ONTARIO COURT OF JUSTICE

DATE: July 18, 2023 COURT FILE No.: DFO-22-441

BETWEEN:

Ekaterina Shapovalov Applicant

— AND —

Anthony Pantelousis Respondent

Before: Justice W. Kapurura

Heard on: July 4 & 7, 2023 Reasons for Judgment released on: July 18, 2023

Counsel: Nirmala Armstrong, for the applicant Anthony Pantelousis, respondent, self-represented

JUSTICE W. KAPURURA:

Part One – Introduction

[1] This motion was about the applicant’s (the mother’s) request for a temporary order allowing her to relocate with the parties’ three children (‘the children’) to the Province of Alberta.

[2] The children are NP (13 years old), MP (7 years old), and ZP (6 years old).

[3] In the alternative, the mother sought an order allowing her to relocate with the children outside of the Greater Toronto Area (‘GTA’).

[4] The respondent (‘the father’) opposed the mother’s motion.

[5] The father represented himself at this motion. Given that he was self-represented, the court was guided by the Statement of Principles on Self-represented Litigants and Accused Persons (2006) established by the Canadian Judicial Council and endorsed by the Supreme Court of Canada in Pintea v. Johns, 2017 SCC 23.

[6] The mother filed two affidavits in support of her motion. The motion was initially before the court on May 18, 2023. The father did not file his responding materials. He requested an adjournment of the motion to allow him to retain counsel and to serve and file his responding materials. He was granted an extension to serve and file his responding materials by June 14, 2023.

[7] The father did not comply with the filing order. He did not serve and file his responding materials. Instead, he uploaded several exhibits and a case conference brief to Caselines. The mother was not served with the materials.

[8] The court then allowed the father to provide his evidence orally. The mother was permitted to provide oral reply evidence.

[9] At the conclusion of the motion, the court dismissed the mother’s request to relocate with the three children. The parties were advised that reasons were to follow.

[10] The issues that this court had to determine are as follows:

a. What temporary parenting orders are in each child’s best interests? In particular:

i. Should a temporary order be made permitting the mother to relocate with the three children to the City of Edmonton, Province of Alberta?

ii. Alternatively, should an order be made permitting the mother to temporarily relocate with the three children outside of the GTA?

iii. What parenting time should the other parent have with each child?

iv. What transportation arrangements should be made for parenting exchanges?

Part Two – Brief background facts

[11] The parties began their relationship in 2008. They never married.

[12] Their first child was born in 2009.

[13] The parties had a tumultuous relationship. They separated on November 7, 2021.

[14] On November 8, 2021, the father was charged with uttering threats of harm against the mother.

[15] The mother filed her family court application on October 25, 2022. In her application, she sought parenting and support orders.

[16] The father filed an Answer/claim dated January 23rd, 2023. In his Answer/claim, he sought parenting and support orders.

[17] In October 2022, the mother brought a motion before Justice M. Pawagi, seeking temporary sole decision-making responsibility, and supervised parenting time for the father.

[18] On October 28th, 2022, the parties executed a consent, on a temporary without prejudice basis, providing for a 2-2-3 parenting schedule. The consent was entered into a temporary order pending the hearing of the mother’s motion.

[19] The mother’s motion was heard on November 8th, 2022. Justice M. Pawagi granted temporary sole decision-making responsibility to the mother. She ordered that the children shall reside with the parties on a 2-2-3 schedule, as set out in, and continuing from the order dated October 28th, 2022.

[20] In her endorsement, Justice M. Pawagi noted that it was an undisputed fact that since January 2022, the parties’ three children had resided with the parties on a 2-2-3 schedule except for disputed periods where the mother submitted that the father had indicated that he was in Greece, with the father stating that the mother had withheld the children.

[21] The temporary order dated November 8th, 2022, is the current parenting order.

[22] Since the beginning of April 2023, the mother has not facilitated the father’s parenting time.

[23] There is no order for child support.

Part Three – Relocation

3.1 – The mother’s position

[24] The mother conceded that she has not facilitated the father’s parenting time since the beginning of April 2023. She stated that at the beginning of April, she was notified by the father that he had tested positive for Covid. She then decided to keep the children for ten days. She told the court that on May 8th, 2023, the father lied to her that he had bed bugs in his home when, in fact, he was being evicted. She has not allowed him visits since then.

[25] The mother stated that the cost of living has gone up within the City of Toronto. She stated that she is looking for options that would benefit the children and allow her to continue to provide a stable and safe environment for them.

[26] The mother provided four options available to her as follows:

i. She was recently approved for subsidized housing within the City of Toronto. However, she stated that all available options are in neighbourhoods that are unsafe.

ii. Her second option is to move in with her mother in Mississauga, in the Province of Ontario. According to the mother, the children have a positive relationship with members of the maternal family. However, she considers this option as only for respite, and not for the long term.

iii. Her third option is to move out of the City of Toronto to areas that she considers to be affordable. She provides the City of Barrie as an example.

iv. Her fourth option is to move to Alberta. She stated that she has family members living in Alberta. Therefore, she would have a good support system. There is a 3-bedroom house available for her to occupy. The house is located on the outskirts of Edmonton. She stated that the house is in a safe neighbourhood. She prefers the fourth option.

[27] The mother accused the father of neglecting the children’s educational needs. Attendance profiles filed by the mother show the following information:

Child’s name	Grade	Period	Days absent	Tardy
MP	2	September 7, 2022, to April 12, 2022	21	36
NP	8	September 7, 2022, to April 12, 2022	21.5	31
ZP	1	September 7, 2022, to April 12, 2022	27.5	33

[28] The mother stated that the children are showing signs of anxiety associated with their visits with the father. She accuses the father of making decisions about the children’s health and education without her knowledge.

[29] The mother’s evidence is that the father is controlling and has repeatedly harassed her.

3.2 – The father’s position

[30] The father stated that he would not oppose the mother’s relocation plan. However, he was concerned about the particulars of the relocation plan itself. He testified that the mother only has a brother residing in Alberta. The brother resides in his father’s basement. The brother’s father is the mother’s stepfather. The father is concerned that the mother never had a relationship with her stepfather.

[31] The father expressed concerns about the mother’s plan to relocate with the children to the maternal grandmother’s home in Mississauga. He stated that the grandmother resides with her adult son, and she is subleasing another bedroom in her home to a ‘stranger’.

[32] The parties’ eldest son, NP, will be starting high school in September 2023. The father stated that he assisted NP in registering for high school at Central Technical School in Toronto. The father attended the same school and would want his son to attend the same school.

[33] The father’s position is that given that NP is now registered for high school, any relocation by the mother should ensure that her new residence is within the school catchment area.

[34] The father is concerned about his ability to see the children once the mother is permitted to relocate with them. He told the court that the mother has withheld the children since the beginning of April 2023. His evidence was that he went to pick them up from school on or about April 3rd, 2023. When he arrived at the school, the children were not there, and the mother had contacted the police. He referred to the current temporary order dated November 8, 2022, which provides that exchanges shall occur at school. The order further provides that if school is closed, the exchanges would occur at the mother’s building. He has not had parenting time since that time.

[35] The father stated that he unsuccessfully tried to engage the mother’s counsel to discuss his parenting time and reinstate his parenting schedule per the terms of the current temporary order.

[36] When the father was evicted from his previous residence around April 2023, he briefly moved in with his girlfriend in Niagara Falls. He has since returned to Toronto. He plans to stay within the catchment area of the children’s schools. He plans to move to his godfather’s home at Bloor Street and Dovercourt Street in Toronto. The godfather resides in a home with four bedrooms. According to the father, his plan to reside with his godfather would benefit the children as he would have a home for them and would remain in their school catchment area.

[37] The father is currently not working.

Part Four – Legal considerations

4.1 – General

[38] Section 29 of the Children's Law Reform Act (the Act) provides the statutory authority for changing a parenting order on either a temporary or final basis. It states:

29 (1) A court shall not make an order under this Part that varies a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order. 2020, c. 25, Sched. 1, s. 6.

[39] Subsection 29 (2) of the Act adds a new 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. 2020, c. 25, Sched. 1, s. 6.

[40] Variation of orders, even interim orders, are governed by section 29 of the Act. A closer scrutiny of the legislative wording of this section is worthwhile. Section 29 does not say that a court may vary an order if there has been a material change in circumstances. What it says is that a court shall not vary an order unless there has been a material change in circumstances. This difference is significant. A change in circumstances is not sufficient. The change must be “a material change”. This means it must be “substantially important”. McIsaac v. Pye, 2011 ONCJ 840.

[41] The status quo whereby the children were enjoying maximum contact with their parents should not be lightly interfered with unless there are compelling reasons to do so. See: Lafond v. Blouin, 2020 ONSC 2396. The status quo will be maintained on an interim motion in the absence of compelling reasons indicative of the necessity of a change to meet the children’s best interests. See: Chaput v. Chaput, 2021 ONSC 2809.

[42] In Kimpton v. Kimpton it was noted that the status quo meant the primary or legal status quo, not a short-lived status quo created to gain a tactical advantage.

[43] 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,

[44] 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.

[45] 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, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and (k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.

[46] Subsection 24 (6) of the Act addresses parenting time and day-to-day decisions. It reads as follows:

(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. 2020, c. 25, Sched. 1, s. 6.

[47] Subsection 33.1 (2) of the Act addresses the importance of the parties protecting children from conflict. It reads as follows:

33. 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.

[48] The Act provides the following considerations under sections 39.3 and 39.4 when a parent intends to relocate:

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.

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.

4.2 – Temporary relocation

[49] The jurisprudence requires the court to conduct a stringent analysis before permitting a party to relocate a child on a temporary basis.

[50] The leading case for determining if a relocation should be permitted on a temporary motion is Plumley v. Plumley, 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.

[51] The following are additional principles regarding temporary relocation cases (See: Boudreault v. Charles, 2014 ONCJ 273):

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 600.

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.

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. 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 100), 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).

[52] 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 – Has there been a material change in circumstances that affects or is likely to affect the best interests of each of the three children?

[53] The mother has not met her onus to show that there has been a material change in circumstances that affects or is likely to affect each of the three children’s best interests for the following reasons:

a. From January 2022 until April 2023, the three children resided with the parents on a 2-2-3 schedule (except for disputed periods). The schedule has not been followed since April 2023 as the mother made the decision not to facilitate the father’s parenting time.

b. There is no independent evidence confirming how the children have been impacted by the mother’s decision not to allow them to have visits with their father.

c. The children’s independent views and preferences with respect to the proposed relocation are currently not before the court.

d. Other than the brief period when the father moved to Niagara Falls after he was evicted, both parents are still residing in Toronto.

e. The mother did not provide the father with the required notice or information about her proposed relocation.

f. The children are registered for school in Toronto, with NP commencing high school in September 2023.

Part Six – Changing a temporary order made at a motion

[54] The mother’s request to relocate with the children would result in a change of the terms of the current parenting order made by Justice M. Pawagi on November 8, 2022. The order was made following a motion.

[55] Caselaw is very clear that such a change would require compelling reasons.

[56] The mother’s evidence fails to establish any compelling reasons to support her request to relocate with the children. The analysis under Part Seven below confirms the court’s position in this regard.

Part Seven – Relocation (analysis)

7.1 – Burden of proof

[57] As per the current temporary parenting order, the children should spend substantially equal time in the care of each party. The order has not been substantially complied with because the mother made the choice not to follow it. Given the substantial non-compliance, the Act would require that both parents bear the burden of proving whether the relocation is in the best interests of the child. However, a parent cannot, by self-help, undermine the burdens of proof.

[58] In N.P. v. D.H., 2022 ONCJ 535, the court found that the mother, who had denied the father’s court-ordered parenting time, could not use self-help to attain the status of having the child the vast majority of the time.

[59] In this case, the court finds that the mother has the burden of proving that the relocation would be in the best interests of the children.

7.2 – Factors listed under subsection 39.4(3) of the Act

The reasons for relocation

[60] The mother’s evidence is that the main reason for her move is due to the rising cost of living in Toronto. She wants to reside in a safe and stable environment for the children. She stated that the father is not paying child support and is collecting the Canada Child Benefits as a primary caregiver to the children.

[61] The mother did not provide evidence to assist the court in understanding the cost of living in Edmonton, as compared to the cost of living in Toronto. She did not provide evidence to show what her likely monthly budget in Edmonton would look like.

[62] The mother’s counsel told the court that the mother was also seeking relocation due to alleged harassment against her by the father. This ground is not specifically stated in the mother’s materials.

[63] The mother’s two supporting affidavits are replete with information pertaining to her challenging parenting relationship with the father. Her first affidavit dated April 12, 2023, has 57 paragraphs. She dedicates about four paragraphs to the relocation issue. Her supplementary affidavit dated May 9th, 2023, has 23 paragraphs. Only two paragraphs in her supplementary affidavit are dedicated to the relocation issue, with the balance being parenting challenges.

[64] The mother makes the following allegations against the father:

i. The children are showing signs of anxiety due to their challenging relationship with him.

ii. He is discussing the family court matter with the children.

iii. He is neglecting the children’s educational needs.

iv. He is making major decisions regarding the children’s health and education without her knowledge.

v. He is controlling.

vi. His behaviour makes her feel unsafe.

vii. He makes degrading comments about her to the children.

viii. He is sending messages to her through the children.

ix. He does not have a place to stay currently.

x. He is unstable as a parent.

[65] In Barendregt (supra), the court stated that family violence is an important factor in relocation cases.

[66] However, given the circumstances of this case, the allegations made by the mother against the father would require a trial such that the parties can lead all their evidence, and cross-examination on their evidence can be conducted.

The impact of the relocation on the children

[67] From around January 2022 until April 2023, the parties’ three children resided with them on a 2-2-3 schedule (except for disputed periods).

[68] The current temporary parenting order dated November 8th, 2023, has not been varied.

[69] The City of Edmonton is about a 4-hour flight from the City of Toronto.

[70] There is no doubt that the proposed relocation will have a significant impact on the father’s in-person parenting time with the three children, particularly given the current parenting schedule.

[71] The eldest child, NP, will be commencing high school in September 2023. The father’s evidence is that he helped to register him for high school at Central Technical School in Toronto. This is the same high school that the father attended. The mother is aware of and participated in NP’s choice of courses.

[72] The parents appear to have different views on whether Central Technical School (Toronto) is the appropriate high school for NP. The father’s evidence is that NP looked into the school with his peers and decided to register. The mother testified that even though she supported the registration initially, it is not the best school for NP. She stated that NP is more interested in finance courses and is not interested in trades.

[73] Article 12 of the United Nations Convention on the Rights of the Child requires that:

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

[74] Section 64 of the Act requires the court, where possible, to take into consideration the views and preferences of the child to the extent that the child is able to express them.

[75] In this case, NP is 13 years old. He is starting high school in September 2023, and is already registered for his high school. His views on his education are critical.

[76] The children do not have counsel in this proceeding. Hence, the children’s views and preferences are not before the court.

[77] The court is concerned that approving the requested relocation without independent evidence about the children’s views, particularly NP, on the issue of his choice of school, may have serious negative consequences on the children.

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

[78] The court did not receive evidence of the mother’s compliance with the notice provisions under the Act. There was also no oral notice provided to the father.

[79] Accordingly, the following information was not provided to the father in advance of the proposed temporary relocation, either orally or in writing:

i. The expected date of the proposed relocation.

ii. The address of the new residence and contact information.

iii. A proposal as to how decision-making responsibility and parenting time could be exercised.

[80] What is more concerning is that in both her affidavit and oral evidence, the mother still failed to provide the above details.

[81] The mother did not bring an application pursuant to subsection 39.3(3) of the Act seeking an exception not to apply the notice requirements to her circumstances.

[82] However, compliance with the notice requirements under section 39.3 of the Act is only but one of the several factors that the court is required to assess in addressing the relocation issue. The overriding factor is the best interests of the child. See: Reade v. Reade, 2022 ONCA 637.

[83] The court finds that the mother’s relocation proposal is vague and lacks detail. The supporting affidavits filed by the mother do not provide any details about her proposed living arrangements. The affidavits state that she will be residing with family members. This lack of clarity became even more evident when the father stated that the mother was going to reside with her brother in Edmonton and that the brother resides in his father’s basement. In her reply evidence, the mother stated, for the first time, that she was planning to reside at a home owned by her current boyfriend (and not at her stepfather’s home as stated by the father).

[84] The mother has been in a relationship with her boyfriend for about one year. There is no independent evidence confirming the nature of the relationship between the mother’s boyfriend and the children.

[85] The boyfriend resides in Toronto. The proposed home in Alberta is currently occupied by tenants. The mother does not have documentation to confirm the terms of the current tenancy agreement between her boyfriend and the tenants.

[86] The mother’s boyfriend did not provide an affidavit in support of the mother’s motion.

[87] The mother told the court that the area she plans to relocate to in Alberta has good schools. She did not provide any further details about the schools, including their names. She did not provide evidence to confirm that she had sought registration information for the children, or whether she had been in contact with the schools.

[88] The mother did not provide a specific plan with respect to her alternative requests to relocate to Mississauga, or her plan to relocate outside of the GTA to cities like Barrie. She did not provide a specific plan.

[89] The court finds that the mother’s proposed relocation has several uncertainties and may have serious negative consequences for the children. The court may deny a relocation if plans for the move are poorly thought out and fraught with uncertainty. See Maillet v. Gauld, 2005 NBQB 23.

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

[90] In her oral reply evidence, the mother’s counsel asked her about her proposal for the father’s parenting time if she were permitted to relocate with the three children. The mother’s response was that she had not put her mind to that issue.

[91] Accordingly, as of the date of her motion, the mother did not have a proposal for the father’s parenting time with the children if she were to be allowed to relocate with them.

[92] There is no proposal as to how expenses associated with the exercise of parenting time would be shared between the parents.

[93] There is no confidence that the mother will facilitate the father’s parenting time with the children once temporary relocation is approved.

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.

[94] It is undisputed that since the beginning of April 2023, the mother has not complied with the current temporary parenting order. She has not facilitated the father’s parenting time in the past three months.

[95] The mother has not taken steps to change the terms of the current temporary parenting order.

[96] A parent who engages in self-help tactics despite the best interests of the children will generally raise serious questions about their own parenting skills and judgment. See: Clement v. Clement, 2010 ONSC 1113; Rifai v. Green, 2014 ONSC 1377.

[97] The court finds that the mother made the choice not to comply with the current temporary parenting order.

[98] It is very concerning that the father has been denied parenting time for three months. The father testified that he unsuccessfully tried to address the issue of his parenting time with mother’s counsel.

[99] The court expects its orders to be complied with.

[100] It is trite to say that an order is not a suggestion and that compliance is not optional. Further, non-compliance must have consequences. Protection of the integrity of the administration of justice is at stake if a litigant willfully disobeys a court order. See Dumont v. Lucescu, 2015 ONSC 494.

[101] The court finds that the mother is not meeting her responsibility as a parent to facilitate the father’s relationship with the children.

[102] The court is very concerned that if it permits the relocation prior to a trial, the likely outcome will be that the children’s relationship with the father will be diminished, if not totally frustrated by the mother.

[103] The mother has failed to show compelling circumstances why the relocation should be permitted on a temporary basis.

[104] The mother appears not to have a strong case for relocation at trial.

[105] The mother has failed to discharge her onus on whether the relocation would be in the best interests of the children.

[106] The court finds that it is in the children’s best interests to reside in Toronto pending a final determination on the relocation issue.

Part Six – Order

[107] For the reasons above, the court dismissed the mother’s motion for relocation on July 7, 2023.

[108] If either party seeks costs, they shall serve and file written submissions of no more than 3 pages of narrative (not including any bill of costs or offer to settle) by July 31, 2023. The other party will then have until August 14, 2023, to serve and file their written response (not to make their own costs submissions) of the same length. Any reply is to be delivered by June 23, 2025. These submissions are to be uploaded to Case Center and provided to my judicial assistant.

Released: July 18, 2023 Signed: Justice Wiriranai (Wiri) Kapurura