Court File and Parties

Court File No.: Halton 321/17 Date: 2017-09-08 Ontario Court of Justice

Between: Albert Monachese, Applicant

— And —

Priscilla Madill, Respondent

Before: Justice Victoria A. Starr

Motion and Cross-motion Heard on: August 30, 2017

Order Made and Draft Reasons for Decisions on Motions: Released on September 7, 2017

Final Reasons: Released on September 8, 2017

Counsel:

• C. Haber, for the Applicant
• M. Cox, for the Respondent

VICTORIA STARR J.:

Introduction

[1] The applicant father brought a motion for an order restraining the respondent mother from removing the child from the province of Ontario and from moving the child's residence, without a court order or his written consent.

[2] The mother brought a cross-motion for an order that she be able to change the child's residence, temporarily, from Oakville, Ontario to Astana, Kazakhstan from August 2017 to on or about March 1, 2018, when she will return to Canada with the mother; and, an order enforcing paragraph 4.14 of the parties' separation agreement which permits the mother to travel with the child outside of Canada with reasonable notice to the father. She also sought an order granting the father reasonable and liberal access to the child and such other terms as set out in my final order, dated August 1, 2017.

[3] Both motions were brought prior to a case conference on the basis of urgency. The urgency from the mother's perspective is that she plans to move with the child to Kazakhstan temporarily, but in time for the start of school there. The urgency from the father's perspective is that he does not want the child to move to Kazakhstan and there is no order that would prevent the mother from carrying out her plans.

[4] The motions were heard together on August 30, 2017. Extensive affidavit material was filed along with multiple briefs of authority, and multiple facta and statements of law. Both counsel made submissions, following which the court reserved its decision and set September 7, 2017 as the date for delivery of an oral decision and reasons. The court decided to release this written decision and reasons instead.

[5] A draft of these reasons was provided to the parties on September 7, 2017 and the court made the order set out below on that day. As it was very late in the day, and some changes needed to be made to the draft, the court advised that the finalized version of these reasons would be released on September 8, 2017.

The Issues

[6] The mother filed a very lengthy affidavit which had been served quite late in the day on the last day for service. She also sought to file a supplementary affidavit on the day of the hearing. The father filed a reply affidavit to the first of the foregoing affidavits but felt he had not had sufficient time to address all points he wanted to. He had no opportunity to address the evidence set out in the mother's supplementary affidavit. He originally sought an adjournment.

[7] But both parties wished to proceed with the hearing so as to save time and expense and the most pressing issue (the only one I find meets the test for urgency) is the impending move to Kazakhstan and the father's access in that event. As a result, they struck a compromise: the mother's supplementary affidavit would not be admitted (it was returned to her), and, the mother's request for an order permitting subsequent moves was withdrawn. As such, although asked for in her notice of motion, the mother's request for an order permitting subsequent moves is not an issue this court must decide at this time.

[8] Thus, the issues that this court must decide are these:

1. Whether the child's primary residence should be changed temporarily from Oakville to Kazakhstan from September 2017 to March 1, 2018 when the child will return to Canada.

2. If the answer is yes, on what terms and conditions including access, should the move be permitted?

3. If not, whether an order should be made prohibiting the mother from removing the child from the province of Ontario?

4. Should there be an order for costs?

Factual Background

[9] The parties were married on July 3, 2010. They separated on November 11, 2012. They were granted a divorce on November 28, 2016.

[10] There is one child, Daphney Gisele Layla Monachese ("Daphney"), born November 30, 2010 (age 6). She has or will start grade 2 this month.

[11] The long standing status quo regarding parenting is that the mother has sole custody of Daphney and the father has mid-week access for three hours and access with Daphney every other weekend, from Friday to Monday. Indeed, a final order was made on August 1, 2017, awarding the mother, on consent, final sole custody and primary residence. That order has not been appealed or set aside.

[12] The mother resides with Daphney and her parents in Oakville. Living with her parents is, from the mother's perspective, out of financial necessity. On her income, even with child support, she requires her parent's financial support to be able to ensure that Daphney is able to attend one of Oakville's Catholic schools while participating in extracurricular activities such as baseball, dance and gymnastics.

[13] The father also resides with his parents. His mother assists the father with his care of Daphney when she is with him by doing such things as taking her to school and picking her up from school.

[14] Because Daphney has only ever lived with her parents or her parents and their parents, she is close to and attached to both sets of grandparents. The father has extended family members with whom Daphney is also close such as her great grandmother, and aunt, who have spent significant time with Daphney.

[15] The father has remarried.

[16] The Mother has been in a relationship with former NHL hockey player, Matthew Frattin ("Matthew") for about 4½ years. The mother has taken the relationship slowly in part, to be sensitive to Daphney's feelings. They intend to get engaged, marry, and start a family in due course.

[17] For some time, Matthew has been playing in the Kontinental Hockey team which is the hockey league in Central Asia. He has been living in Asia during hockey season as that is where the games are.

[18] Matthew has spent his summers with Daphney and the mother in Oakville/Toronto since 2014. While he was in Toronto they stayed at his condo. Daphney had her own room when they visited. In the past two years during the summer breaks, Matthew has been coming to the mother's parents' home to stay.

[19] Matthew takes Daphney to camp and picks her up after camp. They spend time together engaging in many activities.

[20] Mathew was engaged under contract to play for a team in China. In 2017, the mother wished to take Daphney to live there for six months with him. She began discussions with the father about the move. Her hope was to be able to move there before the start of the school year for Daphney, which was August 24, 2017.

[21] On July 27, 2017, the father made an application wherein he sought to set aside the parties' separation agreement on the basis of a material change in circumstance, an order that the parties have joint custody of Daphney, an order that the mother not change the child's ordinary and habitual residence from Halton, without his prior written consent or a court order, a non-removal order, an order that the child reside primarily with him, and reasonable access to the child by the mother as may be agreed upon with him.

[22] Both motions were returnable on August 1, 2017. On the day of the hearing, the parties settled the issues on the motion and the father withdrew his application. Minutes of settlement were signed and filed with the court and a final order was made by me that day. The final order made on consent that day provided, among other things:

• Sole custody and primary residence to the mother;
• The mother was permitted to relocate the child's residence to Shanghai, China until March 1, 2018;
• Access on terms set out in a schedule and subject to further agreement of the parties taking into account the father's work schedule;
• A variation in child support payable and additional terms requiring the mother to contribute towards travel and accommodation costs if the father visited China;
• All outstanding claims on the motion be dismissed;
• All other terms of the parties' separation agreement shall remain in effect;
• The father's application is withdrawn.

[23] That final order brought the proceedings to an end as the mother had not served and filed an answer and the father's application deemed withdrawn.

[24] The day after the consent order of August 1, 2017 permitting a move to China, Matthew advised the mother that he would be travelling home due to a knee injury. Matthew searched for another contract with a new team. Matthew secured a contract with Barys Astana, Astana's KHL hockey team in Kazakhstan.

[25] There is no instability with the proposed move. Matthew has a non-trade clause in his new contract in Astana, which means he cannot be traded this season while he is with Astana's KHL hockey club.

[26] The mother wishes to move with Daphney to Kazakhstan until March 2018, when they will return. She proposes that she do so on exactly the same conditions and terms, particularly regarding the father's access as agreed to and ordered in the Order of Starr J. dated August 1, 2017 subject to any modifications ordered by the Court.

[27] The mother's plan if she is permitted to relocate with Daphney temporarily to Kazakhstan, is as follows. First, Daphney will attend QSI International School of Astana, which is 19 minutes from the residence she plans for them to live in. The school's language is English. There is a spot available for her grade level and school started August 24th. The school day runs from 8:30 am to 3:30 pm.

[28] The mother will also have a driver to travel to and from school and any outside school activities. The residence is located in Astana, Kazakhstan at Turan Avenue. The condos are in Highville, a community where the families from the hockey team stay. There are security gates for cars with guards. Each building has a 24 hour concierge and security cameras everywhere. The complex has a variety of shopping centres, amenities, an amusement park, and indoor/outdoor playground on the grounds. There is a dance studio under the condo. Children play freely in the community.

[29] During hockey games, there is a separate box for player families. The arena has metal detectors and military officers surrounding the area.

[30] Daphney has been vocal with her view that drama club, gymnastics and ballet are her primary choices for the semester. The activities available to Daphney in the after-school programs are: arts and crafts, football, gymnastics, math club, drama club, choir, science club, ballet, swimming. They run directly after the end of school.

[31] Daphney is a social child. The mother will be available at all times to organize play dates for her to ensure social integration and interaction with peers.

[32] If she moves in with Matthew he will support her and Daphney and she will not have to work. She does not plan to travel while in Astana, Kazakhstan. Not having to work or travel means that she will be even more available than she already is to care for and meet Daphney's needs. She will be at Daphney's disposal at any time and to ensure the transition is smooth.

[33] Living with Matthew will enable the mother and him to take their relationship to the next level, thus enabling them to move forward with their plans to ultimately start a family. This will not only be more fulfilling for her but will provide her with greater economic security.

[34] Daphney will return to Canada in time for her First Communion with the rest of her classmates at St. Andrew Catholic School in Oakville. While away the mother plans to review special resource material with her as recommended by church officials to ensure she is up to speed upon her return.

[35] Daphney is up to date on her medical and dental checkups. The mother will take her for another appointment before departure to make sure that Daphney has all of the necessary immunizations.

[36] The mother plans to purchase a membership at the SOS medical clinic to ensure access to medical treatment. The care is listed to be at an international standard. The clinic operates on a 24 hour basis and services multinational corporations. There is also the Presidential Hospital, Abylay Khan Ave 42, Astana 010000, and Kazakhstan (19 minutes away). The mother contacted Global Emergency Services, recommended in case of emergency requiring evacuation. Daphney has 60 Days out of country travel insurance through Great West Life.

[37] The mother provided copies of information circulars gleaned from various government websites. The information gleaned shows the following:

• The threat of terrorism is worldwide including non-traditional Muslim countries including, the United Kingdom, France, Spain and even neighbouring countries, the United States of America. The most recent attack in Kazakhstan as mentioned in the father's Affidavit was on June 5, 2016.

• Canada has not been immune to the threat of terrorism. On January 29, 2017, in Quebec City, 6 died and 8 injured after a shooting incident which Prime Minister, Justin Trudeau and Quebec Premier, Philippe Couillard, called a 'terrorist" attack.

• The Government of Canada Travel Advisory lists four risk levels:

  • Exercise normal security precautions
  • Exercise a high degree of caution
  • Avoid non-essential travel
  • Avoid all travel

• Kazakhstan is listed as "Exercise a high degree of caution" which is second on the list. It is important to note that when the Canadian Government Travel Advisories list a country as "Avoid non-essential travel" and "Avoid all travel," the safety and security of Canadians travelling or living in the country may compromised;

• There are many countries that are regularly visited by Canadians for holidays that are listed as "Exercise a high degree of caution" by the Canadian Government. Some of the countries include the following:

  • China – already agreed to by the Applicant
  • Mexico
  • Dominican Republic
  • United Kingdom
  • Costa Rica
  • Jamaica
  • France
  • Brazil

• According to the Gov.UK Advisory, the United States of America is a high risk for terrorism as well as crime. Further, Gov.UK Advisory, lists Canada as a threat of terrorism stating: "Terrorists are likely to try to carry out attacks in Canada. Attacks could be indiscriminate, including in places visited by foreigners. You should monitor media reports and remain vigilant."

• The U.S. Government has put a worldwide travel alert including all of Europe.

[38] Daphney will not be visiting Kazakhstan as a tourist. They have access to special security and precautions and facilities will be provided because of Matthew's involvement with the hockey organization in Kazakhstan.

[39] There is no evidence to suggest that the mother does not appreciate the father's relationship with Daphney and it is not disputed that she has always encouraged a relationship and arranged visits with him even when the father was in a rehab facility.

Legal Considerations

[40] The Supreme Court of Canada in paragraphs 49 and 50 of Gordon v. Goertz sets out principles and criteria for determining what is in a child's best interests 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.

[41] Both parents bear the evidentiary burden at this second stage of the inquiry. The court must weigh the benefits and detriments of the proposed move from the perspective of the children.

[42] I have considered the above principles and criteria in making my decision. I have also considered the best interest factors detailed in subsection 24 (2) of the Children's Law Reform Act that reads as follows:

Best interests of child

24(2) The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

• (i) each person entitled to or claiming custody of or access to the child,
• (ii) other members of the child's family who reside with the child, and
• (iii) persons involved in the child's care and upbringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

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

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

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

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

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

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[43] In his decision in the case of B.T.O. v A.A. [2013] O.J. No. 5842, Justice S.B. Sherr notes some additional factors to which I have also turned my mind, at paragraph 35.

35 The Nova Scotia Supreme Court in L. (N.D.) v. L. (M.S.), 2010 NSSC 68 (N.S. S.C.) listed additional factors (in paragraphs 9 and 10) that courts have considered when applying the framework in Gordon v. Goertz as follows:

[9] An analysis of cases that have applied these principles provides additional detail to the factors to be considered. Those details are:

(a) the number of years the parents cohabited with each other and with the child

(b) the quality and the quantity of parenting time

(c) the age, maturity, and special needs of the child

(d) the advantages of a move to the moving parent in respect to that parent's ability to better meet the child's needs

(e) the time it will take the child to travel between residences and the cost of that travel

(f) feasibility of a parallel move by the parent who is objecting to the move

(g) feasibility of a move by the moving parent's new partner

(h) the willingness of the moving parent to ensure access or will occur between the child and the other parent

(i) the nature and content of any agreements between the parents about relocations

(j) the likelihood of a move by the parent who objects to the relocation

(k) the financial resources of each of the family units

(l) be expected permanence of the new custodial environment

(m) the continuation of the child's cultural and religious heritage

(n) the ability of the moving parent to foster the child's relationship with the other parent over long distances

[10] There have been cases in which judges have remarked that it is in the best interest of a child to be in the care of a parent who is happy and who feels secure and thus the parent should not be "...denied the opportunity to be the most fulfilled person she can be...." (McCullough v. Smith, 2007 NSFC 23 at para. 43).

[44] In reaching this decision I have also kept at the forefront of my mind the maximum contact principle. That is: it is generally desirable to maximize contact between the child and both parents. This principle is important but not absolute or a governing factor in the best interests analysis. In dealing with the maximum contact principle the Court of Appeal in Bjornson v. Creighton noted at paragraph 34:

34 While the "maximum contact" principle does apply and is an important one, it is not absolute and it remains one factor in the whole of the analysis. It ought not to be treated as the governing factor. In Gordon, at paragraph 24, McLachlin J. noted that:

The "maximum contact" principle, as it has been called, is mandatory, but not absolute. The Act only obliges the judge to respect it to the extent that such contact is consistent with the child's best interests; if other factors show that it would not be in the child's best interests, the court can and should restrict contact: Young v. Young, [1993] 4 S.C.R. 3, at pp. 117-18.

[45] This case is somewhat unusual because the move is not a permanent one and the request is made on an interim motion. It is thus necessary to also consider the test ordinarily applied in interim mobility cases in conjunction with the best interest analysis in Gordon v. Goertz and Section 24 of the Children's Law Reform Act. The leading case for determining if a relocation should be permitted on a temporary motion is Plumley v. Plumley, where the court set out the following principles:

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

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

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

[46] In the case of Boudreault v. Charles, 2014 ONCJ 273, at paras. 26 (k), at paragraphs 31 and 32, the court on a temporary motion noted the likelihood that the mother, if allowed to move, would be a happier and better functioning parent. A happier primary caregiver will benefit the child. The mother's plan was seen to be thoughtful and met the child's developmental needs and the need for safety, security and continuity. Further the mother's choice of school was viewed as appropriate.

[47] Courts have permitted temporary relocation where there is no genuine issue for trial. In MacKenzie v. Newby, 2013 ONCJ 541, at paras. 50 and 57, the court noted that it was undisputed that the mother had been the de facto custodial parent. The court found the success of the mother's position at trial was inevitable and the only triable issue was the nature and extent of the father's access. Zisman J. took note of the fact the mother was dependent on the maternal grandparents for financial support.

Positions

[48] The father's position is this: while clearly there may be a "benefit" to the mother moving to Kazakhstan, namely, so that she can be with her boyfriend, there is no benefit to the child in moving to Kazakhstan. In fact, the dislocation would significantly detrimentally affect the child. To move the child to Kazakhstan means moving the child from everything and everyone (except the mother and her boyfriend) that she has known since her birth.

[49] The effects on the child of the proposed move would be catastrophic. She would be totally isolated from every person she presently knows, loves, trusts and needs (other than her mother and her mother's boyfriend). She would be removed from her neighborhood; community; school; activities; church; and young friends.

[50] Furthermore, Kazakhstan is not a safe place and the quality of both its health care and education systems are each inferior to that which Daphney currently and would continue to enjoy, if she remains in Canada. The disruptive effects upon the child of the proposed move coupled with the risks associated with living in an unsafe country with substandard health and education systems, greatly outweigh any alleged "benefit" to the child.

[51] The mother's position is that great weight should be afforded to the father's consent, less than a month ago, to an order in favour of the mother having sole custody and primary residence of the child and travelling with the child to China until March of 2018. The terms and conditions for the proposed move and access are exactly the same as those set out in the order of August 1, 2017. The father deemed them acceptable then and as such, there is no genuine basis for his objection to the proposed move. The father's objection to the child's temporary relocation to Kazakhstan is a blatant attempt to re-litigate the consent order of August 1, 2017. This should not be permitted.

[52] Second, the benefits offered by the opportunity to reside in Kazakhstan outweigh the disadvantages of the reduction in access and disruption to Daphney in leaving school, friends, father and others with whom she is close to, as well as any safety concerns, because these can all be mitigated.

[53] The benefits of the move for Daphney are:

a. She will have the opportunity to meet new people, make more friends, live in another country, be exposed to a different culture and as such, her world view and life experience will be broadened and enriched by the experience;

b. Her mother will be a more fulfilled parent living with the man she has had a long term relationship with and hopes to start a family with. This will benefit the child;

c. Her mother will have greater availability to meet Daphney's needs as she will not be working; and,

d. The mother will have greater economic security living with Matthew, which benefits both her and the child.

[54] The factors which mitigate the concerns of the father (disruption, relational, education, health and safety) include:

• The mother's arrangements for safe and appropriate housing;
• Her arrangements for Daphney to attend a private English-speaking school, and to have access to private medical and health coverage, both provided at an international standard;
• Additional security, including access to a driver;
• The mother's enhanced availability to support Daphney and ease the transition;
• The access arrangements proposed by the mother; and,
• The fact that the move is not permanent; and,
• Lost time with the father will be made up under the mother's proposal.

[55] Third, the mother is the custodial parent and as such, her wishes are to be given considerable respect.

Analysis

[56] Both counsel submitted case law, which the court has reviewed. The problem with mobility cases is that they are most often very fact specific. No cases proffered were on all fours factually. The one case offered by the mother that came the closest factually, B.T.O. v A.A., was a trial decision and had some very distinguishing facts. For example, the children's parents were both from Nigeria, they had familiarity with the culture, and had extended supports and family in Nigeria.

[57] None the less, all of the cases presented offered the court guidance as to the principles to generally apply, the most significant of which have already been outlined by me above.

[58] I have decided to allow the mother to relocate temporarily with the child to Kazakhstan, on the terms she proposes, for these reasons:

[59] First, the parties have a valid separation agreement, which no one has asked to set aside. In fact, the father, who originally asked to set it aside in his application, withdrew his claim for that relief.

[60] The parties' separation agreement does not include a "restriction" on the mother's ability to move Daphney's residence. Specifically, paragraph 4.8 of the agreement states the following:

"…For greater clarity, there will be no restriction on PRISCILLA moving DAPHNEY'S residence. In the event of a change of residence PRISCILLA and ALBERT will review ALBERT'S parenting time."

[61] At the time when this agreement was entered into, the mother was already in a relationship with Matthew. The father knew this and knew Matthew was a professional hockey player. He knew or ought to have known that the life of a hockey player is a transient one, for example, in terms of having to relocate from time to time whenever traded. The agreement was only signed in 2016 and by that time the mother had been in a relationship with Matthew for about 3.5 years. The father knew or ought to have known at the time when he entered into this agreement, that her relationship was serious and that if she eventually moved in with Matthew, that this would mean her and the child would move from time to time, whenever Matthew was required to.

[62] Indeed, the mother's evidence is that the father knew that she wanted the freedom to be able to relocate with Daphney because of Matthew. That is why the agreement permits her to do this, so long as access is worked out.

[63] It is true that the court has the authority to override any term in the agreement but generally speaking, courts do not interfere with freely negotiated agreements, unless there is a material change in circumstances or some other very compelling reasons to do so. Courts are not free to arbitrarily substitute their views of what is in a child's best interests for that of their parents.

[64] In this case no one has asked me to set aside the agreement. The circumstances have also not changed in any material way, and certainly not in a way that was not foreseen at the time when the agreement was signed.

[65] The existence of the agreement and its grant to the mother of the freedom to relocate with the child and to travel abroad, is not determinative. But it is to be given significant weight in my analysis, and I have done so.

[66] Accordingly, less than 30 days before these motions were heard, the parties reached an agreement. The court ordered, that the mother have sole custody and primary residence, and that she could relocate to China to live with her partner. The circumstances that existed at that time are not substantially different than they are now. For example, the benefits relied on by the mother are the same as are the disadvantages: disruption to the child, restrictions and limits placed on access and the father's relationship with the child as well as with other extended family members, the temporary nature of the proposed move, the distance, the league Matthew plays for (KHL).

[67] On August 1, 2017, the father conceded that the benefits of the move (which have not changed) outweighed the disadvantages (all the same ones that he now relies on). He conceded that despite all of the same disadvantages, the move was in the child's best interests.

[68] That order has not been set aside or appealed. The father, who bears the onus to demonstrate a material change in circumstances or, at the very least, some explanation or evidence to impugn the validity of the agreement, so as to persuade the court to disregard it or lace little to no weight on it, has offered nothing. It is disingenuous of him to rely on the very same circumstances that existed at the time, now, given his concession of best interests. He is trying to do by the back door, what he ought to have done through the front door. His objections based on lack of benefit, disruption, negative effect on relationships, culture shock, etc., simply cannot be given much weight, amount to a material change in circumstance or compelling reasons to disallow the mother's request or to grant his.

[69] Second, all that has changed is the country and whether something about that country in particular makes travelling to it temporarily, contrary to the child's best interests.

[70] The father relies on three main factors:

• Security risks which put the child at risk of harm;
• Inadequate education system, which could compromise the child's education;
• Inadequate medical system which could compromise the child's health, should she become sick and in need of medical care or health care.

[71] I place little weight on these circumstances for two reasons: First, decisions about general security, health, education are entirely within the domain of the custodial parent. In this case that has been the mother, pursuant to the homegrown agreement, the separation agreement and most recently as of August 1, 2017, the final order of the court. As such, the mother's judgment and decisions about whether what she has planned to meet Daphney's education needs and health needs is adequate, are to be afforded great respect. It is not for this court, to interfere with her exercise of judgment unless it is found to wanting.

[72] All of the factors the father relies on to allegedly demonstrate the mother's exercise of poor judgment existed before August 1, 2017, [even assuming there is any truth to them]. Yet, he, [who sought joint custody and primary residence, a non-removal order, restrictions on change of residence], withdrew his claims entirely and agreed to the mother having sole custody and primary residence. None of what he relies on amounts to a material change in circumstances. I thus, see no reason to interfere with the mother's decisions. There is simply no basis on which I can find she cannot be trusted to make sound decisions.

[73] The mother has put evidence before me that demonstrates that she has taken steps to address potential inadequacies. She has found an English speaking school that teaches to international standards. She has plans for private health care coverage and services so that the child is provided with health care at an international standard.

[74] With respect to security, she and Daphney will not be tourists. They will be living in a secure setting. They will be travelling with a driver and have security at hockey games. She will not be going to the places where the risk is high (i.e. night clubs). I note as well, that on the evidence before me, Kazakhstan has only the second tier risk rating and is on par with China [to which the father agreed mother and child could relocate to temporarily] and many destinations to which Canadians travel regularly.

[75] Because he is the one raising the objection, the onus falls to the father, not the mother to show me that the decisions the mother has made are not suitable. He has not convinced me of this on a balance of probabilities.

[76] Thus, I see no reason to interfere with the mother's judgment or to substitute my own or the father's for hers.

[77] Third, at present there is no lis. A fresh motion to change or application must be made by the father. To date he has not done so and thus, any prejudice to him, in terms of final disposition, is non-existent. Without a lis, there is no genuine issue for trial.

[78] However, even if he wished to reassert the claims set out in his original application (the ones that he withdrew), it is difficult to see how allowing this temporary move would prejudice the final adjudication of those claims.

[79] It is also difficult to see how he would be successful, given the validity of the separation agreement, and the existence of a recent final order granting the mother sole custody and primary residence. This is exactly the type of situation where courts have permitted moves on interim motions.

[80] It must be remembered that this move is temporary, not permanent. The child will be returning to Canada by March 1, 2018. If there is further prejudice to the father, it will be short lived.

[81] Fourth, there is, however, potential prejudice to the mother and child. If her request is denied, the mother will lose this opportunity to move forward with her relationship with Matthew. The child will lose the opportunity to be parented by a mother who has greater availability to provide her with guidance, education and necessities of life. If the father is right, and I make no finding of such, and the child does have some struggles at school, having a mother who can support her more, is an added bonus. It is one she will not have if she stays here because, her mother would work full time. In Kazakhstan, the mother will not have to work and will be fully supported by Matthew.

[82] Finally, the mother has proposed that the father have access on terms, that but for the passage of time, would be identical to those that she proposed vis à vis the move to China. The father has already conceded that such access is in the child's best interests by virtue of agreeing to it on August 1, 2017. The court's agreement is also evident, by virtue of its order made on consent that day.

[83] The father made no argument and put in no evidence addressing the issue of access in the event that I granted the mother the order she wants. This, coupled with the fact that any lost time as a result of the loss of make up access that he would have had for August 2017, can be made up next summer. The unchallenged evidence of the mother is that her proposal regarding time the father will have with Daphney would provide him with equal or more time with the child than he would ultimately have had the mother not been permitted to move.

[84] Furthermore, the mother has offered to ensure that telephone, and electronic access are available. The mother also offered to make arrangements for the father to stay in the secure compound where she and the child will live in the event that the father comes to visit. This plus the August 1, 2017, order for reduced child support, will all enhance the father's ability to travel to Kazakhstan, to visit Daphney.

[85] Finally the time difference is only 10 hours as opposed to the 12 it would have been if the child had gone to China.

[86] Thus, I find, the prejudice to the father vis à vis his access, is mitigated significantly. Given all of these considerations and as the mother's proposal is the only one before the court regarding the father's access, I find it is a plan that is in the best interests of Daphney.

[87] For all these reasons, I grant the mother permission to relocate with the child as she requests and the father access to Daphney as proposed by the mother, subject to some additional terms and conditions. The terms of the order I grant are set out below.

Other Matters

[88] As a housekeeping matter, the parties and the court treated these motions as motions for temporary relief brought prior to the commencement of proceedings due to the urgency. Although I do not know what claims will be made in the pleadings to follow, it is expected that pleadings will be served and filed. For these reasons, my order below is temporary. However, if no pleadings end up being served and filed, then this order should be treated as if it is final. I have, for this reason, stipulated a date by which pleadings are to be served and filed, failing which, the order below shall become final.

[89] Further, to ensure that there is no confusion about the appropriate type of pleadings to be served and filed, I have decided, with counsel's consent, to direct that the matter proceed as a motion to change and to dispense with any irregularity this may cause and on the understanding that the court and the parties will be able to discern which claims are fresh claims and which claims are requests to change.

[90] Finally, I have not made any changes to the existing child support order (final order of August 1, 2017). I was not asked to and I do not want to preclude the father from being able to seek a change in child support to address any material change in the costs associated with the move to Kazakhstan.

[91] For all these reasons I make the following order, which disposes entirely with the motion and cross motion heard on August 30, 2017, without prejudice to either party's right to bring a future motion to seek the relief they withdrew at the hearing, following completion of the case conference process.

ORDER

(1) The affidavit of the applicant, sworn August 29, 2017 (currently loose in the court file) shall be filed by the applicant, in the continuing record, by October 15, 2017. No proof of service shall be required to permit such filing;

(2) The originating process to be used in this matter shall be those associated with motion to change proceedings;

(3) This matter shall proceed to a case conference before me, instead of First Appearance Court, once the motion to change has been filed;

(4) The applicant is to serve and file his motion to change and other required documents by no later than October 15, 2017. Should he fail to do so, the portion of this order relating to relocation to Kazakhstan and access shall become final that day and these proceedings deemed concluded;

(5) The applicant may serve his originating documents upon the respondent by serving the respondent's counsel, Ms. Cox directly;

(6) On a temporary basis, the respondent, Priscilla Madill shall be permitted to move the child, Daphney Gisele Layla Monachese, born November 30, 2010, to Astana, Kazakhstan immediately and until March 1, 2018, when she is to be returned to her habitual and ordinary residence in Oakville, Canada.

(7) On a temporary basis, the applicant, Albert Monachese shall have access to the child named above, as set out in Schedule A to the order dated August 1, 2017, with the understanding that any missed time will be made up either on the child's return, during any visit the father may make to Kazakhstan, or combination thereof;

(8) On a temporary basis, the respondent shall ensure that if the applicant travels to Kazakhstan to visit with Daphney, that she facilitates access by allowing the child to stay with the father or as the parties may otherwise agree and that he and his wife, if she travels too, are able to stay in the same compound where the mother and child will be residing, namely, Highville, Kazakhstan;

(9) On a temporary basis, once any missed time is made up following March 1, 2018, the applicant's access shall, unless the court orders otherwise, resume as stipulated in the parties' separation agreement, or as may be agreed upon by the parties.

(10) Matter adjourned for cost submissions to be heard on November 24, 2017, at 2:30 p.m. Counsel are to exchange their bill of costs and any authorities they wish to rely upon by November 10, 2017 and to file same with the court by no later than November 20, 2017. Number of cases that may be relied upon are 3 each;

(11) Court services requested to bring this file to chambers once counsel have each served and filed their case law and bills of costs.

(12) The mother may participate at any future court appearances that take place while she is residing in Kazakhstan, via teleconference. Arrangements for this shall be made by her counsel through the Judicial Secretary.

Draft released and order made on September 7, 2017

Final draft of reasons released on September 8, 2017

Signed: Justice Victoria A. Starr

Footnote

[1] The parties entered into a home grown agreement (dated October 6, 2015), and later into a separation agreement. Their separation agreement is dated February 19, 2016. Both agreements provided for the mother to have sole custody of Daphney and the father access. Both deal with relocation. Under the homegrown agreement either party could move outside a 50 km radius and in such an event, the parties were to arrange summer and holiday visits accordingly. There was no restriction on the mother's travel with Daphney.