COURT FILE NO.: FS-23-00023763-0000 DATE: 20240102

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Jacob Tyler Cesare, Applicant AND: Jessica Christine Cesare, Respondent

BEFORE: Howard J.

COUNSEL: Thomas M. MacKay, for the Applicant Michael D. Frank, for the Respondent

HEARD: September 5, 2023

ENDORSEMENT

Overview

[1] Both parties bring competing parenting motions.

[2] The central issue arises out of the respondent mother’s decision to relocate with the parties’ only child to the City of Burlington, located within the Regional Municipality of Halton (formerly Halton Hills), which is at least a three hours’ drive from the parties’ former matrimonial home in the Town of LaSalle, in Essex County.

[3] The respondent mother concedes, as Mr. Frank made clear at the outset of his submissions, that the relocation was effected without prior notice to the applicant father.

[4] The parties started living together in or about the summer of 2020, [1] were married on September 26, 2020, [2] and separated on June 14, 2023, the day that the mother left the home with the child and relocated to Burlington.

[5] There is one child of the marriage, Alexander Emmanuel Cesare, born February 28, 2021, who was just two years of age at the date of separation. It is common ground that Alexander is a child with special needs.

[6] The applicant father, who was 28 years of age at the date of separation, initially brought his motion on an urgent basis, seeking, inter alia, an order that the respondent mother immediately return Alexander to Essex County pursuant to s. 36(1) of the Children’s Law Reform Act, [3] an order for police enforcement pursuant to s. 36(2), an order that neither party change the residency of the child from Windsor pursuant to s. 28(1)(c)(iii), and an order pursuant to s. 21(b), on a without prejudice basis, that the applicant father have interim parenting time with Alexander.

[7] The respondent mother, who had just turned 31 years of age the week or so before the parties’ separation, then brought her own motion, which seeks the court’s permission, albeit ex post facto, permitting the respondent mother to relocate Alexander in order to reside with her in Burlington.

[8] The applicant father’s motion first came before Leach J. on Monday, July 31, 2023, having been added to an already extremely lengthy docket, and, unfortunately, there was insufficient court time to address the motion on its merits on that day. As reflected in His Honour’s endorsement, Leach J. wrote that: “[r]eluctantly, as there is simply no time left today to address the matter, the motion is adjourned to an extraordinary one hour hearing set for September 5, 2023, at 2:15 p.m.” [Emphasis in original.]

[9] However, in the interim, and as a term of the adjournment, Leach J. ordered that the applicant father shall have parenting time with Alexander on alternating weekends, starting August 4, 2023, and every other weekend thereafter pending further order of the court, to be exercised at the home of the paternal grandmother, Ms. Trisha Cesare.

[10] It is clear that the narrow question of the relocation of the child to Burlington presents an issue that cannot await the hearing of a case conference, and I grant leave pursuant to rule 14(4.2) of the Family Law Rules [4] to have both motions heard and determined.

Factual Background

Alexander’s special needs

[11] As I have said, it is common ground that Alexander is a person with special needs. The evidence indicates that Alexander has significant medical issues. Following his mother’s difficult pregnancy, during which, the applicant father says, she was hospitalized frequently, Alexander was born prematurely and spent the first two weeks of his life in the neonatal intensive care unit of the hospital. Alexander presents with development delays. Although he is over two years of age, he is not walking or talking, and the family was referred for genetic testing in London, Ontario.

[12] The evidence of the respondent mother is that Alexander is partially missing a small section of chromosome. While both parties acknowledge he does have some development delay, there has been no formal diagnosis to date (at least as of the date of hearing of the motions). The mother’s understanding from the boy’s paediatrician is that the small fragment of missing chromosome might not be the cause of the delay or any developmental abnormalities. The respondent mother’s understanding is that the genetics testing, which was scheduled for completion in London in October 2023, would determine if there is a diagnosis associated with the chromosome abnormality, as the doctors have indicated that the premature birth could have caused or contributed to Alexander’s developmental delay.

[13] While residing in Essex County, Alexander was enrolled at the John McGivney Children’s Centre for weekly physiotherapy and occupational therapy. He had also been scheduled for speech therapy, but services had not commenced because he was on a wait list for speech therapy. Alexander was assessed by a hearing specialist at Windsor Regional Hospital, and it was verified that he does not have hearing issues.

[14] I will return to the question of the parties’ plans to address Alexander’s special needs below.

The applicant father’s criminal record and conduct

[15] It is also common ground that the applicant father has a criminal record. As reflected in the applicant father’s very first affidavit, filed in support of his initial emergency motion, the applicant father, apparently wanting “to come to the court with clean hands,” disclosed that he had a criminal conviction, from “an incident” that occurred prior to his relationship with the respondent mother, and which did not involve any children. [5]

[16] The applicant father described the incident in the following terms:

I was previously convicted [of] a blood alcohol over legal limit bodily harm [sic], and sentenced to 2 years in jail, from a tragic auto accident on my way to work in September 2018. I was unaware that I still had alcohol in my blood from the night before. I am so sorry for what I did. [6]

[17] The circumstances surrounding this “tragic auto accident” were not further described in the applicant father’s evidence. It was not until I read the reference in the respondent mother’s affidavit to “his conviction for vehicular manslaughter” [7] that it became apparent that the father’s motor vehicle accident resulted in a fatality. I note there is no correcting or qualifying statement by the applicant father in his responding or reply material. It seems to me then that if the applicant was truly and fully interested in coming to court with clean hands, he might have plainly disclosed in the first place that his misuse of alcohol resulted in a loss of life.

[18] As reflected in the applicant’s Form 35.1 parenting affidavits, the applicant father was convicted on May 20, 2021, and was sentenced to two years plus one day, followed by two years’ probation. Evidently, the applicant father served eight moths in custody, from May 20, 2021, to January 2022, when he was the subject of early release. At present, he is continuing to serve his two years’ probation.

[19] The initial evidence of the applicant father is that he now understands the effects of alcohol, that he graduated from a rehabilitation program at Brentwood Recovery Home in the summer of 2019, that he has maintained his sobriety except for only two incidents since 2019, and that he attends regular meetings to maintain his sobriety. The evidence of the applicant father does not elaborate on the “two incidents” or explain whether they involved the respondent mother or Alexander.

[20] The more detailed evidence of the respondent mother paints a somewhat different picture.

[21] The respondent mother states, quite fairly, that in the months that followed the applicant father’s release from prison in January 2022 and their subsequent move to the rental home in LaSalle, things appeared to be going well; the applicant father was on parole and undergoing regular urine testing to verify his sobriety.

[22] However, the respondent mother goes on to explain that after a period of about four months (coinciding with the expiry of his initial term of custodial sentence), the applicant father was no longer required to provide urine testing and, she says, the situation then deteriorated over time. She maintains that the applicant father was using marijuana on a daily basis and would bring it to work in his lunch bag to smoke on breaks. She also states that he was drinking alcohol, which increased in frequency over time. She summarizes that the applicant was never really 100 percent sober after the urine testing stopped.

[23] The respondent mother also states that the applicant father was verbally abusive of her mostly when he was intoxicated.

[24] The reply affidavit of the applicant father is telling. Although he never mentioned anything at all in his first affidavit about any cannabis use (apparently being content to leave the court with the impression that he has steadfastly maintained his sobriety ever since 2019, except for two undescribed incidents), now in his reply affidavit sworn July 28, 2023, delivered after the respondent mother first raised the issue of his cannabis use in her affidavit of July 27, 2023, the applicant father concedes that, “I admit I smoked cannabis and I have a prescription for cannabis,” although he denies that he used cannabis when caring for Alexander “and not while working.” [8]

[25] In the same vein, in response to the respondent mother’s evidence that the applicant has not maintained his sobriety as he first indicated in his initial affidavit and has continued to consume alcohol, increasing in frequency over time, the applicant father states in his reply affidavit that, “I admit that at times I have not maintained sobriety after Brentwood” and “I had troubles with alcoholism, but still go to meetings.” [9] Respectfully, that is not an answer.

[26] Further, I note that there is no express denial in the applicant father’s reply affidavit to the specific evidence raised by the respondent mother [10] that:

a. The respondent mother, having had contact with the applicant father’s parole officer, understands that the applicant father has attended Brentwood meetings only a couple of times since being released from prison.

b. It was part of the applicant father’s release conditions that he attend such meetings monthly.

c. The applicant father has not produced any letter or other evidence from Brentwood or his parole officer to verify his efforts to maintain sobriety.

d. The applicant father has not satisfied the requirement to attend monthly meetings at Brentwood because he does not believe that he has a substance abuse problem.

e. At different times during the parties’ marriage, the applicant father behaved in a bizarre manner, including climbing out of one of the windows in their home and running down the street in the middle of the night.

f. There were times that the applicant father was so intoxicated that he had no idea where he was and would try to get the respondent mother or his family to search for him.

[27] The father’s generalized response that he admits that at times he has not maintained sobriety, that he has had troubles with alcoholism but still goes to meetings, and that he commits – in the future – “to not being under the influence of any substance when caring for Alexander” [11] does not constitute a denial of the mother’s evidence. As such, I regard the respondent mother’s evidence in that regard to be unchallenged.

[28] The evidence of the respondent mother is that matters got much worse after the applicant father’s parole was completed on May 19, 2023. Her evidence is that on that night, while she was at work, she received a call from the police, asking her to come home because there was a fight between the applicant and his father, Mark Cesare, and someone had to care for Alexander. The evidence of the respondent mother is that prior to that call from the police, she had spoken with the paternal grandfather, and he agreed to go check on the applicant and Alexander. The evidence of the respondent mother is that the grandfather then reported to her that the applicant father was drunk even though he was supposed to be caring for Alexander.

[29] The applicant father’s reply affidavit, again, does not deny any of the respondent mother’s allegations but simply refers to his own father’s responding affidavit.

[30] Having regard for the responding affidavit of the paternal grandfather, Mark Cesare, sworn July 28, 2023, to my mind, what emerges is that:

a. Whatever specific date the incident occurred on (the paternal grandfather disputes that it was May 19, 2023), it is clear that there was an altercation, which occurred on some date, between the applicant father and his own father, the paternal grandfather. The grandfather admits that there was an “argument.”

b. It is uncontroverted that the police were called because of the altercation. The paternal grandfather says that both he and his son, the applicant father, called the police.

c. It is uncontroverted that the police attended the home in response to the altercation.

d. The paternal grandfather in his affidavit specifically denies that he told the respondent mother that his son was “drunk.” At the same time, apart from whether the grandfather actually told the respondent mother that his son was drunk, the grandfather’s evidence does not specifically deny that his son was, in fact, drunk or intoxicated. Again, the reply evidence of the applicant father does not specifically deny the respondent mother’s allegations or attest to his state of intoxication or sobriety at the time.

e. In her affidavit, the respondent mother had specifically stated that when she arrived home in response to the police request, she found that the applicant father was “verbally aggressive and tried to blame everything on me, which made no sense as I had been at work.” [12] Neither the applicant father nor the paternal grandfather challenge the respondent mother’s evidence in this regard in their respective affidavits.

f. Similarly, in her responding affidavit, the respondent mother gave specific evidence that it was clear to her that the applicant father “was intoxicated due to his demeanour and conduct.” Again, tellingly, neither the applicant father nor the paternal grandfather in their respective responding affidavits specifically deny or challenge the respondent mother’s evidence on that point.

g. In all of the circumstances, I find that the applicant father was intoxicated on the night in question involving the altercation between the applicant father and his own father.

[31] The evidence of the respondent mother is that things spiralled after the incident of May 19, 2023. Her evidence is that on Friday nights since his parole ended, the applicant father would be intoxicated and belligerent, verbally abusive towards the respondent mother, and would put their son in unsafe situations. She gave one example in particular, on the evening of Friday May 26, 2023, when she went home on her break from work, she found a number of cars in the driveway and the applicant father partying with his friends in the garage. I note the evidence of the respondent mother that the applicant father “did not seem to be drunk when I came home.” [13]

[32] In his reply affidavit, the applicant father denies that there was “a party” at the house but says that two friends were over. He states that he was not drinking or consuming cannabis that night, which is consistent with the evidence of the respondent mother that he did not seem to be drunk that night. That said, I note that the applicant father does not specifically deny the respondent mother’s general statement that on Friday nights since his parole ended, he would be intoxicated and belligerent.

[33] The evidence of the respondent mother is that on June 2, 2023, the applicant father was physically abusive to her for the first time, and he took her phone so that she could not call the police. Her evidence is that she felt unsafe for both herself and their son.

[34] The reply of the applicant father is that, under advice of his lawyers, he declines to comment on issues relating to criminal allegations against him that he is contesting in court.

[35] The evidence of the respondent mother is that she and Alexander left the matrimonial home that night and went to stay at the paternal grandmother’s home so that the situation would not escalate. Her evidence is that she told both paternal grandparents that the applicant father had been physically abusive with her and had stolen her phone so that she could not phone the police, but they did not believe her.

[36] Both paternal grandparents deny in their responding affidavits that the respondent mother ever told them that the applicant father was physically abusive towards her. That is an issue that will have to be determined at trial, if needs must.

[37] The respondent mother’s birthday is June 3rd. Her evidence is that there was a planned event on June 9, 2023, for her birthday dinner. The applicant father was working that day, but the plan was for him to come home for dinner with his family. The evidence of the respondent mother is that, without prior notice to her, and instead of coming home, the applicant father went out partying and did not return home until the next day in the afternoon. The evidence of the respondent mother is that when he came home the next day, he was extremely hungover and did not remember texting me or sending me videos.

[38] The reply affidavit of the applicant father does not address the respondent mother’s evidence on point at all. There is no denial. There is no correcting or qualifying evidence offered. As such, the respondent mother’s evidence stands unchallenged.

[39] The evidence of the respondent mother is that the June 9th incident was “the last straw for me for our marriage.” [14]

[40] On June 13, 2023, the respondent mother left the matrimonial home with Alexander and relocated to her parents’ home in Burlington, where they have been residing on a temporary basis ever since the separation.

[41] On Sunday, June 25, 2023, the applicant father sent a text message to the respondent mother, in which he stated that:

I’m sorry that I never gave you time, I’m sorry that I didn’t do my part with Alexander, I’m sorry that I didn’t give you attention that you deserve, I’m sorry I tore this family apart. I miss you so much Jess even just the dumb conversation we had. And when I went to the funeral all I could think about is I took happiness from Alexander not growing up with a family. I just want to talk and I want to be a better man and willing to change everything. I love you so much and you can put me though [sic] the ringer but I would do anything to put this family together. I’m sorry and you did nothing wrong I should of gave you so much more love and think about that every day ♥ [15] [Emphasis added.]

[42] The applicant father’s reply affidavit does not comment on or address his text message at all.

[43] The evidence of the respondent mother is that after she relocated to Burlington, she did take steps to retain legal counsel and was in the process of commencing her own court proceeding to address the parenting issues and to seek the permission of the court to have Alexander reside with her in Burlington, but she was then served with the applicant father’s emergency motion materials on July 19, 2023.

[44] The evidence indicates that as a result of the respondent mother reporting her concerns to the police, post separation, the applicant father was subsequently arrested and charged with assault, criminal harassment, and breach of probation. The respondent mother returned to Essex County on June 22, 2023, to swear a statement for the LaSalle police regarding the charges against the applicant. There are non-association conditions in place.

[45] As reflected in the applicant’s updated Form 35.1 parenting affidavit, it would appear that the applicant father has since been charged with two counts of failing to comply with his undertakings. I am advised that those additional charges were laid by the police, not the respondent mother.

[46] The applicant father denies that he has committed these charges and has retained legal counsel to defend his interests.

Alexander’s primary caregiver

[47] On the record of evidence before me, there can be no doubt but that the respondent mother has been Alexander’s primary caregiver since birth. In fairness to the applicant father and Mr. MacKay, I do not understand them to have raised any serious dispute with that self-evident reality.

[48] While the respondent mother acknowledges that the applicant father attended some medical appointments (although they disagree on the exact number he attended), there is no dispute to the respondent mother’s evidence that she attended all doctor’s appointments for their son, which she estimates to be at least twenty or more.

[49] Further, the evidence of the respondent mother is that she was the parent who attended all therapy sessions for Alexander, which she estimates to be over 50 in number as of the date of the hearing of the motions before me. Her evidence is that the applicant father attended no such therapy sessions, as he was either incarcerated, working, or otherwise engaged elsewhere.

[50] As well, the evidence of the respondent mother is that she was the parent who brought their son to the hospital and stayed with him when he was hospitalized with the COVID-19 virus for four days in September 2021. In the same vein, her evidence is that she was the parent who brought their son to hospital for treatment when he had febrile seizures.

[51] I accept the respondent mother’s evidence on these points. In his reply affidavit, the applicant father concedes, quite fairly, that the respondent mother was “the one who dealt with appointments and agree [sic] that she scheduled the appointments when she was available.” [16]

[52] In my view, it is important to keep in mind the chronology here. Alexander was born on February 28, 2021. Three months later, his father’s incarceration began on May 20, 2021. At that point, Alexander had “known” his father for less than 90 days. The applicant father was incarcerated from May 20, 2021, until January 2022, and as such, for essentially the first year of his life, Alexander would have had very limited contact with his father.

[53] The evidence of the respondent mother describes the pattern of contact between Alexander and his father in the months that followed the father’s release from custody in January 2022 until her relocation with Alexander in June 2023.

[54] While the applicant father alleges that the respondent mother downplays his involvement in Alexander’s life, I do not share that view. The evidence speaks for itself.

[55] The evidence before me indicates that Alexander was born on February 28, 2021; that his father was incarcerated starting May 20, 2021; that his father was released in January 2022; that when he was released from incarceration, the applicant father was working most of the time; that, in particular, from May 2022 to May 2023, the applicant father was working three jobs, including landscaping at Giant Tiger, Heavenly Rest Cemetery, and Essex Metals; that in May 2023, he stopped working at Giant Tiger but was still working for Essex Metal, midnight shift, and for Heavenly Rest doing landscaping full-time days, Monday to Friday.

[56] The point of the respondent mother is that the applicant was gone most nights, then went to his daytime job, and would then usually sleep in the late afternoon/evening before he went back to his midnight shift.

[57] Consistent with the evidence of the respondent mother, the applicant father states that he quit one job before the respondent mother left the home, and that he subsequently quit a second job (for unexplained reasons), such that he now works only for Essex Metals on the day shift.

[58] In sum, on the evidence before me, I find that the respondent mother has always been Alexander’s primary caregiver.

[59] From the time the parties started living together in 2020, they were residing with the paternal grandmother, Trisha Cesare. Following Alexander’s birth and release from hospital, they continued to reside with the paternal grandmother and, with the applicant’s incarceration commencing in May 2021, the respondent mother and Alexander continued to reside with the paternal grandmother.

[60] Subsequent to the applicant’s release from custody in January 2022, the applicant father, respondent mother, and Alexander moved out of the grandmother’s home in March or April 2022, and moved into a residence that they rented at 1250 Eastbourne Avenue in LaSalle. This rental home is owned by Cesare Enterprises Inc., which is the holding company of the paternal grandfather, Mr. Mark Cesare.

Issues

[61] The primary issue arises out of the respondent mother’s relocation of Alexander to Burlington and gives rise to the question of whether the child should remain in Burlington or whether he should be returned to Essex County.

[62] The secondary issue, which depends on the determination of the primary issue, involves the parenting time schedule for Alexander.

Governing Legal Principles

[63] There is no disagreement between counsel for the parties as to the governing legal principles here.

[64] Mr. Frank made extensive reference to the recent decision of Ricchetti R.S.J. in Tariq v. Khan, 2022 ONSC 1167, [17] which thoroughly canvassed the relevant legal principles emanating from both the statutory provisions of the Divorce Act [18] and the case law, as follows:

The Statutory Provisions

66. Section 16 of the Divorce Act provides:

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

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

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

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

(d) the history of care of the child;

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

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

(g) any plans for the child’s care;

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

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

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

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

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

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

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

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

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

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

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

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

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

(h) any other relevant factor.

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.

67. Section 16.9 of the Divorce Act provides:

16.91 (1) A person who has given notice under section 16.9 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

16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,

(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 a pending application for a parenting order 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 complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;

(e) the existence of an order, arbitral 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 parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and

(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

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

16.93 (1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage 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.

(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their 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.

(3) 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.

16.94 A court may decide not to apply subsections 16.93(1) and (2) if the order referred to in those subsections is an interim order.

16.95 If a court authorizes the relocation of a child of the marriage, it may provide for the apportionment of costs relating to the exercise of parenting time by a person who is not relocating between that person and the person who is relocating the child.

68. The court has jurisdiction under s. 16.1 of the Divorce Act to make interim orders, which includes an interim order permitting a party to relocate with a child and to impose conditions on such a relocation. See s. 16.1(7) of the Divorce Act.

The Caselaw

70. The applicable law on temporary relocation motions was recently summarized by J. Coats in Arabi v. Al Sahnawi, 2021 ONSC 6124:

[18] The legal principles applicable to temporary motions on mobility (now called relocation) are set out at paras. 31 to 33 of Abbas v. Ayoade, 2020 ONSC 5821, as follows:

[31] The legal principles applicable to interim motions on mobility are well settled and are outlined in Plumley v. Plumley, 1999 ONSC 13990 where the court stated at para. 7:

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

1. A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.

2. There can be compelling circumstances that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.

3. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at a trial.

[32] In Geoffrion v. Bélanger, 2017 ONSC 5349 the court referred to Datars v. Graham, 2007 ONSC 34430, 41 RFL (651), where the court stated at para. 16:

The problem that this court faces on this motion, however, as McSorley J. observed in Kennedy, is that it is difficult if not impossible in most cases to complete the extensive child-focused inquiry required under Gordon v. Goertz on the typically conflicting and incomplete affidavit evidence that is often available to the court on interim motions. Consequently, the general reluctance of the court to effect fundamental changes in a child’s lifestyle on interim motions has resulted in a slightly more restrictive approach to interim mobility cases, one that recognizes the short-term nature of interim orders and the summary nature of interim motions. As well, since the decision on an interim motion in a mobility case will often strongly influence the final outcome, particularly where relocation is permitted, caution is called for, especially since even more disruption may be caused in a child’s life if an interim order permitting the move is later reversed after trial: Downey v. Sterling, [2006] O.N.C.J. 490; Goodship v. McMaster, 2003 ONCJ 53670, [2003] O.J. No. 4255 (Ont. C.J.).

[33] Recently Akbarali J. reviewed the law on interim mobility motions in Yenovkian v. Gulian, 2018 ONSC 5331. Considering all the circumstances of that case, and in the best interests of the children, the mother was permitted to move with the children back to England on a temporary basis pending trial of the custody and access issues in Ontario. The court considered, inter alia, the following in permitting the move:

(a) the evidence of the mother had been the children’s primary caregiver;

(b) the father had exercised less access than he could have and that was available to him;

(c) the mother had an appropriate interim plan for the care of the children, whereas there was an absence of any workable plan put forward by the father for the children;

(d) the mother did not have permanent legal status in Canada, she had visitor’s status only which was about to expire;

(e) allowing the move would be less disruptive to the children.

[19] At para. 26 of Boudreault v. Charles, 2014 ONCJ 273, Justice Sherr set out additional principles to be applied regarding temporary relocation cases:

[26] The following are additional principles regarding temporary relocation cases:

a) The burden is on the parent seeking the change to prove compelling circumstances exist that are sufficient to justify the move. See: Mackenzie v. Newby, [2013] O.J. No. 4613 (OCJ).

b) Courts are generally reluctant to permit relocation on a temporary basis. The decision will often have a strong influence on the final outcome of the case, particularly if the order permits relocation. The reality is that courts do not like to create disruptions in the lives of children by making an order that may have to cause further disruption later if the order has to be reversed. See: Goodship v. McMaster, 2003 ONCJ 53670, [2003] O.J. No. 4255 (OCJ).

c) Courts will be more cautious about permitting a temporary relocation where there are material facts in dispute that would likely impact on the final outcome. See: Fair v. Rutherford-Fair, 2004 CarswellOnt 1705 (Ont. S.C.J.). In such cases, the court requires a full testing of the evidence. See: Kennedy v. Hull, [2005] ONCJ 275.

d) Courts will be even more cautious in permitting a temporary relocation when the proposed move involves a long distance. It is unlikely that the move will be permitted unless the court is certain that it will be the final result. See my comments in: Downey v. Sterling, 2006 ONCJ 490, [2006] O.J. No. 5043 (OCJ) and Costa v. Funes, [2012] O.J. No. 3317 (OCJ).

e) Courts will be more cautious in permitting a temporary relocation in the absence of a custody order. See: Mackenzie v. Newby, supra.

f) Courts will permit temporary relocation where there is no genuine issue for trial (see: Yousuf v. Shoaib, [2007] O.J. No. 747 (OCJ)), or where the result would be inevitable after a trial (see: Mackenzie v. Newby, supra, where the court observed that the importance of the father’s contact with the child could not override the benefits that the move would have on the child).

g) In assessing whether the three considerations in Plumley, the court must consider the best interest factors set out in subsection 24 (2) of the Children’s Law Reform Act (the Act) and any violence and abuse in assessing a parent’s ability to act as a parent as set out in subsections 24 (3) and (4) of the Act as well as the leading authority on mobility cases, Gordon v. Goertz, 1996 SCC 191, [1996] 2 S.C.R. 27 (S.C.C.). The law is summarized in paragraphs 49 and 50 of that case as follows:

49 The law can be summarized as follows:

a) The inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

b) The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.

c) Each case turns on its own unique circumstances. The only issue is the best interests of the child in the particular circumstances of the case.

d) The focus is on the best interests of the child, not the interests and rights of the parents.

e) More particularly, the judge should consider, inter alia:

1. the existing custody arrangement and relationship between the child and the custodial parent;

2. the existing access arrangement and the relationship between the child and the access parent;

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

4. the views of the child;

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

6. disruption to the child of a change in custody;

7. disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

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

h) These principles apply with necessary modifications to an initial consideration of custody and access and not just to a variation of access. See: Bjornson v. Creighton (2002), 2002 ONCA 45125, 31 R.F.L. (5th) 242 (Ont. C.A.).

i) The financial security of the moving parent is a relevant factor in mobility cases. See: Greenfield v. Garside, 2003 ONSC 53668, 2003 CarswellOnt1189 (Ont. SCJ).

j) Several cases have recognized that requiring a parent to remain in a community isolated from his or her family and supports and in difficult financial circumstances will adversely impact a child. The economic and financial benefits of moving to a community where the parent will have supports, financial security and the ability to complete their education and establish a career are properly considered in assessing whether or not the move is in the child’s best interests. See: MacKenzie v. Newby, supra, paragraph 53, where in paragraph 54, Justice Roselyn Zisman also accepted the following passages from Lebrun v. Lebrun, [1999] O.J No. 3393 (SCJ) where the court wrote at paragraphs 32-34 as follows:

32 The children’s need for shelter, food and clothing which could be provided by adequate earnings by the mother must take priority over the disruption of a move, and reduced contact with the father and his family. The intellectual and emotional flowering of these children cannot occur until their basic physical needs are met.

33 The economic realities require that the mother be free to pursue employment which will permit her to escape the welfare rolls. I am confident she will manage the move in a way which promotes the children’s best interests.

34 An order restricting the residence of the children would, as in Woods v. Woods, (1996) 1996 MBCA 18119, 110 Man. R. (2d) 290 C.A., condemn the mother and children “to a life of penury with a dissatisfied [mother] bereft of work and dignity. The alternative is to empower the [mother] to improve their lives from both a material and psychological standpoint.” While the security of the positions offered to the mother cannot be assured, I am satisfied that the prospects of good, full-time employment are much better in southern Ontario. Leave is granted to the mother to move the residence of the children within Ontario.

k) There is case law that says that if a primary caregiver is happier, this will benefit the child. See: Del Net v. Benger, 2003 CarswellOnt 3898 (Ont. SCJ).

l) The level of co-operation that the moving parent will provide in facilitating access to the other parent is also a relevant consideration in a mobility application. See: Orrock v. Dinamarea, 2003 CarswellBC 2845 (B.C.S.C.).

[20] Where an interim move will not materially interfere with the ability of a party to exercise access, then a court will be more likely to accept an interim move. (Schlegal v. Schlegal, 2016 ONSC 4590, at para. 25 and M.K. v. J.K., 2020 ONCJ 387, at para.44.)

[21] In Konkin v. Aguilera, 2010 ONSC 4808, at para. 27, Justice Corbett addressed the concerns courts have in allowing temporary relocations:

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

[22] Konkin was relied upon in Ricketts-Shastry v. Shastry, 2020 ONSC 4862.

[23] In Bell v. Palma, 2019 ONCJ 582, the court permitted a temporary move from Toronto to Barrie where there was agreement on the most important facts material to the decision, there was no disagreement about the time the child had spent with each party or about the positive quality of the child’s relationship with each party. Further, if the trial judge does not make a final order approving the move, the residential status quo could easily be restored.

[65] As referenced above, Mr. MacKay agreed with Mr. Frank’s “careful recitation of the law.”

[66] I would also note that s. 16.9(3) of the Divorce Act provides that:

Despite subsections (1) and (2), the court may, on application, provide that the requirements in those subsections, or in the regulations made for the purposes of those subsections, do not apply or may modify them, including where there is a risk of family violence.

[67] I am guided by these governing principles here.

Analysis

The respondent mother’s relocation of Alexander to Burlington

[68] To be clear, and even though the point was not raised in argument or placed in issue, the respondent mother’s move to Burlington should be viewed as a “relocation” within the meaning of ss. 16.9 - 16.95 of the Divorce Act and not simply a “change in place of residence” within the meaning of s. 16.8.

[69] It is common ground here that, consistent with s. 16.93(3) of the Divorce Act and the caselaw on point, the respondent mother has the burden of proving whether the relocation of Alexander to Burlington is in his best interests.

[70] In deciding whether to authorize the relocation of Alexander to Burlington, I have taken into consideration, in order to determine what is in the best interests of Alex, inter alia, the factors enumerated in s. 16.92(1) of the Divorce Act.

Reasons for the relocation

[71] Paragraph 16.92(1)(a) of the Divorce Act requires the court to take into consideration the reasons for the relocation. More generally, s. 16(3)(j) requires the court to consider, in determining the best interests of the child, whether there has been any family violence.

[72] The evidence of the respondent mother is that on June 2, 2023, the applicant father was physically abusive for the first time and took her cell phone so that she could not call the police. I do not agree with Mr. MacKay’s perspective that the alleged family violence consisted solely of the father’s alleged taking of the mother’s phone, but I do agree with Mr. MacKay that the evidence of the respondent mother does not provide any particulars of the alleged family violence in question. The court really just has the bald allegation that there was some act (or acts) of physical abuse on June 2, 2023, but no details of the alleged family violence are provided – and the respondent mother bears the onus here.

[73] That said, I do not understand the position of the respondent mother to be that she decided to just up and relocate solely because of the alleged physical abuse of June 2, 2023. Rather, properly understood, the evidence of the respondent mother speaks to a pattern of deteriorating circumstances in the relationship, which would seem to involve, inter alia, the applicant father’s substance abuse, his erratic behaviour, his inattention to the needs of his wife and family (hence his text message of June 25, 2023: “I’m sorry that I never gave you time. … I’m sorry I tore this family apart.”), and his inattention to the needs of Alexander (hence his text message: “I’m sorry that I didn’t do my part with Alexander. … I took happiness from Alexander not growing up with a family.”)

[74] Further, I am concerned about what I find to be the failure of the applicant father to be candid and transparent with this court and, in particular, his failure to be candid and transparent about his sobriety.

[75] Moreover, it is clear the respondent mother has essentially no support in Essex County. Her evidence is that she had been residing in the Windsor area since 2011 when she came here for her post-secondary education. However, she does not have any family in the Windsor area, and all of her family support lies in the Burlington area. Hence her decision to relocate to Burlington, where she has been staying at the home of her parents in Burlington on a temporary basis.

[76] I do not think it is reasonable to suggest that the respondent mother has sufficient support in Essex County by reason of the paternal grandparents. There is no dispute that the applicant father and respondent mother and Alexander resided with the paternal grandmother for an extended period of time. Indeed, the respondent mother acknowledges the support she and Alexander received from the paternal grandmother.

[77] However, it is also clear that the respondent mother does not feel that the applicant father’s parents are supportive of her concerns regarding their son’s behaviour. Beyond the fact that each of the paternal grandparents deny that the respondent mother ever told them about any physical abuse by their son as alleged by the respondent mother – who steadfastly maintains that she did in fact tell them both – it seems plain that the paternal grandparents are not going to be any source of real support in the eyes of the respondent mother. Her evidence is as follows:

I do not feel safe living in Windsor due to Jacob’s bizarre behaviours, and his drug and alcohol abuse. I confided in Trisha and Mark several times about these behaviours and did tell them that he was physical with me on June 2, 2023 and they did not believe me and would change the subject. Trisha even rolled her eyes at me when I told her, because she did not believe me that night. I do not feel safe in Windsor due to the applicant and due to his family not taking me and concerns about their son seriously. In addition, with the housing market in Windsor, I have doubts about being able to find my own residence in two months. [19]

[78] To my mind, the evidence of the paternal grandfather is consistent with the position of the respondent mother. The evidence of the paternal grandfather is that he had expressly told the respondent mother that he “is not getting involved in your relationship with Jacob. I do not take sides between my sons and their partners.” [20] From a certain perspective, one can appreciate that there may be some merit to the grandfather’s stance. However, given his stated position, one can also appreciate why the respondent mother would perceive that the grandfather is not going to support her in her concerns. As he said in his own evidence, he does not take sides. It is not reasonable to expect the respondent mother would find any support with the paternal grandfather.

[79] I would also note that, as the respondent mother highlighted, the majority of the applicant father’s family also lives in the Burlington and Niagara area, including his grandparents, aunts, uncles, and cousins. The respondent mother states that they have visited his family in these areas in the past. Neither the applicant father, paternal grandmother or paternal grandfather disputed, challenged, corrected or qualified the respondent mother’s evidence in their own affidavits. Indeed, in the applicant father’s first affidavit, he spoke of how he attended a family funeral in Burlington the week after the parties separated. [21]

[80] I appreciate that the paternal grandfather has made the offer that he is willing to allow the respondent mother and Alexander to remain in the previous home that the parents were renting, which is owned by the grandfather’s holding company. However, that offer is time-limited. The paternal grandfather has said that his daughter-in-law and grandson may stay in the home for just two months. In the absence of any evidence from the grandfather indicating that the home has otherwise been rented out to third parties or that there is some valid, non-arbitrary reason for the 60-day cap – and there is no such evidence before me – I then regard the grandfather’s evidence as just further support for the validity of the perspective of the respondent mother that the support she may expect to receive from the paternal grandparents is limited.

[81] The alternative, assuming the respondent mother were made to return to Essex County with Alexander, is reflected in the respondent mother’s evidence, as follows:

I do not have any place to stay in Essex County. The matrimonial home is in the name of the Applicant’s father, so that is not an option. I do have some friends in Windsor but they are young adults that live in one bedroom apartments and do not have room for Alexander and [me]. With no family or personal options and the limited available housing, I would have to stay at a place such as Hiatus House if the Court orders Alexander to be returned to reside in Essex County. [22]

[82] I conclude that the respondent mother had valid parenting and relationship reasons for relocating from Essex County to the Burlington area.

Impact of the relocation on the child

[83] Alexander was just 27 months of age at the time of his parents’ separation. He will turn three years of age at the end of next month. Obviously, he is not yet of school age.

[84] As such, this is not a case where the child has been forced to undergo the significant disruption that can occur by reason of a mid-year change of schools as a result of the relocation.

[85] That said, an obvious cause for concern is the ongoing plan of care for Alexander given his special needs.

[86] To my mind, on the evidence before me, it appears that the respondent mother has been quite proactive and attentive in putting in place continuing supports for Alexander’s ongoing needs. Her evidence is that, prior to the relocation, she reached out to her parents, the police in Windsor, and Ms. Julie Bially from the John McGivney Centre to come up with a safe relocation plan.

[87] The respondent mother continued her contact with personnel from John McGivney Centre concerning Alexander’s treatment, and they set up virtual meetings to check on his progress. She continues to do exercises with Alexander as taught to her by the therapists at John McGivney. Personnel from John McGivney have been assisting the respondent mother and made contact with ErinoaksKids, a large children’s treatment centre in the Halton Region, and they have set up transfer services for physiotherapy, occupational therapy, and speech therapy for Alexander.

[88] In her last affidavit, the respondent mother reported that Alexander has been doing well, and she received a call from ErinoaksKids advising that an appointment was made for Alexander in September 2023 for him to start physiotherapy, occupational therapy, and speech therapy following his transfer from John McGivney.

[89] There is no evidence before me from the applicant father or otherwise to suggest that these sorts of changes in support services from John McGivney in Windsor to ErinoaksKids in Halton Region will have any deleterious effects on Alexander if his relocation is authorized.

[90] Indeed, as Alexander was still on a wait list for speech therapy in Windsor, his ability to start speech therapy sooner at ErinoaksKids would seem to present a distinct, significant advantage.

Time spent with each person with parenting time

[91] Paragraph 16.92(1)(c) of the Divorce Act requires the court to take into consideration 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.

[92] As I have outlined above, there can be no doubt on the evidence before the court that the respondent mother has always been Alexander’s primary caregiver.

[93] On the other hand, that is not to say that the applicant father had no involvement in Alexander’s life. And while I appreciate that there is a dispute between the parties as to the extent of his involvement, in my view, given primarily his eight-month incarceration, the fact remains that the applicant father was physically “gone” for most of Alexander’s first year of life. Even upon his early release in January 2022, the evidence of both parties is that the applicant father continued to work three jobs until May 2023 – the month before the parties’ separation.

[94] I also appreciate that the respondent mother had her own work responsibilities and, of necessity, spent time away from Alexander. The respondent mother is a Registered Practical Nurse and was working at Windsor Regional Hospital at the Hotel Dieu Grace campus on a part-time basis. Following Alexander’s birth, she was on maternity leave until she returned to work on March 1, 2022, two months following the applicant father’s release from prison. Generally speaking, she was working on alternate weekends on Friday night, Saturday and Sunday, as well as some weekday shifts; she was working eight or nine shifts on a biweekly basis.

[95] The respondent mother acknowledges that the applicant father would take care of Alexander on Friday nights and those Saturday and Sundays when she was at work. She also acknowledges that at those times when both the applicant father and respondent mother were working, the paternal grandmother would watch over Alexander at her home.

[96] However, on the evidence before me, it is clear that the two parents did not share parenting time of Alexander on an equal basis (or anything approaching an equal basis). The respondent mother remained the primary caregiver throughout.

Compliance with notice requirements and court orders

[97] As referenced above, at the outset of his submissions, Mr. Frank conceded that the respondent mother failed to give advance notice of the relocation, either in compliance with the provisions of s. 16.9 of the Divorce Act or otherwise.

[98] I note that the respondent mother did not have the benefit of legal representation at the time of the parties’ separation and her relocation. [23]

Existence of any orders or agreements specifying the geographic area of the child’s residence

[99] As this proceeding was commenced on July 20, 2023, after the parties’ separation and the mother’s relocation on June 14, 2023, and has not yet reached the stage of a case conference, there are no court orders – temporary or final – that specify the geographic area in which Alexander is to reside. Similarly, there is no arbitral award, domestic contract, or other agreement between the parties that specifies the geographic area of the child’s residence.

Reasonableness of the proposal of the parent who intends to relocate the child

[100] Paragraph 16.92(1)(f) of the Divorce Act requires the court to take into consideration the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses.

[101] In his oral submissions, Mr. Frank expressed the respondent mother’s willingness to continue the interim interim parenting arrangements under the order of Leach J. dated July 31, 2023, which provides the applicant father with parenting time with Alexander on alternative weekends, to take place at the home of the paternal grandmother. In qualification of that position, Mr. Frank advises that the respondent mother has concerns about the paternal grandmother conducting the supervision and the transportation issue.

[102] However, fundamentally, the respondent mother’s plan involves the applicant father having parenting time with Alexander on alternate weekends in accordance with the order of Leach J. of July 31, 2023. To my mind, that is consistent with the expressed preference of the respondent mother that she supports “Alexander having a relationship with his father and paternal family so long as he is safe.” [24]

[103] I have already reviewed, above, the respondent mother’s plan for the continuing care of Alexander’s special needs. In view of that evidence, I find that the respondent mother has provided a reasonable plan for the continued accommodation of Alexander’s special needs. As referenced above, Alexander’s apparent ability to commence speech therapy at ErinoaksKids presently represents a significant advantage compared to him continuing to linger on the wait list at the John McGivney Centre in Windsor.

[104] The respondent mother also outlined her employment plans. While the respondent mother remains on a leave of absence from her position at Windsor Regional Hospital, given her housing prospects in Windsor, and the lack of familial and other social supports there, taking up employment in Windsor does not seem like a viable or reasonable option.

[105] In contrast to the situation in Windsor, the respondent mother has explained that she has looked for work in the Burlington area and has secured employment with Plan A, which is a staffing agency to provide fill-in support at nursing homes. The plan is that the respondent mother would work 8-hour shifts a minimum of four shifts per month and potentially up to full-time hours. The evidence of the respondent mother is that she will have flexibility in her work schedule such that she will be able to accept or deny any shift so long as she meets the minimum monthly shift requirement.

[106] In her most recent affidavit, the respondent mother further explains that, while still technically an employee of Hotel Dieu Grace Healthcare in Windsor, she has now obtained employment at Joseph Brandt Hospital in Burlington, which, she says, is about a five-minute drive from her parents’ residence. The respondent mother advises that she has been hired for a part-time position and has been going through orientation.

[107] She explains that her father is retired and both of her parents, as well as other family members, will be available to assist with any necessary childcare. The respondent mother further explains that she has extensive positive family supports in the Burlington area, which includes her parents, her aunt, her uncle, and two sets of cousins. Additionally, her best friend lives within a ten-minute drive from her parents’ residence.

[108] The applicant father questioned the suitability of the respondent mother’s housing accommodations at her parents’ home in Burlington. In response, the evidence of the respondent mother, which I accept, is that there is more than enough space in her parents’ home on a temporary basis. She maintains that the living space is not crowded and that, currently, Alexander is sleeping in his crib, and she is sleeping in her bed, as they are currently sharing a room together. She has made arrangements to store a portion of her belongings in a storage locker. The evidence of the respondent mother is that she feels safe and supported living temporarily with her parents, and her plan is to get her own place if the court authorizes the relocation to the Burlington area.

[109] Obviously, the distance between the applicant father in the Windsor area and the respondent mother in the Burlington area will have an impact on their circumstances and those of Alexander. As referenced above, the trip between the two homes is at least three hours. That is a significant distance and a significant consideration.

[110] That said, I have considered the applicant father’s alternative plan, which, in my view, in all of the circumstances, does not represent a realistic option for the respondent mother, Alexander’s primary caregiver.

[111] Despite the considerable distance between Windsor and the Burlington areas, I find that the respondent mother has presented a reasonable plan for the relocation of Alexander.

Compliance with existing court orders

[112] Paragraph 16.92(1)(g) of the Divorce Act requires the court to take into consideration whether each person who has parenting time or decision-making responsibility has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

[113] In Apa v. Vagadia, 2022 ONSC 2095, Trimble J. explained the significance of this factor as follows:

Under this factor, the court must look at compliance with all orders under all family law legislation, not merely parenting orders …

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. [25]

[114] Although the applicant father has been charged with two counts of failing to comply with his undertakings to the court, the focus of s. 16.92(1)(g) is on orders made in the family law context and, in any event, the applicant father is entitled to the presumption of innocence in respect of those outstanding charges.

[115] The only court order made in the family law context is the interim interim order of Leach J. dated July 31, 2023. As of the date of the hearing of the motions before me, the applicant father had two alternate weekend visits with Alexander, and, as the respondent mother said, to her knowledge, “the visits themselves … appeared to have gone well.” [26]

[116] While there was some difficulty in the exchange of the initial visit, [27] the respondent mother had some communication with the paternal grandmother and the parties agreed to meet at a neutral location for future exchanges to avoid further difficulties. The evidence indicates that the exchange on the second visit proceeded without incident.

[117] Given the parties apparent ability to work constructively together to ensure compliance with the interim interim parenting order of Leach J., I am confident that both parties will continue to comply with their respective obligations under any court order.

Conclusion

[118] As reflected in the governing legal principles emanating from the above review of the relevant caselaw, I am well aware that the courts should be very cautious about permitting temporary relocations.

[119] However, after considering all of the relevant factors, including, in particular, those enumerated in s. 16.92(1) of the Divorce Act, I am satisfied that the respondent mother has met her onus of demonstrating that the relocation of Alexander from Essex County to the Burlington area is in the child’s best interests.

[120] The reality is that, as Mr. MacKay himself observed, there is no perfect solution available here.

[121] My conclusion here is based primarily in the fact that the respondent mother has always been Alexander’s primary caregiver and there is clear evidence of deteriorating circumstances with the applicant father and its consequent impact on the parties’ relationship and the best interests of Alexander. Comparatively speaking, the applicant father’s parenting time has been much more limited. It would clearly be far too great a change to make the applicant father the primary caregiver for Alexander, and to order the respondent mother to return to Essex County where she has no familial and limited social supports, as well as extremely limited if not untenable housing options, would simply not serve Alexander’s best interests. Conversely, the mother’s plans for him in the Burlington area clearly present as reasonable and in Alexander’s best interests.

[122] Moreover, I note that both the respondent mother and the applicant father continue to have close familial connections to the Burlington area and its environs.

Appropriate parenting time schedule for Alex

[123] As I have determined that the court’s authorization of Alexander’s relocation to the Burlington area is in the child’s best interests, the question then arises as to the applicant father’s parenting time with Alexander.

[124] Again, I am very much conscious of the fact that the parties have not yet proceeded to a case conference.

[125] Mr. Frank advises that, subject to certain qualifications, the respondent mother is willing to continue the interim interim parenting arrangements under the order of Leach J. dated July 31, 2023. As I have reviewed, that temporary order provided the applicant father with parenting time with Alexander every other weekend, to be exercised at the home of the paternal grandmother.

[126] In my view, at least until the issue of parenting time can be further explored at a case conference, it remains in the best interests of Alexander that the parties continue to abide by the interim interim parenting arrangements under the order of Leach J. dated July 31, 2023; and it is so ordered.

[127] I appreciate that mid-week visits with the applicant father have been an issue for the applicant and remain in dispute. I would defer further consideration of that issue to the case conference. Moreover, if there is to be no mid-week access by the applicant father on a regular schedule basis, perhaps they parties might pursue discussion at the case conference of whether the applicant father, in lieu of (even if not a strict day-for-day replacement basis) should have extended time with Alexander during the summer months or other extended breaks in the applicant father’s work schedule. That is something that, to my mind, might be discussed at the case conference. It is not appropriate to make it the subject of a court order at this juncture on the record before me.

[128] I also appreciate that the respondent mother has misgivings about the paternal grandmother or the applicant father’s family supervising his parenting time. While I appreciate the perspective of the respondent mother and I understand why she would have misgivings, at the same time, I am not satisfied that she has met her (considerable) onus of demonstrating why the parenting time of the applicant father must be supervised at the supervised access centre. I would deny the respondent mother’s request in this regard.

[129] The applicant father raised the question of the child exchange location, asking that if the relocation motion of the respondent mother is allowed, the respondent mother should be required to pick-up and drop-off Alexander in Windsor, as he does not have a driver’s licence.

[130] In response, the respondent mother gave evidence that the applicant father does have his G1 driver’s licence and he did have a scheduled G2 test booked for June 6, 2023, but did not attend to complete it; that, as she previously noted, the applicant father has a number of relatives that reside in the Burlington area and the applicant father and/or his mother visit those relatives on a regular basis; that the respondent mother has a G2 licence herself but has not driven on a major highway; and that she relies on her father and/or other persons to assist her with the transportation of Alexander on the 400 series highways.

[131] Having found that it is in the best interests of Alexander that he be permitted to be relocated to the Burlington area, in my view, it is now incumbent on both parents to facilitate his parenting time, and that means his transportation to and from exchanges. The respondent mother suggests that the parties or their privies meet in London at the Ontario Provincial Police station that is just off the Highway 401 exit at the Exeter/Wellington Road exits. She explains that this is close to halfway between Windsor and Burlington, and there are many restaurants and other service establishments within a short drive of the OPP station. I agree with the respondent mother that her proposal is reasonable and would eliminate the other side having to do the full drive both ways, which is about three ways each way.

[132] That said, I appreciate that the applicant father may view my decision as requiring him to drive or arrange for a drive of an additional one or two hours in length to London for him to exercise his parenting time with Alexander. I appreciate that, from the applicant father’s perspective, that would appear true.

[133] But from the court’s perspective, having found that it is in the best interests of Alexander that the respondent mother be permitted to relocate with him to the Burlington area, that same court order is requiring the respondent mother to drive or arrange for a drive of an additional one or two hours in length to London in order to facilitate the applicant father’s parenting time with Alexander.

[134] I note that both parties have each raised some objection, on the basis of their restricted licensing status and/or experience with the 400 series highways in Ontario, with transporting Alexander to his required parental exchanges. At present, the applicant father is 29 years of age. At present, the respondent mother is 31 years of age. I would suggest to them both, respectfully, that it is time for them each to take the necessary steps so as to ensure that, one way or the other, they remain at the ready to fulfill their parenting obligations to Alexander and facilitate the parenting time entitlements of the other parent.

Conclusion

[135] In the result, para. 2 of the respondent mother’s motion (notice of motion dated July 27, 2023) is allowed, and there shall be a temporary order, nunc pro tunc, exempting the respondent mother from compliance with the notice requirements under s. 16.9(1) of the Divorce Act and authorizing the respondent mother’s relocation of Alexander from Essex County to the Burlington area.

[136] As a corollary to the authorized relocation of Alexander to the Burlington area, the applicant father shall continue to have parenting time with Alexander in accordance with the interim interim order of Leach J. dated July 31, 2023, as varied as follows:

a. The parties shall agree upon the specific times of day for the drop-off and pick-up exchanges of Alexander.

b. The said exchanges shall take place at the Ontario Provincial Police station located at 823 Exeter Road, London, Ontario, N6E 1W1, that is, the said police station that is located just off the Highway 401 exits for Exeter/Wellington Roads, or such other location as the parties may agree.

[137] No party shall consume alcohol, cannabis, or any “controlled substance” as defined in the Controlled Drugs and Substances Act [28] during their scheduled parenting time with Alexander and for the 12-hour period preceding the start of their said parenting time.

[138] The balance of the applicant father’s motion (notice of motion dated July 20, 2023) is adjourned sine die.

[139] Counsel for the parties shall arrange, through the Trial Coordination Office, for a date to be scheduled for the case conference in this matter.

[140] To be clear, there shall be no decision-making responsibility order made in respect of Alexander in advance of the case conference, unless agreed upon by the parties.

[141] Although the respondent mother was the successful party on the motions before me, and costs should usually follow the event, given the respondent mother’s admitted failure to comply with the notice requirements under s. 16.9 of the Divorce Act, the respondent mother should be disentitled to her costs. As such, there shall be no order as to costs.

J. Paul R. Howard Justice

Date: January 2, 2024

[1] The applicant father states that he and the respondent started living together in July 2020. The respondent mother maintains that they commenced cohabitation on September 1, 2020.

[2] The applicant father states that the parties were married on September 28, 2020. Although not filed on the motions before me, a copy of the parties’ marriage certificate was filed with the court and indicates that they were married on September 26, 2020. Our Court of Appeal has held that a motion judge is entitled to take judicial notice of what is in the court file: Wallbridge v. Brunning, 2018 ONCA 363, 422 D.L.R. (4th) 305, at para. 18, leave to appeal to S.C.C. refused, , 2019 CarswellOnt 568.

[3] Children’s Law Reform Act, R.S.O. 1990, c. C.12.

[4] Family Law Rules, O. Reg. 114/99.

[5] Affidavit of Jacob Tyler Cesare sworn July 19, 2023 (“Father’s Initial Affidavit”), at para. 4.

[6] Ibid., at para. 5.

[7] Affidavit of Jessica Christine Cesare sworn July 27, 2023 (“Mother’s Responding Affidavit”), at para. 10.

[8] Affidavit of Jacob Tyler Cesare sworn July 28, 2023 (“Father’s Reply Affidavit”), at paras. 5 and 7. It is not clear whether the applicant’s latter statement that he does not use cannabis “while working” is meant to deny the respondent’s evidence that he used cannabis on his work breaks, at which times, strictly speaking, he would not be working.

[9] Ibid., at para. 7.

[10] See Mother’s Responding Affidavit, at para. 25.

[11] Father’s Reply Affidavit, at para. 7.

[12] Mother’s Responding Affidavit, at para. 19.

[13] Ibid., at para. 21.

[14] Ibid., at para. 23.

[15] Ibid., at Exhibit “A”.

[16] Father’s Reply Affidavit, at para. 2.

[17] Tariq v. Khan, 2022 ONSC 1167, [2022] O.J. No. 827 (S.C.J.), at paras. 66-70.

[18] Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).

[19] Affidavit of Jessica Christine Cesare sworn July 31, 2023 (“Mother’s Reply Affidavit”), at para. 10.

[20] Affidavit of Mark Cesare sworn July 28, 2023, at para. 3.

[21] Father’s Initial Affidavit, at para. 28.

[22] Mother’s Responding Affidavit, at para. 27.

[23] See Mother’s Responding Affidavit, at para. 26.

[24] Mother’s Responding Affidavit, at para. 33.

[25] Apa v. Vagadia, 2022 ONSC 2095 (S.C.J.), at paras. 118-119. See also N.F. v. S.G., 2023 ONSC 2644 (S.C.J.), at para. 86.

[26] Affidavit of Jessica Christine Cesare sworn August 29, 2023, at para. 2.

[27] Ibid., at para. 3, where the respondent mother explains that the applicant father was present at the time of the exchange when the respondent mother attended at the home of the paternal grandmother to pick up Alexander on the first visit, which led to the applicant father being charged with failure to comply with his undertaking. But see Affidavit of Trisha Cesare sworn August 31, 2023, at para. 2, where the paternal grandmother explains that the respondent mother arrived five minutes early for Alexander’s pickup on the first visit.

[28] Controlled Drugs and Substances Act, S.C. 1996, c. 19.