ONTARIO COURT OF JUSTICE DATE: 2021·08·31 COURT FILE No.: Brampton 28/19

BETWEEN:

MICHAEL EDWARD DONALD RUDICHUK Applicant

— AND —

LAURA ANNE TERESA HIGGINS Respondent

Before: Justice John Kukurin Heard on: Aug 31, 2021 by written submissions Reasons for Judgment released on: August 31, 2021

Counsel: Michael Purves-Smith ...................................................................... counsel for the applicant Vincenzo Ruso .............................................................................. counsel for the respondent

KUKURIN J.

[1] These are Reasons for my decision on motions brought by the applicant (referred to as the “father”) and the respondent (referred to as the “mother”)

[2] Both motions deal with the same subject matter so, in that sense, they are cross motions. The father wants to stop the mother from moving the residence of the children from Brampton to Scarborough.

[3] The mother wants permission from the court to move. This simple relocation is made incredibly problematic and complex because the parties have two children: Ronan, age 7 and Isla, age 5. The mother also wants to relocate the residence of the children to Scarborough. She wants the court to permit the children to attend a specific school for 2021-2022 in Scarborough or one which is in the catchment area of her proposed residence. She also wants costs of her motion.

[4] The father wants the children to continue to live in Brampton and to attend the same school in Brampton that they attended the last academic year. In the alternative, he asks that the children reside primarily with him rather than with their mother. He proposes that they she have parenting time similar to what he now has, namely alternating weekends and a mid-week evening and overnight. He also seeks costs.

BACKGROUND

[5] A superficial history, at least, is worthy of some recapitulation as it forms the framework for appreciating the evidence and the arguments on these motions.

[6] Not only is the history of the parties of importance, but also the history of this litigation between them, as it also is part of the context in which these motions are before this court.

[7] The parents met in June 2013, cohabited starting in Sept 2013, had children in 2014 and 2015, married in June 2017 and separated, according to the mother in April 2018, but remained in the same residence until she left the family home with the children on Oct 29, 2018.

[8] They initially lived in Guelph but moved to Brampton in April 2016. The children, Ronan, now age 7, and his sister, Isla, now age 5 resulted from unplanned pregnancies. After their move to Brampton, they attended a Catholic elementary school (Lester B. Pearson) and are being raised as Catholics, the religion of their mother and her family. Ronan has just completed grade 1; Isla has just completed her Kindergarten year. The evidence discloses that the academic year just completed was done remotely, namely by online school sessions, although there is mention of the mother home schooling them earlier on when the global pandemic was in its infancy, and more recently a new hybrid model of schooling was implemented.

[9] When mother left the family home at the end of October 2018, she moved, with the children into the home of her parents which was also in Brampton. In that home resided the maternal grandparents, a great grandmother, and a maternal uncle. The father remained in the family home, but left that residence and has a rented 3 bedroom home, also in Brampton. He lives alone.

[10] It is not an understatement to say that the parents cannot communicate well. This is an opinion shared by just about everyone who has had anything to do with both of them, and regrettably, also by their children, who like all children are like sponges picking up parental moods, feelings and outright verbal articulations, as well as overheard comments they are not supposed to hear. This communication problem quickly resulted in this present court proceeding which, based on the court file number, I estimate was commenced in early 2019. The proceeding is now over 2 ½ years old. No trial date has been set and no Trial Management conference held.

[11] To summarize, the parents could agree to virtually nothing, and when they did agree on anything, it was with delays, accusations, counteraccusations, recriminations and calls by each of them for various reasons to the Children’s Aid Society of Peel Region, the Peel Regional Police Service and sundry other community service providers (hospital/dentists/counsellors/lawyers etc). They have, however, respected court orders.

[12] The parties have been living under an order made by Justice L. Parent dated April 17, 2019 clearly at an early time when everybody who was relevant lived in Brampton. This order (called the “Parent” order) was made on Minutes of Settlement of the parties. It was also a “temporary” order, and one made “without prejudice”. I cannot determine if the “without prejudice” qualification was ever removed but I doubt that it was. In any event, it has now run into some difficulties with present circumstances.

[13] The Parent order did not mention decision making responsibility (DMR) nor did it mention “custody” What it did provide was for primary and secondary residence. The father was awarded secondary residency of the children alternate weekends after school until Sunday at 6:30 pm. In addition, he had them every Wednesday until he dropped them off at their school at 9:00 am Thursday. The mother had the children the rest of the time as their primary residence with her. Arithmetically, and anecdotally, this translated to an 80:20 split of the children’s time excluding holidays special times and summer time. So far as one can tell, this schedule was merely tweaked, but has basically stayed intact. While the Parent order had other provisions, the only other major one of consequence was that the parents communicate by Our Family Wizard, a computerized program designed to reduce animosity, and parental conflict, and to maximize exchange of information about the children.

[14] The father was also to pay $1,053 per month to the mother as table child support. He was to pay 66% of special expenses as additional (S.7 CSG) child support, the particular s.7 expenses listed in the order.

[15] From a litigation standpoint, the feature that stands out the most, apart from the high conflict is that this case is overripe for a trial. The mother says that the parties have had six case conferences, one settlement conference, and the next one is scheduled for Sept 14, 2021 as a combined settlement and trial management conference. The newly amended Children’s Law Reform Act (CLRA) provides, in s.26, that if a case involving DMR and PT or Contact with a child is not heard within six months from commencement, the court clerk shall list the application for the court and the court may to fix a date for hearing (ie a trial) that is the earliest date compatible with a just disposition of the application. While this came into effect only on March 1, 2021, it is obvious that this case has slipped through the s.26 cracks as there has been no listing by any clerk, and it is now the end of August 2021. In addition, the father has wanted to amend his application for over a year and it is not yet amended. There has been no questioning to date. The parties and the court are nowhere near ready for trial and I understand that trial dates are relatively scarce.

[16] These cross motions are precisely what s.26 was designed to prevent. Once an interim order is made, the expectation is that it will last until trial or settlement. Interim proceedings and conferences are of use only to move the matter forward. It is, and has been for some time, fairly obvious that these parties are not going to settle this case. Now intervening events have necessitated yet more interim proceedings, and with some urgency as the children’s 2021-2022 school year is almost upon us and needs judicial intervention to say where and how that is going to take place.

THE LAW

[17] One major development is that the law that deals with the major claims in this case was changed, quite drastically and recently. There is little to no jurisprudence under the new CLRA to date. However, this case is governed by its provisions.

[18] At the outset, I identify the matters before me to be for orders for interim “variation” of existing interim orders (and possibly ‘without prejudice” orders). However, some of the claims sought have no prior interim order. For example, there is no explicit order affecting mobility, either allowing or restricting it. Nor is there any existing order directing where the children are to reside, or to attend school. These are new claims made in the motions before me. However, implicitly, some claims may well involve variation, such as time in the care of a parent.

[19] The existing law which has not been changed is that any decision that this court makes is one that must be in the best interests of the children. Section 24 of the CLRA requires the court to take only the best interests of the children into account in making a parenting order or contact order. I take the primary residence provisions of the Parent order, particularly as it set out times and days of the children with each parent, to be orders related to “parenting times” (referred to as PT). The Parent order also deals with primary residence and secondary residence, but there does not appear to be any statutory definition of either in the CLRA. Other jurists have often used similar terminology (eg primary, principal, main) but often without any explicit reasons why such adjective was used to describe residency of a child.

[20] For interim orders, there is plenty of jurisprudence that once made, they are intended to last until trial. There is always the exception when circumstances change from the time that the prior interim order was made. In fact, the court cannot make an order varying a prior order, interim or final, unless there has been a material change in circumstances that affects or is likely to affect the best interests of a child.

S.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.

[21] The new CLRA clarifies that the court must, in applying the best interests test, consider all of the factors relating to the circumstances of the child, but must give primary consideration to the child’s physical, emotional and psychological safety, security and well being. This is a new provision not found in the former CLRA.

S. 24(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

[22] What this provision means awaits case law. I interpret this to be the lens through which the court considers the circumstances of the particular child for whom the court is asked to make a DMR or PT order.

[23] The best interests considerations are called “factors related to the circumstances of a child” and these are listed in s.24(3) CLRA in clauses (a) through (k)

(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.

It should be noted that this is not an exhaustive list

[24] With respect to PT, the court is mandated to give effect to the principle that a child should have as much time with each parent as is consistent with the child’s best interests.

S.24(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

[25] Section 28 of the CLRA sets out the powers of the court in an application for DMR or PT. These are very extensive. The court

(a) may by order grant, (i) decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (a) or subsection 21 (2), (ii) parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or (iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3); (b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and (c) may make any additional order the court considers necessary and proper in the circumstances, including an order, (i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child, (ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child, (iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court, (iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court, (v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify, (vi) requiring a party to give information or to consent to the release of information respecting the child’s well-being, including in relation to the child’s health and education, to another party or other person specified by the court, or (vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child. 2020, c. 25 , Sched. 1, s. 6.

[26] There are also new provisions with respect to what is generally called “mobility”. For convenience, I set out only partial extracts from the CLRA

39.1 (1) A person who has decision-making responsibility or parenting time with respect to a child and who intends to make a change in residence, or in the child’s residence, shall notify any other person who has decision-making responsibility, parenting time or contact under a contact order with respect to the child of the intention.

39.3 (1) A person who has decision-making responsibility or parenting time with respect to a child and who intends a relocation shall, at least 60 days before the expected date of the proposed relocation, notify any other person who has decision-making responsibility, parenting time or contact under a contact order with respect to the child of the intention.

S.18(1) In this Part, “relocation” means a change in residence of a child, or of a person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child, that is likely to have a significant impact on the child’s relationship with, (a) another person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child, or (b) a person who has contact with respect to the child under a contact order ;

[27] There is a plethora of cases that deal with interim mobility issues although not under these new provisions. It would be foolish to try to segregate which allowed and which refused relocation and why they did or why they didn’t. The case law that impacts most on the decision on the present motions are those that refer to the “status quo”. In that respect, the oft cited Plumley decision of Justice Marshman sets out the following principles that apply to interim motions seeking mobility (leave to relocate the residence of the children):

1. A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.
2. There can be compelling circumstances that might dictate that the judge ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.
3. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent's position will prevail at trial. [1]

[28] The desirability of maintaining the status quo until trial is summed up by Sherr J. in Downey v Sterling [2] at paragraph 14

“There are genuine issues for trial in this case. More investigation is required to determine what is in Deontae's best long-term interests. The trial judge will be in the best position to assess the evidence and make the best possible decision for Deontae after a full and complete hearing of all of the relevant evidence. There is no compelling reason to make a temporary order permitting the move.”

[29] Relocation has been permitted when there is a compelling reason and at times, a reason that is only marginally or inferentially connected to the best interest of the child. In Ontario, which Professor Rollie Thompson described as atypical, there is a wide disparity in judicial treatment of interim mobility cases, and the judicial reasons are all over the map. He has traced decisions in 2009 to 2011 in his “ Recent Ontario Relocation Trends” [3] with a follow-up of cases from 2011 to 2014. Perhaps this is partially why the CLRA was recently reformed.

[30] In any event, it behooves this court to examine the claims of the parties in these motions and to examine their evidence to determine how it factors into the decisions requested of this court. Of considerable importance is the “compelling reason” for the move cited in many of the cases and in particular how a compelling reason ties into the best interests of a child.

ANALYSIS AND JUDICIAL FINDINGS

[31] Firstly, I must deal with the argument of the mother that her proposed move is not a relocation but a change in residence. I disagree. It is clearly a relocation as defined in s.18(1). It is a change in residence of a children by the mother who has PT, and who is an applicant for PT, which is likely to have a significant impact on the relationship of the children to the children’s father who also has PT with the child. I point out that the final PT decision has not yet been made and that the mother’s proposed move entails considerably more driving time in a motor vehicle for PT exchanges than exists at present. Transportation within Brampton is far less than transportation between Scarborough and Brampton. Time travelling has already been commented on negatively by the child Ronan. This, in itself, is likely to impact negatively on the father-child relationship, and the prospect of more trips than at present would only exacerbate the weakening of the relationship. A child that has to go through the unpleasant experience of a lengthy trip in Toronto traffic every time he sees his dad is likely to want to see him less and less.

[32] How do the new provisions in s.39 affect these motions. I find that the mother did give the father notice on May 31, 2021 as required. I also find that the father gave notice of objection as he was required. That is as far as s.39 has gone. The parties opted to bring these cross motions. Presumable they seek, and oppose, a judicial authorization for relocation of the children. If so, the court must apply those “best interests” factors set out in s.39(3) CLRA which are all of the s.24(3) factors that a court applies in making a parenting order, plus more :

S.39.4(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.

[33] Additionally, the onus falls on the father to show that the relocation is not in the best interests of the child, not on the mother to show that it is in the best interests of the child.

S.39.4(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.

[34] As set out previously, the mother has the lion’s share of PT roughly 80:20

[35] However, this court can order that s.39.4(6) does not apply if the order in question is an ‘”interim” order. In this case, the order is not only interim, but is made “without prejudice” and even though made on consent, it is a dated order almost 2 ½ years old, that was made before the CLRA amendments took effect, and so far as I can determine, has never been reviewed. Moreover, This court has no access to any judicial reasons that underlie this Parent order other than that it was made on consent. It does not seem, for example, to give much effect to the principle in s.24(6) of the new CLRA which admittedly was not the law when the order was made but is statute law now. In the circumstances, I order that s.39.4(6) does not apply in this case and the onus is not on the father as the subsection states. This does not place onus on the mother. However. It seems that this falls within “any other case”, that by virtue of section 39.4(7) places the onus on both parties to show whether the relocation is in the best interest of the children.

S. 39.4(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

[36] Fortunately, there is considerable evidence to enable the court to come to a decision on relocation.

[37] Among this evidence is a Report of the Office of the Children’s Lawyer’s ((the OCL) Clinical Investigator that both parties have referenced in their argument and evidence. While the OCL Report was prepared for the trial, when one takes place, and not for these interim motions, I do refer to portions of the report as it provides information of the views and wishes of the children, a factor the court is mandated to consider. Moreover, I consider these less partisan than if coming from the parties or their supporters. Also of note, is that the father has disputed the OCL Report for his own reasons, although not the entire report. He plans to cross examine the author at trial, another indication that a trial is not only likely, but almost inevitable.

[38] Secondly, this court has to keep in mind what its task is with respect to these motions. It is to maintain the status quo unless some compelling reason(s) dictates that the status quo must be changed. So let us examine the compelling reason(s).

[39] The main one is that the home of the maternal grandparents is sold with a closing date of the end of August 2021. The grandparents advised the mother in late May that they were selling and they accepted an offer quickly after that. The have a less spacious residence in the Beaches area of Toronto which is not all that far from the mother’s proposed residence in Scarborough. This means that the mother and the children are dispossessed of their present home come September. But the mother is not planning to move in with the grandparents in the Beaches. She is planning to move into the home of her “boyfriend/partner” in Scarborough which is a leased and spacious unit she and the children have been at many times since it was acquired in May 2020, well over a year ago.

[40] The grandparental decision to sell and move and the quick closing have prompted the mother to seek court permission to relocate to the other side of Toronto. That this has been her plan all along is not what the father is alleging. He states that she has actually moved to the Scarborough home notwithstanding that her address is still that of her parents in Brampton. In support of this contention, he points out the following and asks the court to infer what he says is true

[41] The mother signed an acceptance (of lease) on May 22, 2020 and is shown thereon as “Tenant 1”. “Tenant 2” is the mother’s partner, Andrew Flynn. He asks the court to disbelieve that the mother only co-signed so that Andrew would qualify financially for the lease of the unit. The mother has not, to date, produced a copy of the lease agreement of the Scarborough property. The lease rent is $4,300 per month. He asks the court to conclude that she is not only a co-tenant, but the prime tenant.

[42] The mother has spent well in excess of $16,000 of her own money at retail locations that are known to sell home furnishings. This spending, as early as May and June 2020, argues the father, can only mean she has been furnishing the Scarborough home in anticipation of her move there.

[43] The mother has admitted that she and the children have spent time at the Scarborough home, including overnights. The extent of the time she and the children have spent there is vague in the evidence but is more than just mere occasional visits. The mother argues that the children have made friends there, which also suggests more than occasional visits. Isla told the OCL investigator that she and her brother and mother spent more time at Andrew’s home after the pandemic started, which was well over a year ago. Ronan speaks of wanting to reduce driving time which I take to mean between Brampton and Scarborough.

[44] The mother has accepted a job in Toronto as a property manager with Trivest Developments in Toronto, half time working from home and half time at their offices. While not impossible, it makes little sense to hold this job living in Brampton, but makes considerably more sense to do it living in Toronto.

[45] Andrew has produced a Toronto Police Record check that is negative for offences and convictions. There is no explanation why this was obtained by him especially as it is dated Sept 21, 2020. The logical inference is that he was planning to live with the mother and her children as a family even back then.

[46] The OCL interviews with the children were done partly at the Scarborough home.

[47] The mother has made no secret of her “partner” relationship with Andrew, that she was planning to move in with him with the children, and that she would be leaving the grandparental home in Brampton to do that. In fact, she made overtures through counsel to discuss that very plan

[48] The mother’s response to the allegation that she has moved is a denial. She points to the OCL report in which both children confirm that they and she still have their home with the maternal grandparents. She admits that she and the children do spend time at the Scarborough home, but have not relocated there. She has been consistent in this explanation for over a year and perhaps with some justification. However, as September 2021 approaches, she will no longer be able to maintain this argument.

[49] The mother’s position is reminiscent of the mother on social assistance whose boyfriend/partner hangs around her home reaping the benefits of quasi residing with her, but is technically not cohabiting with her. This is an often seen ‘fiction’ that is put to social assistance benefits entities who continue to provide assistance to the mother as if she was still living alone.

[50] The evidence convinces me that the mother and her two children are living in two locations, in Brampton and in Scarborough. That the mother technically has her home with her grandparents is now a yesterday story. She has no Brampton residence once the sale closes and, in absence of evidence of any other residential location, I infer that she and the children are thereafter living with Andrew in Scarborough.

[51] Why that is of importance is twofold. First, it is she who is disrupting the status quo. Secondly, she is relying on the sale by her grandparents of their Brampton home, a circumstance beyond her control, as the main “compelling circumstance” to justify relocation.

[52] I must admit that what she is doing makes good fiscal sense. To move from a rent free grandparental home to another rent free partner home is logical (if in fact, she is going to pay nothing towards the lease costs there). It also makes sense from an employment viewpoint to be close to her workplace which she would not be in Brampton. It also shows good preparation so that her partner is not a stranger to her children, and his residence is familiar, comfortable and furnished in preparation for their formal move there.

[53] The only thing is that the father is now faced with the children being in Scarborough on the opposite side of Toronto, rather than in the same city where they have technically been to date - Brampton, where he continues to reside. This disrupts the status quo in several ways including transportation, PT time availability, and particularly schooling of the children, not to mention the children’s Brampton based friendships and school acquaintanceships and their recreational and other social activities.

[54] My conclusion is that there is a compelling reason for relocating. That the relocation is to Scarborough has been a path that the mother has wisely smoothed in advance and tried to minimize the disruptive aspects. She has also tried to compensate for any lost parenting time that the father and children might suffer under the current order by offering modest additional time to cover increased travel time.

[55] One might be tempted to speculate that the mother should have found or at least looked for another place in Brampton until the trial of this proceeding. She has a new job with a pay range claimed by the father to be $85,000 annually and, with the child tax benefits, and the child support he pays, her annual revenue is likely in excess of $100,000, plenty enough to rent a modest residence in Brampton until a trial is concluded. But she has not even looked.

[56] The inescapable fact is that the mother has disrupted the status quo. This court accepts that it was for a compelling reason that she must relocate. It also accepts that the Scarborough home is a logical move in the circumstances What this court does not accept is that it is in the best interest of the children to simply permit that move having regard to the prevailing factual circumstances and the tests that the court must apply.

[57] As a third consideration, I look at the factors listed in S.39.4(3). Not all apply, but in this case, clauses (a) , (b) (c) and (f) impact on this determination. The reason for the relocation is loss of the mother’s present residential accommodations, her acquisition of a new and relatively well paying job, and her desire to join her partner and live with her children in a new family setting. The impact on her children will be

• a new school, new teachers, new school and new neighbourhood friends
• more travel time to Brampton to be with their father and back
• loss of friends and acquaintances in Brampton
• loss of established recreational and extracurricular activities
• loss of living in the bosom of the maternal family (eg grandparents/uncle)
• less to do when with their father (eg soccer / dance classes)

[58] The children have spent approximately 80% of their time with their mother and 20% with their father. The mother was a stay at home mother, was employed as a bartender for a time (likely after the bedtime of the children) and now is a full time employee Monday through Friday albeit working from home half of that time. The father works most of his time out of his home and part out of his office. The mother’s proposal for extra time to the father to cover more time travelling is ostensibly reasonable, but not so reasonable in the present circumstances. How the father ended up with only 20% of the PT is a mystery as no explanation is available other than a consent incorporated into an order.

[59] The children attend school remotely by online learning and this appears to be continuing into the 2021-22 academic year. I believe I can take judicial notice that the pandemic continues and that the mother opted to keep them home rather than allow them to attend at school in person. Regardless of where they are enrolled at school, their on line studies can be done equally from the father’s home as from the mother’s home. The father has his mother, the children’s paternal grandmother, who is willing to care for the children if the father’s work requires his attendance elsewhere. In the circumstances, I do not see the mother’s proposal as overly generous in terms of varying paternal parenting time, and it seems to be bound to the time set out in the current order.

[60] Fourthly, the decision for allowing/disallowing relocation is based on s.24(3) considerations that comprise the best interests test. As stated previously, these must be filtered through the primary consideration lens of s.24(2) CLRA. In considering the listed best interest circumstances, I do not plan to examine them individually but find that the following are relevant to their application in this case:

[61] The children love each parent. They enjoy their time with each parent. The parents both were involved in raising the children perhaps to different degrees and in different ways but clearly not as primary caregiver by either parent to the virtual exclusion of the other. The separation obviously changed this dynamic but did not significantly change the way that the children viewed and interacted with their parents.

[62] The children are at ease and comfortable with both parents, with their parents’ new partners (the father has a non cohabitation relationship with Jana who resides in Kitchener) as well Aiden, Andrew’s son who is off to university this year. They are on good terms with grandparents on both sides.

[63] The children’s views and wishes are not well developed in the OCL report but Ronan made the comment in each OCL interview that he wishes the same amount of time with each parent. Isla’s comments are less concrete but it is evident she enjoys her time with each parent and expressed to the OCL investigator that she “wants both of her parents to spend time with her”.

[64] The children are raised in the Catholic faith from their infancy. This is the mother’s religion. The father is not a religious person but has never prevented or argued that the children should not be raised as Catholics. He is said to be an atheist. The children, in addition to attending catholic schools also attend catholic services (mass) when the churches are open again to adherents.

[65] Both parents are able and quite willing to care for and meet the needs of each child. The mother has had the direct assistance of her maternal family although that is now not so direct. The uncle has left the home and the grandparents are some distance away although not that far. The mother also relies on her partner Andrew for help when needed. The father as been mostly present when he has had the children, but he can also rely on his mother, now retired, who lives some distance away, but within easy driving distance. He also can rely on his partner Jana who works entirely from home. I suspect that, like all parents, they both can afford a babysitter when pandemic circumstances permit.

[66] I am less optimistic that the parties can co-operate and communicate with each other on matters affecting either child. They are clearly polarized and do not see that the other has the best interests of their children uppermost. The father sees the mother as pursuing her wants first and the needs of the children a distant second. The mother sees the father as obstructionist (to what she wants), stubborn and unwilling to make concessions or to even discuss matters with her. This is clearly personal between them and does not extend to their relationships with the children.

[67] I do not believe that there has been any family violence between the parents. The evidence of a suicide attempt by the father is aged, was not seen by police authorities to be an actual attempt, was more situational in nature and the father did obtain medical assistance. The mother, at the time was upset that the police were even called. The mother claims she was subjected to verbal abuse by the father. I see no evidence of that, although both say that their marriage was on the rocks for some time before it disintegrated totally. Many things are said by both spouses at such times, often in anger and frustration.

[68] There are no other proceedings ongoing. This one is enough

[69] In short, the s.24(3) factors favour each of the mother and the father in varying degrees insofar as the relocation decisions concerned. These are non-exhaustive considerations and the court can also look at others.

DECISION

[70] Optimally, the best outcome of the motions before this court would be the mother having found a place in Brampton, the children continuing to see their father for his parenting time, the transportation for exchanges remaining the same, or only marginally different, and the children attending the same schools as they did last year, and involved in the same activities and with the same friends. This would be until a trial was completed. However, that is not to be, as the mother has no place in Brampton to call her home, and to a great extent because she has not looked.

[71] The children’s wishes are to spend more or less equal time with each parent. The child Ronan, primarily, chafes at the drives he has to endure for PT exchanges, and I interpret this to be between Scarborough and Brampton

[72] The children are not, so far as the evidence discloses, going to change from on line (remote) learning or a hybrid variant of that. The father attests that he has checked with their school principal at their Brampton school and is assured that they can be registered there if residing with him. The father is willing and able to help the children with their learning and has as much time as does the mother to do that. he also has the maternal grandmother and his partner Jana to assist. The only fly in this ointment is that the mother has primary residence of the children with her by the Parent order.

[73] The mother’s involvement in the Scarborough lease property looks fishy. Regrettably, this court has only the evidence placed before it and no testing of such evidence by cross examination. I am not prepared to accept the situation as depicted by the mother, but neither do I accept what the father interprets to be the case.

[74] The mother, however, has a more unstable history of relationships and these do clearly impact on the children. Within less than a year of her final separation from the father, she had a relationship with Derrick St. Michael and by August 2019, expressed her desire to move to Toronto with him. She clearly had a romantic if not intimate relationship with him. Her children, especially Ronan, loved Derrick. Yet by December 2019, Derick was history, as she had by Oct/Nov 2019 met Andrew, a freelance journalist and professor at Humber College. How her break up with Derrick affected her children was not mentioned by her. Within six months of meeting Andrew, the mother was either a co-tenant or co-signed a $4,300 per month lease agreement while still embroiled in this high conflict family litigation with court ordered commitments for paternal PT every second weekend and every Wednesday overnight. She evidently puts all of her eggs in one basket and hopes to manage to make things work out for her.

[75] The father has more stability in terms of his residence, his job, his relationship with his children. On the other hand, he is opposed to the mother and does not trust her one bit. He feels she is not forthright and has misled others like his lawyers, the OCL Investigator and himself. Maybe some of this view is justified but not all. The father does not have the spirit of conciliation and to him, everything with the mother seems to be a battle. The children have picked up on this. Ronan stated to the OCL investigator that they “barely talk to each other” and Isla stated that they ‘kind of” talk to each other, hardly the type of comments that a child would say of loving, co-operative parents.

[76] I see no reason why the mother cannot live in Scarborough as she clearly wants to do so. I also see no reason why the children cannot live, as I am almost sure that they have been over the past year, partly in Scarborough and partly in Brampton. [4] They could be enrolled in the same school as they were last year. They could do their on line education from either location with their parents or others helping out with childcare or education assistance. They could live one week with each parent and this would minimize travel time, costs and frustration to one trip per week. They would have the advantage of keeping their old friends and making new ones in Scarborough. They could continue with their extracurricular activities as much as a pandemic will allow. This would give both parents a week off from child care to devote to their respective jobs. They would both, of course, keep in contact with their children while they were in the other parent’s care, within reasonable limits. If the mother wishes the children to attend Sunday morning church services, and if she actually takes them there, the court could order that they be with her in Scarborough for Sunday mornings.

[77] I am not suggesting that any order for DMR would be part of this decision. DMR has not been ordered to date and does not have to be. I understand that the father is seeking to include this as an amendment to his claim for a final order.

[78] Nor do I intend to use primary or secondary as descriptors of the residency of the children. I simply intend to equalize the parenting time (subject to Sunday services) between the parents, and to minimize the undesirable travelling time. But most importantly, I am attempting to maintain the status quo as much as possible as the present circumstances permit. In all of this, I am cognizant of the prime considerations of the children’s physical, emotional and psychological safety security and well being, and that this is an interim decision only, meant to persist until trial. In considering the Plumley principles of Justice Marshman, I am not convinced that the trial decision will favour either party. I am convinced that there are genuine issues for trial and hope that they receive an early judicial audience. I am satisfied that there is a compelling reason for the mother to relocate but am not convinced that this should be done now as a complete move.. As I have said in a previous decision [5] ,

“The decision on interim mobility is unfortunately of such a nature as to have a strong effect on the final outcome of the case, particularly if the order permits relocation. The reality is that courts do not like to create disruptions in the lives of children by making an order that may have to cause further disruption later if the order has to be reversed.”

ORDER

[79] There will be an order to go on an interim basis until further order of this court:

1. That paragraphs 1 to 6 inclusive on page 2 of the order of Justice L. Parent dated April 17, 2019 are terminated effective August 31, 2021
2. That the Applicant father, Michael Edward Donald Rudichuk and the Respondent mother, Laura Anne Teresa Higgins, shall have equal week about parenting time with the children: Ronan James Donald Rudichuk, born […], 2014 and Isla Elizabeth Margaret Anne Rudichuk, born […], 2017 with exchanges to take place at 2:00 pm on Sundays, with the children to be with their father on Sunday September 5, 2021 subject to the following exception, namely, that, on weekends when the children attend Catholic church services in person on Sunday mornings, the children shall be exchanged at 7:00 pm on the preceding Saturday, provided that the mother gives notice by the preceding Wednesday by Our Family Wizard, and that the children actually attend the church services
3. That the children shall be free to communicate daily and privately with the parent in whose care they are not, at all reasonable times (before 8:00 PM) and for reasonable durations (one hour per child), with calls placed by the children by telephone or by electronic means, and the parent having care facilitating such communication.
4. That each parent shall make day to day decisions that affect the children during those times that the children are in their parenting time care.
5. That the children shall be enrolled in the same school they were enrolled in last academic year(Lester B. Pearson) provided that if such school will not enroll them as students, they shall be enrolled in St. John’s Catholic School in Toronto
6. That each parent shall have the right to inquire and be given information about each child from all persons or entities providing any services to the child including the child’s health, education and well being.
7. That all issues relating to child support are adjourned to the settlement conference/ trial management conference on September 14, 2021 to set a date for the next step thereon.

[80] I thank counsel for their fulsome and comprehensive materials and submissions, especially with the time constraints placed upon them by the circumstances.

Released: August 31, 2021 Signed: “Justice John Kukurin”

[1] Plumley v. Plumley , [1999] O.J. No. 3234, 1999 CarswellOnt 3503 (Marshman Ont SCJ) [2] Downey v. Sterling, [2006] O.J. No. 5043, 2006 ONCJ 490 , 169 A.C.W.S. (3d) 1065, 2006 CarswellOnt 8084 (Sherr Ont CJ) [3] Berry v. Berry: Recent Ontario Relocation Trends, in Reports of Family Law (Articles) 7th Series 2012, followed up by ONTARIO RELOCATION DECISIONS, JANUARY 2012 TO APRIL 2014 [4] Of note is an e-mail sent by the mother to the father dated April 20, 2020 stating that “ we have been here 90% of the time since this all started... ” referring to Andrew’s home. Also noteworthy is a case note from Sabah Noor, Peel Children’s Aid Society worker reporting the mother’s comment dated May 1, 2020 stating that the mother “ is staying in Scarborough most of the time ” and that they do go back so that the kids can “ have their Wednesday visits with their father ”. There are other social media posts such as one from August 4, 2020 on Facebook in which the mother posts “ FYI! We live on Crescentwood ….” which is the address of the Scarborough property to which the mother seeks leave to relocate. All of which add to the inference that the mother and children have been living in Scarborough for some time. [5] Goodship v. McMaster , [2003] O.J. No. 4255 at paragraph 9