Court File and Parties

Ontario Court of Justice

Date: August 31, 2020

Court File No.: Woodstock D56/20

Between:

M.K., Applicant

— AND —

J.K., Respondent

Reasons for Judgment on Motions

Per: Covid 19 Protocol

August 31, 2020

Counsel:

• Gary McQuaid, for the applicant(s)
• Melissa Bowen, for the respondent(s)

PAULL J.:

Introduction

[1] Before the court are motions brought by each party with respect to their two children, C.K. (female) born […], 2014, and K.K. (male) born […], 2016. These motions have been brought on the basis of urgency during the suspension of regular Court operations due to Covid 19.

[2] The principal issue is whether J.K., the children's mother, should be permitted to relocate with the children from Woodstock to Port Stanley, or whether an order should issue that the children's primary residence remain in Woodstock pending trial.

[3] M.K., the children's father, seeks an order prohibiting J.K. from relocating with the children or alternatively, that he be granted custody.

[4] J.K. seeks an order that she be permitted to relocate with the children from Woodstock to Port Stanley and that she be granted sole custody with access to M.K. She is prepared to be responsible for transportation and to ensure that the overall time the children spend with their father is maintained.

[5] In addition to the submissions of counsel, I have reviewed the following affidavits. M.K.'s affidavit dated July 13, 2020 and his reply affidavit of August 13, 2020, and J.K.'s affidavit of August 4, 2020. I have also reviewed the parties' sworn 35.1 affidavits. I have also reviewed and considered the case briefs files on behalf of the parties.

Background and Evidence

[6] The parties were married on September 10, 2011 and separated on December 31, 2019, although they both remained in the matrimonial home until they finalized arrangements.

[7] Since 2018 J.K. has worked at […] as an infectious control specialist. She has some flexibility with her employer on her work hours which are generally 7:30 AM to 3:30 PM during the week. She earns approximately $90,000 per year. She indicates she has family in the Woodstock area.

[8] Father as a self-employed contractor and also deposes to some flexibility in his work hours. His extended family is in the Cambridge area.

[9] The children have lived their entire lives in Woodstock. C.K. attended JK and SK at [Name 1] Public School and was going to attend grade 1 there in September 2020. K.K. was to start JK there as well in September 2020.

[10] Neither party has CAS or police history and neither raised any safety concerns in their 35.1 affidavits.

[11] The parties executed a separation agreement dated March 10, 2020 which resolved all the outstanding issues between them. The important terms for the purposes these motions include the following:

1. Sole custody to J.K. However, while the children reside primarily with J.K., they agreed that while the children are with M.K. he shall make the day-to-day decisions regarding their care.

2. The parties will endeavor to make important decisions regarding the children together, however, if there is disagreement J.K. shall have the final decision.

3. M.K. has liberal and generous parenting time including alternate weekends from Friday at 4:30 PM to Sunday at 7 PM. In the week following his access weekend he also has Wednesday and Thursday overnight, and in the following week has Wednesday overnight. This amounts to 10 overnights in a 28 day cycle. In addition, the agreement also indicates the parties' intention to share equally holiday time.

4. If either party proposed to move their residence (and thereby the children's residence) they are required to give the other parent at least 60 days written notice and the parties would review the parenting arrangements. The agreement contained no mobility restriction.

[12] The agreement also involved J.K. buying M.K.'s share of the matrimonial home in Woodstock and maintaining it as the children's home and primary residence. J.K. deposes that at the time the parties entered the agreement she had financing approval to maintain the home on her own.

[13] Up to this point the parties appeared to have resolved their separation amicably with minimal disruption to the children's lives.

[14] However, Covid 19 struck in earnest shortly after the agreement was entered into with one of the results being that the bank withdrew the financing commitment.

[15] The parties communicated by text messages which included an offer by M.K. that he would stay on title and on the mortgage, acknowledge in writing that he had no rights to the home, in order to give her "up to a year or so" to make other financing arrangements or to get another home.

[16] J.K. felt that neither party would be approved on their own and that they needed to sell the home and move on. The home sold for $812,000. On June 27, 2020 J.K. sent M.K. a short text advising him that she planned to relocate with the children to Port Stanley after the closing date of the sale on August 26, 2020. M.K. responded that he did not consent to the relocation of the children.

[17] In submissions counsel agreed that Port Stanley was approximately a 52-60 minute drive from Woodstock.

[18] J.K. has purchased a home in Port Stanley. She felt that that Woodstock was a very competitive housing market and she could not find anything affordable. M.K. acknowledged that the residential growth in Oxford County, especially Woodstock, has been dramatic but disputed that she had done all she could to stay in Woodstock.

[19] J.K. deposed that the move will reduce her commute to work in St. Thomas from approximately 52 minutes one way to 10 minutes which will make her more available for the children, reduce the need for childcare, and thereby save her the expenses related to both child care and commuting.

[20] The daycare providers the family used in Woodstock have both indicated that they were no longer available starting in September 2020. J.K.'s position is that with a shorter commute the need for childcare would be significantly reduced, and her mother was going to move to Port Stanley as well to provide any daycare needed.

[21] J.K. has determined the school the children would attend in Port Stanley, and made arrangements for K.K. to continue to attend the Tyke Talk Program at the St. Thomas Hospital (rather than continue at the Woodstock General Hospital).

[22] J.K. proposes to maintain M.K.'s parenting time under the separation agreement by offering to provide all the transportation for the access except for the alternate Thursdays overnight during the school year which she is agreeable be made up at other times. She would maintain the weekly Wednesday overnight night visits by staying over herself with family in Woodstock.

[23] As an alternative to an order prohibiting the relocation of the children, M.K. seeks custody and primary residence with himself and his new partner in Woodstock. He deposed that his job gives him some flexibility so he would likely not require any daycare. He does not reside in the catchment area for [Name 1] Public School but was hopeful he could get approval for the children to continue to attend there, otherwise they would need to attend [Name 2] Public School.

[24] With respect to the issue of urgency, both parties agree that the proposed relocation of J.K. and the children to Port Stanley at the end of August 2020 is a significant change that creates urgency. I agree that urgency is established by J.K.'s proposed relocation of the children's primary residence.

The Law

[25] Relocation or mobility cases, where one parent wants to take a child and move some distance away from the other parent, are among the most difficult cases in family law. If the custodial parent is permitted to move with the child, inevitably the relationship between the non-custodial parent and the child will be affected and may suffer. Typically the court must balance the custodial parent's legitimate interest in relocating with the non-custodial parent's legitimate interest in maintaining a relationship with the child. But in every case, the ultimate question is what is in the best interests of the child. Reeves v. Brand, 2018 ONCA 263.

[26] The leading case for determining if a relocation should be permitted on a temporary motion is Plumley v. Plumley, [1999] O.J. No. 3234 (S.C.J.), where the court set out the following principles:

a) A court will be more reluctant to upset the status quo on an interim motion and 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.

[27] The following are additional principles regarding temporary relocation which were succinctly summarized by Justice S. Sherr in Boudreault v. Charles, 2014 ONCJ 273.

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] 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: 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 are met, 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] 2 S.C.R. 27 (S.C.C.).

h) 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.).

[28] The leading case on the issue of mobility generally is Gordon v. Goertz, [1996] 2 S.C.R. 27, which outlines the following considerations.

a) There is no legal presumption in favour of de facto custodial parent;

b) the focus is on the best interests of the child and not the wishes of the parent;

c) the court should consider the existing parenting arrangement;

d) the desirability of maximizing contact with both parents;

e) the views of the child;

f) the custodial parent's wishes to move are only considered if they are relevant to their ability to meet the needs of the children;

g) the disruption to the child by change in school, community and family they have come to know.

[29] There is no burden on a party to show a material change in circumstances when custody arises from a separation agreement, rather than a court order. Henderson, 2005 BCCA 277. However in Woodhouse v. Woodhouse (1996), 20 R.F.L. (4th) 337 (Ont. CA), the court found that Gordon principles apply equally when there is no order and a party is trying to change a separation agreement though an originating application. This case also states that Gordon principles apply equally to cases under the CLRA.

[30] In resolving custody disputes, emphasis must be placed on the critical importance of bonding, attachment and stability in the lives of young children. Barnes v. Parks.

[31] The court must decide what custodial and residential order is in the children's best interests. Section 24 of the Children's Law Reform Act requires that any determination with respect to custody and access be made on the basis of the best interests of the children and section 24(2) outlines a number of specific best interests factors.

Analysis

[32] Mobility cases, particularly temporary mobility cases, are among the most challenging the court faces and this case is no exception. I have troubled over it considerably.

[33] One of the aspects that make these cases a particular challenge is not only the significant impact any order will have on the family and possibly the final result of the litigation, but that decisions on interim and urgent motions are often on a limited evidentiary record comprised of untested affidavit material. This is the case here and I do not have the benefit of viva voce evidence or even cross examination on the parties' affidavits, or any independent evidence including by way of an OCL report.

[34] This supports what has been widely recognized by the courts in that great caution should be taken before permitting temporary moves, and the moving party must establish compelling reasons if such a move is permitted. In other words, the burden is on J.K. and the bar is a high one.

[35] However, in this case there are significant aspects of the evidence that are not disputed, particularly as it relates to the parenting arrangements they agreed to in their separation agreement.

[36] There are no court orders dealing with custody or access arrangements, however, the court must consider the parties agreement made in March 2020.

[37] A separation agreement does not have the effect of an order and the court has to no jurisdiction to vary a separation agreement about custody. However, under section 56 of the Family Law Act, it can disregard any provision in the agreement and make an order, if it is in the child's best interests. Paulo v. Yousif 2011 ONCJ 841.

[38] The court must consider first and foremost the best interests of children, while being mindful of the importance of parents' autonomy in making their own arrangements to resolve their parenting issues. Blois v. Gleason.

[39] I accept that the status quo has been that the children have lived their whole lives in Woodstock and that since the parties physically separated J.K. has been the primary caregiver. M.K. agreed to J.K. having custody and primary residence in the separation agreement. It is presumed that at the time of the separation agreement that it reflected each party's view of the best interests of the children. Neither party disputes this in their evidence.

[40] However, the agreement also includes that M.K. be consulted on major decisions and that he have a very liberal access arrangement which contemplates, in addition to holiday time which is equally shared, approximately 10 overnights in a 28 day period.

[41] Gordon v. Goetz directs that the judge should consider the 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. In Trisolino v. De Marzi, 2013 ONCA 135, the court found that the mother's reasons for the move reflected her perception of the needs of the children, and her judgment about how those needs may best be fulfilled.

[42] In this case I accept that J.K. has compelling parent-based reasons for moving to Port Stanley. Reducing her commute each way to work from 52 to 10 minutes will significantly increase the time she is available to the children. It will also reduce the time the children had been required to be in daycare. Further, although no financial particulars were provided, it is also reasonable to infer that less commuting and less need for day care will reduce expenses and improve the financial stability of the family.

[43] As noted the existing parenting arrangements have the children with M.K. regularly including overnight during the school week. I am not of the view that the proposed move will put the children's relationship with their father at risk. The distance is not so far that the schedule the parties agreed on needs to be significantly changed. Further, J.K. is prepared to do all the driving and maintain the schedule including Wednesday's overnight. The only change she proposes would be to change the alternate Thursday overnight during the school year, which would be made up at other times.

[44] In other words, the schedule will be largely maintained, with the overall parenting time remaining the same pursuant to the status quo and arrangements the parties agreed to in the separation agreement.

[45] It is on this basis that I cannot find that J.K.'s move is motivated by an improper purpose or to frustrate M.K.'s relationship with the children. In the circumstances there will be minimal overall disruption to M.K.'s parenting time. This is also not a case where J.K. has acted surreptitiously or moved without notice. She provided the notice required by the separation agreement and is prepared to be responsible for the burden of transportation so that the parenting schedule they agreed to can be maintained.

[46] In assessing 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) as well as the factors to be considered in mobility cases outlined in Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.).

[47] I do not have the benefit of independent views and preferences of the children, and their young age would make any views and preferences less significant in the overall analysis. However, I accept that both parties share love, affection, and an emotional attachment with them. Neither parent has alleged that the children do not have a good relationship with both their parents or do not benefit from time with each of them. The liberal and generous parenting time agreed to in the separation agreement is reflective of this.

[48] The children have no prior connection to Port Stanley and have lived their entire life in Woodstock. C.K. has attended SK and JK at the same school and has been involved with extracurricular activities in Woodstock. It is reasonable to assume that she has developed friendships and connections in Woodstock as a result. K.K. has not yet attended school or participated in extracurricular activities, although he would have participated in soccer and baseball this summer were it not for Covid 19.

[49] Regardless of the order this court makes the children's residence will change to unfamiliar surroundings. The home they grew up in has been sold. Their father is in a new home with a new partner and their mother was required to find a new residence. The children's regular daycare providers are also no longer available even if they remain in Woodstock. The impact of all these unavoidable changes would be mitigated to some extent by them remaining in Woodstock which is a community they are familiar with.

[50] However, these children are quite young, with K.K. not having started school yet, and C.K. only entering grade 1. Given their young age a move is likely to have less impact on them than if they were older.

[51] This notion has been recognized by the Ontario Court of Appeal which has held that moving at a young age will usually have less effect on the child's life. Reeves v. Brand, 2018 ONCA 263. Courts have also recognized that in permitting a parent to move away with a child that modern-day technology has made it easier to overcome the distance problem regarding access and maximizes contact with the other parent. Hussein v. Dirie, 2018 ONCJ 781; Ryall v. Ryall, 2009 ONCJ 687.

[52] Further, they will continue to spend significant time in Woodstock with their father on a schedule that will largely remain what was agreed to in the separation agreement. I also note that none of M.K.'s extended family reside in the Woodstock area.

[53] Both parties have the ability to provide appropriate and loving care to the children, and both parties plans have merit. M.K. will continue to reside in Woodstock and is hopeful the children may be able to attend [Name 1] Public School where C.K. has attended. He deposes the children have a good relationship with his new partner and her child.

[54] J.K. raised concerns with M.K. about his availability and attentiveness to the children which he disputes. I agree with him that there is no evidence that these concerns were raised previously and the separation agreement, although detailing that J.K. has custody and primary residence, provides for very significant time with him without restrictions.

[55] Permitting the move now will allow the children to be able to start in a new school at the beginning of the year. I am not of the view that a change in school is particularly significant in the circumstances. Firstly, there is the possibility of C.K. changing schools in any event as neither party now lives in the catchment area of her previous school. M.K. indicated he has made efforts to get approval for them to attend that school but no evidence was provided that he has been or is likely to be successful. Secondly, K.K. has not yet attended school and C.K. is entering grade 1. As previously noted the courts has recognized that moving at a young age will usually have less effect on a child's life, and I have no evidence that there is any particular concern for C.K. starting at a different school, whether in Woodstock or Port Stanley.

[56] Overall, I accept that there are compelling reasons to support that the children's needs will be served by the relocation at this time on a temporary basis. The children will have more time with their mother and less time in daycare as a result of her significantly reduced travel time to work. It is also reasonable to infer that the reduced travel and daycare expenses will improve the family's financial stability to the benefit of the children. While it is a move to a community the children are not familiar with, it will maintain the status quo of the custody, primary residence, and access arrangements the parties agreed were in the best interests of the children in the separation agreement.

[57] These benefits need to be weighed against any loss or reduction in contact with M.K.. In this case the potential negative impact is minimized because all the agreed-upon access can be continued except for the alternate Thursday overnight during the school year, which time will be made up at other times.

[58] Port Stanley is not so far away that the schedule the parties agreed to cannot be largely maintained. In my view the benefits to the children outweigh any risks, and it is a move that supports their overall best interests. Had the proposed move been further away such that the agreed-upon arrangements could not be maintained, I would have likely refused the relocation on a temporary basis in spite of the benefits.

[59] Regardless of how or why the need for J.K. to find a new home came about, from a child focused view her plan is a reasonable one and is less disruptive than changing custody and primary residence. I am of the view that there is a strong possibility her position will prevail at trial because of the minimal impact it will have on M.K.'s parenting time, and the fact that it maintains custody/access arrangements the parties agreed to.

[60] Having said this the court can understand M.K.'s frustration, as it is apparent that when the agreement was negotiated it was not contemplated by either party that they would be moving from the Woodstock area. However, regardless of the reason and circumstances that plan has changed, but the liberal and generous parenting time he has with his children will not, and he will not have the burden of the increased transportation.

[61] Under circumstances where an interim move will not interfere materially 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.

[62] I am mindful that courts are generally reluctant to permit temporary moves and that caution is required in such cases. However, when all the circumstances are considered, I am not convinced that a prohibition on the move is in the children's best interests. I find that on an interim basis it is in the best interests of the children that J.K. be permitted to relocate with them to Port Stanley, and that their best interests will be further supported by maintaining the status quo of custody and parenting time agreed to by the parties in the separation agreement. The only adjustment to M.K.'s parenting time being that the alternate Thursday overnight in the school year will be exercised at a different time. His overall time with the children will be maintained.

[63] The parties have no doubt gone to great effort and expense to litigate this issue. These resources could have been put to better use in these uncertain times. Both parties, with the assistance of counsel, should carefully consider this issue before this matter returns to court.

Order

[64] On the basis of all these considerations an interim order shall issue as follows:

1. Custody to J.K.

2. J.K. shall be permitted to relocate with the children to Port Stanley.

3. Periods of parenting time with the father as outlined in the parties' separation agreement, except for the alternate Thursdays overnight during the school year. These times shall be made up as arranged between the parties.

4. J.K. shall provide the transportation for access.

Operative Order

In the circumstances of the Covid 19 emergency, these Reasons for Judgment are deemed to be an Order of the Court that is operative and enforceable without any need for a signed or entered, formal, typed order. The parties may submit formal orders for signing and entry before normal Court operations resume, however, these Reasons are an effective and binding Order from the time of release.

Costs

The parties are strongly encouraged to agree on the issue of costs, if any, in this matter. However, if the parties are unable to agree the party seeking an order for costs shall serve and file written submissions, not to exceed three pages, excluding attachments by September 15, 2020, with the responding party filing written submissions, not to exceed three pages, excluding attachments by September 29, 2020. If no submissions are received from the party seeking costs by the deadline there shall be no order as to costs.

Released: August 31, 2020

Signed: "Justice S. E. J. Paull"