Gordon-Bowes v. Gordon-Bowes, 2020 ONSC 4994

Court File and Parties

COURT FILE NO.: 11614/19 DATE: 2020/08/21 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KAREN GORDON-BOWES, Applicant AND: MATTHEW GORDON-BOWES, Respondent

BEFORE: Justice I.F. Leach

COUNSEL: Gary McQuaid, for the Applicant Jena L. Wagner, for the Respondent

HEARD: August 19, 2020

Endorsement

Introduction

1Before me, in this family law proceeding, are a motion brought by the Applicant mother and a cross-motion brought by the Respondent father.

2As indicated in the endorsement released by Justice Campbell on July 31, 2020, (in his capacity as a triage judge), both motions were found to raise urgent issues relating to the well-being of the parties’ three children, warranting hearing of the motions on an exceptional basis pursuant to the protocols currently in place for addressing matters during the suspension of regular court operations during the ongoing COVID-19 pandemic.

3Both motions focus, albeit from very different perspectives, on pressing issues relating to appropriate residential and parenting arrangements relating to the parties’ three young children.

Further background

4I have spent a good deal of time reviewing and considering, in detail, the material filed to date by the parties and the submissions made by counsel during the video-conference hearing that took place on August 19, 2020. My failure to mention any particulars in that regard should not suggest otherwise.

5However, I think the following extended summary should provide sufficient context for present purposes:

a. The parties began living together in 2007, were married in 2014, and remained together, (apart from a six-week separation in September-October of 2019, during which the parties lived separate and apart within the matrimonial home), until their final separation slightly more than two months ago; i.e., on June 13, 2020.

b. Over the course of their relationship, the parties had three children: i.e., Charlotte, Nathan and Rachel, who respectively are now 8, 6 and 2 years old. In that regard:

i. There apparently is no dispute that, to date, the primary residence of the children has always been in Oxford County, although the children have made visits elsewhere, including repeated visits to the Applicant’s extended relatives in and around Windsor, the original home of the Applicant.

ii. For the entire time Charlotte and Nathan have been attending school, if not longer, (with Charlotte now about to enter grade three and Nathan about to enter grade one), the family apparently has lived within the “catchment area” of Hickson Central Public School; the only school Charlotte and Nathan have attended. Described by all concerned as a “country school”, it is located in a rural area approximately half way between the city of Woodstock to the south and the town of Tavistock to the north.

iii. Prior to their final separation, the parties and their children resided together in the final matrimonial home, (purchased just five months ago), in north Woodstock; a home also situated within the catchment area of Hickson Central Public School.

iv. Post-separation, the Applicant remained in the matrimonial home with the children, while the Respondent took up temporary residence with relatives in the city of St Thomas.

v. The matrimonial home now has been sold, with a closing date scheduled for August 28, 2020; i.e., approximately one week from now. To date, no agreed arrangements have been made for the partial or complete distribution of anticipated net proceeds from the sale of that matrimonial home. Nor was any sworn evidence provided to confirm what those anticipated net sale proceeds are likely to be. ¹

vi. Since the date of separation, the Respondent has been paying the Applicant $500.00 per week “towards the matrimonial home expenses”, paying for child care “when needed”, and making monthly contributions of $150.00 to the children’s Registered Education Savings Plan. The children, at least, also remain beneficiaries of the extended health coverage available through the Respondent’s employment. There nevertheless are no formal court ordered support arrangements in place.

c. Beyond those largely uncontroversial basic facts, the competing affidavits tendered by the parties offer very different and conflicting perspectives on their relationship, and what residential and parenting arrangements would be in the best interests of the children moving forward.

d. The substantive relief sought in the Applicant’s formal notice of motion is a “police assist order” to secure immediate return of the children, (a request effectively overtaken by subsequent events including return of the children), and an order granting the Applicant sole custody of the children. However, the Applicant’s broader perspective and current position may be described as follows:

i. She says the Respondent was physically and verbally abusive towards her, including:

1. an assault in September of 2019, which led to the parties’ initial separation prior to a temporary reconciliation, a criminal charge against the Respondent, and the Respondent being required to complete the “Men Advocating Real Change” or “MARC” program; and

2. incidents wherein the Respondent has called the Applicant “lazy” and a “welfare mom”, along with displays of a generally “threatening” attitude.

ii. The Applicant says she always has been the primary caregiver to the couple’s three children. In that regard, the Applicant says, in particular, that:

1. At all material times, the Respondent has been working full time as a busy self-employed roofer, providing sub-contracting services through a business called “M.G.B. Roofing”; work that requires regular travel, occasional extended absences up to a week in duration, and long work hours in all but the winter months, such that the Respondent typically was away from the matrimonial home between the hours of 7am and 5pm, and unable to spend much time with the children.

2. In contrast, the Applicant has been home full time and exercising primary responsibility for the children for much of their children’s lives, for reasons that include:

a. the Respondent making it clear to the Applicant that the children were the Applicant’s responsibility, and the Applicant being happy/content to assume that role;

b. the Applicant taking extended periods of maternity and/or stress leave following the birth of each of the three children;

c. the Applicant’s ability to structure the working hours of her 10-year job at a London shoe store around child care responsibilities;

d. the Applicant’s ability to remain at home for different reasons once her long term employment came to an end with her employer’s closure of all its Canadian stores in 2019 – after which the Applicant’s employment has been limited to a few relatively short-lived periods of contract work; and

e. the children being left in the Applicant’s care, in the matrimonial home, when the Respondent lived elsewhere during the parties’ earlier separation in 2019 and after their final separation in June of 2020.

3. In the result, it was the Applicant who shouldered primary responsibility for things like meal preparation, having the children ready for school, and participation in school activities.

iii. The Applicant says that the Respondent’s behaviour post-separation also has been a cause for concern, insofar as:

1. the Respondent is said to be emotionally unstable, and reliant on unhealthy use of prescription anti-anxiety and/or sleep medication and alcohol;

2. the Respondent has resorted to inappropriate self-help in relation to child access, including a particular episode of alleged retention of the children for an extended period of time, in July of 2020, after providing the Applicant with deliberately misleading information about when they would be returned, and during which the Respondent is alleged to have “pawned the children off” on his girlfriend and other family members;

3. the Respondent repeatedly has insisted on nothing less than a shared parenting regime that is impractical, given the demands of the Respondent’s employment and his inevitable need to rely on third-party child care providers; and

4. the Respondent was alleged to have purchased and installed a “monitoring app” on electronic devices used by the children, to improperly listen to and record conversations between the Applicant and the children.

iv. The Applicant says preservation of the “status quo” requires the children to remain in her primary care, with the Respondent enjoying regular access, and that the only practical way of implementing that arrangement, and serve the best interests of the children, is for the Applicant to relocate with the children to the city of Windsor, in that:

1. the history of the parties’ relationship and current unemployment has resulted in the Applicant being financially dependent on the Respondent, without any current access to resources of her own, while the Respondent has immediate access to significant resources; ²

2. the same financial dependency and unemployment prevents the Applicant from purchasing a residence in Woodstock suitable for her and the children, (let alone such a residence in the catchment area of Hickson Central Public School), as the Applicant lacks the funds to make any down payment or any realistic ability to obtain necessary financing;

3. the availability of rental accommodation in the Woodstock area is extremely low at the moment, and nothing suitable is available or within the Applicant’s limited means;

4. after sale of the matrimonial home, the Applicant accordingly will have no residence whatsoever in Woodstock, let alone a residence capable of accommodating her and the children;

5. the Applicant is from Windsor and has extended family there, including not only the maternal grandparents of the children, but a large number of aunts and uncles, all of whom are willing to assist the Applicant and the children with accommodation and other support;

6. the children have spent a good deal of time visiting Windsor for extended periods throughout their lives, are familiar with that “second home”, and enjoy a close relationship with their extended maternal relatives;

7. the children have not been attending Hickson Central Public School during the pandemic, and their extra-curricular activities similarly have been suspended, making their contemplated transition to a new community and school somewhat easier;

8. the children currently are relatively young, and would adapt to the proposed relocation more easily at this stage in their lives;

9. support from the Applicant’s extended family, along with vastly increased prospects of the Applicant being able to secure employment in the Windsor area, would significantly increase the Applicant’s financial status and make spousal support unnecessary; and

10. the Respondent is said to have agreed with relocation of the Applicant and the children to Windsor at the time of the parties’ earlier separation.

v. Recognizing that the distance between Oxford County and Windsor is significant, and enough to make the exercise of mid-week access impractical, the Applicant indicated, (at least by the time of the hearing before me, in response to my questions), that she would be content to have the Respondent enjoy regular week-end access with the children on a more than alternating basis, (e.g., two week-ends on and one week-end off, or during “three out of five” week-ends of the month, and all longer “holiday” week-ends), agree to arrangements whereby transfer of the children would take place mid-way between Windsor and Woodstock, and have the Respondent’s increased travel costs reflected in support arrangements.

e. In his formal notice of motion, the substantive relief sought by the Respondent includes interim orders confirming or directing shared/joint custody of the children, equal parenting time, continued permanent residence of the children in Oxford County, and continued attendance by Charlotte and Nathan at Hickson Central Public School. However, the Respondent’s broader perspective and position may be described as follows:

i. He vehemently denies the Applicant’s allegations of abuse, assault or other inappropriate behaviour on his part, says he was the target of verbal abuse by the Applicant throughout the parties’ relationship, and asserts that the Applicant repeatedly has promoted conflict through unreasonable and manipulative behaviour. In that regard:

1. The Respondent acknowledges being prescribed a low dose anti-anxiety medication, prescribed in conjunction with beneficial therapy, but says he no longer requires such medication, never had a prescription for sleep medication, never mixed medications with alcohol, and has not consumed alcohol to excess.

2. The Respondent says the incident in September of 2019, leading to his being criminal charged with assault, stemmed from the Applicant refusing to leave the Respondent alone in the basement of the matrimonial home, removing the basement door from its hinges, and intentionally shoving her hand in a door to the basement the Respondent was trying to close in an attempt to be left alone. While acknowledging an incident of domestic conflict and a resulting criminal charge, (which the Applicant allegedly used to withhold contact between the Respondent and the children for several weeks), the Respondent firmly denies assaulting the Applicant, and notes that the criminal charge will be resolved later this month, (after extended adjournment for reasons associated with the COVID-19 pandemic), by a resolution involving a peace bond, no finding of guilt, and withdrawal of the criminal charge against him.

3. The Respondent says the Applicant orchestrated a highly inappropriate arrest and handcuffing of the Respondent in the children’s presence, in June of 2020, by the making of a supposedly accidental but deliberate “911” call to police, resulting in the police charging the Respondent with breach of his release conditions for having attended a family campfire gathering.

4. The Respondent denies unilaterally withholding return of the children, or providing any misleading indications to the Applicant in that regard, saying he was always clear on the date when the children would be returned.

5. The Respondent denies the Applicant’s allegation that he has placed a “monitoring app” on an electronic device used by the children, and explained that the relevant “app” was installed only on his personal phone to share memories with the children.

ii. The Respondent denies and takes great issue with Applicant assertions that she always has been the primary caregiver to the children, that the Respondent is not as closely bonded with the children, and/or that the Respondent is incapable of equally looking after the children’s need. In that regard, the Respondent says in particular that:

1. The Applicant is misrepresenting the Respondent’s work commitments; e.g., by failing to acknowledge that his work schedule has always remained flexible, and that he travelled for work-related reasons only four times throughout the entirety of the parties’ relationship.

2. At all material times, the parties were joint primary caregivers who equally shared all parenting responsibilities; e.g., with the Respondent also attending most school functions, routinely picking the children up from school and daycare because the Applicant’s employment prevented her from doing that, and having sole responsibility for childcare while the Applicant worked in the evenings and repeatedly was away for work training sessions lasting 4-5 days at a time.

3. The Applicant is over-stating the extent of leaves taken after the birth of each child, in duration and nature, (e.g., insofar as the Respondent says the maternity leaves were shorter than the periods alleged by the Applicant, and that the Applicant did not take stress leave “on top of maternity leave” to be home with the children), and that the Applicant fails to acknowledge that Charlotte and Nathan were in full time schooling during the “stress leave” taken by the Applicant. Moreover, the “stress leave” was said to have been attributed, by the Applicant, to her professed inability to handle life, work and children.

4. The Applicant ignores the reality that the parties regularly relied on third-party care providers during their relationship, and that the Applicant inevitably will require such assistance again if she returns to work as contemplated.

5. At all times, the Respondent has been and remains able to vary his flexible work schedule around his parenting time with the children.

6. The children are happy, safe and comfortable while in the Respondent’s care.

iii. The Respondent says it is the Applicant’s post-separation conduct that gives rise to concerns, insofar as:

1. the Applicant has a long-standing prescription for antidepressant/anti-anxiety medication in respect of which she is non-compliant, and started individual therapy in May of 2020;

2. the Applicant is said to be the party resorting inappropriately to self-help by withholding the children from the Respondent, unreasonably refusing mid-week access, unreasonably refusing to negotiate a summer access schedule, and repeatedly indicating to others that access between the Respondent and the children will be limited to alternating week-ends while refusing to discuss or negotiate other possibilities; and

3. the Respondent asserts that the Applicant has continued to act inappropriately towards the Respondent, and speak negatively about him to the children, to a point where the children now require individual therapy. ³

iv. The Respondent says the best interests of the children and preservation of the “status quo” require a court order whereby:

1. contact between the children and each parent is to be maximized through an equal parenting time arrangement, (such as a “week about” arrangement with exchanges taking place on Sunday evenings, or a “2-2-3 rotating parenting schedule”), in a manner that will similarly maximize the children’s contact with their extended paternal family, many of whom live in the area of Oxford County, and also have a close and loving relationship with the children;

2. the children are to reside in Oxford County where they have always lived, have many loving friends, and can continue with their familiar extracurricular activities; and

3. Charlotte and Nathan are to continue their education at Hickson Central Public School, where they feel “rooted, comfortable and safe”.

v. The Respondent emphasizes that he has been making efforts and arrangements to facilitate maintenance of that suggested “status quo”, and disputes the Applicant’s assertions that her relocation with the children to Windsor is necessary or appropriate. In that regard:

1. The Respondent firmly denies having ever expressed agreement to the Applicant and the children relocating to Windsor. He says that was an intention the Applicant unilaterally communicated to the children during the parties’ earlier separation, but he found the suggestion hurtful and never agreed to it.

2. The Respondent emphasizes that he has purchased a residence for himself and the children in the town of Tavistock, and within the catchment area of Hickson Central Public School, which will allow Charlotte and Nathan to continue attending there. He says that he intends to move there with the children on September 1, 2020.

3. The Respondent says the Applicant has been unemployed for no reason, remains unemployed by choice to buttress her assertions of being the children’s primary caregiver, and should have income imputed to her accordingly.

4. To the extent the Applicant currently might lack the resources to acquire an independent residence for her and the children in Oxford County, it was argued that a portion of the net sale proceeds from sale of the matrimonial home could be released to the Applicant after closing of the sale, following which the Applicant could make further efforts to obtain suitable accommodations, with the children residing with the Respondent in the meantime.

f. Reflecting the comments in Justice Campbell’s endorsement as the triage judge, indicating that the focus of the hearing before me was to be on residential and parenting arrangements for the children, counsel for both parties expressly confirmed that I was being asked to focus only on those issues, and not address other issues such as child support, spousal support and/or property issues. It was felt that the parties would be able to work such issues out among themselves, once questions of child residence and parenting arrangements had been decided.

6I turn next to an overview of legislative provisions and general principles applicable to such decisions.

General principles

7The court’s jurisdiction to entertain and make orders of any kind relating to child custody and access, (whether on a permanent, interim or interim interim basis), is set forth in section 16 of the Divorce Act, R.S.C. 1985, c.3, which similarly outlines the considerations which must govern exercise of the court’s jurisdiction and discretion.

8In particular, pursuant to s.16(8) of the Divorce Act, supra, the court is directed to consider “only the best interests of the child of the marriage as determined by reference to condition, means, needs and other circumstances of the child”.

9However, other legislative guidance includes a direction, pursuant to s.16(10) of the Divorce Act, supra, that “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”.

10Authorities in this area have confirmed that determinations pursuant to these broad provisions of the Divorce Act are inherently a very fact specific exercise, in respect of which Ontario courts frequently have structured analysis by reference to the expanded legislative definition of the “best interests of [a] child” set forth in s.24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12. Indeed, our Court of Appeal has held that, despite differences in wording in the Divorce Act, supra, and Children’s Law Reform Act, supra, courts are to apply the same considerations in determining the best interests of a child: see, for example, K.A.T. v. J.T., [1989] O.J. No. 1963 (U.F.C.), at paragraphs 25-26 and Woodhouse v. Woodhouse, 1996 ONCA 902, [1996] O.J. No. 1975 (C.A.).

11The provisions of s.24(2) of the Children’s Law Reform Act, supra, outline eight broad categories of a child’s “needs and circumstances”, consideration of which should be included in determining the best interests of a child, namely:

a. the love, affection and emotional ties between the child and:

i. each person, including a parent or grandparent, entitled to or claiming custody of or access to the child;

ii. other members of the child’s family who reside with the child; and

iii. persons involved in the child’s care and upbringing;

b. the child’s views and preferences, if they can reasonably be ascertained;

c. the length of time the child has lived in a stable home environment;

d. the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

e. the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

f. the permanence and stability of the family unit with which it is proposed that the child will live;

g. the ability of each person applying for custody of or access to the child to act as a parent; and

h. any familial relationship between the child and each person who is a party to the application.

12Our courts frequently have had to grapple with application of these basic legislated principles, and determination of what might be in the best interests of a child, in situations where mobility issues have come to the fore; i.e., where one parent wishes to relocate, with a corresponding proposed relocation of a child’s principal residence from one community to a more distant one.

13Most of the leading decisions in that regard deal with situations where a custodial parent seeks to relocate with a child, with detrimental implications for ongoing access between the child and his or her non-custodial parent. In such situations, general principles emphasized by our courts include the following:

a. Courts must bear in mind Parliament’s indication that maximum contact between a child and both of his or her parents is generally in the best interests of the child. The principle is not absolute. If it were, very few relocation requests would ever be allowed. However, the principle should be respected to the extent that such contact is consistent with the best interests of the child. On the other hand, in cases where a child’s needs are likely to be served by relocating with a custodial parent, in a manner that offsets the loss or reduction of contact with the access parent, custodial arrangements should not be varied and the move should be permitted. Factors to be considered in such cases include:

i. existing custody and access arrangements, and relationships between the child and each parent;

ii. the desirability of maximizing contact between the child and both parents;

iii. the views of the child;

iv. the custodial parent’s reason for moving, but only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

v. the disruption to the child of a change in custody; and

vi. the disruption to the child consequent on removal from family, schools and the community he or she has come to know. See Gordon v. Goertz, 1996 SCC 191, [1996] 2 S.C.R. 27; and Reeves v. Brand, [2018] O.J. No. 1425 (C.A.).

b. In determining the best interests of a child in such situations, careful attention also should be paid to the potential negative effects on a child if the custodial parents is retrained from moving, and the positive effects on a child if the custodial parent is permitted to relocate. In that regard, the range of considerations necessarily extend beyond a focus restricted to employment considerations; e.g., to include consideration of the social, psychological and emotional aspects of a desired relocation. See Bjornson v. Creighton, 2002 ONCA 45125, [2002] O.J. No. 4364 (C.A.). Having said that, the positive effect on children being with a happy custodial parent may not outweigh the detriment that dislocation would cause. See Woodhouse v. Woodhouse, [1994] O. J. No. 3921 (Gen.Div.), affirmed, supra; and Meijers v. Hasse, [2007] O.J. No. 2506 (S.C.J.).

c. Consideration of a child’s young age also assumes significance in mobility cases. In particular, while a particularly young child may not be as cognizant of a significant relocation, or have lengthy ties to a particular community, the tender years of a child are important for bonding with an access parent and extended family, and during such time children are not as amenable to extensive or independent travel between parents. See Karpodinis v. Kantas, 2006 BCCA 272, [2006] B.C.J. No. 1209 (C.A.).

d. More generally, it has been emphasized that cases involving custody, access and mobility rights are intensely fact-driven, such that references to other authorities often are of little assistance, except insofar as they state the basic principles to be applied. See, for example, Scheiber v. Phyall, [2002] B.C.J. No. 1462 (C.A.).

14Again, the above principles have been developed primarily in the context of dealing with proposed relocation by a custodial parent; i.e., in situations where one parent already has been awarded formal custody over a child, and proposes a relocation with potential detrimental effects on the exercise of established rights of access.

15In cases where rights of custody and access have yet to be formally determined, and proposals for relocation of a parent and children are being considered in the context of an interim motion, application of the “best interest” test reflected in the above principles is supplemented by additional concerns. In that regard:

a. Courts recognize the need to be particularly cautious before making ostensibly “temporary” child relocation orders, and generally do not permit such determinations to be made on the basis of contentious evidence where doing so is unnecessary. See B.(M.) v. C.(D.A.), 2014 ONCJ 273, [2014] O.J. No. 2694 (O.C.J.).

b. In relation to proposed relocation of a parent and child to another city, in the middle of a custody dispute, courts must be particularly vigilant in preventing the creation of an effective “fait accompli” that actually may not be consistent with a child’s best interests. See Cosentino v. Cosentino, [2016] O.J. No. 4622 (S.C.J.).

c. Generally, a court will be more reluctant to upset the “status quo” on an interim motion, to permit a proposed relocation, when there is a genuine issue for trial. However, there may be compelling circumstances, and/or a strong probability of a parent desiring a move prevailing at trial, which might dictate that justice ought to allow a proposed move in response to an interim motion. See Monachese v. Madill, [2017] O.J. No. 6992 (O.C.J.).

d. Moreover, while it may be a “fine ideal” to emphasize that the making of interim orders on mobility issues is unwise, in situations where underlying factual issues are seriously contested and likely to go to trial, the court process does not follow the same rhythms as real life. See Konkin v. Aguilera, [2010] O.J. No. 3677 (S.C.J.).

16In that regard, I also think it helpful to bear in mind more general considerations about the challenging nature of making important parenting determinations on an urgent and interim basis, bearing in mind the potential for such “interim” decisions to assume, in practice and effect, more extended and lasting significance. In particular:

a. Frequently, the material filed by parties is hastily prepared, incomplete, and untested. Moreover, the facts are often still evolving.

b. Already elevated emotions are heightened by the fact that the parties are in a state of transition; e.g., with one or both parties relocating to new homes. Even without ongoing custody litigation, that would be stressful for all concerned, including children.

c. The obvious strategic dynamics associated with temporary motions cannot be ignored. Counsel frequently embark on arguments based on preservation of a "status quo" even before there is agreement on what the status quo might be, and even “interim interim” orders, intended to have only temporary effect, often have significant long-term implications. Being fair to the parties as litigants is important. However, being fair to the children is even more important.

d. In such a context, temporary orders are meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be more fully canvassed at subsequent stages in the process, and quite often at a trial.

e. To the extent it can be ascertained, the status quo ordinarily should be maintained until trial, unless there is material evidence that the children's best interest demands an immediate change.

f. Courts must be mindful of, and actively discourage, efforts by parents to unilaterally create a new status quo through manipulation, exaggeration or deception.

g. Physical separation between parents usually entails some continuing geographic proximity, usually within the same community. Where travel time and arrangements are not a serious complicating factor, courts can determine timesharing and other parenting issues purely on the basis of "best interests" considerations, including maximizing contact between a child and both of his or her parents.

h. Frequency of contact is particularly important for young children, and where parents continue to reside in relatively close proximity to one another, courts have more options to ensure a sensitive and evolutionary approach to parenting issues. For authority emphasizing the considerations set out in this particular, see in particular Coe v. Tope, 2014 ONSC 4002, at paragraph 25, and the numerous authorities cited therein.

17With the above context, legislation and general principles in mind, I turn finally to an assessment of the parties’ competing submissions in this case.

Assessment

18As I noted in Bell v. Ferguson, 2015 ONSC 7267, determination of a child’s best interest in relation to residence and access issues is an inherently imperfect exercise in a context such as this, where the available evidence is confined to paper affidavits that contain emphatic allegations and denials, and perceptions and positions that are entirely contradictory.

19I do not have the benefit of any cross-examination on affidavit material, let alone the opportunity to assess the credibility and reliability of witnesses that comes in the context of a trial.

20Nor do I have the benefit of the more objective views of witnesses who are not expressly or implicitly aligned with one party or the other, such as the objective insight frequently offered by the Office of the Children’s Lawyer.

21This is also a case where underlying events are evolving very rapidly. Again, the final separation of the parties occurred a little more than two months ago, the matrimonial home in Woodstock is being sold in seven days, the Respondent already has purchased a new home in Tavistock with a closing on September 1, 2020, and the Applicant, (lacking any Oxford County residence for herself and the children following sale of the matrimonial home), contemplates relocation of herself and the children to the city of Windsor shortly before the commencement of a new school year – in whatever form that ultimately may take having regard to the evolving COVID-19 pandemic.

22Perhaps it goes without saying, given the suspension of regular court operations, but the parties also have advanced their respective motions prior to any case conference being held, pursuant to the normally applicable requirements of Rule 14(4) of the Family Law Rules, O. Reg. 114/99.

23Moreover, although most contested family law motions present a range of sub-optimal outcomes, (when it comes to disputed residential and parenting arrangements), in my view the situation before me presents a particularly troubling situation, insofar as both parties effectively are relying on financial consideration to limit the range of possibilities, and promote court-sanctioned creation of a situation likely to favour their personally desired final outcomes, when there actually is very little evidence before the court to explore and assess such underlying financial realities. In particular:

a. While both parties emphasize the importance of preserving the “status quo”, they have competing and very different visions of what needs to be emphasized and maintained in that regard.

b. From the Applicant’s perspective, the fundamental and most important reality of the children’s current situation, requiring continuation, is that the children have come to depend and rely upon her as their primary caregiver for many years, and any sudden and fundamental disruption in that regard would be detrimental to the children and bring about an impractical situation that makes little or no sense; e.g., having regard to the young age of the children and the parenting roles assumed to date by the parties. The Applicant’s desired final outcome therefore is a situation where the children remain in her primary care, with the Respondent having regular access, (i.e., apart from holidays), limited primarily to week-ends.

c. From the Respondent’s perspective, the fundamental and most important reality of the children’s current situation requiring continuation is permanent residence of the children within in Oxford County and the catchment area of Hickson Central Public School in particular, (i.e., so that Charlotte and Nathan can continue their education there), and the continued ability to continue interacting with both parents on an equal basis. The Respondents desired final outcome accordingly is a parenting regime in which the children will spend at least half of their time with the Respondent, in the new home he has purchased in Tavistock.

d. The Applicant’s proposed relocation from Woodstock to Windsor effectively would make acceptance of her suggested “status quo” and desired outcome a practical reality, as the Respondent’s business and new home require him to remain in Oxford County, and the distance between Oxford County and Windsor is too far to make the exercise of mid-week access feasible. Moreover, if the children are enrolled in a Windsor school for the coming academic year, and extra-curricular activities in the Windsor area, stability arguments will favour their continued residence in Windsor. However, the Applicant says that such a relocation to Windsor is necessary and driven by numerous financial considerations, including:

i. her inability to secure employment in this area as opposed to Windsor;

ii. her inability to purchase a suitable residence in Oxford County because she lacks resources; and

iii. her inability to locate a suitable rental property in Oxford County, because she lacks resources and the local economy is such that there is little or not suitable rental accommodation available.

e. The orders desired by the Respondent, compelling the children to remain in Oxford County, and have Charlotte and Nathan continue their education at Hickson Central Public School, effectively would require the children to live with the Respondent at least fifty percent of the time, thereby making acceptance of the Respondent’s suggested “status quo” and desired outcome a practical reality. In particular:

i. It was not disputed that applicable policies of the Thames Valley District School Board require children attending Hickson Central Public School to have a principal residence, (i.e., where they spent at least half their time), within the school’s catchment area.

ii. The Respondent, with his superior financial resources, has demonstrated his ability to purchase a residence within that catchment area where the children are able to live with the Respondent.

iii. Because the Applicant currently lacks the financial resources to purchase another residence for herself and the children within the school’s catchment area, the children would be obliged to reside with the Respondent in his new Tavistock home at least half the time in order to ensure their continued attendance Hickson Central Public School, thereby ensuring the equal parenting time the Respondent desires.

iv. Moreover, because the Applicant currently lacks the financial resources to purchase or rent any suitable residence for herself and the children in Oxford County, such orders actually might require the children to live primarily with the Respondent until the Applicant somehow manages, (if ever), to secure a suitable residence in the area.

v. If the Applicant does manage to secure a suitable residence for her and the children in Oxford County, financial considerations, (e.g., purchase of a residence or necessary commitment to a long-term lease), are likely to entail a long term commitment to continued residence in Oxford County. That, and the children embarking on another school year at Hickson Central Public School, effectively would reinforce child stability considerations favouring eventual court adoption of the Respondent’s position, on a long term basis.

f. In the result, although the ostensible focus of the parties’ respective motions is restricted to residence and parenting arrangements, the suggested outcomes are being simultaneously driven and limited by suggested financial considerations in respect of which very little evidence has been provided. In particular:

i. The parties have yet to prepare and file financial statements. The extent to which the Applicant lacks resources, and/or the Respondent has resources possibly warranting a substantial equalization payment providing the Applicant with the ability to acquire a suitable residence in Oxford County, remains unclear.

ii. I have been provided with no sworn evidence establishing the net equity in the matrimonial home or its likely net sale proceeds, or any evidence regarding the suitability of ordering an immediate partial or full distribution of those net sale proceeds to the Applicant, which might affect her ability to acquire a suitable residence in Oxford County.

iii. While the affidavit material contains indications of the reported taxable income of the parties, both sides argue that the reported incomes are not reliable indications of earnings or earning potential, and that income needs to be imputed to both parties. In any event, I currently have no ability to determine the extent to which it may be appropriate to order the Respondent’s payment of formal interim child and/or spousal support that might enable the Applicant to secure a suitable residence in Oxford County.

iv. The assertions of the Applicant regarding her inability to locate employment or suitable accommodation in the Oxford County area are broad, and unsupported by evidence confirming the results of searches, applications and rejections in that regard.

v. The assertions that employment opportunities are not available to the Applicant in the Oxford County area, and will be available to the Applicant in the Windsor area, are similarly broad and currently unsupported by any detailed evidence of particular job searches, prospects or offers in either area.

24In such circumstances, I think it unwise and inappropriate to make an immediate but likely indefinite interim order based on the current limited evidentiary record; a scenario which effectively compels the court to choose between the two scenarios advocated by the parties towards the opposite ends of the spectrum of possibilities.

25In particular, I think caution is particularly advisable in a situation where an assessment turns in large measure on whether the Applicant realistically will or will not have the ability to continue residing in Oxford County in a new residence suitable for her and the children; a question in respect of which the evidentiary record is particularly lean and in my view inadequate.

26In that regard, my preliminary view is that, if the Applicant has the ability to continue residing in Oxford County in a residence suitable for the children as well, the balance of relevant considerations, (at least to the extent they can be meaningfully assessed on the current evidentiary record), arguably favours an order requiring the residence of the children to remain in Oxford County for the time being, (and preferably within the catchment zone of Hickson Central Public School), while the disputed factual evidence and assertions are tested more thoroughly through the course of this litigation.

27For example, having regard to the “best interest” considerations outlined in s.24(2) of the Children’s Law Reform Act, supra:

a. As for love, affection and emotional ties:

i. Although the parties have been in conflict with each other, and are critical of each other’s conduct, in my view there is little in the evidence to suggest the absence of love, affection and emotion ties between the children and both of their parents. Permitting the Applicant to relocate to Windsor, while the Respondent effectively is obliged to remain in Oxford County because of his employment, would not affect the children’s relationship with their mother. However, it realistically would limit their ability to see and bond with their father, (a consideration particularly important in children of younger years, and an infant like Rachel), and have their father observe or participate in their activities. Having regard to the maximum contact principle, and the importance of bonding between parents and children when they are of a very young age, that inherently is not in the children’s best interest, and militates in favour of the children remaining in Oxford County.

ii. Nothing in the existing record denies the assertions, made by the Applicant and Respondent respectively, that the children also are fond of their extended maternal and paternal relatives. In the result, this is a somewhat neutral consideration, insofar as relocation of the children to Windsor no doubt would facilitate greater contact with their maternal relatives, but do so at the expense of existing levels of contact with their paternal relatives. To the extent the children currently are used to dividing time between their extended relatives based on existing geography and travel realities, the status quo would favour the children remaining in Oxford County.

b. As for the views and preferences of the children:

i. The existing evidence in that regard is contradictory and contentious, and obviously reflects perceptions gleaned through the inherently self-interested lens of each parent. In particular:

1. The Applicant asserts that the children, (presumably referring to Charlotte and Nathan, as Rachel seems too young to express any meaningful views and preferences in any event), were excited by the indication of a move to Windsor when that was mentioned to them during the parties’ initial separation in February of 2019.

2. The Respondent asserts that Charlotte, at least, has indicated that she will run away if forced to leave Oxford County and move to Windsor.

ii. For the time being, I am inclined to regard this as a neutral consideration in any event, until such time as the views and preferences of the children are obtained and conveyed to the court in some reasonably objective fashion.

c. As for the length of time the children have lived in a stable home environment:

i. I am mindful of the reality that the children inevitably will have been subjected to two recent home relocations by the end of this month; i.e., a move to the matrimonial home purchased just five months ago, and their now inevitable move from that matrimonial home on August 28, 2020. From that perspective, at least, the children already have experienced and will be experiencing instability in their home environment, regardless of whether they relocate to a new home in Windsor, or a new home or homes in Oxford County.

ii. While the children’s suggested new home in Windsor may be a place already familiar to the children, (e.g., if the Applicant and the children would be living initially with familiar relatives in a home the children previously have visited), it seems to me that the children are likely to experience a further change of residence within Windsor if they are permitted to relocate there on a permanent basis; i.e., once the Applicant achieves a degree of financial independence through employment and/or support paid by the Respondent.

iii. While any new home or homes of the children within Oxford County will be unfamiliar to them, that would not be true of their general community environment. In particular, Charlotte and Nathan have friends and established extracurricular activities in Oxford County, and would be able to continue attending their current school if their primary residence, or a residence in which they spend half of their time, is located within the school’s catchment area.

iv. On balance, I think this consideration militates in favour of the children remaining in Oxford County.

d. As for the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child:

i. In my view, the import of this consideration is difficult if not impossible to assess in a full and meaningful way, based on the existing evidentiary record.

ii. Leaving aside the question of finances, I think both parents have a demonstrated ability to care for their children, insofar as I accept that each parent realistically looked after the children on his or her own on a regular basis while the other parent was working and/or engaged in work training.

iii. I nevertheless also am inclined to accept that the Applicant realistically has been the parent providing the majority of care to the children over the balance of their lives. In particular, I think that inference follows inexorably from the reality that the Applicant simply has not been working outside the matrimonial home for much of the children’s lives, while the Respondent commendably appears to be someone who effectively has managed to support a family of six and provide for a reasonably affluent lifestyle, (if the value of the current matrimonial home is any indication), through what inherently must have been time-consuming work.

iv. Having said that, I also am inclined to agree with the Respondent’s view that the Applicant’s ability to care for the children would be significantly reduced if and when she resumes full time employment; i.e., one of the stated reasons for the Applicant’s desired relocation to Windsor. That development, in turn, would tend to neutralize this consideration; i.e., insofar as both parents then would have work commitments limiting their personal ability to provide full time care to the children when they are not in school.

v. As noted above, the current evidentiary record nevertheless provides little or no meaningful evidence to draw any reliable conclusions as to the ability of the Applicant to secure employment in Windsor – or the Oxford County area for that matter.

vi. Moreover, the ability of each parent to provide the children with guidance, education, the necessaries of life and special needs of the children inherently becomes much more uncertain, on the existing evidentiary record at least, once one considers the possible implications of appropriate financial adjustments relating to income and earning capacity, asset redistribution and the making of support payments. Such adjustments may require one or both parties to work more or less, in turn having an impact on the time available to care for the children, and their respective financial ability to care for the children. Moreover, the Applicant’s desired relocation is said to be necessary if she is to avoid the otherwise dire financial situation the Applicant will experience, (in turn leading to her inability to provide a suitable home for the children), if she is not permitted to leave Oxford County for financially greener pastures in Windsor.

e. As for the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing:

i. At the moment, the plans proposed in that regard are limited to those outlined above; i.e., the Applicant’s proposal that the children be cared for primarily by her and brought up in Windsor, (with Respondent access effectively being limited to week-ends and holidays), and the Respondent’s position that the children should be the subject of a shared parenting care regime within Oxford County, allowing Charlotte and Nathan to continue attending Hickson Central Public School if the children spend at least half their time with the Respondent.

ii. Having regard to the history of substantial conflict between the parties, and their apparent current inability to communicate effectively, I think there is good reason to doubt whether the Respondent’s proposal of joint custody and shared parenting is workable, and parallel parenting is problematic for similar reasons in the absence of any effective mechanism for ultimate decision making in respect of the children. That arguably militates against a finding that the children need to remain in Oxford County for the purpose of facilitating implementation of a joint custody and shared parenting arrangement – although there may be other reasons, noted herein, why their remaining in Oxford County may be advisable.

iii. In any event, for the reasons outlined above, I find it troubling that the two proffered care plans are premised on basic factual assumptions that may or may not be justified and/or realistic based on a more fulsome evidentiary record. In particular:

1. The Applicant may have no justification for relocating to Windsor if she is capable of obtaining employment and/or a suitable residence for her and the children in Oxford County, especially after adjustments are made for asset redistribution, support payments and potential employment in Oxford County.

2. The Respondent’s plan of shared parenting effectively may be a “non-starter” if the Applicant has no practical means of securing employment and/or a suitable residence for her and the children in Oxford County, (despite interim financial adjustments), and if necessarily placing the children in the primary care of the Respondent is found to be a significant change not in the children’s best interests, at least in terms of continuity and stability.

iv. Similarly, the limited binary possibilities contemplated by the parties’ competing plans effectively may ignore other potential arrangements which may be in the children’s best interest, but which also may or may not be possible depending on a more fulsome evidentiary record. For example, if a more fulsome evidentiary record reinforces a view that the Applicant actually does have the ability to secure employment and/or a suitable residence for her and the children in Oxford County and the catchment area of Hickson Central Public School, (especially after asset redistribution and support payments are taken into account), and there is reason to believe that the Applicant has been the children’s primary caregiver, that might justify a finding that it would be in the best interest of the children for them to remain in Oxford County but in the primary care of the Applicant, with the Respondent enjoying significantly greater access than he would be able to enjoy if the Applicant and the children relocated to Windsor.

v. For such reasons, I find it difficult if not impossible, without further important information and evidence, to meaningfully and fully assess the import of the plans respective proposed by the parties, and whether either would be in the best interests of the children.

f. As for the permanence and stability of the family unit with which it is proposed that the children will live, in my view, that inevitably will be a neutral consideration on the evidence currently available. For the time being, at least, it seems each child, while in the care of either parent, would be surrounded by an immediate stable family unit of a parent and both siblings, supplemented by extended maternal or paternal relations who also appear to represent a stable and consistent presence in the children’s lives.

g. As for the ability of each person applying for custody of or access to the child to act as a parent, I already have addressed this to some extent in my above comments relating to each party’s ability and willingness to provide the child with guidance and education, the necessaries of life and any special needs of the child. Beyond those considerations, I regard each party’s ability to act as a parent to be a somewhat neutral consideration. In particular:

i. As noted above, despite the current criticisms being advanced in this litigation, each party was trusted by the other, during the course of their relationship, to care for the children while the other was working.

ii. While the parties have many criticisms about their conduct towards each other, I think the material filed actually contains little in the way of overt suggestions that either party would harm or neglect the welfare of the children.

iii. References by each party to the other’s suggested problematic use of medication and/or use of therapy are contentious, strongly denied, and in my view should not be regarded as disqualifying for present purposes.

h. As for familial relationships between the children and each party, that obviously is a neutral consideration.

28Beyond those general “best interest” matters to be considered pursuant to s.24(2) of the Children’s Law Reform Act, supra, I think the specific matters to be considered in relation to mobility determinations, especially when raised by way of an interim motion, also lean in favour of the children remaining in Oxford County – at least to the extent such considerations may be meaningfully assessed on the existing evidentiary record. In particular, and bearing in mind that some of those specific considerations already have been addressed by my above comments:

a. There are no existing custody and access arrangements to be confirmed or disrupted, with appropriateness of the de facto residence and access arrangements post separation being very much in dispute.

b. For the reasons noted above, I have no reason to doubt that the children enjoy a loving relationship with each parent, regardless of whether the Applicant, to date at least, may have been exercising more caregiver responsibilities because of her greater full-time availability. As also noted above, I think the parenting ability of each party has not been successfully criticized in any meaningful way.

c. Desirability of maximizing contact between the child and both parents favours an arrangement where the children and both parents reside in the same community, to the extent that realistically is possible. As the Respondent realistically must remain in Oxford County for his existing established employment, the Applicant arguably should not be permitted to relocate to Windsor with the children, especially if she has the realistic ability to obtain employment and suitable accommodation for her and the children in Oxford County, (ideally within the school’s existing catchment area), once financial considerations and adjustments are taken into account.

d. For the reasons I have outlined, the views of the children are disputed, and not yet capable of being obtained and presented to the court in a reasonably objective fashion, effectively making that a neutral consideration for the time being.

e. For the reasons I have outlined, while the Applicant has indicated in her material that she lacks the resources and ability to obtain and maintain a suitable residence for herself and the children in Oxford County, (and the catchment area of Hickson Central Public School in particular), and that relocation to Windsor will allow her to access her extended family’s resources and obtain employment, the current evidentiary record does not allow for those assertions to be explored and assessed in a meaningful way.

f. For the reasons outlined above, while the children will be changing homes in any event, and may have familiarity with Windsor and the homes of their extended maternal relatives, relocation of the children to that city unquestionably would entail a disruption to the children’s current level of interaction with paternal relatives, continued attendance at their existing school, and ability to remain in the community that has always been their primary residence, with access to established friendships and extracurricular activities.

g. For the reasons outlined above, courts generally have found it unwise to permit significant geographic relocation of parties and children in the context of interim motions, based on disputed and contentious evidentiary records.

29Again, however, the preliminary views outlined above are not only incomplete, (in the sense that certain required considerations cannot be assessed in a meaningful way based on the current evidentiary record), but are also premised largely on a conditional assumption that the Applicant actually does have the ability to continue residing in Oxford County in a residence suitable for her and the children, if she is not permitted to relocate with the children to Windsor.

30If further evidence makes it clear that the Applicant’s continued residence in Oxford County actually is not a possibility, the calculus arguably changes in significant ways. In particular:

a. There effectively will be little or no possibility of a shared parenting arrangement, if the parents live in entirely different and distant communities and the children realistically can attend only one school in one community or the other.

b. The ability to maximize contact with one parent or the other necessarily will be compromised if the Respondent must live in Oxford County and the Applicant cannot remain there.

c. If the Applicant has indeed been the de facto primary caregiver of the children for the reasons outlined above, and the children have become accustomed to and dependent on that reality, especially over the past two years, I think there are legitimate reasons for the court to be reticent of disrupting such routines and expectations by the making of an order, (e.g., requiring the children’s permanent residence to remain in Oxford County, and their continued attendance at Hickson Central Public School), in respect of which compliance effectively would require the children to be placed in the primary care of the Respondent, with the Applicant being restricted to access primarily on week-ends and holidays.

31That latter consideration weighs heavily with me, in terms of the potentially inevitable practical upshot of the immediate interim orders sought by the Respondent.

32In particular, the existing record suggests a very real possibility that any such order effectively would result in the children having to reside in the primary care of the Respondent, perhaps for an extended and indefinite period, even if the order is formally made on an interim interim without prejudice basis; i.e., if the Applicant will have no residence in Oxford County following sale of the matrimonial home, truly lacks the ability to secure and maintain suitable new accommodation for herself and the children in Oxford County, and finds herself unable to alter that situation in the foreseeable future.

33I do not think that outcome would be appropriate.

34On the other hand, for the reasons outlined above, I do not think an immediate interim order permitting the Applicant to relocate to Windsor with the children, for an indefinite period, would be appropriate or warranted either on the existing evidentiary record.

35Moreover, directing either of those inappropriate outcomes for an inherently indefinite period effectively would create a new court sanctioned status quo likely to have longer term implications, and essentially confer tactical advantages on one party or the other, regardless of whether the order is expressly emphasized to implement only an interim interim without prejudice arrangement.

36In the circumstances, and after considerable intense reflection, I think doing justice in this particular case requires the making of an admittedly unusual interim interim without prejudice order, intended:

a. to remedy concerns identified above about the pressing need for a more fulsome and sufficient evidentiary record, allowing the court to make a properly informed determination of what interim residential and parenting arrangement actually would be in the “best interests” of the children;

b. to address, (in a manner designed to avoid creation of a new indefinite de facto “status quo”), the imminent and now unavoidable practical developments that will be occurring while the evidentiary record is being supplemented; and

c. to bring the matter back before the court in relatively short order for an appropriate interim “best interest” determination, once the evidentiary record has been supplemented accordingly.

Conclusion

37To that end, subject to any existing party agreements regarding access between the Respondent and the parties’ children during the period between release of this endorsement and August 28, 2020, and subject to any further order of the court, (including any further direction or directions made by a triage judge in relation to Woodstock hearings during the COVID-19 pandemic), an interim interim without prejudice order shall issue whereby:

a. Following sale of the matrimonial home on August 28, 2020, and until October 2, 2020, inclusive:

i. The children of the parties shall remain in the de facto primary care of the Applicant, subject to the Respondent’s right to exercise access with the children during the following week-end and long week-end periods of time:

1. from Friday, September 4, 2020, at 5:00pm, until Monday, September 7, 2020, (Labour Day), at 5:00pm;

2. from Friday, September 11, 2020, at 5:00pm, until Sunday, September 13, 2020, at 5:00pm; and

3. from Friday, September 25, 2020, at 5:00pm, until Sunday, September 27, 2020, at 5:00pm;

ii. A party who does not have the children in his or her care on any particular day shall be entitled to one Facetime/Skype call with the children per day, at a mutually agreed upon time.

iii. Subject to the Respondent’s entitlement to week-end access during the periods of time specified above, the Applicant and the children shall be permitted to visit and remain in Windsor, on an extended but temporary basis, from August 28, 2020, to October 2, 2020, on which date this order shall expire at 4:30pm, subject to any further order of the court;

iv. During that permissible extended but temporary visit by the Applicant and the children to the city of Windsor, transfers of the children in relation to the periods of access prescribed above shall take place, (subject to variation of venue by party agreement), in Ridgetown, Ontario, at Daniel’s Service Centre, 21180 Victoria Road (Highway 17), south of its intersection with Highway 401;

v. During that permissible extended but temporary visit by the Applicant and the children to the city of Windsor, the children shall participate in any online courses of instruction being offered by Hickson Central Public School, because of the ongoing COVID-19 pandemic; and

vi. If online instruction is not being offered by Hickson Central Public School, the children may participate on a temporary basis in any in person or online instruction being provided by the public school nearest to their temporary Windsor accommodation, to the extent permitted by the relevant school board.

b. A further video conference hearing in relation to this matter shall be scheduled for October 2, 2020, (at a time, and for a duration, to be finalized by counsel in consultation with the trial co-ordinator), for the contemplated hearing of a renewed motion by the Applicant, and a renewed cross-motion of the Respondent, seeking the same relief sought in the two motions heard by me on August 19, 2020, albeit based on the motion material filed to date by the parties supplemented by the additional material the parties are directed to file in accordance with the further provisions of this order.

c. Prior to September 18, 2020, the Applicant and Respondent shall prepare, serve and file supplementary material in accordance with the following directions:

i. each party shall deliver a sworn financial statement;

ii. each party shall file indications of their suggested ranges of interim without prejudice child and/or spousal support arrangements for the alternative scenarios of:

1. both parties residing in Oxford County, with the children living in the primary care of the Applicant and the Respondent enjoying rights of access;

2. both parties residing in Oxford County, with the children’s time divided equally between the parties on a shared parenting basis; and

3. the Applicant residing in Windsor and the Respondent residing in Oxford county, with the children living in the primary care of the Applicant and the Respondent enjoying rights of access;

iii. the Respondent shall file supplementary affidavit evidence of the financing documentation and arrangements relating to the purchase of his new home in Tavistock;

iv. each party shall file supplementary affidavit evidence confirming interim sale of the matrimonial home, the resulting net sale proceeds available for interim distribution, and each party’s position concerning possible interim distribution of those net sale proceeds;

v. each party shall file supplementary affidavit evidence indicating the nature, extent and current status of the children’s extracurricular activities in Oxford County;

vi. each party shall file supplementary affidavit evidence indicating whether in person classes at Hickson Central Public School have resumed and are ongoing;

vii. each party shall file supplementary affidavit evidence addressing the availability or lack of availability, within Oxford County, and within the catchment area of Hickson Central Public School in particular, of residential accommodation suitable for occupation by the Applicant and the children, through purchase or rental;

viii. the Applicant shall file supplementary affidavit evidence addressing the inquiries she has made, if any, to obtain financing in relation to her purchase or rental of a suitable new residence for her and the children in Oxford County;

ix. the Applicant shall file supplementary affidavit evidence providing a copy of her up to date curriculum vitae;

x. the Applicant shall file supplementary affidavit evidence outlining any and all inquiries made by the Applicant, over the preceding 12 months, concerning her possible employment in the Oxford County area, including details of job searches, applications, rejections and/or offers, and the dates or approximate dates on which any such searches, applications, rejections and/or offers were made or received;

xi. the Applicant shall file supplementary affidavit evidence addressing the availability of possible employment of the Applicant in the Windsor area, including details of job searches, applications and rejections, the dates or approximate dates on which any such searches, applications, rejections and/or offers were made or received; and

xii. the Applicant shall file supplementary affidavit evidence confirming the nature of the accommodation being used the Applicant and the children in Windsor, (including information as to whether the residence is owned by relatives of the Applicant, whether the Applicant is paying anything for the provision of such accommodation, and how long the Applicant and the children might be permitted to occupy that accommodation), as well as similar information relating to any contemplated alternate or future accommodation of Applicant and children in Windsor.

d. This matter shall be spoken to by teleconference on September 18, 2020, at 12:30pm (30 minutes), at which time counsel:

i. shall provide confirmation to the presiding judge that the parties have filed the supplementary material required by the directions herein; and

ii. confirm their readiness to argue the contemplated renewed motions on October 2, 2020, on the basis of the expanded evidentiary record, and/or seek further scheduling directions from the presiding judge in that regard.

e. Reflecting the temporary nature of the permitted extended but temporary visit by the Applicant and the children to Windsor, nothing herein is intended to suggest that the Superior Court of Justice in Woodstock is relinquishing jurisdiction in relation to this matter. To the contrary, the Superior Court of Justice in Woodstock retains jurisdiction over this matter.

38To be clear, because I now formally have ruled on the motions argued before me on August 19, 2020, and the contemplated further motions on augmented material formally will represent new motions, I am not seized of the matter. In particular, while I would be content to hear the further motions if the regional schedule permits that to happen, I currently am not scheduled to be dealing with Woodstock matters for the remainder of this year, and the new motions may be heard by a different judge if and as necessary. This extended endorsement hopefully will make the task of that judge much easier than it otherwise might have been.

Costs

39During the course of the hearing before me, I indicated to counsel that I would make provision for written cost submissions, if the parties were unable to reach an agreement in that regard.

40My preliminary view, subject to hearing from counsel, is that costs of the proceedings before me probably should be reserved to the judge hearing and substantively determining the further contemplated motions, at which time the court will be in a position to make an assessment of ultimate success in terms of the parties’ competing requests for more extended interim relief.

41However, in case the parties disagree, and wish to request an alternative cost disposition:

a. the Applicant may submit written cost submissions, (maximum 5 pages, not including any bill of costs or settlement offers), within one week of the release of this endorsement;

b. the Respondent may submit responding written cost submissions, (maximum 5 pages, not including any bill of costs or settlement offers), within two weeks of the release of this endorsement;

c. the Applicant may submit reply written cost submissions, (maximum 2 pages), within three weeks of the release of this endorsement;

d. all written cost submissions should be directed to my attention via email, sent in the first instance to the London judicial secretaries; and

e. if no written cost submissions are received within two weeks of the release of this endorsement, an order shall go reserving costs of the motions argued before me to the judge substantively deciding the further contemplated motions scheduled for hearing on October 2, 2020.

Formal order

42If an appointment is required to settle any disputes regarding the form and/or content of a formal order reflecting this endorsement, counsel are granted leave to have that appointment heard by me via teleconference, on a date and time to be scheduled in consultation with the Woodstock and London trial co-ordinators.

Footnotes

1. 1During the course of the video hearing before me, the Respondent provided an unsworn indication, (in response to my questions posed to counsel), estimating that there likely will be approximately $110,000.00 in sale proceeds remaining once all associated debt and expenses have been addressed. However, the accuracy of that estimate was questioned by Applicant counsel.
2. 2In that regard, the Applicant notes the Respondent’s acknowledged ability to purchase a large new residence in Tavistock, and suggests that the Respondent’s declared taxable income is understated, as demonstrated by asset accumulation and value of the matrimonial home, which are said to be in excess of what might have been expected having regard to the parties’ declared income.
3. 3The Applicant denies any issues with medication, says she supports an ongoing relationship between the Respondent and the children, and denies speaking negatively about the Respondent in the children’s presence.