Court File and Parties

Ontario Court of Justice Date: November 7, 2022 Court File No.: Brantford F 175/22

Between:

Buddy James Aspden, Applicant

— AND —

Brittany Lynn Blinn, Respondent

Before: Justice A.D. Hilliard

Heard on: October 27, 2022 Reasons for Judgment released on: November 7, 2022

Counsel: E. Brown, counsel for the applicant B. Culp, counsel for the respondent

Hilliard J.:

Overview

[1] This interim mobility motion was argued four (4) days after the return of two ex parte motions brought by the Applicant father, Mr. Aspden; the first for an order prohibiting the removal of the child, Kaylee, from the jurisdiction of Brantford, and the second for the return of Kaylee to the jurisdiction. On the first return of the ex parte motions, the Respondent mother, Ms. Blinn, brought an interim motion seeking an order that she be granted decision-making authority for and primary residence of Kaylee.

[2] After the release of my first endorsement on Mr. Aspden’s original ex parte motion, but prior to receiving a copy of the endorsement, Ms. Blinn moved with Kaylee to Newfoundland. Ms. Blinn did comply with my second endorsement ordering the return of Kaylee to the jurisdiction of Brantford prior to the return date of October 24, 2022.

[3] It was agreed that after a very short turn around to allow Mr. Aspden an opportunity to respond to Ms. Blinn’s motion, argument on both Mr. Aspden’s ex parte motions and Ms. Blinn’s interim mobility motion would be heard on the same date. The parties agreed that the habitual residence of Kaylee is Brantford and there was no argument about whether the Ontario Court of Justice at Brantford is the proper jurisdiction for this proceeding.

[4] For the reasons that follow, I find it is not in Kaylee’s best interests to have her primary residence relocated to Newfoundland and an interim order will go placing Kaylee in the care of Mr. Aspden with specified parenting time to Ms. Blinn.

Factual background

[5] The parties are the biological parents of Kaylee Shalane Aspden, born […], 2019. They have never resided together but were in an intimate relationship from prior to the birth of Kaylee until approximately March 2020.

[6] There is a significant dispute between Mr. Aspden and Ms. Blinn as to Mr. Aspden’s involvement in parenting Kaylee from her birth until May 2022. However, the parties do agree that starting in May 2022, a shared parenting arrangement was entered into on consent.

[7] Despite the shared parenting arrangement, Ms. Blinn’s evidence is that Mr. Aspden has generally been a disinterested parent to Kaylee, uninvolved in important decisions, major milestones, and medical care. Ms. Blinn further deposes that Mr. Aspden has made poor choices in the past which have put Kaylee at risk of harm, such as leaving her in either a hot car or a car seat in a hot workshop, and smoking cigarettes in the presence of Kaylee. Ms. Blinn claims that Mr. Aspden was largely absent for the first year of Kaylee’s life while she bore the responsibility of providing the vast majority of care and making all major decisions for Kaylee.

[8] Mr. Aspden’s evidence is that he has been an interested and involved father since prior to Kaylee’s birth. He deposes that he was involved in pre-natal appointments with Ms. Blinn, was present at Kaylee’s birth, and continued to be an involved father thereafter. Mr. Aspden deposes that despite the parties not residing together, he was frequently present at Ms. Blinn’s home and shared in childcare responsibilities for Kaylee, including feeding and diaper changes.

[9] In July 2022, Ms. Blinn notified Mr. Aspden that she intended to move with Kaylee to Newfoundland. Mr. Aspden responded to the Notice of Intention to Relocate by way of an email that indicated his opposition to Ms. Blinn moving with Kaylee approximately two weeks after receiving the Notice. Mr. Aspden did not, however, commence his court application until October 13, 2022 when he received information that Ms. Blinn may be moving with Kaylee despite his objection.

[10] Ms. Blinn’s evidence is that her dream of home ownership can only be realized in Newfoundland. After going to Newfoundland for a vacation in July with her partner, they determined that they wanted to relocate there to enjoy a slower pace of life and lots of snow in the winter. Ms. Blinn and her partner have friends in Newfoundland and Ms. Blinn deposes that these friends and their respective families will provide significant supports for her and Kaylee in Newfoundland. However, Ms. Blinn does not have any family of her own in Newfoundland and none of Mr. Aspden’s family resides in Newfoundland.

[11] On October 14, 2022, Ms. Blinn moved out of the residence where she and Kaylee had been living with her mother, left Brantford with Kaylee and drove to Newfoundland. Ms. Blinn’s partner had been residing in Newfoundland since in and around September 6, 2022 when he started a job in Cornerbrook. Ms. Blinn signed an agreement to purchase a home in Cornerbrook where she states she is now residing with her partner. Ms. Blinn was able to obtain early occupancy of the residence prior to the closing date of October 31, 2022. She also secured full-time employment at a Veterinary Clinic, with a previously anticipated start date of October 24, 2022, which start date was delayed due to this motion. This employment is comparable to the job Ms. Blinn had at a Veterinary Clinic in Brantford until October 14, 2022.

[12] Ms. Blinn left Brantford after having been served with Mr. Aspden’s application but prior to receiving my endorsement prohibiting Kaylee from being removed from the jurisdiction of Brantford. She does not dispute that she moved despite Mr. Aspden’s stated objections and without any plan or agreement in place for when and how Mr. Aspden would have parenting time with Kaylee once she was residing in Newfoundland.

[13] Upon receiving a copy of my second endorsement Ms. Blinn did return to Ontario and delivered Kaylee into the care of Mr. Aspden. Compliance with my October 19, 2022 endorsement was effected on or about October 23, 2022. Between the first return of the ex parte motions on October 24, 2022 and the argument of both parties motions on October 27, 2022, the parties agreed that Kaylee would return to the previous schedule of spending every other day with each of her parents. There was no agreement on a parenting schedule after October 27, 2022.

The Law

[14] Sections 39.1 to 39.3 (the mobility provisions) of the Children’s Law Reform Act (CLRA) apply to parents ordinarily resident in Ontario who are intending to either change a child’s primary residence or relocate with a child in their primary care. These provisions, enacted in 2019, constitute a comprehensive legislative framework for changes in residence and relocation of children.

[15] The seminal case on interim mobility motions after the amendments to the CLRA in 2019 is the decision of Justice Kukurin in Rudichuk v Higgins. In his reasons for judgment, Justice Kukurin reviews with approval the decisions of Justice Marshman in Plumley and Justice Sherr in Downey v Sterling, both of which reiterate that courts should be reluctant to upset the status quo on an interim basis absent compelling circumstances. [1]

[16] Justice Kukurin then goes on to consider the new mobility provisions in the CLRA to ascertain where the burden lies on an interim mobility motion. He concludes that for the purpose of interim motions, the burden lies with both parties. [2] I agree with Justice Kukurin’s approach and adopt it for the purpose of my analysis on these motions.

[17] The cases relied upon by Ms. Blinn in support of her position, while accurately reciting the current state of the law, are readily distinguishable on their facts.

[18] In Markowski v Krochak, the parties had been in a long-distance relationship between Alberta and Ontario prior to separation and there was some evidence that the child had been travelling between those two jurisdictions while in the care of the mother post-separation. Justice Mitrow also had to determine an initial issue as to where the child was ordinarily resident as the mother was contesting the jurisdiction of the court in Ontario to deal with the matter. [3]

[19] The case of Nouri v Watters is also factually different in that the distance the Applicant mother was seeking to move is approximately one-tenth of the distance being proposed by Ms. Blinn. This case is also distinguishable based on its procedural history – the Applicant mother’s first request for an order allowing her to move on an interim basis only having been dismissed with a caveat that the order was an “interim, interim, order” which did not prevent the Applicant mother from reviewing her request with further and better evidence. [4]

Analysis

[20] The status quo parenting arrangement to be considered for the purpose of my analysis is the shared parenting schedule. There is no evidence that this schedule would not have continued but for Ms. Blinn’s move to Newfoundland. This schedule was entered into on consent by the parties and had been in place for approximately six months.

[21] Ms. Blinn argues that the past six months are less relevant and should be given less weight in my deliberations than the previous two and a half years. However convenient that proposition may be for Ms. Blinn, it is not in accordance with the legal principles set out in either the mobility provisions of the CLRA or the jurisprudence in the area of interim mobility. The shared parenting arrangement that had been in place for the six months prior to Ms. Blinn’s move to Newfoundland is not only the status quo to be considered for the purpose of the motion but it is also one of the very few things upon which the parties agree. What is most relevant about the two and a half years of Kaylee’s life prior to May 2022 is not Ms. Blinn’s bald assertions that she was the primary caregiver and decision-making for Kaylee, but rather, that the parties fundamentally disagree on the role that Mr. Aspden played in Kaylee’s life from her birth until May 2022. The status quo of shared parenting prior to the relocation and the significant dispute regarding the parenting history both militate against an order allowing Ms. Blinn to relocate Kaylee’s primary residence to Newfoundland on an interim basis.

[22] Ms. Blinn argues that her position should prevail as it is only she that has a concrete plan for Kaylee to have parenting time with both her parents. Not only is that an inaccurate statement of the documents filed on this motion, it is notable that there is no evidence that Ms. Blinn made any attempts to negotiate an agreement regarding parenting time for Mr. Aspden prior to moving to Newfoundland. The evidence is that Ms. Blinn moved to Newfoundland over Mr. Aspden’s objections and without any agreement being reached as to when Mr. Aspden would next see Kaylee. I find that Ms. Blinn’s actions are more instructive than her words. The move to Newfoundland over the objections of Mr. Aspden and without any agreement regarding parenting time for Mr. Aspden demonstrate that Ms. Blinn placed little value on Kaylee’s relationship with her father. Ms. Blinn placed her desire for home ownership and a particular standard of living over the importance of Kaylee having meaningful time with Mr. Aspden.

[23] The overall tenor of Ms. Blinn’s two affidavits supports my conclusions about Ms. Blinn’s attitude towards Kaylee’s relationship with her father. At no point does Ms. Blinn even acknowledge the importance of Kaylee having and maintaining her bond and attachment with Mr. Aspden. Ms. Blinn goes to great lengths to point out Mr. Aspden’s failings, omissions, and poor life choices, all of which, if true, do not support her decision to agree to a shared parenting arrangement starting in May 2022.

[24] Kaylee’s age is also a significant factor. Older children are much better able to withstand long periods of separation from a parent. Kaylee is only three (3) years old. It is deeply concerning to me that Ms. Blinn does not even acknowledge in her materials the significant impact the relocation will have on Kaylee’s relationship with her father. There is no provision in Ms. Blinn’s requested order in her notice of motion that would permit Mr. Aspden to have regular virtual contact with Kaylee in between his in-person visits.

[25] There is nothing before me to support Ms. Blinn’s position that her evidence should be preferred over Mr. Aspden’s. To the contrary, Ms. Blinn’s evidence is internally and externally contradictory.

[26] In one affidavit Ms. Blinn refers to Mr. Aspden having left Kaylee in a car seat in a shop or garage on a hot summer day. In a subsequent affidavit, Ms. Blinn changes the allegation to Mr. Aspden having left Kaylee in a hot car on a summer day.

[27] In the first affidavit filed in support of her motion, Ms. Blinn took the position that she complied with the mobility provisions of the legislation despite not being required to do so and that it was Mr. Aspden who failed to take the necessary steps to oppose the relocation. She even attached a letter from her counsel addressed to Mr. Aspden, dated October 6, 2022. Ms. Blinn’s second affidavit resiles from that position, stating that she is not a lawyer and should not be held accountable for mistakes that she made in her ignorance of the law. The position taken regarding her not knowing her legal obligations directly contradicts the evidence contained in her first affidavit which confirms that she had a consultation with a lawyer at least as of October 6, 2022.

[28] I also have serious concerns about Ms. Blinn’s credibility. She claims not to have taken any concrete steps towards relocating to Newfoundland until August 30, 2022. Ms. Blinn deposed that she thought that after 30 days had elapsed from the time Mr. Aspden was served with her Notice of Intention to Relocate, no court application having been commenced, she was free to make plans to move to Newfoundland with Kaylee. However, Ms. Blinn states that her common law partner started a full-time job in Cornerbrook, Newfoundland on either September 6 or September 9, 2022. [5] It strains credulity to suggest that Ms. Blinn and her partner waited until August 30, 2022 to make any concrete plans to move but then six (6) to nine (9) days later, Ms. Blinn’s partner is working full-time at a job in Newfoundland.

[29] It is also notable that there is a glaring absence of evidence in Ms. Blinn’s affidavit material about how the move will impact Kaylee’s relationship with her maternal grandmother. One of the few things about which the parties do agree is that Kaylee has been care for by her maternal grandmother when not in the care of either of her parents. I infer from the affidavit material that maternal grandmother has been Kaylee’s alternate caregiver since Ms. Blinn returned to work after the end of her maternity leave. The caregiving role that maternal grandmother has played in Kaylee’s life for the past two years will be severed by the proposed move to Newfoundland and is a consideration in determining whether the move should be permitted on an interim basis.

[30] I do not accept Ms. Blinn’s submission that it is a foregone conclusion that she would be granted decision-making authority and primary residence of Kaylee after a trial. That proposition is not support by the evidence. For the last six months Kaylee has enjoyed equal time in the care of her parents. This arrangement was entered into by the parties on consent. There is no evidence that this shared parenting schedule has not been in Kaylee’s best interests. The only reason that this shared parenting schedule cannot continue is Ms. Blinn’s choice to move to Newfoundland with Kaylee over the objection of Mr. Aspden.

[31] In contrast to Ms. Blinn’s plan to relocate Kaylee away from everything and almost everyone she has ever known, Mr. Aspden’s plan is for Kaylee to remain living in the city where she has spent all her life and continue to be cared for and maintain important relationships with members of her extended family, including her maternal grandmother.

[32] I have also considered that Mr. Aspden proposed a continuation of the shared parenting arrangement in the event that Ms. Blinn were to remain residing in Brantford. Although the legislation prohibits me from considering whether or not Ms. Blinn would move, or in this case remain residing out of province, without Kaylee, the proposal by Mr. Aspden is relevant in considering his overall attitude towards the importance of Ms. Blinn in Kaylee’s life. Mr. Aspden’s proposal for a continuation of the shared parenting regime demonstrates his acknowledgement of the important role that Ms. Blinn has to play in Kaylee’s life and the importance of maximizing Kaylee’s contact with both of her parents. I find that Mr. Aspden’s plan puts Kaylee’s interests ahead of his own and prioritizes maintaining Kaylee’s connections to all of the members of her family.

Conclusion

[33] On balance, having considered the proposals of both Mr. Aspden and Ms. Blinn, and bearing in mind the burden on each party to demonstrate that their proposal is in the best interests of Kaylee, I find that it is not in Kaylee’s best interests to be relocated to Newfoundland on an interim basis. The plan of Mr. Aspden best reflects a maintenance of the previous status quo, which was disrupted only by Ms. Blinn’s unilateral decision to move to Newfoundland without Mr. Aspden’s consent or prior court order.

[34] Therefore, temporary order to go:

(1) The child, Kaylee Shalane Aspden, born […], 2019, shall reside primarily in the care of the Applicant father in the City of Brantford.

(2) The Respondent mother shall have parenting time with the child at any time she is in the province of Ontario as agreed upon between the parties, as well as a two-week period over the Christmas holidays, such dates and times to be agreed between the parties.

(3) If the Respondent mother intends to exercise parenting time in Newfoundland, she shall be solely responsible for the expense of transporting the child to and from Brantford, Ontario.

(4) The issue of costs of the motion shall be addressed at the next court date.

Released: November 7, 2022 Signed: Justice A.D. Hilliard

[1] [2021] OJ No 4690 para 27 – 28. [2] Ibid at para 35. [3] [2022] O.J. No. 2275 (SCJ). [4] 2022 ONSC 5181. [5] The evidence is somewhat unclear about the start date for this employment as Ms. Blinn deposes in one paragraph that her partner started work on September 6 and then in a different paragraph states he secured employment on September 9, 2022.