Court File and Parties

COURT FILE NO.: FD1676/17 DATE: August 21, 2020 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Michelle Ricketts-Shastry, applicant AND: Anil Shastry, respondent

BEFORE: TOBIN J.

COUNSEL: Michael J. Stangarone and Stephen P. Kirby for the applicant Marie A. Tukara for the respondent

HEARD: August 10, 2020 by Zoom

Endorsement

[1] The applicant (“mother”) moves for a temporary order granting her primary care of the parties’ two children and permission to move the children with her to Oakville from London.

[2] The respondent (“father”) asks for an order that prevents the children’s primary residence being moved outside of London. He also asks that the children reside primarily with him if the mother moves outside of London.

[3] The parties are divorced. The mother did not start a corollary relief application when this motion was brought. At the hearing of this motion, her counsel undertook to do so.

Facts

[4] Both parents are radiologists. When the mother completed a radiology fellowship in Toronto, she moved to London and started working at a radiology practice (“LXA”). The father also worked at that same practice. It was shortly after her move to London that the parties married on August 6, 2014.

[5] The parties are the parents of two children, Cameron Liam Ricketts-Shastry, born September 25, 2015 and Christian Isaac Ricketts-Shastry, born January 11, 2017 (“children”).

[6] The mother eventually resigned from her partnership in LXA in order to devote herself to the care of the children.

[7] During the marriage and since, the father worked long hours. The mother began working part-time due to a medical condition that arose during her pregnancy with Cameron. With the father’s support and encouragement, the mother’s part-time work schedule continued after her maternity leave. The mother took another fulltime maternity leave after Christian was born. When she returned to work following the second maternity leave, it was for limited hours as her primary responsibility was the children’s care.

[8] The maternal grandmother moved from Toronto to London around the time of the birth of the parties’ older child. She did so to help with childcare. The children have a close and special bond with their maternal grandmother.

[9] On September 17, 2017, the parties separated. For the first three months following the separation, the parties lived separate and apart under the same roof.

[10] In January 2018, the father moved from the matrimonial home.

[11] The parties entered into a separation agreement dated June 25, 2019. The agreement provides, in part that:

(a) the parents have joint custody of the children (paragraph 3.1); (b) the children will reside primarily with the mother (paragraph 3.12); (c) the children “will reside secondarily” with the father on a schedule that would expand over time (paragraph 3.13); (d) starting September 3, 2019, the children were to be in the father’s care from Sunday by 9 a.m. until Wednesday when they were returned to school or daycare or 9 a.m. (paragraph 3.13(d)(i)) or until Tuesday between 6 p.m. and 7 p.m. if the father had to work on the Wednesday in Sarnia (paragraph 3.13(d)(ii)); (e) the father pays the mother fixed non-variable child support in the amount of $11,345 per month (paragraph 4.3(a)) and 65 percent of the special or extraordinary expenses as agreed (paragraph 4.3(b)); and (f) mutual spousal support releases were provided (paragraph 6.1).

[12] The separation agreement does not contain any terms that provide that the children are to continue to live in London. However, the separation agreement does provide that any issues related to proposed changes to the children’s residential schedule are to be addressed through mediation (paragraph 3.24(b)).

[13] On June 7, 2020, the mother advised the father “of her relocation to Oakville.” [^1] The father responded through counsel that he did not agree with this move.

[14] Mediation was attempted but was not successful in resolving the relocation and parenting time issues.

[15] The mother wants to relocate to Oakville because, from there, her employment and income prospects can greatly improve.

[16] Despite her attempts to re-establish her career in southwest Ontario following the separation, she has been unable to do so. She unsuccessfully applied for the only two suitable southwest Ontario job openings for radiologists since 2017. [^2]

[17] In southwest Ontario, there are five hospitals that are accessible to the mother, none of which need a radiologist with her expertise.

[18] With the onset of the COVID-19 pandemic, the mother’s income from LXA has ended. She received a notice from LXA dated March 17, 2020 that advised her that many radiology services were cancelled. She was “effectively” laid off from her locum position with LXA. Since March 2020, the mother’s monthly income has decreased by approximately 60 to 70 percent.

[19] As a result of this drop in income, the mother looked for opportunities outside of southwest Ontario, so she could maintain the “same lifestyle and level of support” [^3] for the children and her. She was successful. She secured a position with a practice in North York that will start in September 2020. This employment will provide her with two to three days per week of work, which will include onsite and remote work. Based on a three-day week, the income estimate for the mother is $6,000 to $9,000 per week. In addition, the mother was offered an Imaging Fellowship at a Toronto hospital. This is a rare opportunity for the mother. She describes herself as being at a “critical juncture” [^4] of her professional development. This will allow her to update and improve her clinical skills and ability. The father’s evidence is that the mother has enough training and enough experience. She was offered a fulltime position in 2017 just prior to the separation but decided not to take it up.

[20] The mother purchased a home in Oakville for the children and her with a closing date of September 30, 2020.

[21] The mother argues that relocating to Oakville is in the best interests of the children because:

1. The children have been in her primary care since the separation. This should continue.
2. The father is not able to assume primary care of the children. He will require third party caregivers.
3. The mother will have a much greater support system in the GTA, especially as the maternal grandmother is moving there.
4. The children, because they are so young, at ages four and three respectively, have minimal attachment to London. They have not yet started elementary school.
5. The children may be home-schooled this fall due to COVID-19.
6. The mother is committed to facilitating the children’s relationship with the father. This would include extended time with him, both on weekends and during summer and other holidays.
7. The move to Oakville will allow the mother the economic and professional security and opportunity that are not now available to her in the London area.
8. The delay and uncertainty of being able to have this matter heard while the court operations have been affected by the COVID-19 pandemic will be avoided.

[22] The father argues that:

1. This is a bad faith attempt by the mother to remove the children. This bad faith is evidenced by: (a) the mother having already accepted the position and fellowship in Toronto, as well as purchasing a home; (b) the mother saying nothing about the fellowship or her mother moving to the GTA in her initial letter to the father; and (c) the mother wanted to move to Toronto while the parties were negotiating the separation agreement. This request was not included in the separation agreement. Both parties compromised to come to a separation agreement.
2. The mother’s plan is vague. She has not provided sufficient details for the court to determine if the move and the mother’s arrangements are in the children’s best interests. The father argues that the demands of a fellowship, in terms of time and stress, are great. He states that her evidence needs to be tested by cross-examination. On this motion, there is contradictory evidence such that it is not possible to determine best interests. A full hearing is required.
3. The mother’s income situation is not so dire. She works remotely for a hospital in St. Thomas and receives tax-free child support. Any reduction in her income will be temporary. Radiology work is increasing. There is no need for her to go to Toronto to obtain work.
4. The mother already has a fellowship.
5. The mother could do the Toronto radiology practice work remotely from London. On those days she had to work onsite, she could arrange to do so when the children are in his care.
6. The effect of the mother’s move to Oakville would be to completely disrupt the children’s lives: with a new home; a new school; and the children will see less of the father and, to do so, will have to spend three hours in the car each time.

Legal Considerations

[23] This motion for a temporary order is made under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.).

[24] The following statutory provisions relevant to this motion are as follows:

Order for custody

16 (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

Interim order for custody

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).

Terms and conditions

(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

Order respecting change of residence

(7) Without limiting the generality of subsection (6), the court may include in an order under this section a term requiring any person who has custody of a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child.

Factors

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[25] When the court is asked to determine the issue of relocation, the Supreme Court of Canada, in Gordon v. Goertz, [1996] 2 S.C.R. 27, summarized the law, at paras. 49 and 50, as follows:

49 The law can be summarized as follows:

1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.
3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.
5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
6. The focus is on the best interests of the child, not the interests and rights of the parents.
7. More particularly the judge should consider, inter alia: (a) the existing custody arrangement and relationship between the child and the custodial parent; (b) the existing access arrangement and the relationship between the child and the access parent; (c) the desirability of maximizing contact between the child and both parents; (d) the views of the child; (e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child; (f) disruption to the child of a change in custody; (g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?

[26] In Gordon, the court dealt with relocation in the context of an application to vary an existing custody and access order. In Bjornson v. Creighton, 2002 ONCA 45125, the court held that the guiding principles set out in Gordon apply to first instant cases of custody. These guiding principles also apply on motions for interim relief: Rushinko v. Rushinko, 2002 ONCA 42032, 2002 CarswellOnt 1997, at para. 5.

[27] The factors to be considered when dealing with a request to relocate on a temporary basis were set out in Plumley v. Plumley, 1999 ONSC 13990, at para. 7 as follows:

7 It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis:

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 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 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 a trial.

[28] In Bell v. Palma, 2019 ONCJ 582, the court identified other principles that guide relocation decisions, at para. 26:

[26] …

• The fact that parents have joint custody is not a bar to an order authorizing a move by one parent, although contested by the other parent.
• If one parent in a joint custody arrangement is clearly the primary caregiver (the parent who provides the large majority of a child’s day-to day care) then the views of that parent should be accorded the same respect which Gordon v. Goertz states should be given to the views of the custodial parent. One court explained this approach: “although in this case there is joint custody, a primary caregiver’s relationship with the children is generally the same as that of custodial parent when viewed through the eyes of the child.”
• The Ontario Court of Appeal has observed that there is a relationship between a primary caregiver’s “emotional, psychological, social and economic well-being and the quality of a child’s primary care-giving environment”. It is important to appreciate the potential negative effects on a child if the child’s primary caregiver is prevented from relocating and the potential positive effects for her if her primary caregiver is permitted to relocate. The financial security of the parent who wishes to move is a relevant factor. Greenfield v. Garside, 2003 ONSC 53668, as cited in Boudreault v. Charles, 2014 ONCJ 273, at para. 26 (i).

[29] Courts should be careful before permitting relocation on a temporary basis. The decision may have a strong influence on the final outcome of the case: Goodship v. McMaster, 2003 ONCJ 53670, as cited in Boudreault, at para. 26 (b); and Johnston v. Johnston, 2006 ONSC 27090, at paras. 12 and 14.

[30] In summary, the court must determine if moving with their mother to Oakville and the concomitant change in their parenting schedule is in the children’s best interests. The child-focussed assessment can be difficult at the interim stage if the affidavit evidence is conflicting. Courts are cautious in making significant changes in the children’s circumstances on an interim basis because of the summary nature of the motion and the expected short duration of the order pending trial. [^5]

Application of Legal Principles

[31] In this case, there is some conflict in the evidence. However, there is no conflict about the comparative roles the parents had and continue to have in the care and upbringing of their children. As well, there is no dispute about the mother’s current and actual professional and financial circumstances.

[32] The evidence in this case is uncontradicted that the mother has been the primary parent of the children, both qualitatively and quantitatively. This is confirmed in the separation agreement they made. It is evident from the responsibilities the parents assumed following their separation. I also accept, and it is not contradicted, that the father has a close and loving relationship with the children.

Gordon Factors

[33] Under terms of the separation agreement the father’s time with the children was to expand to three nights in a row each week beginning in September 2019. However, since then, the children have been returned early on a number of times. The father acknowledges in his evidence that early in the transition periods, the children asked to return to the mother but as “that stabilized to the status quo, this hardly happened at all.” [^6] However, it is clear that the children have had difficulties being away from the mother while in the father’s care. This happened again as recently as April 26, 2020. [^7]

[34] According to the separation agreement since September 2019, the status quo was to be that the father had the children in his care 6 of 14 nights over a 2 week period, or 42 percent of the time. This expectation is to be compared with the specific evidence of the mother, who states that since September 2019, the father has not had the children with him as provided for in the separation agreement. The evidence of the month-to-month overnights with the father shows that he has had the children with him overnight less than 30 percent of the time since September 2019.

[35] The mother remains the children’s primary parent.

[36] The father is a concerned parent, one who wants to ensure he understands and can meet the needs of the children while they are in his care. After the separation occurred, he took courses to learn about and had ten sessions with a psychotherapist, all to understand the children’s development and parenting strategies. [^8] The father does take his role as a parent very seriously.

[37] It is desirable for both parents to have the children in their respective care. This will ensure the security they now have with the mother as their primary parent continues and the loving and close relationship they have with their father also continues.

[38] I am told by counsel that a move to Oakville would require a drive for the children of approximately 90 minutes each way. This would be instead of the five minute drive they now have to make.

[39] As these children are four and three, their views are not before the court, nor would they attract significant weight were they before the court.

[40] The request to move made by the mother was precipitated by the significant drop in her income occasioned by the onset of the COVID-19 pandemic. Her work at LXA ended. The income she has to meet the family’s needs is the much-reduced income she earns as a radiologist and the child support.

[41] There is no evidence that the mother turned down opportunities for employment and income in the London area in an effort to replace what she lost. The father’s evidence that things will get better is based primarily on an email he received from the CEO of LXA which stated that “[o]nce volumes come back, they will come back heavy...” When this is reasonably expected to happen is not addressed.

[42] The mother’s request to move must also be considered in the context of the choices she made with respect to her career as a radiologist and her prospects for the future. The position she has secured in North York will provide her with steady and predictable income. She was not able to secure this in London. Completing the fellowship in Toronto will update her clinical skills and open up more professional opportunities for her. It is not disputed that fellowship opportunities, like the one offered the mother, are rare.

[43] The mother’s plan, if successful, will allow her future employment and financial security. This is relevant to the mother being able to meet the children’s needs financially and reducing the strain on her caused by the current economic and professional uncertainty.

[44] If the children were to move to the care of the father, they would lose the security of being cared for by their primary parent, who is helped by the maternal grandmother, a person they know and are close to. On his own, the father is not capable of caring for the children while he works because of the demands of his employment. This would be the case whether he is at home or on site. [^9] He would require a third-party caregiver to assist him in caring for the children for the periods he works in both London and Sarnia.

[45] A change in primary parent responsibilities would be very disruptive to the children.

[46] If the children are allowed to move from London, there would be little disruption of their connection to this community. Neither parent has family who reside in this area. The father’s parents reside in Ottawa. The mother’s family lives in the Greater Toronto Area. There is a dispute in the evidence about the strength of the mother’s relationship with her relatives. However, the maternal grandmother’s supportive relationship with the mother is not in dispute. She is moving to Toronto.

[47] There is no evidence that these four and three year old children have a connection to the community except for healthcare providers and Montessori school. They have not been at school since the onset of the pandemic. There is no evidence of strong or meaningful friendships for these young children.

[48] As the parents continue to share joint decision-making responsibility, all significant changes for the children in Oakville will need to be discussed and arranged by both parents.

[49] The father argues that the mother’s plan is too vague. The evidence is that the mother has purchased a home in Oakville for herself and the children. She will attend to her work responsibilities. She continues to have the support of the children’s maternal grandmother. There will be continuity.

[50] He also argues that the demands of the fellowship in terms of time and stress are great. The mother’s evidence is that those involved with her fellowship are aware of her circumstances as a mother of two young children, who has lost skills because she has worked remotely since 2017.

[51] I cannot conclude, as the father asks, that the request to move was made in bad faith. There is evidence of the financial difficulties the mother faces in London, and the rare opportunity of the fellowship. She followed the process expected: notice, negotiation/mediation and finally putting the issue before the court.

Plumley Factors

[52] Taking into account the Gordon factors and approach, I do find that there is a genuine issue for trial: is it in the best interests of the children to move to Oakville from London having regard to the changes that will result to the existing parenting schedule?

[53] However, I also consider that there are compelling circumstances that dictate that the court allow the move. The mother’s financial and professional uncertainty will be addressed immediately and predictably by allowing the move. The rare fellowship opportunity can permit the mother long-term professional and financial security. It is an opportunity that should not lightly be passed up. The mother’s plans for the care of the children in Oakville, though not detailed, are sufficient for the court to find that they are appropriate.

[54] I also find that even though there is a genuine issue for trial, there is a strong probability that the mother’s position will prevail at trial. Her role as primary parent to the children is not disputed. If that were to change the children would suffer the resulting disruptive effects. If the children were to remain in London and in the care of the father, he would have to delegate care of the children for considerable periods of time to third parties because of his work commitments. I also take into account that the mother is prepared to facilitate the children’s relationship with their father, in part, by providing him with every weekend and enlarged holiday and summer parenting time.

[55] Despite Ms. Tukara’s able and thorough argument, I find that this is one of those cases where it is in the best interests of the children to allow the move on an interim basis.

[56] The issue of the father’s parenting time if the move was allowed was not addressed by the father. He should have this opportunity to ensure the maximum contact principle having regard to the children’s best interests is taken into account in the context of this case.

[57] In Konkin v. Aguilera, 2010 ONSC 4808, at para. 27, Justice Corbett addressed the concerns courts have in allowing an interim relocation as follows:

27. Finally, I acknowledge some of the cases consider that it is unwise to make interim orders on mobility issues, when the matter may remain contested at trial. That is a fine ideal, but the court process does not follow the same rhythm as real life. The goal of an interim order here, as in other contexts, is to preserve a reasonable state of affairs that accords with the best interests of the child pending trial. As I indicated to the parties orally, I would have preferred to have heard this issue as a trial, to have listened to the various family members testify, and to have more time to reflect on the matter. But a decision must be made now, rather than months or years from now, and a legitimate and timely request to move should not be thwarted by the inevitable effluxion of time inherent in the litigation process.

[58] Though the facts in Konkin differ somewhat, I agree with those comments and find that they are applicable to this case.

Order

[59] For these reasons, a temporary order shall issue as follows:

1. The applicant shall have interim primary care of the children, Cameron Liam Ricketts-Shastry, born September 25, 2015 and Christian Isaac Ricketts-Shastry, born January 11, 2017.
2. The applicant may move to Oakville, Ontario with the children as of September 1, 2020.
3. If the parties are unable to agree on the father’s parenting time pending the final resolution of this matter, they may schedule the return of this motion before me through the trial coordination office. Brief affidavits related only to the father’s parenting time shall be filed together with the parties’ respective specific proposals.
4. After the issue of the father’s parenting time is addressed, the parties may then address costs if they are not able to agree.
5. This matter is adjourned to September 23, 2020 at 10:00 AM to be spoken to: (1) schedule argument of the issue of the father’s parenting time, if necessary and (2) has an application been served?

“Justice B. Tobin” Justice B. Tobin Date: August 21, 2020

Footnotes

[^1]: Affidavit of the applicant dated July 30, 2020, at para. 20. [^2]: The mother did not apply for a position at the father’s workplace. [^3]: Affidavit of the applicant, supra, at para. 26. [^4]: Affidavit of the applicant, supra, at para. 27. [^5]: See Potter v. Potter, 2010 ONSC 5113 (Ont. S.C.J.), at para. 27. [^6]: Affidavit of the respondent sworn August 6, 2020, at para. 21. [^7]: Affidavit of the applicant, supra, at para. 34. [^8]: Affidavit of the respondent, supra, at para. 17. [^9]: Affidavit of the applicant, at para. 37 and Ex. F.