DATE: November 21, 2022 COURT FILE NO. D10556/17
ONTARIO COURT OF JUSTICE
B E T W E E N:
N.P.
APPLICANT
KENNETH SNIDER, for the APPLICANT
- and -
D.H.
RESPONDENT
LAUREN ISRAEL, for the RESPONDENT
HEARD: NOVEMBER 18, 2022
JUSTICE S.B. SHERR
REASONS FOR DECISION
Part One - Introduction
[1] There are two motions before the court, both brought by the respondent (the father).
[2] The first is the return of a motion to enforce the parenting time provisions of the court’s final order dated May 17, 2019 (the final order) regarding the parties’ 5-year-old son (the child). The second is a motion to have the child returned to Toronto from Owen Sound and for make-up parenting time, including extended holiday parenting time.
[3] On August 10, 2022, the court found the applicant (the mother) in breach of the final order and made orders to enforce it, including ordering temporary parenting time for the father and a term that the father’s mother (the paternal grandmother) not be present at visits (this latter term to be reviewable on the return of the motion).
[4] The court also permitted the parties to bring motions to address parenting and relocation issues, as the mother had relocated to Owen Sound with the child on or about August 3, 2022.
[5] The court adjourned the enforcement motion to monitor compliance by the mother and to review the term pertaining to the paternal grandmother. The father now seeks to remove that term.
[6] The father subsequently brought a motion to change the final order. He now seeks orders for primary residence and decision-making responsibility for the child. Within that motion to change, the father has brought the second motion that is before the court.
[7] The mother did not bring a notice of motion. However, in her affidavit material she opposes the father’s motions. She wants to remain in Owen Sound with the child and change the parenting time for the father set out in the final order. She opposes the child having any contact with the paternal grandmother.
[8] The court read and relied on the affidavits filed by the father for both motions, together with his motion to change. It also read and relied upon an affidavit filed on August 8, 2022 by the mother. This affidavit was 59 pages long – well in excess of the page limits in the Notice to the Profession. However, since the mother was self-represented at the time, and given the gravity of the issues, the court accepted the affidavit. The mother is now represented by experienced counsel and the court read and relied on her affidavit sworn on November 9, 2022.
[9] The issues for the court to determine are as follows:
a) Should the child be returned to Toronto from Owen Sound, and if so, when? b) What further orders, if any, should the court make to enforce the final order? c) Should the term prohibiting the paternal grandmother from being present at visits be changed? d) Has there been a material change in circumstances affecting or likely to affect the best interests of the child? e) If so, what temporary parenting orders are in the child’s best interests?
Part Two – Background
[10] The mother is 33 years old. The father is 39 years old.
[11] The parties never cohabited. They have the one child together.
[12] The parties have been litigating since shortly after the child was born.
[13] The child has primarily resided with the mother.
[14] The mother has been resistant to increasing the father’s parenting time since the child was born.
[15] The court gradually increased the father’s parenting time, from being fully supervised to unsupervised day visits and then to overnight visits.
[16] On July 20, 2018, on consent, a final order was made that the primary residence and decision-making responsibility for the child shall be with the mother.
[17] On May 17, 2019, the parties consented to the final order. It set out graduated parenting time for the father, starting with three day visits each week, increasing to a single overnight each month beginning in July 2020, further increasing to alternate weekends and Wednesday visits beginning in August 2020, and starting in September 2022, longer weekend visits. Exchanges were to take place at the 22 Division police station in Toronto. Holiday parenting time was set out and terms were agreed to for make-up parenting time.
[18] The final order also states that if either party moves from their current residence or outside the GTA, 30 days notice must be provided to the other party by way of email.
[19] On June 20, 2019, Justice Robert Spence dismissed a motion without notice brought by the mother to suspend the father’s parenting time.
[20] On August 6, 2019, the court dismissed the mother’s motion to change the father’s parenting time and for a restraining order against him.
[21] On August 27, 2020, the court dismissed an urgent motion brought by the mother to suspend the father’s parenting time due to perceived COVID-19 health violations. The court wrote that the mother has a history of being hyper-vigilant and bringing motions to curtail the father’s parenting time.
[22] The mother totally denied the father parenting time in November 2021. He did not see the child again until after the court made its enforcement order on August 10, 2022.
[23] The mother deposed that she suspended the father’s parenting time because the child was being sexually abused by the paternal grandmother. She called the Children’s Aid Society of Toronto (the society) and the police to investigate.
[24] In either late January or early February 2022, the police and the society closed their files. The allegations against the paternal grandmother were not verified.
[25] In January 2022, the mother emailed the father that she was relocating with the child. She did not tell him where she was relocating to or when.
[26] The mother moved to Owen Sound with the child in January 2022 and returned to Toronto six weeks later.
[27] The mother continued to refuse parenting time to the father despite a request from his counsel. The mother told his counsel that she still did not have the results of the investigations by the society and the police.
[28] On July 3, 2022, the mother emailed the father that she was relocating with the child. And again, she did not tell him where she was relocating to or when.
[29] On July 13, 2022, the father’s counsel wrote to the mother objecting to any relocation and seeking her address. The mother did not provide her address or information about where she was relocating to and when. The father brought the enforcement motion.
Part Three – The enforcement motion
[30] In her affidavit seeking the dismissal of the enforcement motion, the mother provided the following reasons for denying the father’s parenting time:
a. The child had been sexually molested by the paternal grandmother. b. The father was not protecting the child from the paternal grandmother. c. She was not aware that the society or the police had closed their investigations until July 2022. d. She was afraid of the father. e. The father minimized the child’s autism diagnosis and was not capable of meeting his needs.
[31] On August 10, 2022, the court gave oral reasons for decision on the enforcement motion and found the following:
a. Toronto was the ordinary residence of the child. b. The final order remained in full force and effect. c. The mother had breached the final order without reasonable excuse. d. The mother’s statement that she was in compliance with the final order because there had been an emergency (the paternal grandmother allegedly sexually abusing the child) was disingenuous. e. The mother did not bring a motion to change the final order. She made the choice not to comply with it and used self-help. f. The mother was not an unsophisticated litigant. She has had multiple court appearances and has not hesitated in the past to bring motions to change the father’s parenting time. She knows the proper steps to take. She could not claim ignorance of procedure. g. Parenting time should have resumed, at the very latest, in late January or early February 2022, when the police and the society closed their investigations. The court did not accept that the mother was unaware of this until July 2022. h. The mother’s allegations about the father and the paternal grandmother had to be looked at in context. She has a history of making unsupported allegations against the father to limit his parenting time and relationship with the child. i. The mother has a history of being hyper-vigilant and bringing unwarranted motions to curtail the father’s parenting time. j. There was no independent evidence to support the mother’s allegations against the father – nothing from the society, the police, a therapist or a doctor. k. Many of the mother’s allegations were generalized and non-specific. Her allegations in her emails escalated. She made the exaggerated claim that the paternal grandmother had been sexually abusing the child for over 18 months. l. Many of the mother’s allegations predated her consent to the final order. m. The mother unilaterally moved to Owen Sound in August 2022, over the father’s objection. n. The mother’s anger during submissions was palpable. o. The court expected its orders to be complied with. p. The breach of the final order was serious. q. The mother believed that she could dictate the father’s parenting time if she felt this was right for the child. The consequence was that the child was being denied a relationship with the father and was being exposed to inordinate conflict. r. It was in the child’s best interests to have a meaningful relationship with the father. s. The court was confident that the father could parent the child for extended time periods. There was no independent evidence that the child was at risk with him.
[32] The father had asked for a reversal of the child’s primary residence as a term of enforcement. The court stated that it was premature to order this, not proportionate to the breach and not in the child’s best interests. The court adjourned the enforcement motion on terms to monitor the mother’s compliance with the enforcement order. The terms ordered included the following:
- The child shall have parenting time with the father from Friday August 12, 2022 at 6 p.m. until Friday August 26, 2022 at 4 p.m.
- Starting on Friday September 9, 2022, the father shall have parenting time with the child on alternate weekends from Fridays at 6 p.m. until Sundays at 4 p.m.
- For all exchanges: a. The father shall pick up the child at the start of the visit at the police detachment in Owen Sound. b. The mother shall pick up the child at the end of the visit at 22 Division in Toronto.
- The paternal grandmother shall not be present at visits. This term to be reviewed on the return date.
- No visits are to be cancelled.
- All police officers, wherever the child is located, including Toronto Police Services, the Owen Sound police department, the OPP and the RCMP shall enforce this order. If requested by the father, pursuant to section 36 of the Children’s Law Reform Act, they shall locate, apprehend and deliver the child to him.
- Either party may also bring a temporary motion on the return date to address the issues of temporary parenting, temporary primary residence and decision-making responsibility and relocation issues.
- The father is entitled to costs for the enforcement motion. Determination of the amount is reserved to the next court date.
Part Three – Events since the enforcement motion
[33] The mother has complied with the parenting schedule set out in the enforcement order. She also deposed that the child looks forward to visits with the father. These are important and encouraging developments.
[34] The mother expressed some concerns about the father’s parenting time. She claims that the child visited with the paternal grandmother at the first visit in August 2022. The father denies this. The mother says that the child returns from visits in a downcast mood and “is somewhat rude to me, demanding and defiant”.
[35] No independent evidence was provided that the child is having difficulties with his parenting time with the father. No mention of this was made in the letter from the child’s counselor provided by the mother.
[36] The father claims that the visits with the child have been excellent and that the child and he are enjoying their time together. The court accepts this evidence for the purpose of this motion.
[37] The child is in senior kindergarten. The child is also attending counseling with a Child and Youth Worker.
Part Four – Legal considerations
4.1 Legislation
[38] The mother did not bring a temporary motion to change the terms of the final order. However, in her affidavits responding to the father’s motions she asked the court to to eliminate Wednesday visits for the father and to change the exchange location set out in the final order. She is essentially seeking a temporary variation of a final order.
[39] Subsection 29 (1) 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:
(1) 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
[40] Subsection 29 (2) of the Act adds an additional consideration in relocation cases. 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.
[41] 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,
(a) another 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, or
(b) a person who has contact with respect to the child under a contact order;
[42] 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.
[43] 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.
[44] 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.
[45] 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.
[46] 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.
4.2 Motions to change
[47] The Supreme Court of Canada decision in Gordon v. Goertz, 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.
[48] 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.
[49] 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 (see his comments in paragraph 52).
[50] 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.
[51] 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.
[52] 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; Seyad v. Pathan, 2022 ONCJ 501.
4.3 Temporary relocation
[53] The jurisprudence also requires the court to conduct a stringent analysis before permitting a party to relocate a child on a temporary basis.
[54] The leading case for determining if a relocation should be permitted on a temporary motion is Plumley v. Plumley, [1999] O.J. No. 3234 (S.C.J.), where the court set out the following principles:
a) A court will be more reluctant to upset the status quo on an interim motion and permit the move when there is a genuine issue for trial. b) There can be compelling circumstances which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial of the best interests of the children or the best interests of the children might dictate that they commence school at a new location. c) Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong possibility that the custodial parent’s position will prevail at trial.
[55] 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 ONCJ 5000. b) Courts are generally reluctant to permit relocation on a temporary basis. The decision will often have a strong influence on the final outcome of the case, particularly if the order permits relocation. The reality is that courts do not like to create disruptions in the lives of children by making an order that may have to cause further disruption later if the order has to be reversed. See: Goodship v. McMaster, [2003] O.J. No. 4255 (OCJ). c) Courts will be more cautious about permitting a temporary relocation where there are material facts in dispute that would likely impact on the final outcome. See: Fair v. Rutherford-Fair 2004 CarswellOnt 1705 (Ont. S.C.J.). In such cases, the court requires a full testing of the evidence. See: Kennedy v. Hull, 2005 ONCJ 275. d) Courts will be even more cautious in permitting a temporary relocation when the proposed move involves a long distance. It is unlikely that the move will be permitted unless the court is certain that it will be the final result. See: Boudreault v. Charles, 2014 ONCJ 273. e) Where one parent moves to another city or community with the child without notice to the other parent, the other parent may apply to have the child returned to the home community. See: Hazelwood v. Hazelwood, 2012 ONSC 5069; Jennings v. Cormier, 2022 ONCJ 338, per Justice Melanie Sager. f) There is a difference in a temporary relocation analysis between permitting a temporary move and sanctioning a move that has already happened, particularly when the move is contrary to a temporary non-removal order. A court cannot sanction the latter. See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 68. This is applicable by analogy when the move is in the face of a written objection to the move. See: Jennings v. Cormier, supra. g) Courts will permit temporary relocation where there is no genuine issue for trial (see: Yousuf v. Shoaib, 2007 ONCJ 1000), 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).
[56] Although it was a final relocation decision, the Supreme Court of Canada in Barendregt v. Grebliunis, 2022 SCC 22, set out the following relocation considerations:
a. The difficulties inherent to the best interests principle are amplified in the relocation context. Untangling family relationships may have profound consequences, especially when children are involved. A child’s welfare remains at the heart of the relocation inquiry, but many traditional considerations do not readily apply in the same way (par. 98) b. Even where there is an existing parenting order, relocation will typically constitute a material change in circumstances and therefore satisfy the first stage of the Gordon framework (par. 113). c. The so-called second stage of the Gordon framework is often the sole issue when determining a relocation issue. The crucial question is whether relocation is in the best interests of the child (par. 115). d. In all cases, the history of caregiving will be relevant. And while it may not be useful to label the attention courts pay to the views of the parent as a separate “great respect” principle, the history of caregiving will sometimes warrant a burden of proof in favour of one parent (par. 123). e. The court should avoid casting judgment on a parent’s reasons for moving. A moving parent need not prove the move is justified. And a lack of a compelling reason for the move, in and of itself, should not count against a parent, unless it reflects adversely on a parent’s ability to meet the needs of the child. Ultimately, the moving parent’s reasons for relocating must not deflect from the focus of relocation applications — they must be considered only to the extent they are relevant to the best interests of the child (pars. 129-130). f. Relocation that provides a parent with more education, employment opportunities, and economic stability can contribute to a child’s wellbeing. These considerations all have direct or indirect bearing on the best‑interests‑of‑the‑child assessment (par. 171).
Part Five – Material change in circumstances
[57] There is no issue that there has been a material change in circumstances affecting the best interests of the child. The mother denied the father parenting time for about nine months. She has also relocated with the child to Owen Sound.
Part Six – The relocation provisions in the Act and the relocation term in the final order
[58] Subsection 39.3 (1) of the Act provides that the mother was required to give the father 60 days notice of her proposed relocation. However, the final order provided for 30 days notice of relocation. Paragraph 7 of the final order reads as follows:
If either party moves from their current residence or outside the GTA, 30 days notice must be provided to the other party by way of email
[59] Subsection 39.3 (2) of the Act sets out that a relocation notice is to contain:
a. The expected date of the relocation. b. The address of the new residence and contact information. c. A proposal about how parenting time can be exercised.
[60] The emails sent by the mother in January 2022 and on July 3, 2022, advising the father that she was relocating outside of the GTA contained none of this information.
[61] Subsection 39.3 (3) of the Act permits the court to order that subsections 39.3 (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.
[62] The court finds that subsection 39.3 (1) of the Act should be modified here to provide that the mother was required to provide the father with 30 days notice of relocation. She cannot be faulted for relying on the 30 day relocation notice term expressly set out in the final order.
[63] However, the emails sent by the mother to the father in January 2022 and on July 3, 2022, did not comply with the notice of relocation requirement set out in paragraph 7 of the final order.
[64] A notice of relocation must be meaningful to be given any effect. It is insufficient to inform the other party that you are relocating without specifying where you are relocating to or when that relocation will take place. The mother provided none of this information, even when requested to do so by the father. This denied him pertinent information that he required to assess his position on the proposed move.
[65] Subsection 39.3 (2) of the Act sets out what should have been provided in the notice of relocation by the mother. The court finds that this subsection applies to this case. At a minimum, the mother should have provided the father with the expected date of relocation and the address of her new residence.
[66] The court’s authority to not apply, or to apply with changes it specifies, the relocation provisions in the Act, is limited to subsections 39.3 (1) and (2), as set out in subsection 39.3 (3). The court is required to apply the rest of the Act’s relocation provisions.
[67] Notwithstanding the deficient notice of relocation, the father objected to the relocation within the 30 day time frame set out in clause 39.3 (5) (a) of the Act.
[68] The father’s opposition to the relocation triggered clause 39.4 (2) (a) of the Act requiring the mother to obtain authorization from the court prior to relocating to Owen Sound with the child. She did not do this.
Part Seven – Onus on this motion
[69] Subsection 39.4 (6) of the Act creates an onus on the person opposing the relocation if the child spends the vast majority of their time with the other person. The onus set out in this subsection does not apply here. First, the subsection contains a pre-condition that the mother must have substantially complied with the parenting order for the presumption to apply. She did not do this. Secondly, the child only spent the vast majority of his time with the mother because she unilaterally frustrated the child’s parenting time with the father. A party should not be allowed to use self-help to establish this status.
[70] Subsection 39.4 (8) of the Act also permits the court to disregard the onus provisions in 39.4 (5) and (6) of the Act on a temporary relocation motion.
[71] The court finds that both parties bear the onus of proving whether temporary relocation is in the child’s best interests. See: Aspden v. Blinn, 2022 ONCJ 507.
Part Eight – The mother’s position on temporary relocation
[72] The mother is opposed to the father’s request for the child to return to Toronto on a temporary basis because:
a. She feels that the child is thriving in Owen Sound. b. She feels that the child is doing very well in school and this should not be disrupted, particularly since he is autistic. c. She has received funding for the child to attend an outdoors program that is not available to him in Toronto. d. She feels that the child has developed a positive relationship with his counselor in Owen Sound. e. She is the child’s primary caregiver and her wishes should be given respect. f. She feels that she has more supports in Owen Sound than she did in Toronto. g. She stated that she has suitable housing in Owen Sound. h. She felt that she needed to escape Toronto due to the criminal activities of her former partner, who was charged with criminal offences against her on November 26, 2021. [1] She says that her partner continued to try and contact her in violation of her criminal release conditions. i. She says that she will facilitate the father’s parenting time. j. She feels that the relocation will have little impact on the father’s parenting time.
Part Nine – Temporary relocation analysis
[73] This temporary relocation case has different features than most temporary relocation cases that come before the court.
[74] First, the court has been case managing this family for many years and is very familiar with the parties and the dynamics in this case.
[75] Second, the court recently addressed the enforcement motion and made findings of fact as set out in paragraph 31 above. Most of these facts also apply to the relocation issue.
[76] The mother’s most recent affidavit, prepared with the benefit of counsel, did nothing to change those findings of fact. The mother still provided no independent corroboration of her concerns about the father or the paternal grandmother. She still relied on allegations that predated the consent final order and on child statements purportedly made to her. The child statements did not come anywhere close to achieving threshold reliability on either a procedural or substantive basis as articulated in R. v. Bradshaw, 2017 SCC 35. No evidence was provided of the child making similar statements to neutral persons.
[77] The court finds that the mother improperly relocated the child to Owen Sound. She did not provide the father with an adequate notice of relocation. Once the father objected to the relocation, the mother should have brought the matter to court to obtain authorization to relocate. As with her unilateral decision to stop the father’s parenting time, the mother chose a self-help remedy instead. She is familiar with the court process and should have known to seek court approval. [2]
[78] The mother’s relocation with the child needs to be considered within the context of her historical frustration of the father’s parenting time and relationship with the child. The evidence indicates that this is part of a continuing pattern of conduct. It is conduct that is not in the child’s best interests and cannot be condoned.
[79] The court finds that the mother is not meeting her responsibility as a parent to facilitate the father’s relationship with the child, although her recent compliance with the enforcement order gives the court some hope that this may change.
[80] The mother continued to show a lack of insight into the importance of the child’s relationship with the father in her November 9, 2022 affidavit. She claimed that her move to Owen Sound has no impact on the father’s parenting time with the child, with the exception of travel. She misses the point that the relocation:
a. Frustrates the father’s mid-week parenting time. b. Places barriers on the father’s ability to be fully involved with the child’s doctors, teachers and service providers. It makes it difficult for him to attend school events or to participate in the child’s activities. c, Places a significant travel burden on him and the child to maintain their relationship.
[81] The court is very concerned that if it permits the relocation prior to a trial of the issue, the likely outcome will be that the child’s relationship with the father will be inappropriately diminished, if not totally frustrated by the mother. This is not in the child’s best interests.
[82] The trial judge will be in the best position to ascertain, after all the evidence is tested, whether it is in the child’s best interests to relocate to Owen Sound. The mother may be able to persuade the trial judge that the relocation will not be a further barrier that she will use to marginalize the father from the child’s life.
[83] The mother has not met her obligation as a parent to protect the child from conflict – instead she has taken action to escalate conflict with the father.
[84] The mother has not complied with court orders. This is an important component of determining a child’s best interests when making parenting orders.
[85] The mother offered no independent evidence that services are more available for her and the child in Owen Sound than they are in Toronto. She offered no evidence that the child’s needs cannot be met in Toronto.
[86] The mother’s evidence about why she relocated to Owen Sound was inconsistent. She initially expressed fear of the father and his friends. In her more recent affidavit, she expresses fear of her former partner. No independent evidence was provided about why the mother would be unsafe in Toronto. Despite claiming that she was afraid of her partner, she returned to Toronto for several months in 2022 after spending 6 weeks in Owen Sound. [3] The mother also claimed at one point that she had permanent housing in Owen Sound – at another point she said that she was in transitional housing.
[87] The child has only been in Owen Sound for a few months. He should have little disruption if ordered to return to Toronto.
[88] The court does not discount the father’s allegation that the mother has relocated to escape the jurisdiction of this court which has provided oversight and made orders to ensure that the child has a relationship with his father. This theory can be explored further at trial.
[89] The court finds that the mother has not provided a compelling reason for the relocation to Owen Sound on a temporary basis.
[90] The court finds that there is not a strong likelihood that the mother will succeed in her relocation request at trial. Unless she changes her attitude towards the father’s relationship with the child, she will likely face considerable hurdles at trial.
[91] The court finds that there are genuine issues requiring a trial.
[92] The court finds that it is in the child’s best interests to reside in Toronto pending this determination.
[93] The court will order the child returned to Toronto by December 31, 2022. This will ensure that his school term is not disrupted and give the mother time to make the necessary arrangements to return the child to Toronto.
[94] The court cannot compel the mother to return to Toronto. If she chooses not to do so, the child will have his temporary primary residence with the father. If the parties cannot work out parenting time for the mother, they may return earlier to court to case conference the issue.
Part Ten – Parenting time and enforcement of orders
[95] The parenting time schedule set out in the court’s August 10, 2022 order shall remain in place until December 24, 2022. The parenting exchange terms set out in that order shall continue until December 31, 2022.
[96] The father asked for parenting time for the entire two-week winter holiday as make-up time. This is excessive and not in the child’s best interests. The mother proposed an equal sharing of this holiday. That is more reasonable.
[97] The father shall have additional holiday parenting time with the child from December 25, 2022, at 2 p.m. until December 31, 2022, at 2 p.m. The mother shall then have the child with her until Friday, January 6, 2023, at 6 p.m.
[98] Starting on Friday, January 6, 2023, the father’s temporary parenting time shall resume on alternate weekends as set out in paragraph 5 of the final order and on each Wednesday from 4:30 p.m. until 7:30 p.m. The exchanges shall take place as set out in the final order.
[99] Most of the terms of the final order will be continued in place with some modifications to address the material changes in circumstances. These terms primarily deal with communication, parenting exchanges, holiday times, access to information and non-removal. Paragraphs, 6, 8, 11, 12, 13, 14 (once the child returns to Toronto), 15, 18, 19, 20, 21, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34 (and the duplicate paragraphs 33 and 34) in the final order shall remain in force. [4]
[100] The child’s residence shall not be changed outside of the City of Toronto, without prior court order, or the notarized written consent of the other party.
[101] The court sees no evidentiary basis to maintain the term of the temporary order made on August 10, 2022, preventing the paternal grandmother from having contact with the child. The court made that order to remove a barrier from restoring the father’s parenting time and because the court was concerned about the negative impact the mother’s anxiety about the child having such contact would have on him.
[102] It is in the child’s best interests to have a normalized and loving relationship with his paternal family. The mother has been preventing this.
[103] The court will order on a temporary basis that the father shall be present when the paternal grandmother has contact with the child to help alleviate any anxieties the child may have about her.
[104] The court will continue paragraph 5 of the August 10, 2022 order, requiring that no visits are to be cancelled. It will also continue paragraph 6 of that order, requiring police enforcement.
Part Eleven – Conclusion
[105] The court orders the following on a temporary basis:
a) The child shall be returned to the City of Toronto by December 31, 2022. b) The child shall then reside in the City of Toronto pending further court order. If the mother resides outside of the City of Toronto, the child shall have his primary residence with the father. c) The parenting time schedule set out in the August 10, 2022 order shall remain in place until December 24, 2022. The parenting exchange schedule set out in that order shall continue until December 31, 2022. d) The father shall have parenting time with the child from December 25, 2022, at 2 p.m. until December 31, 2022, at 2 p.m. e) The mother shall have parenting time with the child from December 31, 2022, at 2 p.m. until January 6, 2023, at 6 p.m. f) Starting on Friday January 6, 2023 at 6 p.m., the father’s temporary parenting time (if the mother returns to Toronto) shall resume on alternate weekends as set out in paragraph 5 of the final order and on each Wednesday from 4:30 p.m. until 7:30 p.m. Parenting exchanges shall take place as set out in the final order. g) Paragraphs 6, 8, 11, 12, 13, 14 (once the child returns to Toronto), 15, 18, 19, 20, 21, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34 (and the duplicate paragraphs 33 and 34) of the final order shall remain in force and effect. h) Paragraphs 5 and 6 of the August 10, 2022 order shall remain in force and effect. i) The child’s residence, once he is returned to Toronto, shall not be changed outside of the City of Toronto, without prior court order, or the notarized written consent of the other party. Until his return to Toronto, the child’s residence shall not be changed from Owen Sound without court order or the notarized written consent of the father. j) The father shall be present when the paternal grandmother has contact with the child.
[106] The parties agreed at this hearing that the father could deliver his costs submissions for the enforcement motion at the same time as he delivers his costs submissions for this motion. The costs submissions are to be served and filed by December 5, 2022. Any response is to be served and filed by December 19, 2022. The submissions should not exceed 3 pages, not including any bill of costs or offer to settle. The costs submissions should be emailed or personally delivered to the trial coordinator’s office.
[107] These orders complete the enforcement and temporary relocation motions. The parties agreed that the next court date will be for a case conference on February 14, 2023 at 3:30 p.m. regarding the father’s Motion to Change and the anticipated Response to Motion to Change from the mother. Case Conference briefs are required.
[108] The court thanks counsel for their professional presentation of these motions.
Released: November 21, 2022 _____________________ Justice S.B. Sherr
[1] The mother’s former partner is someone different than the father. [2] The father should also have included a claim to prevent the mother from relocating with the child instead of seeking a change of primary residence in his enforcement motion. [3] The mother said this was due to shelter requirements. [4] The final order contains two paragraphs marked paragraph 33 and two paragraphs marked paragraph 34.