WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,

( c ) prohibiting the publication of a report of the hearing or a specified part of the hearing.

(8) Prohibition re identifying child. — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged .— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142.— (3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)( c ) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Ontario Court of Justice

Date: February 16, 2022 Court File No.: Brantford C 290/17 ext 002

BETWEEN:

The Children’s Aid Society of Brant o/a Brant Family and Children’s Services Applicant

— AND —

A.C., J.T. Respondents

Before: Justice A.D. Hilliard

Heard on: January 31, 2022 Reasons for Judgment released on: February 16, 2022

Counsel: V. Kaljaste...................................................................... counsel for the applicant society D. Maltby........................................................................... counsel for the respondent A.C. E. Carroll........................................................................... counsel for the respondent J.T.

Hilliard J.:

[1] There are two (2) motions before the Court dealing with the same issue – the ability of the Respondent mother, A.C., to move with the child, J.C-T. Ms. A.C. seeks to be allowed to move with J.C-T. from Brantford to Petawawa. Mr. J.T. opposes the move and seeks an order prohibiting Ms. A.C. from moving with J.C-T., or in the alternative, placing J.C-T. in Mr. J.T.’s primary care.

[2] The motions of both Ms. A.C. and Mr. J.T. seek relief on a temporary basis within an ongoing status review application.

Background

[3] J.C-T. was found to be a child in need of protection on March 21, 2019. The protection concerns that were outlined in the Statement of Agreed Facts supporting a finding that J.C-T. is a child in need of protection fell into three broad categories: domestic conflict, unresolved drug use, and mother’s mental health conditions.

[4] A supervision order was made on September 23, 2019 placing J.C-T. in the care of Ms. A.C. for a period of six (6) months pursuant to terms of supervision. That order was made on consent pursuant to a Statement of Agreed Facts signed by the parties on September 20, 2019.

[5] The final order of September 23, 2019 provided for Mr. J.T. to have specified access with J.C-T. on alternate weekends from Friday at 6:00 p.m. until Saturday at 6:30 p.m.. However, there is no dispute that Mr. J.T. has been having access with J.C-T. every weekend from Friday afternoon until Sunday afternoon since shortly after the final court order was made.

[6] Within this status review application, commenced in 2020, Mr. J.T. brought a motion seeking to have J.C-T. removed from the care of Ms. A.C. and placed into his primary care on a temporary basis. The Society supported Mr. J.T.’s interim motion based upon their position that Ms. A.C. had failed to adequately address ongoing protection concerns over a period of three (3) years. Despite those concerns, I found that Mr. J.T. had not met his onus to demonstrate that there was a change in circumstances such that J.C-T. should be removed from the care of his mother on an interim basis prior to trial. [1]

[7] After the release of my judgment on that interim motion, the parties had resolution discussions that ultimately led to an agreement in principle that was anticipated to be formalized by way of a Statement of Agreed Facts. A final consent was not submitted to the court for approval prior to Ms. A.C. giving Mr. J.T. and the Society notice of her intention to move with J.C-T. from Brantford to Petawawa. Therefore, no final order has been made on this status review application.

[8] A final order has been made in a companion matter involving Ms. A.C.’s oldest child, A.A-L.C, placing her in the care of Ms. A.C. subject to Society supervision for a period of six (6) months. There is a relocation provision in the final order with respect to A.A-L.C. which specifies that if Ms. A.C. wishes to relocate outside of Brantford she is to provide 60 days notice in writing to all parties and Ms. A.C. is not to relocate without the written consent of all parties or further court order.

[9] Ms. A.C. has been in a relationship with D.B. for approximately two (2) years. Mr. D.B. is a member of the Canadian Armed Forces (CAF), stationed to Petawawa after completing basic training in Meaford. Ms. A.C. and Mr. D.B. have a child together, S.R.W., who is not the subject of any child protection proceedings at present. Ms. A.C.’s request is to be allowed to move to Petawawa to live with Mr. D.B. in a four-bedroom townhouse provided for military families. However, A.A-L.C. will not be moving to live with Ms. A.C. and Mr. D.B. until after the completion of this academic school year. The plan is for A.A-L.C. to remain primarily in the care of her maternal grandmother, V.C., who resides in Brantford, until the school year is complete.

[10] Ms. A.C.’s proposal for Mr. J.T.’s access, in the event the move is permitted, is for Ms. A.C. and Mr. D.B. to return with J.C-T. to Brantford every third week, leaving J.C-T. in the care of Mr. J.T. for a week, then returning to pick him up at the end of the week. The drive from Petawawa to Brantford is approximately six (6) hours one-way.

[11] Ms. A.C.’s intention to move to Petawawa was shared with both the family service worker and Mr. J.T. sometime in the fall of 2021. However, no formal written notice was provided by Ms. A.C. to the Society or Mr. J.T. until December 7, 2021. The reasons for the move provided in the letter notification were that Ms. A.C. had found “a better living situation for me and the child” and that the relocation would allow her to be closer to where Mr. D.B. is stationed as a member of the CAF. Ms. A.C. also noted in her letter that the children would qualify as dependents of Mr. D.B. should they be permitted to move to Petawawa and would therefore qualify for extended health benefits, day care and other programs available to dependents of members of the CAF. Mr. D.B. is scheduled to return to active duty on February 28, 2022.

[12] Within a week of receiving the notification of the intended move, Mr. J.T. brought a motion to prohibit Ms. A.C. from moving with J.C-T. Mr. J.T.’s initial motion was brought by way of 14B without notice seeking that to have an urgent motion scheduled on the issue of Ms. A.C. relocating with J.C-T. to Petawawa, along with an order prohibiting Ms. A.C. from relocating prior to the motion being heard. That motion was granted and I made a temporary order on December 20, 2021 prohibiting Ms. A.C. from moving the primary residence of J.C-T. outside of Brantford until further order of the Court. The matter was returned before me on January 7, 2022 to schedule argument on Mr. J.T.’s motion.

[13] The Society does not support Ms. A.C.’s request to move with J.C-T. to Petawawa.

Legal Principles – mobility

[14] Amendments to the Children’s Law Reform Act (CLRA) came into effect on March 1, 2021, including sections regarding changing residence and relocation. The breadth of jurisprudence on the issue of mobility that developed after the Supreme Court of Canada’s seminal decision of Gordon v Goertz [2] underlined the need for legislative clarification in this difficult area of the law. The amendments to the CLRA mirror amendments made to the Divorce Act, thereby creating equity and consistency between married and unmarried parents in the province of Ontario.

[15] The residence and relocation provisions of the CLRA now set out a comprehensive legislative framework governing persons intending to relocate or change the residence of a child in their care. The specific provisions regarding relocation are sections 39.3 and 39.4 of the CLRA. These sections set out the notice provisions, the best interests test to be applied when making a determination as to whether to authorize a relocation, factors not to be considered, and which party bears the burden of proof:

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.

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.

[16] There are no statutory provisions in the Child Youth and Family Services Act (CYSFA) governing relocation of a child’s primary residence. There is no provision in either the CLRA or CYSFA that the new CLRA amendments governing relocation apply to proceedings under the CYSFA.

[17] Where there is legislative silence, judges must look to the common law to determine what legal principles should be applied to ensure continuity and minimize inconsistency in the application of the law. It is arguable that consistency, predictability, and transparency in the law is most important in family law where the decisions judges are called upon to make have a significant impact on the day to day lives of the people who come before the courts.

[18] Applying the legislative framework set out in the CLRA mobility provisions makes sense from a policy and equity perspective. For a different test to be applied to parents proposing to relocate the primary residence of a child in a CYSFA proceeding than a parent who is seeking to do so in a CLRA proceeding potentially creates inconsistent and inequitable results. For litigants in CYSFA proceedings to be subject to a test that is either more or less stringent than that which is applicable under the CLRA is likely to offend the Charter principles of equality.

[19] The application of the CLRA mobility provisions also promotes transparency in the law. The provisions of the CLRA are easily accessible on the internet and provide clear guidance on the test to be applied and what party bears the burden of proof. Lawyers and litigants involved in relocation matters can more easily access the principles that judges will be applying in their particular case by referencing the CLRA rather than having to read through the jurisprudence. I am supported in this conclusion by some of the actions of the parties themselves. The notice provisions in the final order regarding A.A-L.C. mirror the notice provisions in section 39.3 of the CLRA. It appears that reference was made to the CLRA provisions in the negotiating and crafting of the final order, looking to the CLRA for guidance on applicable legal principles in the absence of any mobility or relocation provisions in the CYSFA.

[20] For all these reasons, I am of the view that the statutory provisions governing relocation in the CLRA and the jurisprudence that has developed thereafter, should be applied to proceedings under the CYSFA.

[21] Judges have made a clear distinction between interim mobility motions and decisions on mobility made after a trial. [3] That same distinction has been held to continue to apply ever after the enactment of the amendments to the CLRA. [4] The legal principles to be applied on interim mobility motions summarized in Boudreault v. Charles, 2014 ONCJ 273 and adopted in Rudichuk v Higgins, 2021 ONCJ 471 makes clear that courts should be reluctant to change the status quo on an interim motion. There must be compelling circumstances set out in the evidence for a judge to consider allowing a parent to relocate with a child on an interim motion. The move may be permitted on an interim basis if there is a strong possibility that the primary residence parent’s position will prevail at trial.

[22] In applying the Boudreault analysis post-CLRA amendments, Justice Kukurin held that the first question to be answered is whether the proposed move constituted a relocation or a change in residence. Relocation is a defined term in the CLRA under s. 18:

“relocation” means a change in the 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 time order in respect of the child, or

(b) a person who has contact with respect to the child under a contact order.

[23] After finding that the proposed move was a relocation, Justice Kukurin found that the analysis on an interim motion fell under the category of any other case pursuant to s. 39.4(7) of the CLRA in determining who bore the burden of proving whether the relocation is in the best interests of the child. The onus on an interim motion therefore lies on both parties. [5]

[24] An additional factor that may need to be considered in relocation cases under the CYSFA is the extent to which the proposed move may impact the relocating parent’s ability to continue to address and mitigate existing protection concerns.

Analysis

[25] Ms. A.C.’s proposed move to Petawawa from Brantford is a relocation rather than a change in residence. J.C-T.’s time with Mr. J.T. would be significantly impacted if Ms. A.C. is allowed to move with J.C-T. to Petawawa. The drive time between Brantford and Petawawa is approximately six (6) hours one-way. A move would therefore preclude Mr. J.T. from exercising his current access which is every weekend from Friday to Sunday as the driving time alone with be prohibitive. It is neither practical or feasible for J.C-T. to spend 12 hours or more round-trip in a vehicle travelling between the residences of his mother and father for weekend access, even if that driving was split over a period of 3 days.

[26] As this is an interim motion, both Ms. A.C. and Mr. J.T. bear the burden of demonstrating that the move to Petawawa either is or is not in J.C-T.’s best interests. I also find that the burden should rest with both parties in this case because the current status quo parenting arrangement cannot be adequately described as either substantially equal time with both parents or a vast majority of the time with one parent. J.C-T. is in the care of his mother during the week and in the care of his father on weekends. In my view, that arrangement is outside what is contemplated by either equal parenting time or substantial time with one parent over the other.

[27] It is understandable that Ms. A.C. wishes to reside with her current partner, Mr. D.B., and their infant child, S.R.W. However, despite Ms. A.C. deposing that J.C-T. will have access to extended medical benefit coverage and other support services available to dependents of the CAF, there is no evidence that J.C-T. is or can be enrolled in daycare in Petawawa. J.C-T. is currently enrolled in daycare in Brantford, which provides Ms. A.C. with respite during the day from her childcare responsibilities for J.C-T. while A.A-L.C. is at school. There is no evidence that Ms. A.C. will have similar respite childcare supports available to her in Petawawa.

[28] Ms. A.C. also argues that she should be permitted to relocate to Petawawa because J.C-T. and A.A-L.C. should not be separated. It is not disputed that J.C-T. and A.A-L.C. have a close sibling bond. This sibling attachment was a factor I considered in my judgment on the interim motion in this matter. [6] However, A.A-L.C. will not be moving with Ms. A.C. to Petawawa until at least the end of the current school year. She will instead be residing primarily with her maternal grandmother, Ms. V.C., in Brantford. J.C-T. will therefore have greater opportunities for sibling access were he to remain residing in Brantford rather than moving to Petawawa. On the evidence before me, Ms. A.C.’s argument that the siblings should not be separated because of their attachment to one another has no merit given that her plan is to leave A.A-L.C. in the care of Ms. V.C. until the end of June 2022.

[29] The ability of Ms. A.C. to address the ongoing protection concerns is another relevant factor. Ms. A.C.’s mental health continues to be a concern, albeit one that is significantly mitigated by the supports she has put in place in the Brantford area. The evidence before me is that Ms. A.C. would not be able to continue to receive care from her current psychiatrist if she relocates to Petawawa. Ms. A.C. would have to make a request from her family doctor for a referral to a psychiatrist in the Petawawa area. There is no indication as to what the availability of psychiatric care is in Petawawa or the surrounding area. There is no evidence that Ms. A.C. has even made specific inquiries to determine whether the supports she currently has in place to address her mental health concerns are available in Petawawa.

[30] Ms. V.C. has been a protective factor throughout these proceedings. She has provided respite care for the children and emotional support to Ms. A.C. Ms. V.C. has been a place of safety for the children and Ms. A.C. since prior to the birth of J.C-T. The support that Ms. V.C. provides to Ms. A.C. will not be available if the move to Petawawa with J.C-T. is permitted.

[31] J.C-T. will be able to continue to attend his current daycare so long as he is residing primarily in Brantford, which would provide consistency and routine for J.C-T. Mr. J.T. is exercising his weekend access consistently and there are no concerns in the evidence before me about the care Mr. J.T. is providing to J.C-T. during his access. Although I am prohibited from considering whether Ms. A.C. would move to Petawawa without J.C-T. were the relocation not permitted, Mr. J.T.’s evidence is that he is ready and willing to take J.C-T. into his primary care and there are no protection concerns preventing him from being J.C-T.’s primary caregiver.

[32] On the evidence before me Mr. J.T. and Ms. A.C. are equally capable of providing adequate care for J.C-T. Therefore, this is not a case where it is a foregone conclusion that Ms. A.C. will be successful at a trial such that her request to be permitted to relocate with J.C-T. should be granted on an interim basis.

[33] It was suggested to me that if I did not permit the relocation, I could order that Ms. A.C. have access with J.C-T. one week out of every three with her providing the transportation. However, I am not of the view that such an order is appropriate at this time. Such an order would be anticipatory, contemplating Ms. A.C. moving without J.C-T., which is specifically prohibited by s. 39.4(5) of the CLRA. There is also insufficient evidence before me on this motion to determine what access should be provided to Ms. A.C. if she chooses to move to Petawawa with J.C-T.

[34] Similarly, I am not prepared to make an order, again anticipating Ms. A.C. moving with J.C-T., that J.C-T. be placed in the primary care of Mr. J.T. An order changing the placement of J.C-T. on a temporary basis should only be made in the event that I am satisfied that there is evidence before me of a change in circumstances such that the current status quo should be altered in the best interests of the child, pursuant to s. 113(8) of the CYSFA. There is insufficient evidence before me on this motion to make such a determination.

Conclusion

[35] Ms. A.C. has not met her burden to demonstrate that the proposed relocation is in J.C-T.’s best interests. Mr. J.T. has met his burden and I am satisfied that it is in J.C-T.’s best interests to remain residing primarily in Brantford.

[36] In the event that Ms. A.C. chooses to move to Petawawa without J.C-T. and the parties cannot come to a resolution as to what the parenting schedule should be, the matter should be returned before me for argument on that issue.

Order

1. The Respondent mother, A.C., is prohibited from relocating the primary residence of the child, J.C-T., from the City of Brantford until further order of the Court.
2. The Respondent mother’s motion is dismissed.

Released: February 16, 2022 Signed: Justice A.D. Hilliard

[1] Children’s Aid Society of Brant v. A.C., 2021 ONCJ 340. [2] Gordon v Goertz, [1996] 2 S.C.R. 27 [3] See Boudreault v. Charles, 2014 ONCJ 273 for a summary on the jurisprudence to that point in time. [4] Rudichuk v Higgins, 2021 ONCJ 471. [5] Ibid at para 35. [6] Children’s Aid Society of Brant v. A.C., supra at para 31.