ONTARIO COURT OF JUSTICE DATE: 2023·01·12 COURT FILE No.: Woodstock D138/22
BETWEEN:
Justin Jeffrey Schul Applicant
— AND —
Kayla Brianna Schmidt Respondent
Before: Justice S. E. J. Paull
Motion Argued: December 21, 2022 Reasons Released on: January 12, 2023
Counsel: Jessica Gutta, for the applicant Katherine Cash, for the respondent
PAULL J.:
[1] The parties are the young parents of one child, Kai born […], 2022. There is a motion before the court brought by Mr. Schul seeking an order, among other things, that the child’s primary residence be immediately returned to Oxford County (or within 50 km of Woodstock).
[2] Mr. Schul alleges that on or about August 27, 2022 Ms. Schmidt moved with the child to outside of Oxford County where they had been residing, and without notice or his consent. After a short stay at a friend’s home in Brampton and then a shelter, Ms. Schmidt now resides in a one-bedroom apartment in Scarborough.
[3] Ms. Schmidt does not dispute moving with the child but states that she was fleeing from family violence perpetrated by Mr. Schul’s mother, and that returning to Scarborough where she used to live was necessary and appropriate in the circumstances. She seeks that the motion be dismissed.
[4] The motion was brought on an urgent basis and was first returnable on November 9, 2022. On that date Justice Neill found that the test for urgency was not met and noted that the court was able to offer an urgent case conference as early as November 14, 2022.
[5] On November 9, 2022 the parties did reach a temporary without-prejudice resolution pending argument of the motion that there would be a week about parenting arrangement. This had been the arrangement in place from the date of separation on August 27, 2022 to on or about October 18, 2022.
[6] On November 22, 2022 an urgent case conference was held and filing deadlines set. The motion was scheduled to proceed on December 21, 2022. An urgent settlement conference was also convened on December 14, 2022 which did not resolve the motion.
[7] In addition to the submissions of counsel I have reviewed and considered the affidavits filed at tabs 5-9, and 13 of the Continuing Record.
Background and Evidence
[8] Mr. Schul alleges that the parties started dating in or about April 2021 and that they moved into his parents’ home in Ingersoll in or about March 2022 while Ms. Schmidt was pregnant in order to save money. They remained there when Kai was born on […], 2022, and until the parties separated on August 27, 2022.
[9] Mr. Schul alleges that Ms. Schmidt severely neglects the child, including leaving her in soiled diapers, and that these issues caused tension between Ms. Schmidt and his mother, who felt compelled to contact the CAS. Mr. Schul alleges that this angered Ms. Schmidt and caused the relationship between Ms. Schmidt and his mother to deteriorate further.
[10] After the separation on August 27, 2022 the parties maintained a week about parenting plan. Mr. Schul believed that the separation was temporary and the result of tensions between Ms. Schmidt and his mother. There were text messages provided between Ms. Schmidt and Mr. Schul during this period where Ms. Schmidt stated that she was doing this so his mother would “learn her lesson” and that she would “drop it” when this happened.
[11] It became clear to Mr. Schul in late October 2022 that Ms. Schmidt was not returning. He provided a text from Ms. Schmidt on October 22, 2022 stating, “no child support no child”. He did not see the child from October 18, 2022 to November 5, 2022 as a result. It was at this time that Mr. Schul retained counsel and an urgent motion brought seeking to have the child returned to Oxford County.
[12] Mr. Schul states he had no notice, formal or otherwise, that Ms. Schmidt intended to relocate with the child. He does not consent to the relocation and retained counsel immediately when it became clear Ms. Schmidt was not returning.
[13] Mr. Schul, who is 24, states that he continues to reside with his mother and stepfather, and that they assist him both financially and with caring for Kai, including while he is working.
[14] Ms. Schmidt, who is 22 years old, states that the parties cohabited from April 2021 to the end of August 2022. She deposes that she was born in London and raised in foster care before moving to Ingersoll in grade 10, and then to Scarborough in 2018. In April 2021 Mr. Schul moved in with her in Scarborough. They discovered she was pregnant in October 2021 and decided to move in with Mr. Schul’s parents in Ingersoll in April 2022.
[15] She alleges the circumstances in that home were intolerable, including physical violence between Mr. Schul and his stepfather, and a pattern of abusive behaviour by Mr. Schul’s mother towards her. She alleges that Mr. Schul’s mother refused to assist her when she required medical care, was verbally abusive, and refused to permit her to leave the residence with the child. She acknowledges that Mr. Schul’s mother did contact CAS at the end of June 2022, but states that the CAS investigated and took no further steps.
[16] After this incident she alleges that she met secretly with her housing worker to transfer her file back to Scarborough. On August 27, 2022 she tried to leave the home with Kai but was stopped by Mr. Schul’s mother. She was able to leave after she contacted the police for assistance.
[17] Ms. Schmidt acknowledges that she may not have given notice in writing of the relocation, but states that Mr. Schul was “fully aware of her intentions”. She takes the position that she was fleeing family violence, and that she made it clear on August 27, 2022 she intended to leave Ingersoll permanently.
[18] She also alleges that Mr. Schul is not properly caring for the child, and that Kai is often returned smelling of cat urine.
[19] Ms. Schmidt provided correspondence from Esther Touhy, the program manager for Community Living of Toronto (CLTO), which confirms Ms. Schmidt has been involved with her since May 10, 2019. Ms. Touhy confirmed that as early as May 17, 2022 Ms. Schmidt was looking to leave Ingersoll. On July 28, 2022 she met with Ms. Schmidt and Mr. Schul and Ms. Schmidt’s adult protection services worker, in which both parents discussed the desire to move to Milton. Ms. Touhy indicated that CLTO’s jurisdiction did not extend to Milton. There was further discussion of moving to Peel region and Toronto as other options.
[20] Ms. Schmidt provided an affidavit from a friend Jaimi Pollard, who states that Mr. Schul was a heavy drug user and attended rehab, and that she observed that Mr. Schul was controlling of Ms. Schmidt and had a history of lying and manipulative behaviour.
[21] The affidavit provided by Jaimi Pollard was of little assistance. It was clear she was strongly aligned with Ms. Schmidt and much of her affidavit amounted to hearsay or conclusory statements with an insufficient factual foundation. Much of the information in her affidavit appears to have come from Ms. Schmidt herself and were allegations that Ms. Schmidt did not provide in her own affidavits. As such no weight is given to that affidavit.
[22] Mr. Schul acknowledges a history of drug use but that he has remained clean since successfully completing a rehab program in 2020. He disputes the allegations Ms. Schmidt makes against him and points to a letter from Ms. Schmidt’s counsel which states that she, “has no concerns about Mr. Schul’s ability to care for the child on his own, nor does she have any concerns about their interpersonal relationship”. Ms. Schmidt’s allegations in support of a finding of family violence relate to Mr. Schul’s mother and not to Mr. Schul.
[23] Ms. Schmidt indicates that she is in receipt of disability payments for a mild physical and emotional disability. She states that this does not preclude her from all employment, only physical labour type employment.
[24] Ms. Schmidt was granted leave to file the affidavit of Esther Touhy dated December 20, 2022. Ms. Touhy confirmed that Community Living of Toronto has been supporting her since 2019, and that she has personally been working with Ms. Schmidt since early 2021. She deposes that Ms. Schmidt has a developmental disability and that CLTO assists in “helping her manager day-to-day living, including making arrangements for her housing, medical and mental health supports, and helping her gain access to community supports.” She notes that Ms. Schmidt’s disability qualifies her for funding through Community Living by Developmental Services Ontario.
[25] Ms. Touhy deposes that if Ms. Schmidt were to leave Toronto, she would no longer be supported by CLTO, and she may lose her funding. The funding and support she receives could be transferred to another region where possible, but there may be significant delays. The current support network CLTO has been offering has included helping her with emergency housing and of securing an apartment starting in November 2022. Ms. Touhy also confirmed that Ms. Schmidt has a two-bedroom apartment reserved for her starting in July 2023. The apartment has 24 hour CLTO staffing supports in place which Ms. Schmidt may access, and workers regularly interact with Ms. Schmidt and Kai and have reported no concerns.
Positions of the Parties
[26] Ms. Schmidt’s position is that her stay in Ingersoll was always only temporary and she was forced to leave with the assistance of police because of the abusive behaviour exhibited by Mr. Schul’s mother. She maintained her prior connection with CLTO, and they are supporting her financially and practically on a regular and daily basis if required.
[27] Mr. Schul’s position is that Ms. Schmidt left Ingersoll with the child without the required notice under the CLRA, and in fact without any notice. He disputes the allegations concerning his mother and seeks an order that the child’s primary residence be returned to Oxford County.
[28] There is no independent evidence available from CAS or the police, both of which have apparently been involved. Both parties agree that CAS investigated in June 2022 and there is no evidence that CAS took any additional steps. Each allege they are highly involved in caring for the child and deny the other’s concerns with their level of care and parenting. Both parties evidence is highly accusatory, even inflammatory, with broad conclusions often without specific factual underpinnings in support.
[29] These are untested affidavits, and the evidence that is available is not sufficient to resolve the extensive areas of conflict between the parties’ positions. There are, however, findings which may be made on the evidence provided, including facts that are agreed to or otherwise uncontested.
Jurisdiction
[30] 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.
[31] 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:
With both parents.
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.
With a person other than a parent on a permanent basis for a significant period of time. 2020, c. 25, Sched. 1, s. 6.
[32] 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”.
[33] The parties agree that they were living in Oxford County starting in around March/April 2022, remained living there when the child was born on […], 2022, and up until the date of separation of August 27, 2022. There is no evidence either party retained a residence elsewhere during this period.
[34] I find that Mr. Schul did not consent to the move and that he was not aware of any specific plan Ms. Schmidt had to relocate without him to Scarborough with the child on August 27, 2022.
[35] Ms. Schmidt’s text messages to him after separation stating that she would “drop it” when his mother “learned her lesson” would have led Mr. Schul to reasonably assume this was intended to be a temporary move. Further, when it became clear to him that Ms. Schmidt did not intend to return and withheld the child for a period of time in October 2022, he acted promptly by retaining counsel and bringing the motion. Finally, that both parents were meeting in the summer with the Community Living worker and discussing a desire to relocate to another city in no way amounts to notice that Ms. Schmidt intended to relocate to Scarborough with the child on her own on August 27, 2022.
[36] Although the stay in Oxford County was relatively short and both parents appeared to be contemplating a move to somewhere else at some point, for the purposes of section 22 this court finds that Kai’s habitual residence is Oxford County, and that Mr. Schul did not acquiesce or act with undue delay in bringing the matter before the court. As such, this court has the jurisdiction to make orders that impact the parties and child.
Ms. Schmidt’s Move to Scarborough
[37] This motion is not framed as a temporary relocation motion, but rather a motion by Mr. Schul to have the child immediately returned. No temporary relocation motion has been brought by Ms. Schmidt and she simply seeks that Mr. Schul’s motion be dismissed. She did not bring such a motion prior to or following her move with the child on August 27, 2022, nor did she seek leave to do so when this matter proceeded to an urgent case conference on November 22, 2022. She only sought to file further responding materials on the applicant’s motion, which request was granted.
[38] However, the practical effect of the dismissal of Mr. Schul’s motion would be to permit the temporary relocation that has already occurred.
[39] Subsection 24(1), (2) and (3) of the CLRA 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
- 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.
[40] 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.
[41] 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.
[42] 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.
[43] 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.
[44] The leading case for determining if a relocation should be permitted on a temporary motion is Plumley v. Plumley, [1999] O.J. No. 3234 (S.C.J.), where the court set out the following principles:
a. A court will be more reluctant to upset the status quo on an interim motion and permit the move when there is a genuine issue for trial.
b. There can be compelling circumstances which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial of the best interests of the children or the best interests of the children might dictate that they commence school at a new location.
c. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong possibility that the custodial parent’s position will prevail at trial.
[45] The following are additional principles regarding temporary relocation cases as outlined by Justice Sherr in Boudreault v. Charles, 2014 ONCJ 273.
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.).
[46] 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. Hazelwood v. Hazelwood, 2012 ONSC 5069 (SCJ); Rifai v. Green, 2014 ONSC 1377. However, this opportunity will be lost if the other parent delays in bringing the matter to court.
[47] A parent who engages in self-help tactics despite the best interests of the child will generally raise serious questions about their own parenting skills and judgment. In many cases, courts conclude manipulative, selfish or spiteful parents simply can't be entrusted with custodial authority they would likely abuse. Clement v. Clement, 2010 ONSC 1113 (SCJ).
[48] Under circumstances where an interim move will not interfere materially with the ability of a party to exercise access, then a court will be more likely to accept an interim move. (Schlegal v. Schlegal, 2016 ONSC 4590 at para 25); M.K. v. J.K., 2020 ONCJ 387.
[49] Additionally, the burden rests with both parties to prove whether a temporary relocation is in the child’s best interests. In this regard I agree with and adopt the approach summarized by Justice A.D. Hilliard in Aspden v. Blinn, 2022 ONCJ 507:
[14] Sections 39.1 to 39.3 (the mobility provisions) of the Children’s Law Reform Act (CLRA) apply to parents ordinarily resident in Ontario who are intending to either change a child’s primary residence or relocate with a child in their primary care. These provisions, enacted in 2019, constitute a comprehensive legislative framework for changes in residence and relocation of children.
[15] The seminal case on interim mobility motions after the amendments to the CLRA in 2019 is the decision of Justice Kukurin in Rudichuk v Higgins. In his reasons for judgment, Justice Kukurin reviews with approval the decisions of Justice Marshman in Plumley and Justice Sherr in Downey v Sterling, both of which reiterate that courts should be reluctant to upset the status quo on an interim basis absent compelling circumstances.
[16] Justice Kukurin then goes on to consider the new mobility provisions in the CLRA to ascertain where the burden lies on an interim mobility motion. He concludes that for the purpose of interim motions, the burden lies with both parties. I agree with Justice Kukurin’s approach and adopted for the purpose of my analysis on these motions.
Analysis
[50] Section 20 of the CLRA states that a child’s parents are equally entitled to decision-making responsibility with respect to the child subject to various exceptions. These exceptions include any order or agreement that alters that entitlement, or if following a separation, the child has lived with one parent with the consent, implied consent or acquiescence of the other.
[51] In this case, these rights have not been modified by an agreement or court order, and the court has found that Mr. Schul did not consent, acquiesce or delay unduly bringing the matter to court. As such, none of the circumstances outlined in section 20 of the CLRA have occurred, and both parents remain equally entitled to make decisions and exercise the rights and responsibilities of a decision-making parent.
[52] The notice requirements set out in the CLRA for relocation applied to the parties as they both maintained equal rights to decision-making. This court finds that Ms. Schmidt did not comply with the notice provisions for the relocation, and further that Mr. Schul in fact had no prior notice of the move on August 27, 2022.
[53] While the parties were discussing a move as a family, there is no evidence of clear and unequivocal notice from Ms. Schmidt that she intended to relocate with the child permanently to Scarborough on August 27, 2022. As previously noted, her own texts support the conclusion that she was communicating to Mr. Schul that the separation was temporary.
[54] Ms. Schmidt alleges family violence as the basis for her relocating in the manner that she did. Ms. Schmidt’s allegations of family violence do not relate to Mr. Schul, and in correspondence from her counsel she makes it clear she has no issue with his parenting or their ability to co-parent. Her allegations relate to Mr. Schul’s mother.
[55] While family violence is a serious and pervasive issue which can have a deep and lasting impact on both adults and children, I am unable to find on the limited record before the court that it has occurred. The affidavits have not been tested by cross examination and there is no independent evidence to assist the court on this issue.
[56] There is no evidence that Ms. Schmidt raised this specific concern with the CAS, the police, or her Community Living worker, although I note that corroboration for allegations of family violence is not required and is often not available.
[57] More importantly, she did not bring the matter to court seeking urgent relief which would have been reasonable given her stated position. Also, her statement that she suspended the shared parenting time arrangement in October 2022 because of these concerns is not reflected in her own text messages at the time, one of which stated, “no child support no child”. There were other text messages provided between Ms. Schmidt and Mr. Schul’s mother from in or around June 2022 which suggest that Ms. Schmidt felt supported by Mr. Schul’s family and that his mother was genuinely concerned for her well-being after the birth. In all the circumstances the evidence provided does not support a finding of family violence at this time.
[58] Ms. Schmidt failed to comply with the notice provisions under the Act and failed to provide clear and unequivocal notice of her move, or that she intended it to be permanent. If she felt the circumstances necessitated her relocating in the manner that she did, the onus was on her to immediately bring the matter to court. She did not do so. In this regard she has not behaved reasonably, and her actions appear motivated by self-help. She acknowledges meeting secretly with her Community Living worker to discuss a return to Scarborough as early as June 2022.
[59] The parties’ evidence differed significantly on the role each took in the children’s life and related to concerns with each party’s parenting. The material facts are in dispute on these issues. There is a limited and untested evidentiary record that falls well short of sufficient to conduct a detailed best interest analysis. In other words, it is not clear whose position would prevail at trial.
[60] Further, this case is in the early stages, and in addition to the affidavits being untested, they provide scant information about the child. The court is not in a position to make findings of fact in relation to the parenting roles of either party during the relationship, and whether either party is better able to meet those interests going forward.
[61] All these factors support the order sought by Mr. Schul that the child’s primary residence be returned to Oxford County.
[62] However, there are other factors to be considered in the particular circumstances of this case.
[63] The failure to provide the required notice of the relocation is not fatal to the relocation but is simply a factor to consider. It is correct that courts do not look favourably upon a parent who has unilaterally taken steps to upset the status quo. This court has found that Ms. Schmidt failed to comply with the notice requirements and acted unreasonably in the manner she undertook the relocation. These findings may follow her as this litigation continues and may be considerations in any future hearing when the best interests of the child and each parent’s ability to meet those interests is considered.
[64] While the court has found Oxford County to be the habitual residence of the child for the purposes of section 22, it is also clear that the parents’ and child’s stay was short and meant to be temporary in order to save money when they found out Ms. Schmidt was pregnant.
[65] The total stay for Ms. Schmidt in Oxford County before and after the birth was approximately five months, and the child was only resident there for 2 ½ months before her parents separated. Ms. Schmidt lived in Scarborough since 2018, and it appeared that Mr. Schul lived with her there for approximately a year before they moved to his parents’ home in Ingersoll in the spring of 2022. It was clear both parents considered their stay in Ingersoll as temporary and that they were actively considering moving to another jurisdiction and were discussing the options with the Community Living worker.
[66] None of this excuses the manner in which Ms. Schmidt chose to relocate and the lack of notice. However, it does provide a context to the circumstances and decisions these young parents were making.
[67] The practical consequence if the motion is successful is that Ms. Schmidt would be required to move back to Oxford County, which is a place where she has no family support. It is also a place where she will not have access to the resources of CLTO, which continues to provide her with considerable support.
[68] What can be concluded with certainty on the limited evidence is the following. These are young and inexperienced parents and Kai is the first child for each of them. Both parents require significant support, and it seems unlikely that they would have been able to manage without that support even when they were together. This is more so the case now that the parents are separated.
[69] I am of the view in the particular circumstances of this matter that the child’s interests will be best served by creating circumstances where both of these young parents have the best opportunity for success which requires them to have access to the resources and supports they need. Mr. Schul’s primary supports are with his parents in Ingersoll, and Ms. Schmidt’s are in Scarborough with the support she receives from Community Living.
[70] Given the level of support that Ms. Schmidt needs and receives from CLTO in Scarborough, and the concern, raised by Ms. Touhy, that this level of support may be delayed or even unavailable if she were required to move back, I am concerned that her circumstances would destabilize significantly. This would not be in the best interest of the child.
[71] Further, this is not a case where Mr. Schul’s parenting time will be diminished if Ms. Schmidt is permitted to remain in Scarborough. Regardless of the outcome of this motion, both parties appear satisfied that the shared arrangement remain in place in the interim.
[72] While a challenge, the distance between Ingersoll and Scarborough is not so significant that in the meantime the shared parenting arrangement that the parties followed after August 27, 2022 and confirmed in the without-prejudice consent order of Justice Neill made on November 9, 2022 cannot continue. In other words, pending trial Ms. Schmidt being permitted to exercise her parenting time with the child in Scarborough will not diminish Mr. Schul’s opportunity to maintain his shared involvement. It is appropriate, however, that the parties share in the responsibility for transportation.
[73] Given the circumstances it is also appropriate to make an order requesting the involvement of the Office of the Children’s Lawyer, to conduct an investigation into the circumstances of this family and to provide a Report pursuant to section 112.
[74] On the basis of the foregoing a temporary order shall issue as follows:
For the purpose of this motion the child’s habitual residence under section 22 of the CLRA is Oxford County.
On a temporary without-prejudice basis the parties shall continue the shared parenting arrangement on a week about basis or as otherwise agreed between the parties with the following additional terms on a without-prejudice basis: a. the parties to share the responsibility for transportation as agreed. b. The parties shall ensure that the child is supervised at all times by an appropriate adult. c. The parties shall immediately contact the other if there is an emergency regarding the child. d. The child shall not be exposed to secondhand smoke.
The Office of the Children’s Lawyer is requested to become involved and to prepare a section 112 Report. The applicant will provide a copy of these Reasons along with his intake form to the OCL.
The remainder of the motion is dismissed.
[75] I thank both counsel for their thoughtful submissions and for the professional manner they have approached this difficult matter on behalf of their clients.
[76] In the circumstances I will not likely be inclined to make an order for costs, however, should either party seek costs and the parties are unable to agree the issue can be raised when the matter is next before me for case management.
Released: January 12, 2023 Signed: “Justice S. E. J. Paull”
