1) of the FLA, the court finds that the Separation Agreement was made in writing, signed by the parties, and witnessed.

101The Separation Agreement was drafted collaboratively with the involvement of extended family members, and then the Mother took the Separation Agreement to her lawyer to be formally drafted prior to the Separation Agreement being signed by the parties.

102The Mother received independent legal advice from her lawyer. The Father declined to obtain independent legal advice.

103The court finds that the parenting provisions of Separation Agreement should not be set aside pursuant to subsection 56(4) of the FLA. The court makes no finding on the issues of financial disclosure or the financial provisions of the Separation Agreement, as these issues are not before this court.

104The Father’s evidence was that he has a high IQ. The court agrees that he is an intelligent and sophisticated person. The Father is an engineer and project manager by profession. The Father was capable in his presentation of the evidence and arguments in court and in written materials.

105The court finds that Father was able to understand the meaning and implications of the plain language parenting provisions of the Separation Agreement, despite his waiver of independent legal advice. The evidence indicates that he declined independent legal advice because he did not want to incur the expense.

106The court accepts that the separation may have been stressful and uncomfortable for the Father but the evidence does not support a finding that he was under duress at the time he signed the Separation Agreement. The evidence indicated that the Father, at the time the Separation Agreement was signed, appeared relieved and happy to be free of responsibility and “all the negativity” in his life.

107The Father had the support of his family members through the negotiations, drafting, and execution of the Separation Agreement.

108There was no evidence of any family violence, any power imbalance, or economic dependence impacting the Father at the time the Separation Agreement was signed.

109The court is not satisfied, based on the evidence, that the Father failed to understand the nature and consequences of the parenting provisions in the Separation Agreement he signed in November 2018.

110The court finds that he was not under duress or undue influence at the time he signed the Separation Agreement and voluntarily agreed to the parenting provisions.

111Moreover, the parties substantially complied with the terms of the Separation Agreement for over 5.5 years. In July 2021, the Father specifically referred to the Separation Agreement in an email to the Mother seeking to continue to rely on its provisions.

112The court finds that the Separation Agreement was not meant to be temporary. There was insufficient evidence to support the Father’s position in this regard.

113The court finds that the Father may have changed his mind about the parenting provisions in the years following the execution of the Separation Agreement but that he took no steps to obtain a more significant role in the Child’s life through further negotiation, mediation, or litigation until March 2024 after the issue of relocation was raised.

114Even if the court finds that the parenting provisions of the Separation Agreement can be upheld, the court can still disregard the parenting provisions if they are not in the Child’s best interests pursuant to section 56(1) of the FLA.

115The parenting provisions of the Separation Agreement should not be disregarded on the basis that they are not in the Child’s best interests. The evidence did not support a finding that the parenting provisions were not in the Child’s best interests. The parties negotiated parenting provisions that were consistent with the Child’s historical care and provided for the Child’s needs.

4.2 Burden of Proof

116The Child spends the vast majority of his time in the care of the Mother, in substantial compliance with the Separation Agreement.

117The Father currently disputes the enforceability and validity of the Separation Agreement but nevertheless the parties substantially complied with the terms.

118Given subsection 39.4(6) of the CLRA, the burden of proving that the relocation would not be in the best interests of the Child is on the Father.

119Alternatively, whether the Father or the Mother would have had the burden of proof in relation to the issue of interim relocation, the result, on the facts, would be the same.

4.3 Best Interest of the Child Factors

120In accordance with s. 39.4(3) of the CLRA, the court begins with a consideration of the factors relevant to the best interests of the child under s. 24 of the CLRA, followed by the enumerated relocation factors.

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

121The Child is thirteen years old.

122When the Child was two and a half years old a developmental pediatrician, Dr. Janine Flanagan, diagnosed him with moderate to severe ASD. The Child was referred to various services, including the Autism Treatment Network.

123The Child received speech therapy for approximately one year prior to turning four. The Child did not receive any interventions or therapies related to ASD. When he was old enough to start school, the Child did not require an educational assistant in his classroom.

124The Child was assessed in school in 2020, when he was in grade four and it was determined that he is gifted.

125In 2021, the Mother obtained a psycho-educational assessment from Dr. Syb Pongracic and Dr. Wincent Murphy which confirmed the Child is gifted. The Child was placed at the uppermost range of intelligence relative to his peers. Neither doctor identified any other diagnosis or concerns.

126Since the Child started school, he has had an Individual Education Plan (“IEP”) initially because of the ASD diagnosis and subsequently because of his giftedness.

127The Child is described as passionate about his education. He is also described as well-mannered and articulate. His most recent report card states that the Child approaches his responsibilities and daily routines with enthusiasm and a positive attitude. He is motivated to succeed, stays on top of his work, and is always prepared for class. The Child is an attentive listener, supports his peers, and treats others with empathy and respect.

128The Child also sees his therapist regularly to assist the Child with negative emotions as a result of his relationship with his Father and the uncertainty surrounding this litigation.

129The Child enjoys numerous extra-curricular activities including swimming, badminton, judo, piano, and chess. He is described by his Mother as an active and engaged child.

130Neither parent indicated that the Child was diagnosed with ASD on their Form 35.1 Affidavit (decision-making responsibility, parenting time). Notably, the Father indicated that the Child “does not have any special medical, educational, mental health or developmental needs” in his Form 35.1 Affidavit (decision-making responsibility, parenting time), sworn March 13, 2024.

131In June and July 2024, an ASD Evaluation was conducted by Dr. Arnold Muller and the report indicates that the Child does not meet the diagnostic criteria for ASD.

132On October 24, 2024, the Child’s IEP reflects only his giftedness and no ASD diagnosis.

133The Father disputes that the Child no longer fit the criteria for an ASD diagnosis. Despite the fact that the Father did not identify the Child as having any special needs on the Father’s Form 35.1, the Father has never sought services for the Child for ASD, the Child has never received specific services for ASD, and Dr. Muller’s assessment is that the Child does not meet the diagnostic criteria.

134The Father criticizes Dr. Muller’s report. First, the Father takes the position that the Child did not have capacity to consented to the assessment, which the court does not accept. Second, the Father takes the position that because the Father was not involved in the assessment process, the result are invalid. The Father was not involved in the Child’s previous gifted assessments either. The Father’s lack of involvement is consistent with the history of care for the Child, where the Mother made all decisions for the Child.

135The court accepts that the Child currently does not meet the diagnostic criteria for ASD.

136The Child currently receives tutoring remotely from a tutor in India.

(b) the nature and strength of the child’s relationship with each parent, and grandparents and any other person who plays an important role in the child’s life;

137The Child has a very positive and strong relationship with the Mother.

138The Child has a relationship with the Father; however the Father has never been a primary. The Father is an occasional caregiver. Most recently, the Child’s relationship with his Father has unfortunately become strained.

139The Child has a strong relationship with his Paternal Aunt who has continued to reside with the Mother and the Child after the parties’ separation. The Paternal Aunt supports the Mother in her caregiving role, and provides the Child with care and support, and is very involved in the Child’s upbringing.

140The Child has relationships with his Paternal and Maternal Grandparents and additional extended family including his cousins, who reside in India. The Child has visited his maternal and paternal family in India numerous times. The Father supported these visits and would drive and pick up the Mother and the Child to and from the airport.

(c) each parent’s willingness to support the development and maintenance of the Child’s relationship with the other parent;

141The Mother is willing to support the development and maintenance of the Child’s relationship with the Father. Since separation, the Mother has ensured that the Child continues to see the Father. The evidence supports that the Father was content with this schedule.

142The Mother’s plan to relocate to India includes consideration of the Child’s ongoing relationship with the Father. The Mother’s plan includes structured and flexible contact with the Father through web-based programs, the Child travelling to Canada once per year, and the Father spending time with the Child in India up to 30 days per year.

143The Father appears less willing to support the Child’s relationship with the Mother. The Father speaks to the Child negatively about the Mother. The Father alleges the Mother is neglectful about the Child’s needs. The Father has an unhelpful pattern of sending emails to the Mother that make negative statements about her and her upbringing while simultaneously congratulating himself for tolerating her over the years.

(d) the history of care of the Child;

144The Mother has always been the Child’s primary caregiver before and after the parties’ separation. The Mother was primarily responsible for the Child’s meals, bedtime and morning routines, appointments, homework, arranging for tutoring, school meetings, extra-curricular activities, playdates, social events, and birthday parties. The Father admitted that in 2019 he moved to North York and was living “very far” so he did not drive the Child to school or pick him up.

145The Mother scheduled and took the Child to all his dental and doctor appointments. The Mother was the only parent to liaison with the school, attend parent-teacher interviews, and review the Child’s report cards and IEP.

146The Child is doing remarkably well in the Mother’s care. The Mother is entirely focused on the Child’s well-being. The court has no doubt that the Mother has been instrumental to the Child’s current well-being, despite experiencing his parents’ separation. The Mother clearly wants the Child to be challenged intellectually and to fulfil his potential, as well as being well-mannered and respectful towards others.

147After separation, the Father’s parenting time with the Child was limited to weekend visits for several hours, sometimes there were overnight visits, as well as some midweek visits, and sometimes visits were shortened or missed altogether.

148The Father would take the Child to some of his extra-curricular activities during his parenting time specifically board games and badminton.

149The Father has deferred to the Mother’s parenting approach in raising the Child over the several years since the parties’ separation.

150Most recently, the Child would request breaks from visiting the Father or request for visits to end early because the Child was not comfortable with the Father because of the Father’s statements or actions.

151The Mother suggested individual therapy for the Father with Peakminds to assist with his relationship with the Child. The Father testified in cross-examination that he does not believe that individual therapy was required, that he has scheduling constraints and a very demanding job which prevented him from attending therapy. Additionally, the Father stated that he is very sceptical of what the Mother suggests and he would rather find his own therapy.

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

152The Child’s views were provided through the OCL clinician and the parties’ Agreed Statement of Facts, dated July 19, 2024.

153The Child would like to move to India to complete high school and then return to Canada for University.

154The Child’s views are also informed by the regular and extended time he has spent in Mumbai, India visiting his extended family members and friends.

155If the relocation is not permitted, he would like to remain living with his Mother.

156Also, if the relocation is not permitted, he would like to see his father alternating weekends “depending on whether earlier discussions during the week are positive.” The Child also stated that “overnights would only occur if there were no arguments, and he felt safe.”

157The Child is a teenager with above average intelligence.

158The Child’s views are clear, strong, and consistent.

159The court does not find that the Child has been brainwashed or manipulated as alleged by the Father.

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

160Both parents are from Mumbai, India. The Child’s culture is Indian. The Child speaks English and some Hindi.

(g) any plans for the child’s care;

161The Mother’s plan is for the Child to relocate to India and to attend the Podar International School in Mumbai. The Mother will have the support of extended family, including maternal and paternal grandparents, cousins and family friends. The Mother plans for the Child to continue to have parenting time with the Father both virtually and in-person during school holidays in India or Canada.

162The Father’s plan is to have the Child remain in Canada with him in either a sole decision-making or shared decision-making situation with the Mother. The Child will be enrolled in school in the Father’s catchment area. The Child will have shared parenting time with the Mother.

(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;

163The Mother is able and willing to meet the needs of the Child as she has historically done since the Child’s birth. The evidence suggests that the Child is doing very well in her care.

164However, the court has concerns about the Father’s ability and willingness to care for and meet the needs of the Child. The Father has occasional involvement with the Child but the Mother has the vast majority of the Child’s care.

165The Father was unable or unwilling to take the Child to the Child’s second interview with the OCL, in the timeframe required, and despite the Child being in his care, and the Mother’s efforts to make arrangements. The Father testified that he had the Child in his care for six hours on August 24, 2024, the date intended for the OCL meeting when the Father would bring the Child. The Father testified that he had a lot going on that day, and while the Child was in his care for six hours that day, the Father only saw the Child for two hours because the Father was at appointments. As a result, the Mother took the Child to the second OCL interview the following day on August 25, 2024.

166Most recently, the Father has involved the Child in the conflict by discussing with the Child the issues before the court.

167The Father argued that the Child continues to have ASD, which was in an effort to suggest that the relocation to India and the school chosen by the Mother were not appropriate. The Father has never sought any ASD services or supports for the Child before or after the parties’ separation. The Child was reassessed by Dr. Muller in June and July 2024 and a diagnosis for ASD was not made.

168The Mother submits that the Father continues to seek the ASD diagnosis because the Father believes that if the Child has an ASD diagnosis it is a factor against relocation. The court is concerned that the Father appears to be overstating the Child’s special needs to meet the Father’s needs in this litigation, as opposed to meeting the Child’s needs. The Father’s behaviour, in this regard, is not indicative of a caregiver who is able and willing to meet the Child’s needs.

(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;

169The Mother demonstrated that she is highly capable and committed to positive and patient communication with the Father. The Mother has consistently involved the Father in the Child’s life, and supported the Father’s role in the Child’s life.

170The Father is less skilled in communication. He is not straightforward. His communication by email to the Mother is not focused on the Child.

171He views the Mother as “fulfilling a prophecy” over many years in taking the Child to India, and a conspiracy to alienate the Child from him. However, the Father’s own behaviour has caused the strain in the Child’s relationship with the Father. Additionally, the Father’s lack of involvement in the Child’s day-to-day life, both pre and post-separation, resulted in a bond that is less strong than the bond the Child has with his Mother.

172The Father, perhaps unintentionally, is not able to prioritize the Child’s needs and best interests ahead of his own views that the Father has been mistreated in the breakdown of the parties’ relationship.

4.3 Relocation

173The following is the court’s analysis of the relevant factors under subsection 39.4(3) of the CLRA:

(a) the reasons for the relocation;

174The reasons for the relocation are to provide the Child with a better education through private school in India, emotional stability, family support and a consistent environment, which the Mother views as essential factors for the Child during his teenage years.

175The Child has been offered admission to Podar International School where he will be enrolled in the International Baccalaureate (“IB”) program. Podar offers an accelerated program including robotics and coding, musical training, and debate.

176The Child’s education in the public school system in Peel Region has been difficult, particularly as a gifted student, as it lacked a consistent teacher and program. The Child has been moved from school to school unable to obtain a consistent education.

177The Mother’s undisputed evidence was that IB programs are offered in Peel Region at only one or two public schools and only through a lottery system where thousands of applicants vie for a handful of spots.

178The Mother indicated that she is unable to afford private school in Ontario and she does not receive any child support or section 7 expenses, which was part of the parties’ financial agreement at separation.

179The Mother also states that Mumbai is an exciting city that blends a rich Indian culture with urban amenities, with a significantly lower cost of living.

180The Child has been to Mumbai many times for extended visits.

181The Child will have the love and support of both maternal and paternal extended family. The Paternal Aunt also plans to relocate to India.

182The Mother has provided very good reasons to support the relocation.

(b) the impact of the relocation on the Child;

183The relocation would have a major impact on the Child. The regularity of his in-person parenting time with his Father would be impacted. The relocation of the Child will also have a potentially negative impact on his relationship with his Father, which is already strained.

184The Child will be required to change schools, neighbourhoods, and friends.

185There are many positive aspects of the relocation for the Child. He will continue to be in the care of his Mother who has always been his primary caregiver.

186He will continue to be with his Paternal Aunt who has been his secondary caregiver since the parties’ separation, and is a very important person in the Child’s life.

187The Child will have the benefit of closer connections to his Maternal and Paternal Grandparents and extended family including his cousins and friends in India.

188The Child will have the benefit of a consistent education catered to his needs as a gifted student.

189The relocation is consistent with the Child’s views and preferences and given his age, maturity and intelligence that is a factor the court considers. The Child’s views are also informed by his travelling for extended periods to India many times before and his familiarity with the city to which he would be relocating.

190The Child will have the benefit of being immersed in his Indian culture and increased exposure to the Hindi language.

191Unlike many relocation situations, the Father is also familiar with the location and his extended family resides in the same neighbourhood, which will support the Father’s ability to visit the Child in India.

(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;

192The Father currently sees the Child every other Saturday or Sunday for a visit during the day; however, the visits are often shortened by the Child who seeks to return to the Mother’s care.

(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;

193The Mother advised the Father about the idea of moving with the Child to India in mid-February 2024.

194Formal notice was not provided until she filed her Answer in this litigation.

195To the extent that the formal requirements had not been met, they have been rectified.

(e) the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside;

196The Separation Agreement does not specify a 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;

197The parenting time that the Mother has proposed for the Father is relatively equal or more than the parenting time the Child seeks to see the Father currently.

198The Child seeks parenting time with his Father every other Saturday, if communication is going well, from 2 p.m. – 8 p.m. which equals roughly 26 days per year. The visits would no longer be weekly, but the Mother is offering 30 days of visits either in Canada or India.

199The Child is connected with the Father virtually and this would not change.

200The Mother’s parenting time proposal is reasonable.

(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.

201Since separation the parties have both complied with the terms of the Separation Agreement.

202The Mother has historically travelled to India with the Child, with the Father’s knowledge, and always returned with the Child.

203The Mother has supported the Child’s relationship with the Father. The Mother appears to be guided by the Child’s best interests and sensitive to the Child’s needs and preferences and the court expects that she would continue to be so.

204The Court finds that it is likely the parties will comply with a court order.

4.4 – Relocation, Decision-Making Responsibility and Parenting Time Determination

205The court has carefully considered the best interests factors in relation to the evidence presented and submissions made in this relocation case.

206The court has considered the burden in this case which is on the Father to persuade the court the relocation is not in the Child’s best interests. The Father has not satisfied that burden.

207Moreover, even in the event that the parenting provisions of the Separation Agreement were not upheld, and the evidentiary burden is on the Mother to satisfy the court that the relocation is in the Child’s best interests, the Mother has satisfied that burden.

208Specifically, the court finds that the Child relocating to India in the primary care of the Mother is in the Child’s best interests for the following reasons:

1. The Child will benefit by remaining in the care of his primary caregiver since birth;

2. The Child will be enrolled in an IB program that his primary caregiver has researched and will meet his needs as exceptionally intelligent young person;

3. The Child will have the love and support of his extended maternal and paternal family, and friends, including his paternal aunt who has been a consistent caregiver for many years before and after the parties’ separation;

4. The Child will continue to have the opportunity for regular virtual contact with his Father and in-person visits in India and Canada approximately equal to the days he spends with his Father currently, the regularity will change;

5. The Child will be immersed in his Indian culture; and

6. The Child’s views and preferences are consistent with this result.

209It is in the Child’s best interests for the Mother to continues to have sole decision-making responsibility for the Child, given that the Child will be living with the Mother in India and all the best interests factors set out in this decision. Additionally, the Father’s struggles with straightforward and child-focused communication with the Mother do not support a shared custody decision-making regime.

210The court finds that the parenting time provisions proposed by the Mother are in the Child’s best interests. The Mother sought an order requiring the Father to engage in individual therapy prior to his parenting time with the Child; however, the court declines to make such an order. For the Father to obtain a meaningful benefit from therapy he must voluntarily engage and the court strongly encourages the him to do so.

Conclusion

211A final order shall go on the following terms:

1. The Respondent shall have all primary decision-making authority for all decisions respecting the Child, and shall not require the Applicant’s signature to obtain any personal or identification documents for the Child, or to travel with the Child outside of Canada for the purposes of vacation, provided that notice and the Child’s contact information has been provided to the Applicant in writing at least 14 days in advance of the travel.

2. The Child’s primary residence shall be with the Respondent, and she shall be permitted to relocate to India as soon as possible with the Child, so that he may commence school in January 2025, or as soon as possible thereafter.

3. The Applicant shall have parenting time with the Child as follows, subject to the Child’s views:

a. Structured and flexible contact through web-based programs and WhatsApp:

i. Twice a week based on the Child’s schedule, with one of those days occurring on the weekend, between 9:30 am-10:30 am Toronto Time.

ii. The Respondent shall permit the Child to contact the Applicant whenever the Child wishes.

b. In-person visits with the Child travelling to Canada once a year, during his summer holidays, and the Applicant can spend up to 30 days in total with him during that time or the Applicant can visit India during the Child’s summer holidays, with three months’ notice, and spend up to 30 days in total with the Child.

c. The Applicant is strongly encouraged to participate in individual therapy to better understand how to appropriately engage with the Child.

d. Additional time should the Applicant travel to India outside of the summer holidays or as agreed between the parties.

4. All communication between the parties shall be through Our Family Wizard and shall strictly pertain to the Child’s education, health, general well-being, and parenting time only.

212The Mother is seeking her costs, and if the parties are unable to resolve the issue of costs, the Mother may serve and file written submissions by January 24, 2025. The Father will then have until February 14, 2025, to make a written response. The submissions should not exceed three pages, not including any bill of costs or offer to settle. The submissions may be emailed to the Brampton trial coordinator’s office.

Released: January 8, 2025

Justice Joanna Harris

• Access to justice for self-represented persons requires all aspects of the court process to be, as much as possible, open, transparent, clearly defined, simple, convenient and accommodating.

• Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.

• Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case.

• Judges and court administrators have no obligation to assist a self-represented person who is disrespectful, frivolous, unreasonable, vexatious, abusive, or making no reasonable effort to prepare their own case.

• Judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices.

• Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.

Footnotes

1. 1The Statement of Principles on Self-represented Litigants and Accused Persons (2006) established by the Canadian Judicial Council was endorsed by the Supreme Court of Canada in Pintea v. Johns, 2017 SCC 23. These principles include the following: