CITATION: P.I. v. R.O., 2021 ONCJ 463
DATE: September 2, 2021
COURT FILE NO. D52592/10
ONTARIO COURT OF JUSTICE
B E T W E E N:
P.I.
ACTING IN PERSON
APPLICANT
- and -
R.O.
ACTING IN PERSON
RESPONDENT
WILLIAM HUTCHESON, on behalf of the OFFICE OF THE CHILDREN’S LAWYER, on behalf of the children
HEARD: SEPTEMBER 1, 2021
JUSTICE S.B. SHERR
REASONS FOR DECISION
Part One - Introduction
[1] On April 27, 2021, after almost two years of litigation, the parties reached a comprehensive final agreement on the parenting and support issues regarding their two children (the children). The agreement was incorporated into a court order that day (the existing order).
[2] The existing order includes terms that:
a) The parties have joint decision-making responsibility for the children.
b) The child A. (age 15) shall live primarily with the respondent (the father).
c) The applicant (the mother) shall have parenting time with A. every Saturday for a minimum of four hours.
d) The child S. (age 13) is to rotate her residence between the parties on a week-about basis.
[3] The parties both resided in Toronto when the existing order was made. One of the incidents of parenting contained in the existing order provides that any party who intends to undertake a relocation or change of residence is to provide 45 days notice of the relocation to the other party.
[4] On June 19, 2021, the mother advised the father that she was relocating in two days to Wasaga Beach. She told the father that she intended to have the children live with her and attend school in Wasaga Beach in September.
[5] The mother relocated to Wasaga Beach on June 21, 2021. Since then, S. has been spending her alternate weeks with her mother there. A. has continued to live with the father in Toronto.
[6] The father sent the mother his formal objection to the relocation on June 24, 2021.
[7] Both parties have now brought motions to change the existing order. The father seeks orders prohibiting the relocation of the children to Wasaga Beach, that S. have her primary residence with him; that S. attend school in Toronto and that the mother have parenting time with S. on three out of every four weekends.
[8] The father takes the position that there has not been a material change in circumstances that affects or is likely to affect A.’s best interests. He asks that the mother’s motion to change the existing order respecting A. be dismissed.
[9] The parties agree that there has been a material change in circumstances affecting S.’s best interests.
[10] The mother seeks orders to relocate the children to live with her in Wasaga Beach and to attend school there. She proposes that the father have parenting time with the children every weekend.
[11] Both parties sought orders that the other be responsible for transporting the children on parenting exchanges. During submissions, the parties agreed to some sharing of transportation responsibilities. This will be discussed in more detail below.
[12] The court made a referral to the Office of the Children’s Lawyer. Mr. Hutcheson, who had previously represented the children, was again assigned to represent the children.
[13] The parties agreed on August 6, 2021 that these motions would be argued on a temporary basis, given that a decision needed to be made before school begins.[^1] Timelines were set for the filing of motion material. The parties agreed that Mr. Hutcheson would give the children’s views and preferences to the court at the hearing.
[14] Mr. Hutcheson advised the court that A.’s views and preferences are very clear. She does not want the existing order changed other than to add a clause that the mother is not to take her to Wasaga Beach without her consent.
[15] Mr. Hutcheson advised the court that S. provided him with inconsistent views and preferences in his two meetings with her. His position on the motions was that S. should remain in Toronto at her present school.
[16] The court reviewed the affidavits filed by the parties. The mother was affirmed and permitted to give additional oral evidence to respond to new events related to the court by Mr. Hutcheson.
[17] The issues for the court to determine are as follows:
a) Has there been a material change in circumstances affecting or likely to affect the best interests of one or both children?
b) If so, what temporary parenting orders are in each child’s best interests? In particular:
(i) Should an order be made permitting the mother to relocate one or both of the children to Wasaga Beach?
(ii) With which parent should the children have their primary residence?
(iii) Where should the children attend school?
(iv) What parenting time should the other parent have with each child?
(v) What transportation orders should be made for parenting exchanges?
Part Two – Legal considerations
2.1 Legislation
[18] Section 29 of the Children's Law Reform Act (the Act) provides the statutory authority for changing a parenting order on either a temporary or final basis. It states:
A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child
[19] Subsection 29 (2) of the Act adds a new consideration in relocation cases.[^2] It reads as follows:
Relocation
(2) For the purposes of subsection (1), the relocation of a child in accordance with section 39.4 constitutes a material change in circumstances unless the relocation had been prohibited by a court, in which case the relocation does not, in itself, constitute a material change in circumstances.
[20] Relocation is defined in subsection 18 (1) of the Act as follows:
“relocation” means a change in residence of a child, or of a person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child, that is likely to have a significant impact on the child’s relationship with,
[21] Subsection 24 (2) of the Act provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining best interests.
[22] Subsection 24 (3) of the Act sets out a list of factors for the court to consider related to the circumstances of the child. It reads as follows:
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(k) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(l) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(m) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
[23] Subsection 24 (6) of the Act addresses parenting time and day-to-day decisions. It reads as follows:
Parenting time, day-to-day decisions
(6) Unless the court orders otherwise, a person to whom the court allocates parenting time with respect to a child has exclusive authority during that time to make day-to-day decisions affecting the child.
[24] Subsection 33.1 (2) of the Act addresses the importance of the parties protecting children from conflict. It reads as follows:
- 1 Protection of children from conflict
(2) A party to a proceeding under this Part shall, to the best of the party’s ability, protect any child from conflict arising from the proceeding.
[25] Sections 39.3 and 39.4 of the Act set out additional considerations when a parent intends a relocation. These sections read as follows:
Relocation
39.3 (1) A person who has decision-making responsibility or parenting time with respect to a child and who intends a relocation shall, at least 60 days before the expected date of the proposed relocation, notify any other person who has decision-making responsibility, parenting time or contact under a contact order with respect to the child of the intention.
Notice requirements
(2) The notice shall be in the form prescribed by the regulations or, if no form is prescribed, shall be in writing and shall set out,
(a) the expected date of the proposed relocation;
(b) the address of the new residence and contact information of the person or child, as the case may be;
(c) a proposal as to how decision-making responsibility, parenting time or contact, as the case may be, could be exercised; and
(d) any other information that may be prescribed by the regulations.
Exception
(3) On application, the court may in any circumstance provide that subsections (1) and (2) or anything prescribed by the regulations for the purposes of subsection (2) do not apply, or apply with any changes the court specifies, if the court is of the opinion that it is appropriate to do so, including if there is a risk of family violence
Same
(4) An application under subsection (3) may be made without notice to any other party.
Objection
(5) A person with decision-making responsibility or parenting time who receives notice of the proposed relocation under subsection (1) may, no later than 30 days after receiving the notice, object to the relocation by,
(a) notifying the person who gave the notice of proposed relocation of the objection to the relocation; or
(b) making an application under section 21.
Notice requirements
(6) A notice under clause (5) (a) shall be in writing and shall set out,
(a) a statement that the person objects to the relocation;
(b) the reasons for the objection;
(c) the person’s views on the proposal referred to in clause (2) (c); and
(d) any other information that may be prescribed by the regulations.
Regulations
(7) The Attorney General may make regulations,
(a) prescribing anything in this section that may be prescribed by the regulations;
(b) requiring that a notice under this section be given in a manner specified by the regulations.
Authorization of relocation
39.4 (1) In this section,
“family arbitration award” has the same meaning as in the Arbitration Act, 1991.
Same
(2) A person who has given notice of a proposed relocation in accordance with section 39.3 and who intends to relocate a child may do so as of the date referred to in the notice if,
(a) the relocation is authorized by a court; or
(b) no objection to the relocation is made in accordance with subsection 39.3 (5) and there is no order prohibiting the relocation.
Best interests of the child
(3) In determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with section 24, as well as,
(a) the reasons for the relocation;
(b) the impact of the relocation on the child;
(c) the amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child’s life of each of those persons;
(d) whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement;
(e) the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside;
(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses; and
(g) whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance.
Factor not to be considered
(4) In determining whether to authorize a relocation of the child, the court shall not consider whether, if the child’s relocation were to be prohibited, the person who intends to relocate the child would relocate without the child or not relocate.
Burden of proof
(5) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.
Same
(6) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend the vast majority of time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.
Same
(7) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.
Burden of proof, exception
(8) If an order referred to in subsection (5) or (6) is an interim order, the court may determine that the subsection does not apply.
Costs of relocation
(9) If a court authorizes the relocation of a child, it may provide for the apportionment of costs relating to the exercise of parenting time by a person who is not relocating between that person and the person who is relocating the child.
2.2 Motions to change generally
[26] The Supreme Court of Canada decision in Gordon v. Goertz (1996), 1996 191 (SCC), 19 R.F.L. (4th) 177 S.C.C. sets out a two-stage process for the court to conduct in motions to change parenting orders as follows:
a) First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
b) If the threshold is met, the court must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.
[27] In L.M.L.P. v. L.S., [2011] SCC 64, the Supreme Court stated that the change must be substantial, continuing and that “if known at the time, would likely have resulted in a different order.” The Supreme Court stated that it must limit itself to whatever variation is justified by the material change of circumstances.
[28] On a motion to change, the court has the option of restricting changing the existing order to address a specific issue, while maintaining its integrity. See: Elaziz v. Wahba, [2017] ONCA 58.
[29] The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. See: Phillips v. Phillips, 2021 ONSC 2480.
[30] In considering a child’s best interests, it will often be important to determine if a parent will follow the terms of a court order. See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 201.
2.3 Motions to change final orders on a temporary basis
[31] In F.K. v. A.K., 2020 ONSC 3726, Justice Alex Pazaratz found that when a party seeks a temporary change to a final order, the court must conduct an even more stringent analysis, writing at paragraph 52:
a) In all instances, courts must exercise caution before changing an existing arrangement which children have become used to.
b) This is especially the case where the existing parenting arrangement has been determined by way of court order. The starting point is that court orders are presumed to be correct. Montgomery v. Montgomery 1992 8642 (ON CA); Gordon v. Gordon 2015 ONSC 4468 (SCJ); Oickle v. Beland 2012 ONCJ 778 (OCJ).
c) And the level of required caution is further heightened if the court is being asked to change a final parenting order on a temporary basis. If the general rule is that we are reluctant to change temporary orders pending trial, then it goes without saying that we should be even more reluctant to change final orders pending determination of the issue.
d) Although counsel did not raise jurisdiction as an issue, I am satisfied the court has the authority to grant a temporary variation of a final order -- in the appropriate circumstances. Stokes v. Stokes 2014 ONSC 1311 (SCJ); Huliyappa v Menon 2012 ONSC 5668 (SCJ); Clements v Merriam 2012 ONCJ 700 (OCJ).
e) But the evidentiary basis to grant such a temporary variation must be compelling.
f) The court must start with the aforementioned two-part material change in circumstances analysis.
g) But for a temporary variation, the court must also assess whether the changed circumstances have created a situation of actual or potential harm, danger, or prejudice for the child; of such nature or magnitude that immediate rectification or correction are required to safeguard the child’s best interests.
h) The onus on the party seeking a temporary variation is onerous. They must establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child’s physical and/or emotional well-being. They must establish that the situation is so serious and potentially harmful that any delay in addressing the problem is likely to continue or exacerbate actual or potential physical and/or emotional harm for the child.
i) The court must be satisfied that the child’s best interests require an immediate change – to reduce the detrimental impact of unacceptable negative dynamics or behaviours.
j) The court must be satisfied that the existing order has come to be demonstrably contrary to the best interests of the child – and that the proposed temporary variation is urgently needed to shield the child from likely future harm.
k) Implicitly, the court must have a level of confidence that the temporary variation would not only remove the child from a negative situation, but that the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation.
l) And given the qualitative difference between untested affidavit materials on a motion compared with a more thorough evidentiary analysis at a trial or oral hearing, the court must be satisfied – on a balance of probabilities – that a clear and compelling need to make an immediate change has been established.
m) On a temporary motion, the status quo will have a strong gravitational pull – until the moment when the court determines that a child is in peril. After that, priority switches to rescuing and protecting the child. And the pace of correction is directly related to the magnitude of the child’s current exposure to harm.
2.4 Relocation on a temporary basis
[32] The jurisprudence also requires the court to conduct a stringent analysis before permitting a party to relocate a child on a temporary basis.
[33] The leading case for determining if a relocation should be permitted on a temporary motion is Plumley v. Plumley, 1999 13990 (ON SC), [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.
[34] The following are additional principles regarding temporary relocation cases:
a) The burden is on the parent seeking the change to prove compelling circumstances exist that are sufficient to justify the move. See: Mackenzie v. Newby, [2013] O.J. No. 4613 (OCJ).
b) Courts are generally reluctant to permit relocation on a temporary basis. The decision will often have a strong influence on the final outcome of the case, particularly if the order permits relocation. The reality is that courts do not like to create disruptions in the lives of children by making an order that may have to cause further disruption later if the order has to be reversed. See: Goodship v. McMaster, 2003 53670 (ON CJ), [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: Boudreault v. Charles, 2014 ONCJ 273.
e) 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).
Part Three – Has there been a material change in circumstances that affects or is likely to affect A.?
[35] The mother has not met her onus to show that there has been a material change in circumstances that affects or is likely to affect A.’s best interests for the following reasons:
a) The final parenting decision regarding A. was made on April 27, 2021. Very little time has passed since then.
b) A. has primarily resided with the father for over two years in Toronto.
c) A. has a strained relationship with the mother. They have been working on this relationship in counseling.
d) A. has chosen to have, for the most part, limited day parenting time with the mother.
e) There has been no change in A.’s views and preferences. She wishes to maintain the terms of the existing order – to live with the father in Toronto, to go to school in Toronto and to visit her mother for a few hours at a time, in Toronto.
f) A. has been doing well in the father’s primary care.
g) The mother’s move to Wasaga Beach has no impact on A.’s schooling or the counseling services that the father has arranged for her. The move should also have little, if any, impact on the limited parenting time the mother presently has with A.
h) The mother did not relocate in accordance with sections 39.3 and 39.4 of the Act, or in accordance with the existing order, as she did not provide the father with the required notice or information about the relocation. Accordingly, subsection 29 (2) of the Act is inapplicable.[^3]
[36] The mother’s motion to change the existing order regarding A. is dismissed. However, even if the mother had been able to establish a material change in circumstances that affected or is likely to affect A.’s best interests, the court finds that it is not in A.’s best interests to change the existing order. The court relies on the reasons set out in paragraph 35 above plus the following:
a) A. advised Mr. Hutcheson that she is very distressed because on two occasions she went to see her mother this summer in Wasaga Beach and the mother refused to return her to Toronto. On the second occasion, A. had only gone to Wasaga Beach after the mother had promised to drive her back. The father had to be called to pick her up both times. A. advised Mr. Hutcheson that she did not want to go again to Wasaga Beach.[^4]
b) A. also advised Mr. Hutcheson that last weekend she agreed to visit with the mother if she did not have to go to Wasaga Beach. The mother agreed. However, once she was in the car, the mother told A. she was taking her to Wasaga Beach. A. became distressed. The mother and A. instead went to a Bubble Tea in Toronto. A., still upset, called the father to pick her up. The mother was upset and left A. alone at the Bubble Tea. The mother acknowledged that this happened and said that she had just wanted to provide A. with a surprise. She was disappointed by A.’s response and admitted that she had lost her temper.
c) The court finds that the mother’s desire to have A. live with her has more to do with her own needs than A.’s needs. This will be set out in more detail below.
[37] Although it should not be necessary to include such a term, in order to give A. some peace of mind, the court will order that the mother is not to take her to Wasaga Beach without her express consent.
Part Four – Has there been a material change in circumstances that affects or is likely to affect the best interests of S.?
[38] The court finds that there has been a material change in circumstances that affects or is likely to affect S.’s best interests. The mother is now residing in Wasaga Beach. The father is residing in Toronto. It is not practical, nor is it in S.’s best interests, for her to be alternating weeks with each parent if the mother intends to remain living in Wasaga Beach.
[39] The parents disagree on where S. should attend school. They each want S. to attend school in their jurisdiction. A decision needs to be made so that S. has the stability of knowing where she will attend school this year.
[40] A new parenting time plan needs to be made. The distance between the parties is too far for a week-about parenting plan to work during the school year. S. has close relationships with both parents and the parenting plan needs to ensure that S. is able to maintain those relationships.
Part Five – Relocation
[41] The mother seeks to relocate S. to Wasaga Beach on a temporary basis. Since the parties spend equal time with S., the mother, as set out in subsection 39.4 (5) of the Act, has the burden of proving that the relocation would be in S.’s best interests.
[42] Subsection 39.4 (8) of the Act sets out that for interim orders, the court may determine that subsection 39.4 (5) does not apply.
[43] The burden of proof contained in subsection 39.4 (5) of the Act should apply in this case. The existing case law states that temporary relocation should only be permitted in compelling circumstances. This law is even more resonant when the parties spend equal parenting time with a child, as is the case here.
[44] The court finds that the mother did not meet her burden of proving that the relocation would be in S.’s best interests.
[45] The court emphasizes that even if the court had determined that subsection 39.4 (5) of the Act did not apply, it would have still found that it was not in S.’s best interests to relocate to Wasaga Beach.
[46] The court considered S.’s views and preferences, as expressed to Mr. Hutcheson. He set out S.’s initial views and preferences to the parties in an email dated August 16, 2021. He wrote:
For S., she wants to say that she didn’t want her mom to move and that she wanted her parents to live close to each other but that given the difficult options in front of her, she would like to give living primarily in Wasaga a try for a few months. She wants to see if she likes the kids there and if they will accept her given the fact that she is Queer. S. says that she wants to meet with me again at the end of November and at that point decide whether she will transfer schools back to Toronto or continue her grade 8 school year in Wasaga. She wants to then again make a decision about high school next summer. She is aware that there are a lot of options for high school in Toronto and only one option in Wasaga.
[47] Mr. Hutcheson said that S.’s views and preferences changed when he saw her again on August 30, 2021. She told him that she wants to continue at her school in Toronto and re-evaluate in November whether to go to Wasaga Beach for the school term starting in January 2022. She also told him that she was upset because the mother was making nasty comments about A. in S.’s presence. The mother did not deny this.
[48] The court is concerned that the mother is putting undue pressure on S. to live with her.
[49] The mother has shown poor judgment and has acted questionably. It is apparent that she was planning to move to Wasaga Beach when she entered into the agreement for the existing order on April 27, 2021.[^5] She did not disclose this plan to the father or to the court. More concerning is that the mother told S. about her plans one year ago and asked her to keep them secret from the father. Mr. Hutcheson wrote in his August 16, 2021 email to the parties:
S. says that her mom told her a year ago that she was going to move to Wasaga but she was told that she had to keep that a secret from everyone. She says that dad and A. didn’t find out about them moving until the day before they moved. She says that she never wants either of her parents to tell her anything ever again that she cannot tell to the other parent.
[50] The mother did not deny telling S. this. In fact, she wrote to the father, “I told S. not to disclose info because you and K. are people I don’t trust one bit”.[^6]
[51] The mother placed S. directly in the middle of the parental conflict causing S. increased distress.
[52] The mother has also placed S. in the middle of conflict by making negative comments about A. that make S. uncomfortable.
[53] The mother’s affidavit reveals that her request to have the children come and live with her may have more to do with fulfilling her own needs than the children’s needs. She writes at paragraph 5 of her affidavit:
I am seeking primary parenting/sole custody to get the kids back to a healthy and fulfilling lifestyle as they are safer with me, mom. It is my duty as a mom to do so and this lack of duty when A. has been at dads for 2 years has affected me, more than words can say.
[54] The mother writes at paragraph 13 of her affidavit:
I have suffered from being medically anemic since I was a kid, and it has been getting worse from this ordeal. My doctor says that with the reduction of stress, I can slowly get better.
[55] The mother told the court that after all these years of litigation and with the stress of COVID and her health issues, she felt that she and the children needed a fresh start.
[56] S. is a vulnerable child with some challenges who wishes to please her parents. There is a real concern that S. is being put into the position by the mother of having to meet the mother’s needs.
[57] The court considered the mother’s reason for the relocation and accepts that it is cheaper for her to live in Wasaga Beach than in Toronto and that she is able to provide better accommodation for S. in Wasaga Beach. It also accepts her evidence that she feels that being in a quieter environment will be beneficial for her and the children.
[58] The mother made vague allegations of family violence against the father. These were historical allegations and preceded the start of the last round of litigation that started in 2019. These allegations have always been denied by the father. This was not a relevant factor in this decision.
[59] The best interest factors that militate against the relocation are as follows:
a) S. has been the subject of litigation for many years. The latest lengthy round of litigation was settled on April 27, 2021. The settlement was intended to give S. peace and stability. Instead, the mother chose to blow up that stability less than two months later.
b) S. has always lived in Toronto. Her school and friends are in Toronto. This is her last year before high school. Her teachers are familiar with her special needs and academic challenges. It is not in her best interests to move schools.
c) The father set out a specific academic plan for S. He plans for her to have in-person schooling. This is recommended by her teachers as S. struggled academically with on-line learning. He is also arranging for S. to have a tutor.
d) The mother did not set out a schooling plan for S. other than to name the school S. would attend.
e) S. has a guidance counselor at her school in Toronto. This counselor assisted her in coming out as queer. It is in S.’s best interests that this support continues.
f) S. recently completed therapy at Yorktown. The father described it as a positive experience. He plans to extend this. A. is receiving peer support at Yorktown and the father says that S. would like to have this support like her sister.
g) The mother did not set out any counseling plans for S. She did not set out if there were appropriate counseling services for S. in the Wasaga Beach area.
h) It is not in S.’s best interests to separate her from her sister.
i) The father has provided a stable home for S. The mother has not. She has moved 5 times in the past two years.
j) The mother claims that she complied with the relocation notice terms in the existing order. She did not. She was supposed to provide 45 days before she relocated. She gave 2 days notice of the relocation to the father. She failed to provide the father with particulars of the relocation as required in the existing order. The relocation clause reads as follows:
- The party who intends to undertake a relocation or a change of residence, shall notify, at least 45 days before the expected date of the proposed relocation/change of residence, notify the other parent of their intention. The notice must set out the following:
a) the expected date of the relocation or change of residence;
b) the address of the new place of residence and contact information of the parent, if there are any changes to their contact information.
c) if need be, a proposal as to how parenting time, decision-making responsibility or contact would be exercised by the other parent; and
d) any other relevant information.
Predictably, issues arose regarding transporting the children over the summer due to the distance between the two homes.
k) It appears that the mother did not act in good faith when she agreed to the existing order. She did not reveal her intention to move to Wasaga Beach. She recruited S. to keep the move secret from the father.
l) The mother failed in her duty as a parent to protect S. from parental conflict. To the contrary, she has directly involved S. in the conflict.
m) The mother breached the existing order by failing to comply with the notice of relocation terms contained in it. Despite the father’s objection, she relocated with S. without the court’s prior approval. These are relevant considerations in any relocation best interests analysis. See: Clause 39.4 (3) (d) of the Act.
n) The mother has broken promises to the children to drive them back to Toronto from Wasaga Beach.
[60] The mother has failed to show compelling circumstances why the relocation should be permitted on a temporary basis. The mother appears to have a weak case for relocation at trial.
[61] The mother’s motion to relocate S. on a temporary basis is dismissed. S. shall continue to have her primary residence in Toronto.
Part Six – School
[62] Choice of school is an incident of decision-making responsibility pursuant to section 28 of the Act. See: D.B. v. M.R.B., 2019 ONSC 4925; Piper v. Hare, 2021 ONSC 2139.
[63] The court finds that it is in S.’s best interests to continue to attend her present school in Toronto for the reasons set out in paragraph 59 above – specifically clauses (a) to (e).
[64] The court order will provide that S. shall attend her present school in Toronto and that the mother shall not enroll or take S. to another school.
Part Seven – Parenting time
[65] The existing order is just over three months old. It should only be changed to address the changes in circumstances that have taken place.
[66] If the mother decides to live in Toronto there is no reason to change the week-about parenting schedule respecting S. She loves both parents and enjoys her time with both of them.[^7]
[67] If the mother chooses to live outside of Toronto, then the week-about parenting plan is no longer in S.’s best interests. It is no longer practical. She cannot be traveling to school in Toronto from Wasaga Beach during the mother’s parenting time.
[68] If the mother chooses to live outside of Toronto, the child will have her temporary primary residence with the father in Toronto.
[69] S. is presently with the father. It is in her best interests to remain with him until school starts next week.
[70] If the mother lives outside of Toronto:
i) S. shall remain in the father’s care until September 10, 2021 at 6 p.m.
ii) For the month of September 2021, S. shall spend the weekends starting on September 10 and 17 with the mother and the weekend starting on September 24 with the father.
iii) Starting on October 1, 2021, the mother shall have parenting time with S. on the first three weekends of each month.
iv) The mother’s parenting time on weekends will be from Fridays at 6 p.m. until Sundays at 7 p.m. If S.’s school has a professional development day on the Friday of a weekend when the mother has her parenting time, the weekend will start on Thursday at 6 p.m.
[71] The father asked to change the holiday parenting time schedule in the existing order regarding S. There is no compelling reason to do this on a temporary basis. The holiday parenting time terms contained in the existing order will continue.
Part Eight – Transportation
[72] The parties sought orders that the other be responsible for transporting the children on parenting exchanges on a temporary basis. Those positions were modified during submissions.
[73] If the mother resides in Toronto, there will be no change to the existing order regarding parenting exchanges.
[74] If the mother resides outside of Toronto, she will be responsible for transportation on the parenting exchanges respecting A.
[75] The parties agreed that if the court orders that S. shall live with the father in Toronto and the mother remains in Wasaga Beach then the mother would pick up S. in Toronto at the start of her parenting time and that the parties would exchange S. at the OnRoute southbound stop on Highway 400, near Innisfil, Ontario, at the end of her parenting time with her mother. This order will be made.
Part Nine – Conclusion
[76] The court makes temporary orders as follows:
a) The mother’s temporary motion to change the existing order respecting A. is dismissed.
b) The mother’s temporary motion to relocate the children to Wasaga Beach is dismissed.
c) The father’s temporary motion to change the existing order is granted in part.
d) S. shall reside in the City of Toronto. If the mother resides outside of the City of Toronto, S. shall have her primary residence with the father.
e) S. shall attend her current school in Toronto. The mother shall not enroll S. in or take her to another school.
g) If the mother lives in Toronto there will be no change to the parenting time or parenting exchanges set out in the existing order.
h) If the mother lives outside of Toronto:
i) S. shall remain in the father’s care until September 10, 2021 at 6 p.m.
ii) For the month of September 2021, S. shall spend the weekends starting on September 10 and 17 with the mother and the weekend starting on September 24 with the father.
iii) Starting on October 1, 2021, the mother shall have parenting time with S. on the first three weekends of each month.
iv) The mother’s parenting time on weekends will be from Fridays at 6 p.m. until Sundays at 7 p.m. If S.’s school has a professional development day on the Friday of a weekend when the mother has her parenting time, the weekend will start on Thursday at 6 p.m.
i) The holiday parenting time schedule set out in the existing order will continue.
j) The mother shall not take A. to Wasaga Beach without A.’s express consent.
k) If the mother resides outside of Toronto, she shall be responsible for transportation on parenting exchanges respecting A. and she shall pick up S. in Toronto at the start of their parenting time and the parties shall exchange S. at the OnRoute southbound stop on Highway 400, near Innisfil, Ontario, at the end of her parenting time with the mother.
l) The existing order shall remain in full force and effect, except as changed by this order.
[77] If the father seeks his costs against the mother, he shall serve and file written submissions by September 16, 2021. The mother will have until September 30, 2021 to serve and file any written response. The submissions should not exceed 3 pages, not including any bill of costs (including the bill of any lawyer retained to assist them) or offer to settle. The costs submissions should be emailed or personally delivered to the trial coordinator’s office.
[78] The next court date will be for a case conference on a date to be set by the court. Briefs will be required.
[79] The court thanks Mr. Hutcheson for his excellent work on behalf of the children.
Released: September 2, 2021
_____________________ Justice S.B. Sherr
[^1]: The parties were not required to file temporary notices of motion within their motions to change – the relief they sought was set out in their motions to change and they filed affidavits in support of the temporary relief claimed. [^2]: The Act was amended on March 1, 2021 and includes new best interests and relocation provisions. [^3]: As set out in paragraph 19 above, a relocation of a child in accordance with section 39.4 constitutes a material change in circumstances unless the relocation is prohibited by a court order or agreement. [^4]: The mother confirmed that this happened. She explained how she has been ill and the drives are very difficult for her. [^5]: The mother was represented by counsel when she entered into this agreement. The father was not. [^6]: K. is the father’s partner. [^7]: To his credit, the father said that he had no problem continuing with the equal parenting time plan if the mother lived in Toronto.