ONTARIO COURT OF JUSTICE DATE: 2021·08·31 COURT FILE No.: Woodstock D101/21
BETWEEN:
Robert Fawcett Applicant
— AND —
Jenifer Slyfield Respondent
Before Justice S. E. J. Paull
Motions Heard on August 24, 2021 Reasons Released on August 31, 2021
Kathryn Junger................................................................................ counsel for the applicant(s) James G. Battin............................................................................ counsel for the respondent(s)
PAULL J.:
[1] Before the court are urgent motions brought by each party dealing with whether the children’s habitual residence should remain in Woodstock or whether they may be permitted to relocate to Manitoba with their mother.
[2] Mr. Fawcett seeks an order preventing a change in the children’s residence from Woodstock. Ms. Slyfield seeks an order that his motion be dismissed which would, in essence, permit her to relocate with the children to Manitoba where they have very recently moved to.
[3] While Ms. Slyfield did not plead it as such, this is a temporary mobility case in the circumstances of the parties’ recent separation, and where there is no prior order concerning decision-making and parenting time.
[4] In addition to the able submissions of counsel I have reviewed and considered the affidavits and attachments at Tabs 4 and 6-10 in the Continuing Record.
Background and Evidence
[5] The parties have filed numerous affidavits which, as one might expect, paint radically different pictures of the nature of their relationship and the other party’s involvement with the children and their overall fitness to parent.
[6] The parties began living together in 2011 and separated finally on July 15, 2021. The parties have two children together, Daniella Fawcett born […], 2014 and Delilah Fawcett born […], 2017. Mr. Fawcett also stands in the place of the parent for Danika Fawcett born […], 2012, who is another of Ms. Slyfield’s children. Ms. Slyfield has two older children not subject to this proceeding.
[7] The parties have lived for many years in Woodstock in a home owned by Ms. Slyfield and the children have always lived in Oxford County. Mr. Fawcett is employed in Cambridge, and Ms. Slyfield is a nurse. Mr. Fawcett deposes to having aunts and uncles living in the Woodstock area while Ms. Slyfield’s parents live in Manitoba. Both parties dispute the level of involvement the children had with the other parent’s family.
[8] While the parties disagree on the particulars, prior to the separation on July 15, 2021 the parties agree that there was a plan for the family to relocate to Manitoba. Up to the date of separation the parties agreed and worked on the plan together. This involved Ms. Slyfield selling her home in Woodstock, and the purchase of another home in Brandon, Manitoba.
[9] Both parties make significant current and historical allegations against the other which they submit call into question the others fitness to parent. Not surprisingly both parties adamantly dispute the allegations.
[10] Both parties agree that they had an on-and-off relationship. Ms. Slyfield alleges that throughout their relationship they only lived together “for as long as three weeks at a time” between reconciliations and separations, with Mr. Fawcett alleging that the separations were only for a maximum of three weeks during which he resided elsewhere but always remained highly involved with the children.
[11] Both allege that the other has been physically and verbally abusive throughout the relationship. Ms. Slyfield states that Mr. Fawcett physically assaulted her older child, Devon in June 2020. The parties’ final separation on July 15, 2021 followed what Ms. Slyfield referred to as a “verbal assault” on Devon by Mr. Fawcett. Ms. Slyfield was not present for this incident. Mr. Fawcett acknowledges using inappropriate language but adamantly disputes the extent of the argument with Devon or that he has ever physically assaulted any of the children.
[12] Both parties make allegations of excessive alcohol use by the other and Ms. Slyfield alleges that Mr. Fawcett uses marijuana excessively. There is no collateral or third-party evidence corroborating any substance use issues with either parent, and no evidence of recent police or CAS involvement regarding any of these allegations including Mr. Fawcett’s alleged physical assault on Devon in 2020.
[13] Ms. Slyfield states that she and Mr. Fawcett never co-parented, and that Mr. Fawcett was largely absent even during those times when they were not separated. Mr. Fawcett deposes that he has always been actively involved with the children and often provided primary care including when Ms. Slyfield was working. He also attended the children’s activities regularly. He provided pictures and text/Facebook messages which illustrate his involvement and Ms. Slyfield’s apparent view during the relationship that he was a good and involved father.
[14] During one of the parties’ separations the parties entered into a domestic contract dated October 17, 2017 wherein the parties agreed to Ms. Slyfield having custody with Mr. Fawcett paying guideline child support and having regular and liberal access. Mr. Fawcett claims he signed the agreement under duress. In any event the parties reconciled following the execution of that agreement.
[15] Mr. Fawcett acknowledges an arrest for assault in 2013 related to Ms. Slyfield. He attended the MARC program and the charges were withdrawn. He alleges that at that time she had assaulted him and had lied to get him charged. Mr. Fawcett acknowledges a further assault charge in 2018 for which he received a conditional discharge after completing the Caring Dads Program. Ms. Slyfield acknowledges a dated criminal record for theft and possession of marijuana.
[16] While the parties disagree on when the discussions began, it is not disputed that by at least May 2021 they discussed and agreed to move as a family to Manitoba and undertook efforts to make it happen.
[17] Following an argument around June 6, 2021 Mr. Fawcett sent a text to Ms. Slyfield stating that if he was not going to Manitoba, he did not give his permission for the children to go. The parties were able to work through the difficulties on that occasion and the joint planning for the family’s move continued.
[18] Ms. Slyfield flew to Brandon, Manitoba in early July 2021 to look at several homes which the parties discussed via text messaging, while Mr. Fawcett remained at home looking after the children. Mr. Fawcett was responsible for investigating home inspection options.
[19] On July 9, 2021, the day Ms. Slyfield returned to Woodstock, she executed an agreement to purchase a home in Brandon, Manitoba with the closing date of August 18, 2021. Mr. Fawcett was aware of this and acknowledged that this was the anticipated date of the family’s move to Manitoba. On July 12, 2021 Ms. Slyfield sold the home in Woodstock with the closing date of August 16, 2021. Ms. Slyfield also terminated her employment and the children’s day care in anticipation of the move.
[20] All seemed to be on track with the family’s plan to move until the parties separated on July 15, 2021, which involved Ms. Slyfield asking Mr. Fawcett to leave the home following the argument with Devon.
[21] Following the date of separation Mr. Fawcett sent Ms. Slyfield a letter by email on July 20, 2021 saying he was no longer consenting to the children moving. Ms. Slyfield alleges that she did not receive this letter but acknowledged receiving an email from Mr. Fawcett on July 22, 2021 which she indicates she chose not to open.
[22] Following the separation Mr. Fawcett had no contact with the children until a short visit on August 8, 2021 where he alleges he became aware from one of the children that Ms. Slyfield still intended to move. He immediately retained counsel who served Ms. Slyfield on August 11, 2021 with a letter confirming Mr. Fawcett’s opposition to the move and the motion materials. The return date of the motion was August 16, 2021 by which point Ms. Slyfield had retained counsel and served her own motion. She acknowledges that she moved with the children as previously planned on or around the weekend of August 14-15, 2021 and prior to August 24, 2021 when the motions were heard.
[23] The issue of urgency was not disputed, with both parties agreeing that the relocation of the children establishes urgency. I agree that urgency is established in the circumstances.
The Law
[24] 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 one parent is permitted to move with the child, inevitably the relationship between the children and the other parent will be affected and may suffer. A court must carefully balance each parent’s legitimate interests, but in every case, the ultimate question is what is in the best interests of the child. Reeves v. Brand, 2018 ONCA 263.
[25] 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.
[26] 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 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.
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.).
[27] 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.
[28] In resolving decision-making and parenting time disputes, emphasis must be placed on the critical importance of bonding, attachment, and stability in the lives of young children. Barnes v. Parks.
[29] Decisions with respect to children, including the issue of mobility, are guided solely by what is in the children’s best interests. Section 24 of the Children’s Law Reform Act requires that any determination with respect to decision-making and parenting time be made on the basis of the best interests of the children and section 24 outlines a number of specific best interests factors.
[30] In Datars v. Graham, Justice M.G.J. Quigley, when dealing with an interim motion concerning mobility, stated at para. 3 the following:
On this interim motion there is only one issue, and that is the issue of mobility. As the caselaw referred to below makes clear, the issue of mobility is to be resolved by reference to only one question-is it in Zach’s best interest that he moved to Ottawa with his mother or should he continue to reside in this region? On this interim motion, however, a further question is whether that question can properly be decided in this case on the basis of the unchallenged affidavit evidence of the parties, or do Zachary’s best interest require that this issue be determined at a full hearing where the examination of the parties can be tested and better evaluated following cross-examination?
[31] At para. 16 of the decision, the Court identified the difficulty in making such decisions on mobility cases on an interim basis on untested affidavit evidence where the Court held:
The problem 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 2000 ONCJ 490; Goodship v MacMaster.
Analysis
[32] Mobility cases, particularly temporary mobility cases, are among the most challenging the court faces and this case is no exception.
[33] One of the aspects that make these cases a particular challenge is the significant impact any order will have on the family and possibly the final result of the litigation. One of the major concerns with granting temporary mobility requests in cases with young children is the disruption to their ability to develop and maintain a meaningful relationship with the other parent.
[34] A further challenge in this case is that the conflicting allegations and rebuttals in the parties’ affidavits are untested. I do not have the benefit of viva voce evidence or cross examination on the parties’ affidavits, or any independent evidence including by way of an OCL report, evidence from the CAS, or of any recent police involvement.
[35] In the circumstances extreme caution is required before making factual findings on disputed matters. However, while recognizing these challenges and the cautious approach required there are findings that may appropriately be made, particularly based on the acknowledged or undisputed aspects of the evidence.
[36] With these considerations in mind I make the following factual findings:
a. The parties had a conflictual, on-and-off relationship with numerous short-term separations and reconciliations prior to their final separation on July 15, 2021. The separations, including the final one, involved Mr. Fawcett leaving the residence.
b. The children’s habitual residence has always been in Oxford County, Ontario.
c. Since at least May 2021 the parties agreed that the family would move to Manitoba, and both parties actively and jointly planned for this move.
d. Ms. Slyfield sold her home in Woodstock and purchased a home in Brandon, Manitoba. The family was scheduled to move in mid-August 2021. The homes were purchased and sold prior to the parties’ final separation on July 15, 2021.
e. In anticipation of the family’s move, Ms. Slyfield terminated her employment and the children’s day care in Woodstock.
f. Both parties agree the children were excited about the family’s move to Manitoba.
g. On the evidence before the court neither party has established their level of concern with the others ability to parent. There is no evidence of CAS or recent police involvement, and no evidence that either party has recently contacted the CAS or police which would have been reasonable given their stated level of concern.
h. Further, Ms. Slyfield’s text/Facebook messages, no doubt sent in happier times during the parties’ relationship, confirm her view at various times of Mr. Fawcett’s involvement and active role as a parent. I accept that Mr. Fawcett was involved to some degree in co-parenting the children including when Ms. Slyfield worked, and more recently when she was in Manitoba searching for a home.
i. Ms. Slyfield knew or ought to have known that Mr. Fawcett was no longer consenting to the move after the separation. That she would receive an email from Mr. Fawcett on July 20, 2021 and intentionally not open it is suggestive that she may have suspected its contents and chose to ignore it. She could have been under no misapprehension of Mr. Fawcett’s position when she was served with Mr. Fawcett’s motion and letter from counsel on August 11, 2021.
j. I further find on a balance of probabilities that Mr. Fawcett was likely aware or ought to have been aware of Ms. Slyfield’s intention to proceed with the move following the separation. In circumstances where he knew that she had already sold her home and purchased another one in Manitoba and terminated her employment, it would have been reasonable to conclude that she would likely believe there was little other choice but to proceed with the move in spite of the separation.
k. Ms. Slyfield moved the residence of the children to Manitoba on or about the weekend of August 14-15, 2021.
[37] It is unfortunate the parties did not attempt to discuss the practical realities of the family situation given the imminent plan to move to another province and the very recent separation.
[38] This is a difficult case. Whatever order this court makes in the circumstances will be an imperfect solution to a complex problem, based on an incomplete and untested evidentiary record. It is not possible in this case to complete an extensive child focused inquiry on the conflicting and incomplete affidavit evidence before the court. It is important to emphasize that the only consideration is what is in the best interests of the children on a temporary basis and not what might be considered fair or unfair to either of the parents.
[39] I am mindful that the Ontario Court of Appeal in Bjornson v. Creighton (2002), 31 R.F.L. (5th) 242, emphasized the need for trial judges to determine the issues of decision-making authority before mobility, and at the outset of any proceeding both parents are equally entitled to decision-making authority.
[40] Further, the domestic agreement the parties entered into in 2017 has no bearing on the current circumstances. Quite apart from the issue of Mr. Fawcett’s allegation that he entered that agreement under duress, the Ontario Court of Appeal held in Krebs v. Cote, 2021 ONCA 467, that it is well-established in the common law that a separation agreement becomes void upon the reconciliation of the parties, subject to any clause in the separation agreement that overrides the common law rule or which would imply that the intent of the parties was that the terms of the separation agreement would be carried out despite any subsequent reconciliation. There is no indication in the short domestic agreement or the evidence of either party that this was the intention.
[41] Ms. Slyfield moved the children to a different province following the parties’ recent separation, over the objections of Mr. Fawcett, without a written agreement or court order, and without making arrangements for any meaningful parenting time for him. Mr. Fawcett contests not only mobility, but also decision-making and primary residence.
[42] However, this is not a typical mobility case where one party relocates with the children without consent. Rather, this case is one of withdrawn consent to relocate as a result of a recent separation. The parties agreed to the family moving and plans were made, including homes being bought and sold. The parties separated shortly before the scheduled move date.
[43] 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.
[44] 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. As previously noted, the evidence supports that Mr. Fawcett has been involved in some level of co-parenting.
[45] Further, there was no current or recent independent evidence, including from the CAS or the police, to corroborate either party’s allegations. Given their stated level of concern it would have been reasonable to expect that each would have sought police and/or CAS involvement. However, both parties acknowledge a conflictual, on-and-off relationship throughout the time they were together, and Mr. Fawcett acknowledges pleading guilty to an assault in 2018 and receiving a conditional discharge.
[46] The children’s exposure to the parents’ conflictual and on/off relationship over several years is a concern to this court and has not been in the children’s best interests. Both parties share in the responsibility for permitting these circumstances to persist for so long.
[47] The children have no prior connection to Manitoba and have lived their entire lives in Woodstock. The older children have attended school and been involved in extracurricular activities in Woodstock. It is reasonable to assume that they have developed friendships and connections in Woodstock as a result.
[48] 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 living with a cousin while looking for other accommodations, and their mother purchased another home in Manitoba prior to the separation. The reality is that neither parent has accommodations for the children in Woodstock currently.
[49] The children are quite young, with the youngest not having started school yet. Given their young age a move is likely to have less impact on them than if they were older.
[50] 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.
[51] 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 the children having to change schools even if they remain in Woodstock because the family home has been sold, and it is unclear where either parent would be living if the children remain here. Secondly, Delilah has not started attending school and her siblings are also relatively young. As previously noted the courts have 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 Danika or Daniella starting at a different school, whether in Woodstock or Manitoba.
[52] The court can understand Mr. Fawcett’s frustration, as it seems apparent that the move to Manitoba was contemplated as a family plan. If the children are permitted to relocate, and Mr. Fawcett chooses to remain in Ontario the distance involved precludes the kind of frequent parenting time that would be possible if both parties lived in the same area.
[53] I am also concerned with the level of cooperation that Ms. Slyfield has shown since separation to facilitate parenting time for Mr. Fawcett. In spite of the allegations, her counsel submitted on her behalf that what was required at this point, if the children are permitted to relocate, is to establish a schedule of longer periods of parenting time for Mr. Fawcett during holidays to ensure the children have meaningful and sufficient time with him.
[54] However, Ms. Slyfield permitted virtually no contact after separation and moved with the children without a court order while making no apparent effort to facilitate or even discuss parenting time arrangements with Mr. Fawcett. Time with a parent is the right of the child and if Ms. Slyfield continues to show this inadequate level of support for the children’s relationship with Mr. Fawcett, it will be a significant factor the court will consider at any future trial when weighing each party’s parenting plan.
[55] Given that many of the parties’ allegations remain untested and both parties are likely to face credibility challenges, there are likely triable issues in this matter related to both decision-making and the move to Manitoba. Ms. Slyfield has a reasonable parenting plan for the children if they are permitted to relocate, however, it is difficult to conclude that she has a strong possibility of success at trial because Mr. Fawcett’s parenting plan is entirely unclear at this time.
[56] While the children have lived their entire lives in Woodstock, Mr. Fawcett’s parenting plan at present is not formulated, which is not surprising given the recency of the separation. He only states that he is presently residing with a cousin in Woodstock while he seeks alternate accommodations. It is unclear on the evidence where he will live and what his circumstances will be.
[57] As a practical matter, the plan before the court that is most formulated is the one that the children relocate to Manitoba. The circumstances in this case arise from the unfortunate timing of the parties’ separation, which was after the move had been agreed to and planned, and 4 short weeks before the actual move.
[58] Ms. Slyfield has a home for the children in Brandon, Manitoba, a job, and arranged for the children to continue to attend a bilingual school. Both parties acknowledge that the children were excited about the move at least when it involved the whole family.
[59] Further, I am keenly aware that decision-making has not yet been determined and permitting the move now may result in the children being required to return to reside in Ontario following a trial. However, based on the evidence before the court at this time, the only plan is for the children to relocate to Manitoba as the family had previously planned. In the circumstances the risk that the children may be required to return to Woodstock after trial does not outweigh the negative impact on the children which would surely result if they were required to remain in Woodstock now when it is clear that neither of their parents have a residence here for them at this time.
[60] I am mindful that courts are generally reluctant to permit temporary moves and that great 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 Ms. Slyfield be permitted to relocate with them to Manitoba. I note that the court would have arrived at this conclusion regardless of whether these motions had been heard immediately before the planned date for the move.
[61] Neither party has sought interim orders on this motion with respect to decision-making authority or parenting time, and the only issue before the court is mobility. However, it is in the children’s best interests that the court make some provision for these issues on a temporary without prejudice basis to minimize the likelihood of further upheaval, conflict and delay around the children maintaining a meaningful connection with their father pending resolution of these issues.
[62] As proposed by counsel for Ms. Slyfield, a plan for Mr. Fawcett to have extended periods of parenting time with the children during holidays is necessary. It is in the children’s best interests that the schedule includes sufficient time for them to maintain their attachment and bond with him.
[63] On an interim without prejudice basis and pending further order of the court or agreement of the parties, this shall include the Thanksgiving weekend, half of the Christmas break, a full week during the March break, and five uninterrupted weeks in the summer commencing one week after the start of school summer break. The parties shall also share equally the cost and responsibility for transportation of the children for Mr. Fawcett’s parenting time.
[64] This temporary without prejudice schedule will also include two opportunities a week for Face Time visits, and the schedule will be subject to the parties agreeing to modifications. The court expects the parties and counsel to make concerted efforts to attempt to resolve these issues and the issue of child support without the need for further litigation.
[65] I am not prepared in the circumstances and on the evidence before the court to make a without prejudice order regarding decision-making. However, it is in the children’s best interests that certain without prejudice orders be made to ensure that Mr. Fawcett maintains some level of inclusion on issues involving the health, education, and welfare of the children, and to ensure a more level playing field between the parties until the issue of decision-making is either ordered or agreed to. This shall include the right to independent access to third parties involved in the children’s health, education, and welfare.
[66] The parties have no doubt gone to great effort and expense to litigate this matter. 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.
[67] On the basis of all these considerations an interim order shall issue as follows:
On a temporary basis, Ms. Slyfield shall be permitted to relocate with the children to Brandon, Manitoba.
On a temporary without prejudice basis the following order shall issue unless otherwise agreed by the parties: a. Mr. Fawcett shall have parenting time with the children a minimum of two times per week through Face Time, and Ms. Slyfield shall cooperate to facilitate these times. b. Mr. Fawcett shall have independent access to third parties involved with the children’s health, education, and welfare, and Ms. Slyfield shall forthwith provide him with the contact information for the children’s school, daycare provider, and anyone else involved in their health, education, and welfare. c. Mr. Fawcett shall have parenting time as follows: i. for the Thanksgiving weekend from Friday to Monday; ii. one half of the Christmas break starting the day after school ends in December 2021 and in odd years thereafter, and the second half of the Christmas break in even years ending the day before the children returned to school; iii. for one week during the March break starting the first Saturday after school ends and ending the following Saturday; iv. five uninterrupted weeks in the summer starting one week after the end of school in June each year; v. such other times as may be agreed upon between the parties; vi. the parties will share equally the costs and responsibility for transportation of the children for the purposes of Mr. Fawcett’s parenting time.
The parties are strongly encouraged to agree on the issue of costs, if any, in this matter. The court will not likely be inclined to make an order for costs, as it was not unreasonable for Mr. Fawcett to have brought his motion in the circumstances. 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, 2021, with the responding party filing written submissions, not to exceed three pages, excluding attachments by September 29, 2021. If no submissions are received from the party seeking costs by the deadline there shall be no order as to costs.
Released: August 31, 2021 Signed: “Justice S. E. J. Paull”