ONTARIO COURT OF JUSTICE DATE: 2022 10 13 COURT FILE No.: Brampton 422/21
BETWEEN:
C. LAWRENCE Applicant
— AND —
A. KHAN Respondent
Before Justice A.W.J. Sullivan
Heard on September 28, 2022 Reasons for Judgment released on October 13, 2022
Ms. Aggarwal...................................................................................... agent for the Applicant Mr. J. Welsh.............................................................................. counsel for the Respondent
SULLIVAN, J.:
[ 1 ] This is the decision on a Motion by Ms. Lawrence Tab 1 of Vol 2 heard September 28, 2022.
[ 2 ] Her motion requests:
- An order permitting C. Lawrence to relocate the child Cassidy Khan, born […], 2018 to Orangeville;
- Any futher order that the court considers just.
[ 3 ] Ms. Lawrence was granted leave to commence this motion.
[ 4 ] Mr. Khan filed a cross motion dated August 10, 2022. He did so as Ms. Lawrence was late in filing her motion.
[ 5 ] Today I am considering Ms. Lawrence’s motion but understand Mr. Khan to oppose this request.
[ 6 ] Ms. Lawrence did provide a Notice of her proposed relocation to Mr. Khan in May 2022 pursuant Section 39 of the Children’s Law Reform Act (CLRA).
[ 7 ] Mr. Khan served and filed an Objection to the proposed relocation as set out in the CLRA.
[ 8 ] Mr. Khan requests that the court grant an order that Cassidy be registered in one of two schools in Brampton. In the alternative within one of his affidavits he argues that Cassidy’s primary residence should be with him in Hamilton. He did not file a motion that Cassidy should be returned to Brampton as her habitual residence.
[ 9 ] Ms. Lawrence’s move to Orangeville is north of Brampton.
[ 10 ] At the time of this motion both parties do not live in Brampton. This is explained further below.
[ 11 ] This motion is Ms. Lawrence’s request for a temporary order to permit the move that has happened. She now resides in Orangeville. There is no order between the parties in this matter, further explored below.
[ 12 ] The motion had been scheduled to be argued on August 23, 2022 before Cassidy was to commence Junior Kindergarten, JK, in September 2022. The motion was delayed to ensure fairness to all to be able to provide their best evidence.
Background History
[ 13 ] It is common ground that the parties separated on October 24, 2020 after residing together from about July 2018.
[ 14 ] When the parties lived together, it was in Brampton ON.
[ 15 ] Cassidy was born to them on […], 2018.
[ 16 ] After separation Ms. Lawrence found an apartment in Brampton after staying with her mother for a while. She lived in the apartment with her daughter. Her 35.1 affidavit indicates that she plans to care for Cassidy on her own making decisions for Cassidy jointly with Mr. Khan although she asks for the ability to make a decision if there was a dispute.
[ 17 ] From this apartment in Brampton Cassidy attended daycare in Brampton. The parties’ pleadings suggest they mutually agreed on the daycare.
[ 18 ] Mr. Khan eventually moved to Etobicoke and was living there at the start of this litigation. His 35.1 affidavit has him parenting Cassidy with Shonnessa Facey (partner) and making joint decisions for Cassidy with Ms. Lawrence.
[ 19 ] Ms. Lawrence filed an Application on June 23, 2021.
[ 20 ] Mr. Khan filed an Answer in August 2021.
[ 21 ] Today there exists no orders in this matter dealing with decision-making, parenting time, child support or other collateral orders.
[ 22 ] From my case management of this file I know that the parties claim they have held settlement meetings and discussions outside of court and in March 2022 had suggested that they might be close to a comprehensive agreement.
[ 23 ] It is concerning to me that no consent of any kind has been entered into by these parents at this stage of this litigation.
[ 24 ] I mention this as I can find little evidence in the entire pleadings that suggest the other is not a capable parent to care and love Cassidy. I am well aware of some suggested factual differences regarding their historical role in caring for Cassidy which I find are minor given their respective care for Cassidy today.
[ 25 ] I heard that overall Cassidy is healthy, she has only just started her education in JK September 2022, days ago, and there exists no religious/spiritual differences between the parties. All factually beneficial terrain to arrive at a parenting/decision-making plan between the parties for Cassidy. But yet nothing.
[ 26 ] It is common ground that Mr. Khan has been providing child support and again there is no consent order in place regarding this between the parents.
[ 27 ] Parenting time has developed and evolved from shortly after separation through today as follows:
A. Initially based on Ms. Lawrence’s evidence from January 2021 to March 2021 there was an agreement that Mr. Khan would pick up Cassidy from daycare about 3:00 p.m. and return her about 6:30 p.m., 3 days a week. This expanded to a Tuesday sleepover to Wednesday return. B. Tentative agreement in March 2021 as per Mr. Khan’s Answer, Cassidy parented by Mr. Khan: Week #1 - Saturday to Sunday Week #2 - Sunday 10:00 a.m. to 7:00 p.m. and every Tuesday and Thursday 3:00 p.m. to 7:00 p.m C. From February 2022 Cassidy parented by Mr. Khan: Week #1 - Tuesday to Thursday pick up from daycare, drop off at daycare Friday, pick up from daycare to Sunday 7:00 p.m. Week #2 - Tuesday to Thursday pick up from daycare, drop off at daycare.
[ 28 ] It is important to note that the above parenting time evolved over time on consent of the parties.
[ 29 ] Sometime during the course of this litigation Mr. Khan moved to Hamilton where he resides today. I am not certain of the date but Ms. Lawrence indicates she learned of this at the March 8, 2022 case conference.
[ 30 ] Mr. Khan did not serve a notice with Ms. Lawrence regarding this move as set out in the CLRA. He argues the move is a change in residence not relocation and has not had a significant impact on the child’s relationship with Ms. Lawrence and as such he did not need to provide Notice. He notes in an affidavit that he also did not informally advise Ms. Lawrence as at the time their communication was not the best. Through his counsel he presented the case of S.C. v. J.C. 2022 ONSC 4146 in which Justice Jain finds that a mother’s move to a local municipality amounted to a change in residence vs a relocation that did not have a significant impact on the children’s relationship with the other parent and therefore no notice was required as set out in the CLRA.
Ms. Lawrence’s Evidence
[ 31 ] Her evidence is that her income in 2020 was $36,000 and currently it is $40,571.
[ 32 ] In Brampton she was renting and her rent increased from $1650 to $1739 in April 2022. She was concerned that an increase in the new year were to come. She states her rent/utilities and the costs of her car payments and insurance is consuming her income leaving little left over for other basic needs that are increasing in addition.
[ 33 ] Ms. Lawrence has now been able to partner with her mother and her mother’s partner to purchase a home in Orangeville on 1 Birch Street. An agreement of purchase and sale was completed in March 2022. A copy of this document was filed in her pleadings.
[ 34 ] She argues this move and home will provide stability now and in the future for Cassidy giving Ms. Lawrence greater flexibility to provide for her daughter and supports from her mother in addition.
[ 35 ] Her monthly contribution to the home (mortgage), which she is on as one of the borrowers, is $1200 which includes her contribution to utilities. She recognizes the kindness shown to her and Cassidy by her mother, Naomi Henry, and her mother’s husband with this opportunity for stability.
[ 36 ] Ms. Naomi Henry swore an affidavit attesting to the joint purchase and Ms. Lawrence’s monthly contribution and that the price of the home they located was affordable to them all.
[ 37 ] Ms. Lawrence testifies that she was not aware of Mr. Khan’s move when she finalized the purchase of the Orangeville home. She does agree that the drive one way between their respective homes would be about 1 hour and 30 minutes.
[ 38 ] She states that the move was not intended to reduce Mr. Khan’s parenting of Cassidy or increase his drives to pick her up. She proposes that Mr. Khan have two consecutive weekends per month Friday from daycare return Monday morning at a middle point where she would meet him and bring Cassidy to school.
Mr. Khan’s Evidence
[ 39 ] Mr. Khan initially filed an affidavit dated August 10, 2022 before Ms. Lawrence in which he argued that the parties had an agreement to send Cassidy to begin Junior Kindergarten in September 2022 to schools in Brampton. He notes Cassidy has attended daycare in Brampton and has a strong connection to Brampton, such as her daycare friends.
[ 40 ] Mr. Khan notes that he works for Fiat Chrysler at their Brampton assembly plant and drives in from Hamilton via the 407 reducing travel time. In addition, on the weekdays that he has cared for Cassidy, Tuesday to Thursday, his job permitted him to take those days off so he brought Cassidy to and from the daycare in Brampton.
[ 41 ] In Mr. Khan’s August 19, 2022 affidavit, Mr. Khan testifies that the move to Orangeville if permitted would disrupt the status quo and cause instability for Cassidy. The parenting schedule noted above would not be possible, that being weekday overnight and alternate weekends. He argues it would reduce his parenting time.
[ 42 ] The move creates a distance between the parents' homes of 103 KM and a drive of 1 hour and 30 minutes. The current time he claims is 35 minutes between Hamilton and Cassidy’s Brampton daycare as he takes highway 407.
[ 43 ] He argues that Ms. Lawrence has not been frank and transparent with her financial disclosure such that there is no compelling reasons to justify why she cannot afford to live and rent in Brampton.
[ 44 ] He argues that her rent increase is modest and she is irresponsible in her financial planning by taking on the debt of car payments that she has such that the total for her car and insurance per month is shy of $1000. In addition, she did not mention in her affidavit that she receives child support from him and the whole Child Tax Credit for Cassidy.
[ 45 ] Mr. Khan argues that he believes Ms. Lawrence signed the purchase and sale of the home in Orangeville after she learned of his move to Hamilton and that his move did not impact the parenting arrangements in place and transportation to daycare of Cassidy.
[ 46 ] He argues that if Ms. Lawrence is unable to return to Brampton then Cassidy should primarily reside with him in Hamilton.
[ 47 ] In Mr. Khan’s third affidavit from September 15, 2022, he notes that despite the court not ruling on the issue of Cassidy’s move to Orangeville that Ms. Lawrence has made the move and registered the child in school misleading the school about the parenting arrangement and misspelled his name and information with the school.
[ 48 ] Mr. Khan through counsel argues that Ms. Lawrence's request should be dismissed, that there are no compelling reasons to permit the move and in addition Mr. Khan would be prejudiced at trial as the status quo would be upset being his parenting time which he defines as shared parenting and an arguable position at trial he states.
Discussion and Decision
[ 49 ] In this motion the focus of the parties in submissions and the law presented and the law that I have considered in evaluating Ms. Lawrence’s request is that set out below being section 39 of the CLRA and Cassidy’s best interest per section 24 of the CLRA:
Change in residence, person with decision-making responsibility or parenting time
39.1 (1) A person who has decision-making responsibility or parenting time with respect to a child and who intends to make a change in residence, or in the child’s residence, shall 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. 2020, c. 25 , Sched. 1, s. 15; CTS 12 AU 22 -1.
Notice requirements
(2) The notice shall be in writing and shall set out,
(a) the date on which the change is expected to occur; and
(b) the address of the new residence and contact information of the person or child. 2020, c. 25 , Sched. 1, s. 15.
Exception
(3) On application, the court may in any circumstance provide that subsection (1) and (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. 2020, c. 25 , Sched. 1, s. 15.
Same
(4) An application under subsection (3) may be made without notice to any other party. 2020, c. 25 , Sched. 1, s. 15.
Non-application
(5) This section does not apply with respect to relocations. 2020, c. 25 , Sched. 1, s. 15.
Section Amendments with date in force (d/m/y)
Change in residence, person with contact
39.2 (1) A person who has contact under a contact order with respect to a child and who intends to make a change in residence shall notify any person who has decision-making responsibility or parenting time with respect to the child of the intention. 2020, c. 25 , Sched. 1, s. 15.
Notice requirements
(2) The notice shall be in writing and shall set out,
(a) the date on which the change is expected to occur; and
(b) the address of the new residence and contact information of the person. 2020, c. 25 , Sched. 1, s. 15.
Significant impacts, additional requirements
(3) If the change in residence is likely to have a significant impact on the child’s relationship with the person, the following additional requirements apply with respect to the notice:
The notice shall be given at least 60 days before the date on which the change is expected to occur.
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,
i. a proposal as to how contact could be exercised, and
ii. any other information that may be prescribed by the regulations. 2020, c. 25 , Sched. 1, s. 15.
Exception
(4) On application, the court may in any circumstance provide that subsection (1), (2) and (3) or anything prescribed by the regulations for the purposes of paragraph 2 of subsection (3) 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. 2020, c. 25 , Sched. 1, s. 15.
Same
(5) An application under subsection (4) may be made without notice to any other party. 2020, c. 25 , Sched. 1, s. 15.
Regulations
(6) The Attorney General may make regulations prescribing anything in this section that may be prescribed by the regulations. 2020, c. 25 , Sched. 1, s. 15.
Section Amendments with date in force (d/m/y)
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. 2020, c. 25 , Sched. 1, s. 15.
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. 2020, c. 25 , Sched. 1, s. 15.
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. 2020, c. 25 , Sched. 1, s. 15.
Same
(4) An application under subsection (3) may be made without notice to any other party. 2020, c. 25 , Sched. 1, s. 15.
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. 2020, c. 25 , Sched. 1, s. 15
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. 2020, c. 25 , Sched. 1, s. 15.
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. 2020, c. 25 , Sched. 1, s. 15.
Section Amendments with date in force (d/m/y)
Authorization of relocation
39.4 (1) In this section,
“family arbitration award” has the same meaning as in the Arbitration Act, 1991. 2020, c. 25 , Sched. 1, s. 15.
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. 2020, c. 25 , Sched. 1, s. 15.
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. 2020, c. 25 , Sched. 1, s. 15.
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. 2020, c. 25 , Sched. 1, s. 15.
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. 2020, c. 25 , Sched. 1, s. 15.
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. 2020, c. 25 , Sched. 1, s. 15.
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. 2020, c. 25 , Sched. 1, s. 15.
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. 2020, c. 25 , Sched. 1, s. 15.
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. 2020, c. 25 , Sched. 1, s. 15.
[ 50 ] Both parties approached Ms. Lawrence’s request to move from Brampton to Orangeville as a move that “likely to have a significant impact on the child’s (Cassidy) relationship with Mr. Khan.
[ 51 ] It was noted that Ms. Lawrence provided Notice to Mr. Khan in May 2022 as set out above in the legislation and Mr. Khan served and filed an Objection as per the legislation.
[ 52 ] As I noted earlier there exists no Temporary or Final Order of any nature in this litigation to date either regarding parenting/decision-making or support. All is open for a final resolution either between the parties or by the Court.
[ 53 ] Today the actual requests in the motions are narrow. No motion is before me for a decision-making or parenting time order as such.
[ 54 ] I noted earlier my concern that at this stage in the litigation there is no temporary agreement between the parties regarding a parenting plan for Cassidy after over a year into litigation.
[ 55 ] There is in my assessment of the file no reasons why there cannot be an agreement made by the parties regarding Cassidy’s parenting and decision-making. She is healthy, has no educational history, just starting JK, and no religious differences exists between the parties.
[ 56 ] Yet today this litigation acts as a Trojan horse or vehicle to exacerbate differences between the parties that in fact barely exist in my estimation.
[ 57 ] In this motion as there was no order and given the approach taken by the parties leading up to the motion I did ask, and all agreed, that the burden of proof in the motion rest with both parties – see Sec 39.4(7) of the CLRA above.
[ 58 ] Having considered the facts in this matter, I do not conclude that Ms. Lawrence’s request has or will likely have a significant impact on the child’s relationship with Mr. Khan.
[ 59 ] The wording – significant impact on a child’s relationship is what needs to be considered by all in these matters.
[ 60 ] Black’s Law Dictionary defines significant in part as…Of special importance, momentous.
[ 61 ] Both parties approached Ms. Lawrence’s request as if it would or likely have this impact on Cassidy’s relationship with Mr. Khan.
[ 62 ] The informal status quo regarding Mr. Khan’s parenting time was presented as a major factor that militated against a court granting Ms. Lawrence’s request.
[ 63 ] I am not convinced of this being as a solid status quo as I am asked to accept. The reason I say this is that if it were the parties should have by now committed to a parenting plan in writing at least on a temporary basis to solidify their commitment to this part of a parenting plan and part of the parties’ relationship with Cassidy.
[ 64 ] After all it has been in their power to do so, many facts, as I noted above, permit such an agreement to have been made and taken away from of the discretion of a Judge to possibly do something differently. I suggest the parties have a duty as per rule 2 to have done so by now…reaching early settlement where no real obstacle stands in the way is the duty of the Court and parties and counsel see rule 2(4).
[ 65 ] That is after all why each are in court, is it not, to arrive at some structure in their relationship to care and love Cassidy.
[ 66 ] Yet over one year nothing has been forthcoming and now this litigation has fanned differences between the parties where I find few exist.
[ 67 ] I agree that there is presently from February 2021 the parenting time as set out above between Cassidy and Mr. Khan. This status quo in relation to parenting time between each household evolved from the date of separation as I noted/outlined above. This is a positive and bodes well in this proposed move by Ms. Lawrence.
[ 68 ] I recognize that permitting a move would alter this arrangement and create a new one and is a factor against moves especially those that have a major impact on a status quo.
[ 69 ] However, this parenting time/status quo is just part of … “a parent’s relationship” with a child. There is more to this relationship now and in the future for both parents and Cassidy.
[ 70 ] I understand how the focus of today’s discussion is on the direct parenting time and how a move may affect this. I also understand that the direct time with a child is often the focus of what parents concentrate on when it comes to their relationship with a child, especially the younger the child is. This direct time is an important part but not the only aspect of a parent’s relationship to a child.
[ 71 ] Mr. Khan moved twice, each time further away from Brampton where Cassidy resided with Ms. Lawrence and attended daycare.
[ 72 ] Cassidy’s current parenting by Mr. Khan has her with him 6 overnights in a two-week rotation.
[ 73 ] Ms. Lawrence’s move would, all agree, and I concur, make the Tuesday to Thursday pick up from daycare/kindergarten and daily attendance at daycare and JK not feasible given the commute from Hamilton to Orangeville.
[ 74 ] Ms. Lawrence offered that Cassidy be with Mr. Khan 2 consecutive weekends Friday to Monday with a mid-point pick up on Monday where she would meet Mr. Khan and then bring Cassidy to her Junior Kindergarten program.
[ 75 ] This would provide 6 overnights parenting days (the same number of overnights that exists now) on weekends. Weekend time is usually considered precious time for families to be together after a busy week on the go.
[ 76 ] This could be in place 2 out of a three-week rotation. Also, this should be extended to the Tuesday if Monday is a holiday or PE day. This would provide equal to or greater time than what exists presently. On this front I find that Ms. Lawrence’s move does not significantly impact Cassidy’s time with Mr. Khan. It reconfigures the time and some might argue provides for quality time on the 2 consecutive weekends Friday to Monday.
[ 77 ] Mr. Khan suggested this move would take this time away from him although he did not present evidence as to why he could not take advantage of this time.
[ 78 ] The third weekend would be for Cassidy and Ms. Lawrence to spend weekend time together.
[ 79 ] In addition, I ask the parties to consider that for the next year while Cassidy is in JK during the 3-week leading up to Ms. Lawrence’s/Cassidy’s weekend, Cassidy could be with Mr. Khan during the week, say Wednesday pick up from school in the a.m. over to Thursday return to Ms. Lawrence mid-way point in the evening. As JK is not as formal as SK this could be in place for the balance of this school year that has just commenced although cannot be the plan for next year and the parties need to discuss this as soon as possible. I do not make this order at this time in this motion as I was not asked to, and I believe it is incumbent on the parties and counsel to sit down and make a parenting order in light of this decision.
[ 80 ] Note the above is suggested given Mr. Khan’s evidence that he has flex days off with his employment such that he can spend time during the week with Cassidy.
[ 81 ] In addition, the parties should be sharing all other school holidays and summer break between their households which is not impacted by Ms. Lawrence’s move.
[ 82 ] Nothing in Ms. Lawrence’s move to Orangeville significantly impacts on Cassidy’s relationship with Mr. Khan in terms of his involvement with Cassidy’s school or doctor.
[ 83 ] Most schools connect with parents online and I heard that Cassidy rarely needs to see a Doctor/Dentist and when required this can be planned between the parents well in advance such that both would have this as part of their relationship with Cassidy.
[ 84 ] Other aspects of his relationship will continue to develop as it is now, spending the time noted above, doing activities in his neighbourhood, caring for her, preparing meals, chatting with her, developing traditions, doing schoolwork/projects, bedtime protocols, spending time with extended family members, travelling on vacation and much more.
[ 85 ] The above are all factors that I am asked to consider in Section 24 of the CLRA along with those best interest factors in section 39 of the CLRA when considering a parent’s request to move.
[ 86 ] If I am wrong in my findings above, I have considered the other factors that I am asked to consider in these requests as set out above in section 39.4 (3) of the CLRA when evaluating this move in Cassidy’s best interest.
[ 87 ] I agree the move is to a new city, home and school for Cassidy.
[ 88 ] The home is where her mother will reside along with her maternal grandmother, that is family that Cassidy knows along with Mr. Khan who she will continue to be with weekly along with his partner and extended family as Mr. Khan may wish to involve them.
[ 89 ] Cassidy is 4 years old and just started JK in September 2022. Although she has only lived in Brampton that location and her daycare are not as significant than if she was an older child with activities based in the community and long-standing friends that make up part of her psychological makeup. I heard of no activities other than her daycare. Her school JK would have been new to her if she had remained in Brampton, although some daycare friends might have been with her in the school that the parents spoke of in Brampton. This does not outweigh other factors that are in Cassidy’s best interests.
[ 90 ] Ms. Lawrence’s move is to stable and affordable housing. see Bjornson v. Creighton , 2002 Carswell Ont 3866 (Ont C.A) Her move is away from uncertainty regarding affordable housing. In Orangeville she co-owns the home and the cost is not her rental costs of $20,688 per year that consumed about ½ of Ms. Lawrence’s net income. The move will provide room in Ms. Lawrence’s budget for other needs. This is a factor that the courts have considered in these requests see MacKenzie v. Newby 2013 ONCJ 541
[ 91 ] I disagree that Ms. Lawrence has not been transparent with her income. She testified in her affidavits that her income has increased to about $41,000 from which half is paid in rent/utilities. This case is distinguishable from the situation and findings of Justice Sager in Jennings v. Cormier 2022 ONCJ 338. In that case the parties had just separated, and the move had a different impact on the family situation.
[ 92 ] Mr. Khan testified that he lives with a partner. He does not list in his financial statement if there is other income besides his in this household. He also faced the squeeze regarding housing as he stated in one of his three affidavits that caused him to move when his landlord gave him notice. He moved as Ms. Lawrence has done for stability.
[ 93 ] I can take judicial notice that the housing issue is reaching crisis proportions for families across the greater GTA, and I hear of this issue being a burden in my Court with most modest income earners such as Mr. Khan and Ms. Lawrence. See Judicial notice below #1.
[ 94 ] This security and room in Ms. Lawrence’s budget will be important as well, as I heard in submissions that there might be a request by Mr. Khan to share the Child Tax Credit and set-off child support that Ms. Lawrence currently receives. This is his right to do so.
[ 95 ] I agree that the move impacts of the current parenting time – mid-week that exists between Cassidy and her father, however, if one looks at the proposed time as noted above from Cassidy’s point of view, she does not care what day she sees her father and the proposed time would be calm and less rushed.
[ 96 ] I find that this move will not interfere materially with Cassidy’s parenting time regime that currently exists as part of the relationship between them both – see Schlegal v. Schlegal 2016 ONSC 4590; M.K. v. J.K., 2020 ONCJ 387. A disruption in parenting time was found by the Ontario Court of Appeal as not sufficient to prevent a move see Bjornson supra.
[ 97 ] Ms. Lawrence’s move does not alter other aspects of Cassidy’s relationship with her father as a relationship is more than just the parenting time.
[ 98 ] I find that Ms. Lawrence is not moving to defeat or reduce Mr. Khan’s care for Cassidy including the physical care of his daughter. I find that since separation the parties have gradually increased parenting time all without any overt litigation and difficulties which is a positive sign and beneficial to Cassidy. see Sheikh v. Sheikh, 2005 Carswell Ont 1690 (Ont. S.C.).
[ 99 ] I find the suggested new parenting schedule is part of the evolution of parenting time between the parties that is yet to be finally settled. As I noted the parties have work to do to share holidays and long weekends which will only increase the sharing of parenting time.
[ 100 ] I do not find that the move will prejudice Mr. Khan’s claims regarding decision making and shared parenting if this matter were to go to trial for the reasons I have stated above, and the issue of decision making need not be resolved beforehand to permit this move to Orangeville; see Moreton v. Inthavixay 2021 ONCA 501.
Order Temporary
Ms. Lawrence is permitted to move the residence of Cassidy Khan born […], 2018 to Orangeville ON and the child’s principal residence will be with Ms. Lawrence in Orangeville.
Decesion making/Parenting time schedule: Parties are to negotiate a consent regarding decision making and revised parenting schedule as outlined in paragraphs 73, 74 , 75 and other holiday/school break times. In doing so Cassidy should not miss more than 1.5 days of JK per week. This parenting schedule to be submitted to me via a 14B motion within 14 days of today along with a draft order for my consideration.
Next event shall be a Settlement Conference. Parties are to serve and file each a Settlement Conference brief and signed Offer to Settle all issues.
November 8, 2022 at 2:15 p.m. in courtroom 202.
Judicial Notice
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Judicial notice may be taken of facts so notorious as to be beyond reasonable dispute. A court is not entitled to rely on extra-legal data that is unsupported by sworn testimony and therefore lacks the safeguards provided by cross-examination . Re Jordan (1986), 57 Nfld. & P.E.I. R. 320 .
A court should ask itself whether such fact would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the subject of reasonable dispute for the purpose for which it is to be used, keeping in mind that the need for reliability and trustworthiness increases directly with the centrality of the fact to the disposition of the controversy. See: R. v. Spence 2005 SCC 71 at par. 65. This is commonly accepted as the test for legislative or social framework facts.
If something is broadly known that is enough, even if it is not universally known. It is also acceptable if the fact or proposition is confirmed in commonly consulted sources that are trusted to be accurate. R. v. Cobham , [1994] 3 SCR 360.
The court may take judicial notice of indisputable and relevant historical facts by reference to readily obtainable and authoritative sources: R. v. Augustine , 1986 CarswellNB 246 (C.A.) , leave to appeal refused; R. v. Zundel , 1987 CarswellOnt 83 (C.A.), leave to appeal refused.
Released: October 13, 2022
Signed: Justice A.W.J. Sullivan