Jennings v. Cormier, 2022 ONCJ 338

Court File and Parties

ONTARIO COURT OF JUSTICE DATE: June 17, 2022 COURT FILE No.: D42610

BETWEEN:

MICHAEL JENNINGS Applicant

— AND —

PAULA CORMIER Respondent

Before Justice Melanie Sager Addressed in Chambers Reasons for Decision released on June 17, 2022

Counsel: Andrew Sudano...................................................................................... counsel for the applicant Kennedy Ojeogwu............................................................................... counsel for the respondent

SAGER J.:

Introduction

1. There are two urgent motions before the court; the Applicant’s (father) motion for an order requiring the Respondent (mother) to return the children of the relationship namely twins Olivia Rose Michelle Jennings and Normand John Paul Jennings born […], 2020, to the City of Toronto; and the mother’s motion for an order permitting her to relocate the children’s permanent residence from Toronto to Pembrooke, Ontario.

2. Both parties also seek other orders addressing parenting time, decision making and the primary residence of the children.

Background of the litigation

3. The father commenced this litigation by issuing an Application on May 3, 2022, in which he seeks final orders for joint decision making responsibility, parenting time, and the right to obtain government issued documents for and travel with the children without the consent of the mother.

4. On May 4, 2022, the father filed a 14B Motion requesting leave to bring an urgent motion prior to a Case Conference as the mother had relocated with the children to Pembrooke, Ontario in the face of the father’s objection on April 20, 2022.

5. On May 9, 2022, the court ordered the scheduling of an urgent Case Conference, and one was scheduled for May 12, 2022.

6. The parties attended in court on May 12, 2022, and the mother confirmed she had moved the children’s residence to Pembrooke and that she would be seeking an order permitting the move. The father’s motion was adjourned to June 13, 2022, and parenting time was ordered for the father on consent every other weekend. The mother was granted to leave to bring a motion on the return date for an order permitting her to relocate the children’s residence to Pembrooke.

7. On June 13, 2022, the parties and their counsel attended in court by ZOOM. The mother’s lawyer advised that he has COVID and was too ill to participate in the motion. The parties agreed that the court would decide the motions before it in Chambers based on the materials filed.

8. The father relies upon a Notice of Motion dated May 4, 2022, an affidavit in support of motion sworn May 4, 2022, an affidavit sworn May 24, 2022, and a responding affidavit sworn June 8, 2022. Father’s counsel also served and filed a Statement of the Law.

9. The mother relies on a Notice of Motion dated May 31, 2022, and an affidavit in support of motion sworn May 31, 2022.

The evidence

The uncontested evidence

10. The following relevant facts are agreed to by the parties or are not contested: (a) The parties met in January 2018. (b) The parties began living together in early 2019 when the mother moved in with the father. (c) The father paid the rent and most of the expenses related to the home. (d) The parties’ twins were born prematurely on […], 2020. (e) The mother is the children’s primary caregiver, and she has been assisted by her mother. (f) The father works at the Food Terminal in Toronto from 4:00 a.m. to 1:00 p.m. (g) The mother currently does not work but was employed at various times during the relationship. (h) On October 1, 2021, the parties moved into a home leased by them with the maternal grandmother of the children. The maternal grandmother lived in the basement unit while the parties and the children lived on the upper floor. (i) The parties’ relationship began to deteriorate in mid-November 2021. (j) On March 19, 2022, the mother provided the father with a ‘Notice of Relocation’ indicating she intended on relocating the children to Pembrooke on April 15, 2022. (k) On March 25, 2022, the father was denied entry into his home by the mother and maternal grandmother. The parties have lived apart since that date. (l) The father retained counsel and on April 8, 2022, the mother was advised in writing by counsel that the father opposed the proposed move to Pembrooke. (m) On April 12, 2022, the father signed an ‘Objection to Notice of Relocation’ and his counsel sent it to the mother via email. (n) After having no contact with the mother who was not responding to his text messages or emails for approximately five days between approximately April 19-24, 2022, the father called the police and requested a wellness check on the mother and children. The father learned from the police that the mother and children were in Pembrooke. (o) On or around April 20, 2022, the mother relocated the children’s permanent residence from Toronto to Pembrooke.

The contested evidence

11. The mother says that she has cared for the twins with little to no assistance from the father. He says that he was actively involved in their care when not at work and provided details in his affidavit evidence of how he spent this time with the children.

12. The mother alleges that she asked the father to move out of the home they shared “due to various abuses I suffered from the applicant.” She says the father refused to leave the home and “was forceful and controlling”. She says he left the home on March 25, 2022, after she called the police.

13. The mother alleges to “have suffered both physical, emotional and mental abuses from the Applicant”. She says he is very controlling and emotionally blackmails her. She provides the following examples of the alleged abuse [1]: (a) On February 2, 2022, when the mother reached over the father while in bed to turn off the father’s alarm on his phone, “he brought his elbow back into my eye socket. My face exploded with pain…” (b) In July 2021, the mother attempted to leave the home when the father was “berating and belittling” her but the father stood behind her car so she could not leave. He eventually jumped in the car and would not leave so the mother returned to the home. (c) On April 4, 2022, a friend of the mother’s advised her that the father was on a dating application and had posted photographs of her and the children on his site. (d) On March 25, 2022, when the father was denied entry into the home, he “proceeded to call, text, and send me video chat requests, all of which were not answered. When he could not get ahold of me, he then used the two-way speaker of the surveillance cameras inside the house to chase me from the living room camera to the children’s bedroom camera.” (e) On December 2, 2022, the father took the children out in the stroller in “hard wind and rain” and he “constantly smoked both marijuana and tobacco inside the same room as the children.”

14. The father denies the allegations that he was abusive in any way to the mother. His evidence is that when he elbowed the mother in the eye it was an accident that occurred when the mother reached over him to turn off his alarm off while he was still sleeping. He says when she told him later in the day what had happened, he had no recollection of the event and felt terrible. He says the mother never accused him of elbowing her intentionally. [2]

15. The father acknowledges trying to communicate with the mother on March 25, 2022, after he was told by her mother not to enter the home they shared, or the police would be called. He said he was simply trying to discuss with the mother what was going on.

16. The father’s evidence is that he mistakenly posted photos of the mother and their children on the dating site and immediately removed them once he became aware of the mistake.

17. The father denies having done anything to put the children in harms way. He says that both he and the mother smoke cigarettes and marijuana. He says they both smoked outside and not near the children. In the winter, the father says they smoked cigarettes in doorway of the back door. He says they both never smoke marijuana indoors.

18. To refute the mother’s claims that he is abusive and controlling, the father provides evidence of the parties spending time together with the children between the date of the Case Conference and these motions. This evidence which occurred before she swore her affidavit on May 30, 2022, is not contested by the mother.

19. The father’s evidence is that following his parenting time between May 25-27, 2022, the mother remained in Toronto with the children as Olivia had an appointment at the Hospital for Sick Children on May 30, 2022. Between May 28, 2022, and May 29, 2022, the parties had the following interaction: (a) On Monday May 28, 2022, the father attended at the mother’s hotel room after work and the parties took the children swimming in the hotel pool and then had dinner together in the mother’s room. After dinner the parties got the children ready for bed and went for a walk together in downtown Toronto. (b) On Tuesday May 29, 2022, the father met the mother and the children at her hotel room after work. When the father arrived, the children were swimming in the hotel pool. The parties brough the children to the mother’s room where they changed them and then went to Ripley’s Aquarium together. After the aquarium, the parties and the children had dinner together and walked back to the hotel.

The mother’s position

20. The mother claims that she had to move to Pembrooke due to the father’s abuse, both physical and mental. She says she was “living in constant fear and desperate to no longer live with Mike or be around him.” She moved with her mother and now has no family in Toronto. Her family reside in Pembrooke, and they are source of support for her.

21. The mother’s evidence is that she also left Toronto due to the high cost of rent. She says she was let go by her employer just as she was due to return to work after maternity leave and is currently unemployed. She says she is now a student and if she is required to return to Toronto she will have to live in a shelter.

The father’s position

22. The father’s position is that the children should be returned to their habitual residence in Toronto. He says they have lived in Etobicoke their entire lives and that if they are permitted to stay in Pembrooke this will significantly impact their relationship with him.

23. The father says the mother moved the children to Pembrooke despite being aware of the father’s opposition to the move. He says her conduct cannot be condoned by the court. He says she has not provided a compelling reason to permit the move on a temporary basis.

24. The father has consented to a temporary order requiring him to pay child support to the mother in the amount of $1003.00 per month.

The Law

The issue of Jurisdiction

25. Subsection 22(1) of the Children’s Law Reform Act (the Act), provides that,

(1) A court shall only exercise its jurisdiction to make a parenting order or contact order with respect to a child if,

(a) the child is habitually resident in Ontario at the commencement of the application for the order; or

(b) the child is not habitually resident in Ontario, but the court is satisfied that,

(i) the child is physically present in Ontario at the commencement of the application for the order,

(ii) substantial evidence concerning the best interests of the child is available in Ontario,

(iii) no application respecting decision-making responsibility, parenting time or contact with respect to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,

(iv) no extra-provincial order respecting decision-making responsibility, parenting time or contact with respect to the child has been recognized by a court in Ontario,

(v) the child has a real and substantial connection with Ontario, and

(vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. 2020, c. 25, Sched. 1, s. 6.

26. Subsection 22(2) of the Act provides that

A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:

1. With both parents.

2. If the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order.

3. With a person other than a parent on a permanent basis for a significant period of time. 2020, c. 25, Sched. 1, s. 6.

4. Finally, subsection 22(3) of the Act provides that “the removal or withholding of a child without the consent of all persons having decision-making responsibility with respect to the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld.

5. Olivia and Normand were born in Toronto and lived continuously in Toronto until the mother relocated with them to Pembrooke. There is no question, as evidenced by the fact that the father retained counsel who notified the mother in writing that the father did not consent to her proposed move, that the father did not consent or acquiesce to the move.

6. The court finds that Olivia and Normand’s habitual residence is Toronto, Ontario and that this court has jurisdiction to make orders that impact them.

The issue of relocation

30. Subsection 24(1), (2) and (3) of the Act are instructive and provide that,

(1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.

(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. Factors

(3) Factors related to the circumstances of a child include,

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

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

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

(d) the history of care of the child;

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

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

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. (6) 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.

31. Subsection 24(4) of the Act requires the court to consider the following factors in relation to the impact of family violence pursuant to subsection 24(3)(j),

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and

(h) any other relevant factor.

32. Subsection 24(7) of the Act provides that a parenting order 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.

33. The Children’s Law Reform Act was recently amended to include provisions addressing the relocation of a child’s permanent residence. The Act now sets out the steps parents must take before relocating children when the other parent or another person has decision making responsibility, parenting time, or, contact with the child pursuant to a court order.

34. The relevant provisions are as follows:

Relocation

39.3 (1) A person who has decision-making responsibility or parenting time with respect to a child and who intends a relocation shall, at least 60 days before the expected date of the proposed relocation, notify any other person who has decision-making responsibility, parenting time or contact under a contact order with respect to the child of the intention. 2020, c. 25, Sched. 1, s. 15.

Notice Requirements

(2) The notice shall be in the form prescribed by the regulations or, if no form is prescribed, shall be in writing and shall set out,

(a) the expected date of the proposed relocation;

(b) the address of the new residence and contact information of the person or child, as the case may be;

(c) a proposal as to how decision-making responsibility, parenting time or contact, as the case may be, could be exercised; and

(d) any other information that may be prescribed by the regulations.

Exception

(3) On application, the court may in any circumstance provide that subsections (1) and (2) or anything prescribed by the regulations for the purposes of subsection (2) do not apply, or apply with any changes the court specifies, if the court is of the opinion that it is appropriate to do so, including if there is a risk of family violence.

(4) An application under subsection (3) may be made without notice to any other party.

Objection

(5) A person with decision-making responsibility or parenting time who receives notice of the proposed relocation under subsection (1) may, no later than 30 days after receiving the notice, object to the relocation by,

(a) notifying the person who gave the notice of proposed relocation of the objection to the relocation; or

(b) making an application under section 21.

Notice requirements

(6) A notice under clause (5) (a) shall be in writing and shall set out,

(a) a statement that the person objects to the relocation;

(b) the reasons for the objection;

(c) the person’s views on the proposal referred to in clause (2) (c); and

(d) any other information that may be prescribed by the regulations.

39.4 (2) A person who has given notice of a proposed relocation in accordance with section 39.3 and who intends to relocate a child may do so as of the date referred to in the notice if,

(a) the relocation is authorized by a court; or

(b) no objection to the relocation is made in accordance with subsection 39.3 (5) and there is no order prohibiting the relocation.

Best interests of the child

(3) In determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with section 24, as well as,

(a) the reasons for the relocation;

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

(c) the amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child’s life of each of those persons;

(d) whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement;

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

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

(g) whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance.

Factor not to be considered

(4) In determining whether to authorize a relocation of the child, the court shall not consider whether, if the child’s relocation were to be prohibited, the person who intends to relocate the child would relocate without the child or not relocate.

Burden of proof

(5) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.

(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.

(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.

Burden of proof, exception

(8) If an order referred to in subsection (5) or (6) is an interim order, the court may determine that the subsection does not apply.

35. The court finds that the notice requirements as set out above apply to the parties who at all material times had equal rights to decision making responsibility with respect to the children and both were exercising parenting time with them.

36. As there is no order, arbitration award or agreement setting out a parenting schedule for the parties following separation, the court finds that the burden on this motion rests with both parties to prove whether the relocation is in the children’s best interests.

Caselaw

37. The well established legal test to be applied when determining if a relocation should be permitted on a temporary motion, is set out in Plumley v. Plumley, [1999] O.J. No. 3234 (S.C.J.). The introduction of the relocation provisions of the Act does nothing to change the applicability of the principles enumerated in Plumley as follows: a) A court will be more reluctant to upset the status quo on an interim motion and permit the move when there is a genuine issue for trial. b) There can be compelling circumstances which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial of the best interests of the children or the best interests of the children might dictate that they commence school at a new location. c) Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong possibility that the custodial parent’s position will prevail at trial.

38. In Boudreault v. Charles, 2014 ONCJ 273, at paragraph 26 Justice Stanley Sherr set out the following additional principles for the court to consider on temporary relocation cases: a) The burden is on the parent seeking the change to prove compelling circumstances exist that are sufficient to justify the move. See: Mackenzie v. Newby, [2013] O.J. No. 4613 (OCJ). b) Courts are generally reluctant to permit relocation on a temporary basis. The decision will often have a strong influence on the final outcome of the case, particularly if the order permits relocation. The reality is that courts do not like to create disruptions in the lives of children by making an order that may have to cause further disruption later if the order has to be reversed. See: Goodship v. McMaster, [2003] O.J. No. 4255 (OCJ). c) Courts will be more cautious about permitting a temporary relocation where there are material facts in dispute that would likely impact on the final outcome. See: Fair v. Rutherford-Fair 2004 CarswellOnt 1705 (Ont. S.C.J.). In such cases, the court requires a full testing of the evidence. See: Kennedy v. Hull, [2005] ONCJ 275. d) Courts will be even more cautious in permitting a temporary relocation when the proposed move involves a long distance. It is unlikely that the move will be permitted unless the court is certain that it will be the final result. See my comments in: Downey v. Sterling, 2006 ONCJ 490, [2006] O.J. No. 5043 (OCJ) and Costa v. Funes [2012] O.J. No. 3317 (OCJ). e) Courts will be more cautious in permitting a temporary relocation in the absence of a custody order. See: Mackenzie v. Newby, supra. f) Courts will permit temporary relocation where there is no genuine issue for trial (see: Yousuf v. Shoaib, [2007] O.J. No. 747 (OCJ)), or where the result would be inevitable after a trial (see: Mackenzie v. Newby, supra, where the court observed that the importance of the father’s contact with the child could not override the benefits that the move would have on the child). g) In assessing whether the three considerations in Plumley, the court must consider the best interest factors set out in subsection 24 (2) of the Children’s Law Reform Act (the Act) and any violence and abuse in assessing a parent’s ability to act as a parent as set out in subsections 24 (3) and (4) of the Act as well as the leading authority on mobility cases, Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.).

39. Where one parent moves to another city or community with the child without notice to the other parent, the other parent may apply to have the child returned to the home community. [3] However, this opportunity will be lost if the other parent delays in bringing the matter to court. [4]

40. There is a difference in a temporary relocation analysis between permitting a temporary move and sanctioning a move that has already happened, particularly when the move is contrary to a temporary non-removal order. A court cannot sanction the latter. [5] This is applicable by analogy as in this case the mother moved in the face of a written objection to the move by the father.

41. Orders permitting relocation on temporary motions have been denied due to insufficient notice to the other parent as required under the Act. [6]

42. Courts should cautiously permit temporary relocations of a child’s permanent residence and only do so when there are clear and compelling reasons to do so based on a clear evidentiary record. [7]

43. Self-help measures taken by parents ought to be discouraged by the court. [8]

Analysis

44. For the reasons set out below, the father’s motion to have the children returned to this jurisdiction is granted and the mother’s motion to relocate the children’s permanent residence to Pembrooke, Ontario is dismissed.

Are there compelling circumstances that would justify a temporary relocation order?

45. The evidence provided by the mother on this motion is set out in seven paragraphs in a two page affidavit [9]. In this affidavit the mother makes many bold and sweeping statements but does not provide the evidence to support her claims. On the contrary, the father provides detailed explanations and evidence to support his claims.

46. The mother says she cannot afford to live in Toronto but provided no evidence of her income, financial situation, or her attempts to find employment in Toronto where she has worked in the past. The mother proffered no evidence to support her statement that she cannot afford rent or to live in Toronto.

47. The mother has worked in Toronto in the past. She is entitled to child tax credits and benefits and if necessary social assistance. She is receiving $1003.00 in child support from the father. The court is unable to determine on the evidence that the mother is unable to afford the cost of living in Toronto.

48. The mother’s claim that she cannot afford to live in Toronto is not a compelling circumstance that justifies an order permitting her to move the children’s residence to Pembrooke.

Family Violence

49. Family violence is a serious and pervasive issue in our society. The negative and sometimes long term impact of family violence on both adults and children is well documented and is seen all too often in cases that come before this court. It is for this reason that family violence is given heightened importance as a best interest factor to consider when faced with making parenting orders.

50. The mother alleges the father was abusive towards her during their relationship. The father denies any abuse and relies on recent interaction by the parties to demonstrate that the mother is not “in constant fear” of the father as she claims in her affidavit.

51. The parties’ affidavit evidence on this issue has not been tested by questioning or cross examination.

52. The court cannot find on the record before it that the father was abusive towards the mother, controlling or harassing. The examples of the alleged abuse provided by the mother in her affidavit fall far short of demonstrating the existence of family violence. Therefore the claim of family violence does not amount to compelling circumstances in this case.

The lack of family in Toronto

53. The mother says she has no family in Toronto while her mother, sister and niece live in Pembrooke. She says she would have no help if she was required to return to Toronto while her family is of great assistance to her in Pembrooke.

54. I do not accept this argument as compelling circumstances.

Conclusion regarding the existence of compelling circumstances

55. The mother has not demonstrated on the evidence compelling circumstances that would justify a temporary order permitting the mother to relocate the parties’ children from Toronto to Pembrooke.

Other factors to consider pursuant to the caselaw

Disruption to the status quo

56. The parties evidence differs on the important issue of the role the father played in the children’s lives.

57. The role the father played in the children’s lives before separation and the move to Pembrooke is a contentious issue. Material facts on this issue are disputed.

58. The issue of the father’s role in the children’s lives is impacted by the fact that the parties lived together until March 25, 2022 and did not have much time to establish a status quo with respect to parenting and decision making responsibilities after separation and before the mother moved to Pembrooke on April 20, 2022.

59. Therefore, the status quo to be considered by the court on these motions is the one that existed just prior to March 25, 2022, before the mother refused to allow the father into the home they shared with the children.

60. Allowing the children to be relocated to Pembrooke would be significant alteration of the status quo that existed prior to March 25, 2022, when the children lived with both parents and saw them every day.

61. A determination of the mother’s request to relocate at trial will require a much more detailed record and testing of the parties’ evidence on the issue of the father’s role in parenting the children during the relationship through cross examination.

Is the mother’s position likely to prevail at trial?

62. At this stage in the litigation and based on the two page affidavit filed by the mother, the court cannot conclude on the evidence before it that the mother’s position is likely to prevail at trial. The trial judge will require much more evidence then presented on these motions about the children, the mother’s financial circumstances, her ability to obtain employment in Toronto, the allegations of abuse, and the reason for the proposed move.

Mother’s failure to comply with the notice requirements under the Act

63. While the mother did serve notice of her desire to relocate with the children on the father, she did not give him the 60 days required under the Act. She also did not commence litigation in this jurisdiction and request an order permitting the move after being notified that the father objected to the move.

64. This is not an appropriate case to waive the notice requirement or shorten the notice period as permitted by the Act, especially given the mother’s decision to move despite the father’s objection. Her decision to take self-help measures has consequences.

65. The mother’s willingness to relocate with the children almost five hours from their father in the face of the father’s clear opposition is concerning for the court. The mother was aware of her obligations under the Act to provide notice to the father of her desired move. She therefore knew or ought to have known that once she obtained a Notice of Objection from the father, she requires a court order permitting the move. Her decision to move despite the father’s objection cannot be condoned by the court.

66. While the court may modify the notice requirements when there is a history of violence, the court has not made any findings of family violence at this stage of the litigation.

67. Pembrooke is over 400 kilometres from Etobicoke, where the parties lived together. This is a significant distance especially given the young ages of the children. The evidence before the court does not support permitting this move on a temporary basis. This issue will likely require a trial.

Conclusion

68. This litigation is at the early stages. The mother has not yet filed an Answer and Claim. There was an urgent Case Conference that only dealt with the issue of the mother’s removal of the children from Toronto.

69. The affidavit evidence before the court provides little to no information about the children. There have been no findings of fact in relation to the parenting role assumed by the father during the relationship. There are no findings of fact with respect to the mother’s inability to maintain housing or employment in Toronto. There are no findings of fact with respect to allegations of family violence.

70. The evidentiary record falls far short of what is required on an interim motion to determine if a significant move of 400 kilometres away from their home and their father is in these children’s best interests. As a result, the mother has not demonstrated on the evidence that the proposed relocation is in the children’s best interests.

71. The court finds that the mother’s proposed relocation of the children’s permanent residence to Pembrooke, Ontario at this stage in the litigation is not in the children’s best interests.

72. The children must be returned to this jurisdiction and the status quo reinstated.

73. The court declines to make an order respecting decision making responsibility on this motion as that issue is not urgent.

Order to go as follows:

74. The children named in the Application, namely Olivia Rose Michelle Jennings and Normand John Paul Jennings born […], 2020, shall be returned to reside permanently in Toronto within three weeks of the date of this order. Upon their return to this jurisdiction, the father shall have extended parenting time. If the parties cannot agree on the father’s extended parenting time, the issue will be addressed by the court on the next court date.

75. If the father can travel to Pembrooke to visit the children during the next three weeks, the mother shall cooperate for him to have generous parenting time while in Pembrooke.

76. If the parties cannot agree on a parenting schedule upon the children’s return to this jurisdiction, the issue will be case conferenced on the next court date.

77. This matter is adjourned to July 12, 2022, at 3:00 p.m. for 60 minutes to address the issue of the parenting schedule upon the return of the children return to this jurisdiction.

78. The court appearance scheduled for 4:15 p.m. on June 17, 2022, is vacated.

79. If the parties cannot agree on costs of the motion, the parties will make oral submissions on the next court date and have copies of any Offers to Settle and a statement detailing the costs of this motion for their client available for the court.

Released: June 17, 2022

Signed: Justice Melanie Sager

[1] These are all the examples provided by the mother in her evidence. [2] In the mother’s affidavit she does not accuse the father of intentionally elbowing her in the face. [3] Hazelwood v. Hazelwood, 2012 ONSC 5069 (SCJ) [4] Rifai v. Green, 2014 ONSC 1377 [5] Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 68. [6] Arabi v. Al Sahnawi, 2021 ONSC 6124 [7] Tariq v. Khan, 2022 ONSC 1167 para. 124. [8] Dejong v. Dejong, 2020 ONSC 5367, para. 21 [9] The parties were permitted to file affidavits of up to 15 pages in length.