Reasons for Decision
ONTARIO COURT OF JUSTICE
DATE: 2023 04 20 COURT FILE No.: Toronto FO-22-42945
BETWEEN:
Fatoumata Diallo Applicant
— AND —
Ibrahim Barrie Respondent
Before: Justice Szandtner
Heard on: April 17, 2023 Reasons for Decision released on: April 20, 2023
Counsel: Kenneth E. Snider, counsel for the applicant Fatoumata Diallo Keyshawn Anderson, agent for the respondent Ibrahim Barrie
SZANDTNER J.:
[1] The Respondent (father) has brought a motion for an order requiring the Applicant (mother) to return the children of the relationship, namely Aissata, Mariama and Adama Barrie (the children) to Toronto (Scarborough), Ontario. He also seeks make-up parenting time with the children.
[2] The Applicant (mother) has not brought a cross motion for an order permitting her to relocate the children’s permanent residence from Toronto to Montreal, Quebec. However, she is not consenting to return to Toronto with the children as sought by the father in his motion.
[3] The mother commenced this litigation by issuing an application on August 5, 2022 in which she seeks child support, decision-making responsibility for the children, a restraining order and an order permitting her to secure government documents and to travel without the consent of the father. She did not seek an order permitting her to relocate the children. The mother was represented by counsel when she filed her application and is still represented by the same counsel to date.
[4] On November 14, 2022, the father filed his Answer and sworn Financial Statement. He sought joint decision-making with the mother, parenting time and the requirement of his consent for government documents and travel. The father was not represented by counsel when the application was filed and he prepared his Answer and Financial Statement. He was assisted by separate counsel acting as agents at each of the case conference and on the motion date.
[5] On January 20, 2023, the parties attended before the court for their first case conference. The father raised his objection to the mother’s relocation to Montreal, Quebec with the children. The children and the mother moved to Montreal on or about November 2022. He alleged that she had not provided him with notice, had not informed him of the relocation and did not obtain his consent. The mother confirmed that she and the children had relocated to Montreal, Quebec. The father was provided leave to bring an urgent motion for the return of the children.
[6] The father brought the within motion for the return of the children to Toronto (Scarborough) Ontario and make-up parenting time on April 17, 2022. He relies on a Notice of Motion dated March 24, 2023, his affidavit dated March 24, 2023 and his reply affidavit dated April 14, 2023. The mother relies on her responding affidavit sworn April 12, 2023. Counsel made oral submissions on behalf of their clients.
Jurisdiction
[7] According to subsection 22 (1) of the Children’s Law Reform Act (the Act) a court is able to exercise its jurisdiction to make a parenting order or contact order with respect to a child if the child is habitually resident in Ontario at the commencement of the application for the order.
Subsection 22(2) of the Act provides that:
A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:
- With both parents.
- If the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order.
- With a person other than a parent on a permanent basis for a significant period of time. 2020, c. 25, Sched. 1, s. 6.
[8] Subsection 22(3) of the Act provides that the removal or withholding of a child without the consent of all persons having decision-making responsibility with respect to the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld.
Father’s Position
[9] The father’s position is that the three children were habitually resident in Scarborough Ontario at the commencement of the mother’s application. At the time the mother commenced her application in August of 2022, the three children were residing primarily with her in Scarborough with his implied consent. He was spending time with the children. The mother’s application does not seek to relocate with the children to Montreal.
[10] The father’s evidence is that he was only notified of their relocation by the Quebec school representative contacting him with respect to the children’s enrolment in November of 2022. His position is that the mother removed the children from Scarborough and moved them to Montreal without notice, without his knowledge and without his consent. He did not acquiesce to the removal as evidenced by his position at the case conference on January 20, 2023 and the within motion he brought for the return of the children on April 17, 2023.
Mother’s Position
[11] The mother’s position is that the court lacks the jurisdiction to make the order for the children’s return sought by the father. Her affidavit evidence is that she informed the father of her intention to relocate to Montreal in September 22, 2022 as follows: “I told the respondent on September 22, 2022 that I was going to Montreal to live. He did not care. He did not want any more to do with me or the children.” She takes the position that he knew of the move at that time and took no steps to object.
[12] The mother submits that the relocation is not mentioned in his Answer filed November 2022. Her position is that is inaction following the relocation reflects his acquiescence to the move. His motion in April of 2023, six months after the move is evidence of undue delay. Her position is that her application should be stayed by this court and that the children are now habitually resident in Quebec.
Analysis
[13] The mother was represented by counsel when she commenced her application within the Ontario jurisdiction. Her application did not seek relocation in Quebec. At that time, the children had been residing in Scarborough since 2018. Her claim that she communicated her intention to relocate in September 2022 to the father and that further, he did not care or object is not credible. The evidence before the court supports the father’s version of events, that the mother failed to notify him of her intention to move in her application, failed to inform him through a formal Notice or otherwise and that he only found out from the third party school administrator.
[14] The mother’s covert relocation does not lead the court to find the father’s acquiescence to the relocation. The father’s position at the case conference in January clearly set out his opposition to the relocation as does his position on the within motion. While he could have brought the motion earlier, it does not constitute undue delay.
[15] The court finds that the children’s habitual residence is in Ontario and that it has the jurisdiction to order the return of the children if warranted on the evidence.
Relocation of the Children’s Residence
[16] The Act includes specific provisions addressing the relocation of a child’s permanent residence. The Act sets out the steps parents must take before relocating children when the other parent or another person has decision making responsibility, parenting time, or contact with the child pursuant to a court order.
[17] The relevant provisions are as follows:
Relocation
9.3 (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.
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.
(4) An application under subsection (3) may be made without notice to any other party.
[18] In the case before the court it is not disputed that the mother’s application filed in August of 2022 did not seek relocation. It is also not disputed that the mother did not serve the father with notice of her intent to relocate as prescribed by the Act. The mother has not provided any evidence of any written notice of her intention to relocate that she provided to the father in the form of a text message, email or letter. Her affidavit simply states that she mentioned it to the father in September 2022 and that he did not object to same.
[19] The father’s evidence on this point is that he only was notified of the relocation to Montreal on November 8, 2022 when the Montreal school contacted him for his permission to enroll his children in school in Quebec. Given the evidence before the court, I find father’s evidence more reliable on this point and find that the mother did not provide any form of notice to the father prior to her relocation with the children to Quebec.
[20] The father now seeks the return of the children to Toronto (Scarborough) Ontario. The mother has not brought a cross-motion to authorize the relocation of the child. The court must consider the best interests of the children in this case.
[21] The Act provides an extensive list of factors to consider under s.24. The relocation amendments also provide for specific factors to consider in relocation cases as follows:
Best interests of the child
s. 39.4 (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.
[22] The legal test to be applied when determining if a relocation should be permitted on a temporary motion, is set out in Plumley v. Plumley, [1999] O.J. No. 3234 (S.C.J.). The introduction of the relocation provisions of the Act does nothing to change the applicability of the principles enumerated in Plumley as follows:
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.
[23] In Boudreault v. Charles, 2014 ONCJ 273, at paragraph 26 Justice Sherr set out the following additional principles for the court to consider on temporary relocation cases that are relevant to this motion:
a) The burden is on the parent seeking the change to prove compelling circumstances exist that are sufficient to justify the move.
b) 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.
c) 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.
d) Courts will be more cautious in permitting a temporary relocation in the absence of a custody order.
[24] Courts should cautiously permit temporary relocations of a child’s permanent residence and only do so when there are clear and compelling reasons to do so based on a clear evidentiary record. See: Tariq v. Khan, 2022 ONSC 1167 para.124.
[25] Self-help measures taken by parents ought to be discouraged by the court. See: Dejong v. Dejong, 2020 ONSC 5367, para.21.
Analysis
[26] Family violence is given heightened importance as a best interest factor to consider when the court is faced with making parenting orders.
[27] The mother alleges the father was abusive towards her during their relationship. Her affidavit describes her unhappiness and isolation in her relationship with the father. She describes him as a neglectful husband and father, particularly when she needed support due to serious health issues. She alleges that he withheld financial support and government documents from her when she returned to Africa during an illness in 2017. She describes a bad relationship based on lies and manipulation. She also describes a threat from him the last time she spoke to him.
[28] The father denies any abusive behaviour towards the mother and points to the lack of any criminal charges or convictions before the court.
[29] The parties’ affidavit evidence on this issue has not been tested by questioning or cross examination.
[30] The mother’s evidence provides a strong case for the parties’ separation. Her evidence fully supports her decision to separate from the father as she describes a very unhappy marriage from her perspective. However, the examples of the alleged abuse provided by the mother in her affidavit fall far short of demonstrating the existence of family violence that would amount to a compelling circumstance that would justify the move to Montreal. She has not discharged her burden of proving compelling circumstances on the affidavit evidence before the court.
[31] The mother’s willingness to relocate with the children almost five hours from their father without providing notice or even advising him directly after the fact is deeply concerning for the court. The mother commenced an application with the court with the assistance of counsel. Therefore, she can be presumed to be aware of her obligations under the Act to provide notice to the father of her desired move. She therefore knew or ought to have known that she requires the father’s consent or a court order permitting the move. Her decision to move without notice to and the knowledge of the father cannot be condoned by the court. Her decision to take self-help measures has consequences.
[32] While the court may modify the notice requirements when there is a history of violence, the court has not made any findings of family violence at this stage of the litigation.
[33] Montreal is 600 kilometers from Scarborough, where the parties lived together. This is a significant distance especially given the young ages of the children. The undisputed evidence is that the mother only very recently offered a visit to the father in Montreal at the end of April at the mosque in Montreal. She had not offered video or telephone contact with the children to the father. She had clearly not included the children’s ongoing contact with their father in her planning of the move to Montreal.
Conclusion
[34] This litigation is at the early stages. There was a case conference on January 20, 2023 that dealt with temporary child support and the issue of the mother’s removal of the children from Toronto. The second appearance was to hear the within motion.
[35] The affidavit evidence before the court provides little to no information about the children. There have been no findings of fact in relation to the parenting role assumed by the father during the relationship. There are no findings of fact with respect to allegations of family violence.
[36] The evidentiary record falls far short of what is required on an interim motion to determine if a significant move of 600 kilometres away from their home and their father is in these children’s best interests. As a result, the mother has not demonstrated on the evidence that the proposed relocation is in the children’s best interests.
[37] The evidence before the court does not support permitting this move on a temporary basis. This issue creates a genuine issue for trial.
[38] The court finds that the mother’s relocation of the children’s residence to Montreal, Quebec at this stage in the litigation is not in the children’s best interests.
[39] The children must be returned to this jurisdiction and the status quo reinstated.
[40] The court takes note of the fact that two of these children are school aged and have been enrolled in school for the 2022/2023 school year. Further, the mother will likely face logistical issues in returning with the children to Toronto. Accordingly, the order below allows the children to complete their school year and allows the mother to make appropriate arrangements to return to Toronto.
Order to go as follows:
[41] The children named in the Application, Aissata Barrie, Mariama Barrie and Adama Barrie shall be returned to reside permanently in Toronto prior to June 30, 2023. Upon their return to this jurisdiction, the father shall have extended parenting time. If the parties cannot agree on the father’s extended parenting time, the issue will be addressed by the court on the next court date.
[42] If the father is able to travel to Montreal to visit the children during the next two months, the mother shall cooperate for him to have generous parenting time while in Montreal.
[43] The mother shall immediately facilitate three video calls with the children and their father per week of 30 minutes for each call in the evenings.
[44] If the parties cannot agree on a parenting schedule upon the children’s return to this jurisdiction, the issue will be case conferenced on the next court date.
[45] This matter is adjourned to June 13, 2023 at 3:00 p.m. for 60 minutes to address the issue of the parenting schedule upon the return of the children return to this jurisdiction.
[46] If the parties cannot agree on costs of the motion, the parties will make oral submissions on the next court date and have copies of any Offers to Settle and a statement detailing the costs of this motion for their client available for the court.
Released: April 20, 2023 Signed: Justice Szandtner