Court File and Parties
BARRIE COURT FILE NO.: FC-20-204 DATE: 20230501 ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT
BETWEEN: N.F. Applicant – and – S.G. Respondent
N.F., Self-Represented Debora Lyons, for the Respondent
HEARD: April 20, 2023
Reasons for Decision
CHARNEY J.:
[1] This matter began as an urgent motion by the Respondent Father (the father) for an Order under s. 28 of the Children’s Law Reform Act that the Applicant Mother (the mother) not change the parties’ daughter’s (V., aged 5) residence and school until further order of the Court or agreement of the parties. The father was concerned that the mother intended to move with their daughter from Barrie to her mother’s home in Orangeville.
[2] The matter first came before McDermot J. on February 16, 2023, as an urgent motion, which was served on the mother the same day as the motion was heard. McDermot J. adjourned the motion to February 23, 2023, to give the mother an opportunity to retain counsel and serve and file an affidavit. He stated, at paras. 5-7:
It appears that the Applicant Mother has not complied with the provisions of the Children’s Law Reform Act which requires 60 days’ notice of any intention to move with a child: see s. 39.3(1).
The motion and affidavit were only served today. Therefore, because almost no notice was given to the Applicant Mother, the matter is being treated as being without notice to her. As Respondent’s counsel well knows, the court is extremely hesitant to make an order without notice as every litigant in a family law matter deserves to have notice of any proceeding which may affect their interests. It is important, especially in matters involving children, that both parties be given an opportunity to tell their respective sides of the story.
This is especially so where the Applicant Mother may not have housing for herself and the child at the end of the month. This matter is urgent; however it must be set down for argument so that the Applicant Mother can provide materials and advise as to her intentions and as to how she intends to address the relationship between the Respondent and V. and V.’s best interests if the move takes place.
[3] When the matter returned to court on February 23, 2023, the mother did not appear. Counsel for the father advised the Court that the mother had requested a further adjournment, and that the father would agree to the adjournment on condition that the mother not move from Barrie pending the return of the motion. The Court was further advised that the mother did not consent to this condition. McDermot J. adjourned the motion to March 16, 2023. His Order stated:
Pending the adjournment, the child shall remain in her present school…and shall not be moved from the City of Barrie.
[4] The matter then came before McDermot J. on March 16, 2023. The mother had the assistance of duty counsel. After a brief re-cap of the case history, McDermot J. stated:
Unfortunately, Ms. N.F. has moved to Orangeville with V. and although she is in compliance with the shared arrangement (2-2-3), the child has been “moved” from Barrie for at least Ms. N.F.’ share of the parenting time. As well, the child is being driven to school from Orangeville, which involves three hours on the road to get to and from school during Ms. N.F.’ parenting time. That is unacceptable.
The Applicant has no materials before the court and has not obtained counsel due to problems with legal aid. She asks for a further adjournment, which I am willing to grant assuming my previous order is complied with. As Ms. N.F. does not have housing in Barrie, that means that V. would have to live primarily with Mr. S.G. during the week in order to attend school and Ms. N.F. on weekends.
[5] Accordingly, the adjournment was granted (peremptory to the mother) on the condition that V. live primarily with the father during the week, and V. would have parenting time with the mother on weekends, with the mother picking the child up at the school on Fridays and dropping off the child at school on Monday mornings. This order was made without prejudice.
[6] The matter returned to Court on April 20, 2023.
[7] On April 11, 2023 the mother brought a cross-motion for an Order that the 2/2/3 parenting schedule recommence immediately, and that the child be permitted to enroll in school in Orangeville commencing the September 2023 school year. Commencing September 2023, the father would get parenting time three weekends each month and one mid-week overnight each week.
Facts
[8] The parties were never married. They began their relationship in 2016. The mother is from Orangeville, Ontario. The father is from the nearby town of Bolton, Ontario, approximately 35 km, or a 30 minute drive from Orangeville.
[9] They moved together to Barrie, Ontario in early 2018.
[10] V. was born in Barrie in March of 2018.
[11] The parties separated on February 14, 2020.
[12] The mother alleges that the father became increasingly abusive and aggressive in their relationship. She left their home and moved to a woman’s shelter with V. on February 14, 2020.
[13] Upon separation, the mother brought an ex-parte motion for temporary custody of V. and a Restraining Order against the father.
[14] On February 26, 2020, the parties attended a First Appearance date. Both were represented by counsel. They agreed to Temporary Minutes of Settlement which formed the Temporary Order of Eberhard J. dated February 27, 2020. The Order provided that the mother shall have temporary custody, care and control of V., and that the child’s primary residence shall be with the mother. The father was ordered to pay child support in the amount of $200 per month.
[15] A graduated parenting schedule was agreed to, and the father was given overnight access on two nights a week during April 2020, with the parties left to negotiate further access after April 25, 2020.
[16] The Court Order placed no limits on the mother’s right to move away from Barrie.
[17] The mother was approved for subsidized housing in Barrie, effective March 15, 2020.
[18] On April 13, 2020 the parties entered into a handwritten “kitchen table” agreement without benefit of counsel. At the time, both parties lived in Barrie. They agreed to a 3/3 shared parenting agreement. The agreement simply states that the parties “are agreeing to 3 days of access each for their daughter V., commencing April 13th”. It is signed by both parties.
[19] The mother takes the position that, despite this agreement, she continued to be the primary caregiver, with the father visiting V. occasionally as his work schedule permitted.
[20] Shortly after signing this agreement, the father sold his house in Barrie and moved to his parent’s residence in Bolton. The mother contends that during this time his visits with V. were sporadic and remained in accordance with his work schedule.
[21] The father states that he asked the mother to move to the Orangeville area in the spring of 2020, because “it would be in V.’s best interests given the location of her extended family” (the mother’s family lives in Orangeville, the father’s family in Bolton). The mother refused to leave Barrie at that time.
[22] On October 23, 2020, the father attended the mother’s home and an incident took place. The police were involved, and the father was charged with sexual assault and uttering threats. This resulted in an Undertaking that the father was not to communicate with the mother or attend her residence.
[23] The father made changes to his work schedule and bought a home in Barrie to be in close proximity to V. He purchased a home in Barrie in March 2021, and from March 2021 to December 2021 he exercised access on weekends.
[24] The mother contends that the father’s parenting time with their daughter continued to be sporadic throughout 2021.
[25] V. started a full-time daycare program at the end of 2021.
[26] Following the completion of her schooling, the mother obtained a job in Barrie in August 2021.
[27] The mother moved to a different house in Barrie in January 2022. Unlike the previous residence, this housing was not subsidized. When she moved, V. was enrolled at the local Catholic school.
[28] Two weeks later the mother was laid off. The mother states that she applied for multiple jobs and attended many interviews, but was unable to secure employment. She has worked part time as a bartender at weddings for extra cash.
[29] The father currently pays the mother $300 per month child support.
[30] The mother states that the parties did not begin the shared parenting agreed to in April 2020 until January 2022. This is consistent with the father’s affidavit, which states that he exercised access on weekends from March 2021 to December 2021.
[31] The father states that since January 2022, they have been parenting on a 2/2/3 split. This is consistent with the mother’s affidavit.
[32] The mother states that she never intended to move from Barrie. It was only the loss of her job and her inability to afford the rent that made her decide to move back to her family home and live with her mother and brother in Orangeville on March 1, 2023.
[33] The mother argues that V. is comfortable in Orangeville, which is approximately 85 km, or a one hour drive from Barrie. She and V. frequently visited her mother in Orangeville before the move, so V. has been familiar with the house her whole life. The mother has now found full-time employment in Orangeville, and hopes to live independently when time permits.
[34] The mother would like V. to attend Catholic school in Orangeville commencing September 2023. As indicated, V. is currently in junior kindergarten in Barrie. The mother notes that the father does not live within the catchment area of V.’s current school, so it is possible that V. will have to change schools in any event in September 2023 if she resides primarily with the father.
[35] The mother also argues that while V. has lived in Barrie all her young life, she also has roots in Orangeville, where her maternal grandmother lives, and in Bolton, where her paternal grandparents live. Neither the mother nor the father have long standing roots or family ties in Barrie.
[36] The mother also argues that V.’s current school is only one hour from Orangeville - not 90 minutes, as McDermot J. states in his March 16, 2023 Endorsement - so that the round trip is only 2 hours, not the 3 hours stated in the Endorsement. She argues that it is not unreasonable for V. to travel two hours a day, 2-3 days each week, as this is not an unusual travel time for children in rural communities attending school.
[37] The father works for Verde Property Maintenance, located in Bolton. Although he has been on-site and on the road in the past with his company, he is now in sales and states that he works remotely from home. This has allowed him a more routine and flexible schedule so that he is available to parent V.
[38] The father takes the position that it would be impossible to continue with their shared parenting agreement if the mother moves to Orangeville.
[39] The father argues that V. attends junior kindergarten in Barrie, her doctor is in Barrie, she is taking dance classes in Barrie, and her dentist is in Innisfil (approximately 20 km or 17 minutes from Barrie) and it would be disruptive for V. to move to Orangeville.
Position of the Parties
[40] Both parties recognize that the mother’s move to Orangeville will make the 3/3 or 2/2/3 parenting split impractical. Accordingly, each has proposed a parenting plan that will provide the parent with primary residence with parenting time during the week, while the other parent would have parenting time on 3 out of 4 weekends. Regardless of which plan is chosen, the child will have at least some one hour commutes to school or home.
[41] The mother has proposed the following parenting plan:
a. The daughter will remain in school in Barrie until the end of the 2022-2023 school year, and then transfer to school in Orangeville for the 2023-2024 school year.
b. The 2/2/3 parenting schedule to recommence immediately, until August 31, 2023.
c. Commencing in September 2023, the father shall have parenting time with the child Fridays after school until Mondays drop off at school, three weekends each month, as well as one mid-week overnight each week.
[42] The father has proposed the following parenting plan:
a. The child will live with the father from Monday after school until Friday morning drop-off, and continue to attend school in Barrie.
b. The child will spend 3 out of 4 weekends with the mother from after school on Friday until drop off at school on Monday.
c. The 2/2/3 parenting schedule will apply during the months of July and August.
d. Commencing in September 2023 the shared parenting will revert to para. a) and b).
e. If the mother returns to Barrie then the parties will resume the 2/2/3 split.
[43] The two plans are substantially similar, except for the primary residence.
Issues
[44] This motion raises the following issues:
a. Did the mother have to give 60 days notice before moving with her daughter to Orangeville?
b. What was the status quo?
c. Is it in the daughter’s best interest to move to Orangeville?
Relocation/Change in Residence
[45] The first issue in this case is whether the mother’s proposed move to Orangeville qualified as a “change in residence” under s. 39.1 of the Children’s Law Reform Act, R.S.O. 1990, c. C-12 (CLRA), or a “relocation” under s. 39.3 of the CLRA. The relevant CLRA provisions provide:
Change in residence, person with decision-making responsibility or parenting time
39.1 (1) A person who has decision-making responsibility or parenting time with respect to a child and who intends to make a change in residence, or in the child’s residence, shall notify any other person who has decision-making responsibility, parenting time or contact under a contact order with respect to the child of the intention.
Notice requirements
(2) The notice shall be in writing and shall set out,
(a) the date on which the change is expected to occur; and
(b) the address of the new residence and contact information of the person or child, as the case may be.
Non-application
(5) This section does not apply with respect to relocations.
Relocation
39.3 RELOCATION – (1) A person who has decision-making responsibility or parenting time with respect to a child and who intends a relocation shall, at least 60 days before the expected date of the proposed relocation, notify any other person who has decision-making responsibility, parenting time or contact under a contact order with respect to the child of the intention.
(2) NOTICE REQUIREMENTS – The notice shall be in the form prescribed by the regulations or, if no form is prescribed, shall be in writing and shall set out,
(a) the expected date of the proposed relocation;
(b) the address of the new residence and contact information of the person or child, as the case may be;
(c) a proposal as to how decision-making responsibility, parenting time or contact, as the case may be, could be exercised; and
(d) any other information that may be prescribed by the regulations.
(5) OBJECTION – A person with decision-making responsibility or parenting time who receives notice of the proposed relocation under subsection (1) may, no later than 30 days after receiving the notice, object to the relocation by,
(a) notifying the person who gave the notice of proposed relocation of the objection to the relocation; or
(b) making an application under section 21.
Authorization of relocation
39.4 (2) A person who has given notice of a proposed relocation in accordance with section 39.3 and who intends to relocate a child may do so as of the date referred to in the notice if,
(a) the relocation is authorized by a court; or
(b) no objection to the relocation is made in accordance with subsection 39.3 (5) and there is no order prohibiting the relocation.
Best interests of the child
(3) In determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with section 24, as well as,
(a) the reasons for the relocation;
(b) the impact of the relocation on the child;
(c) the amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child’s life of each of those persons;
(d) whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement;
(e) the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside;
(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses; and
(g) whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance.
Factor not to be considered
(4) In determining whether to authorize a relocation of the child, the court shall not consider whether, if the child’s relocation were to be prohibited, the person who intends to relocate the child would relocate without the child or not relocate.
Burden of Proof
(5) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.
Same
(6) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend the vast majority of time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.
Same
(7) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.
Burden of proof, exception
(8) If an order referred to in subsection (5) or (6) is an interim order, the court may determine that the subsection does not apply.
[46] Section 18 of the CLRA includes a definition of “relocation”:
“relocation” means a change in residence of a child, or of a person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child, that is likely to have a significant impact on the child’s relationship with,
(a) another person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child, or
(b) a person who has contact with respect to the child under a contact order.
[47] Pursuant to the definitions in the CLRA, a “relocation” means a change in residence of a child “that is likely to have a significant impact on the child’s relationship” with another person who has parenting time.
[48] Thus, the difference between relocation and change in residence is not measured by distance, or by whether the child must change schools, or by municipal boundaries: see S.C. v. J.C., 2022 ONSC 4146, at paras. 22 and 26:
Whether the move is “significant” has no specific parameters or radius, which means that “significance” is assessed on a case-by-case basis. As set out in the CLRA, whether a move is deemed “significant” will depend on whether the change in address will “significantly impact” the child’s relationship with the other (non-moving) parent or party.
The change to the children’s school and community do not necessarily make the proposed move qualify as a “relocation” either. There are many situations where a proposed move is within the same city or community, but it would still require a change to the children’s school. There are many situations where a proposed move is within the same city or community, but it would add more distance than 8 km and more than 12 minutes drive to transport the children for parenting time.
[49] In my view, the most significant factor is whether it will be practical to continue with the existing parenting plan and practice. Obviously, distance and time will often be significant factors in making this assessment.
[50] The mother contends that her proposed move to Orangeville from Barrie is a “change in residence” and not a “relocation”. She argues that moving the child to Orangeville would not have a significant impact on the child’s relationship with the father, because the father would still see the child 3 out of 4 weekends and have one overnight each week.
[51] In my view, changing the parenting time from a 2/2/3 split to 3 out of 4 weekends and one overnight per week does qualify as a change that “is likely to have a significant impact” on the child’s relationship with the father. I find that being relegated from the status of mid-week parent to weekend parent is likely to have such an impact.
[52] Accordingly, the mother was required to comply with the 60 day notice requirement in s. 39.3(1) and (2) of the CLRA. While s. 39.3(3) gives the Court the authority to exempt a party from compliance with s. 39.3(1) and (2) in appropriate circumstances, there is no basis for providing such an exemption in this case. As such, while the father was informed orally of the mother’s intention to relocate in February 2023 (only one month before her proposed move), written notice with the prescribed information was not provided until the mother served her Notice of Motion on April 11, 2023.
[53] This means that the child cannot be relocated, in any event, until June 11, 2023.
What was the status quo?
[54] One of the first issues on a motion to relocate a child is to identify the status quo. Courts are generally reluctant to upset the status quo on a temporary basis where there is a genuine issue for trial. The status quo is particularly important in an interim motion because the court is often not in a position to make factual findings if there are conflicting affidavits.
[55] As noted by Audet J. in Trudel v. Ward, 2019 ONSC 5047, at para. 10, the court must be mindful of the fact that this decision, which is interim in nature, is likely to establish a status quo that may be very difficult to change in the context of a trial that might take place over a year from now.
[56] The status quo may be established by reference to the parents’ practice or the child’s routine prior to the proposed relocation, and by reference to any existing agreements or court orders which establish a legal status quo: Gray v. Canonico, 2020 ONSC 5885, at para. 48.
[57] In this case the status quo is established by the Temporary Order of February 27, 2020, which gave the mother temporary custody and care and control of the daughter, and that the child’s primary residence shall be with the mother.
[58] Neither the February 27, 2020 Temporary Order nor the April 2020 agreement of the parties contains any terms limiting or restricting the mobility rights of the parties.
[59] The status quo is also established by the practice of the parties since January 2022 to share parenting on a 2/2/3 basis.
[60] I do not accept the April 2020 agreement as part of the status quo, because the evidence of both parties is that the agreement was not followed, and shared parenting did not begin until January 2022.
[61] The daughter’s residence in Barrie and attendance at a Barrie school is also part of the status quo. However, the child has only attended this school since September 2022, and she may have to transfer to a new school in any event since the father does not reside within the same catchment area.
Is it in the daughter’s best interest to move to Orangeville?
[62] Pursuant to s. 39.4(5), the burden of proving that the proposed relocation is in the best interests of the child is on the mother, because the parties had previously agreed that the daughter would spend substantially equal time in the care of each party. Section 39.4(5) applies even where the agreement is in the nature of a de facto agreement evidenced by the conduct of the parties: Tariq v. Khan, 2022 ONSC 1167, at para. 74.
[63] I now turn to the factors concerning the best interests of the child set out in section 39.4(3) of the CLRA.
(a) Reasons for Relocation
[64] The mother has relocated because she lost her job in Barrie and could no longer afford to pay the rent. She was unable to find a job in Barrie.
[65] The mother has moved to Orangeville because her family roots are there and she can live in her mother’s house. She has now found employment in that community.
[66] I conclude that the mother had valid economic and parenting reasons for moving from Barrie to Orangeville. She is trying to establish some economic independence. She has a support system in place in Orangeville. Neither parent has strong ties to Barrie.
(b) Impact of the Relocation on the Child
[67] V. is in junior kindergarten. There are only two months remaining in the school year. It is not in V.’s best interest to change schools at this point in the school year. That was made clear in the interim orders of McDermot J. The mother recognizes this, and even her proposed parenting plan would not have V. change schools until September 2023.
[68] That said, V. is still very young, and commencing senior kindergarten at a new school will have little if any impact on her. Either way she will be enrolled in the school in the local Catholic Separate Board. Indeed, given that the father does not live in the same catchment area as the Applicant did in Barrie, V. will likely have to change schools regardless of which parent is given primary residence. Changing schools at the start of a new school year at age 5 is simply not a cause for concern.
[69] Similarly, I am not concerned that V. may have to change dentists or doctors, or start a new dance class at a different location. There is no basis to suggest that these sorts of changes will have any deleterious impact on V. if she relocates.
[70] Nor would moving to Orangeville be relocation to a strange place. The Applicant will be living with her mother in a home that V. has frequently visited and has always been a part of her life. V. will also have the advantage of a family support group in Orangeville.
(c) Time spent with each person with parenting time
[71] Subsection 39.4(3)(c) requires the Court to consider “the amount of time spent with the child by each person who has parenting time … and the level of involvement in the child’s life of each of those persons”.
[72] In this case the parents shared equal parenting time for just over one year before the Applicant moved to Orangeville. The Applicant’s move to Orangeville makes shared parenting impractical because the communities are about an hour apart.
[73] I say “impractical” rather than “impossible” because there may be some circumstances where a one hour driving distance is not a barrier to shared parenting.
[74] While McDermot J. was rightly concerned that a 90 minute commute to school (3 hours return) for a five year old was unacceptable, the evidence before me on this motion is that the commute is only approximately 60 minutes.
[75] While a 60 minute commute is not ideal, the reality is that it is not outside the bounds of acceptability.
[76] While no expert evidence has been provided with respect to the appropriate time that children should commute to school, the District School Board Transportation policies are helpful guidance on this issue. For example, the Simcoe County District School Board Transportation Policy states that the Board will organize bus routes so that the “maximum travel time for elementary students is 60 minutes one way”. The Wellington-Dufferin Student Transportation Services (which services the Dufferin-Peel Catholic District School Board) provides that “whenever possible, the amount of time spent aboard a bus by students shall not exceed 75 minutes” for students in JK to grade 6. Other school boards provide for a maximum travel time of 45 minutes for children in grades JK to Grade 6.
[77] Of course, the child’s commute to and from school is only half the equation. The parent doing the long commute will likely have to return to their home or work after drop-off, and then return again to the school for pick-up, and then drive back home, doubling all of these times. That is what makes shared parenting impractical in these circumstances.
[78] In considering the time spent with each parent, I must also consider that the shared parenting arrangement has been in place for just over one year. Prior to January 2022, V. had her primary residence with the mother pursuant to a temporary court order, and the father’s parenting time was limited to weekends. Thus, the mother was V.’s primary caregiver for the first four years of her life.
[79] I must also, therefore, consider the impact on V. of making the father her primary caregiver. I am concerned that this will be a more profound change for V. then would reverting to the pre-January 2022 schedule. In many ways, permitting the child’s relocation to reside with the mother will be closer to the status quo than moving her primary residence to her father’s home with only weekend parenting time with the mother.
(d) Compliance with the Notice Requirement and Court Orders
[80] As indicated above, at paras. 51 – 53, the mother did not comply with the notice requirements. As stated, this, in my view, precludes relocation prior to June 11, 2023.
(e) Existence of orders or agreements specifying the geographic area in which the child is to reside
[81] The Temporary Order of February 27, 2020 gave the mother temporary custody and care and control of V., and provided that the child’s primary residence was with the mother. There is nothing in this Order that limited the geographic area in which the child is to reside.
[82] Similarly, there is nothing in the April 13, 2020 agreement that limited the geographic area in which the child is to reside.
[83] I note as well, that shortly after signing the April 13, 2020 agreement, the father sold his house in Barrie and moved to his family’s residence in Bolton until his return to Barrie in December 2021. I am not faulting the father for this temporary move, which appears to have been made to be closer to his job in Bolton. The father then moved back to Barrie and was able to make changes to his work schedule in order to be closer to his daughter and exercise shared parenting time with the mother. I make this observation simply to note that neither party has roots in Barrie, and both have moved back to their hometown when required for employment purposes.
(f) Reasonableness of the proposal of the person who intends to relocate the child
[84] Given the one hour commute between Barrie and Orangeville, I am satisfied that the proposal of the mother is reasonable commencing the end of this school year. Her proposal to continue the 2/2/3 split while the child goes to school in Barrie strikes me as unworkable. That said, since the child cannot relocate until June 11, 2023 in any event, it makes little sense to impose that schedule prior to the end of the school year on June 29, 2023.
[85] There is no question that the proposed schedule is not as desirable as the current 2/2/3 split (or some other variation of shared parenting), but both parties have proposed substantially the same schedule for the non-primary resident parent. The only real issue is which parent shall have primary residence.
(g) Compliance with existing court orders
[86] In Apa v. Vagadia, 2022 ONSC 2095, at para. 110, Trimble J. explained the significance of this factor:
The court must always be confident that a parent will support the terms of any relocation order. A parent’s history of complying with their parenting and non-parenting obligations under an order or agreement is relevant and may inform the viability of the terms of any order.
[87] To their credit, both parents have demonstrated a commitment to acting in V.’s best interest over the past few years. They were able to agree on a shared parenting plan, and although the father’s employment obligations temporarily interfered with his ability to meet that goal in previous years, there is no dispute that the parents have achieved that goal since January 2022.
[88] McDermot J. did conclude that the mother did not comply with his February 23, 2023 Order. Although the mother did not change the daughter’s school and continued to comply with the 2-2-3 shared parenting arrangement, she did move the child to Orangeville during her parenting time. The mother has complied with the subsequent Court order of March 16, 2023.
[89] In my view, the mother’s failure to meet the notice requirements of s. 39.3 is attributable to her lack of legal advice and the relative recency of the statutory provision, which only came into effect in Ontario in March 2021.
[90] Given the parties’ ability to cooperate between January 2022 and February 2023, I am confident that both parties will continue to comply with their respective obligations under any court order.
Conclusion
[91] I recognize that courts should be cautious before permitting temporary relocations.
[92] Considering all of the relevant factors, however, I am satisfied that the mother has met her onus of demonstrating that relocating the child to Orangeville from Barrie is in the child’s best interest.
[93] This conclusion is not meant, in any way, to suggest that the father is not also an excellent parent to V. Both parents have demonstrated their commitment to and love for their daughter. My conclusion in this case is based primarily on the evidence that prior to January 2022, the mother was V.’s primary caregiver, and the father’s parenting time was limited to weekends. Since shared parenting is no longer a practical option, I am of the view that it would be too great a change to make the father the primary caregiver.
[94] I also note that the father continues to have close family and employment connections in Bolton, which is only 30 minutes from Orangeville. Should circumstances permit, this temporary order may be revisited if some alternative arrangement can be reached that would reduce the father’s commuting time and permit a return to some shared parenting arrangement.
[95] This Court Orders:
a. The child, V., born March 29, 2018, shall remain enrolled at her current school in Barrie until the end of the 2022-23 school year.
b. The child will live with the father from Monday after school until Friday morning drop-off, and with the mother from Friday afternoon pick-up until Monday morning drop-off three out of every four weekends, until the end of the 2022-23 school year. If the mother’s weekend parenting time corresponds to a long weekend (statutory holiday or professional development day), the mother will have the long weekend, so that drop off will be Tuesday morning. The mother’s first weekend will be the weekend after this decision is released.
c. Commencing July 4, 2023, the parties will revert to the 2/2/3 parenting schedule until September 4, 2023.
d. Commencing September, 2023, the child shall be enrolled in school in the mother’s catchment area in Orangeville, Ontario for the commencement of the 2023-24 school year.
e. Commencing September 4, 2023, the father shall have parenting time with the child Fridays after school until Mondays drop off at school, three weekends each month, and Wednesday overnight every week. If the father’s weekend corresponds to a long weekend (statutory holiday or professional development day) the father will have the long weekend, so that drop off will be Tuesday morning.
[96] If the parties are not able to agree on costs, the Applicant may serve and file costs submissions of no more than 3 pages plus costs outline and any offers to settle within 20 days of the release of this decision, and the Respondent may file responding submissions on the same terms within a further 10 days.
Justice R.E. Charney Released: May 1, 2023
