Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2023 11 15 COURT FILE No.: D43523/23

BETWEEN:

MARIO RENE ESTRADA-SOLIS Applicant

— AND —

MIRIAM MARTIN DEL CAMPO QUINTERO Respondent

Before Justice Melanie Sager

Heard on November 7, 2023 Reasons for Decision released on November 15, 2023

Counsel: Judith Arrillaga........................................................................................ counsel for the applicant Glenda Perry........................................................................................ counsel for the respondent

SAGER, J.:

Introduction

[ 1 ] There are two motions before the court; the Applicant’s (father) motion for an order permitting him to maintain the permanent residence of children of the marriage, namely Thatho Estrada Martin Del Campo born […], 2015 and Sharon Estrada Martin Del Campo born […], 2019 in Schomberg, Ontario; and the Respondent’s (mother) motion that the residence of the children shall be returned no later than November 15, 2023, to the City of Toronto to an area that is in the catchment of Elmlea Junior Public school.

[ 2 ] The mother also asks the court to order the children be placed in her primary care if the father resides outside the catchment area for Elmlea Junior School and that the residence of the children not be changed from outside the City of Toronto, catchment area of Elmlea Junior School without prior court order.

Background of the litigation

[ 3 ] The father commenced an Application on February 2, 2023, seeking parenting orders in relation to the parties two children, specifically an order for primary care of and sole decision making responsibility for the children. He also seeks an order for child support from the mother based on an imputed annual income to the mother of $32,240.00 and the Child Support Guidelines.

[ 4 ] On March 27, 2023, the mother filed an Answer and Claim seeking parenting orders including an order that the children have their primary residence with her and that she be granted sole decision making responsibility for them. She too asks the court for an order requiring the father to pay her child support but does not specify on what level of income attributed to the father.

[ 5 ] The parties attended on a Case Conference on June 9, 2023 and requested a temporary order in accordance with a consent that addressed financial disclosure, a summer parenting schedule and a parenting schedule commencing in September 2023. The parties agreed and the court ordered that as of September 2023, the children’s primary residence shall continue to be with the father and the mother shall have parenting time every Wednesday from after school at 4:00 p.m. until return to school Thursday morning and alternate weekends from Friday at 4:00 p.m. until Sunday at 4:00 p.m. or Monday at 4:00 p.m. if Monday is a holiday.

[ 6 ] As the mother was charged with assaulting the father on January 3, 2023, and is prohibited from having contact with him, the parties also agreed on a third party through whom they will communicate any changes to the parenting schedule.

[ 7 ] On September 11, 2023, an endorsement was released in response to 14B Motions filed by both parties requesting an urgent motion due to the father’s move of the children’s primary residence from Etobicoke, Ontario to Schomberg, Ontario, a move he says is only a 30 minute drive from his previous residence. As a Settlement Conference was already scheduled for September 28, 2023, the endorsement provided that the upcoming date would be converted to a Case Conference to conference the issues raised in the 14B Motions filed by the parties before proceeding to a motion.

[ 8 ] On September 28, 2023 a Case Conference was held and November 7, 2023 was scheduled for the parties’ respective motions to address issues arising out of the father’s move to Schomberg, Ontario.

The father’s position on the motion

[ 9 ] The father takes the position that he moved the children’s permanent residence out of necessity as he was residing in a bachelor apartment in Etobicoke with the parties two children and his 29 year old dependent son from a previous relationship. His older son has cognitive disabilities and is dependent on the father for his care.

[ 10 ] The father says being on social assistance he could not afford the rent for an appropriately larger rental unit in Toronto and he did not have the funds for first and last months rent as well as a security deposit. An opportunity came up to rent an entire house in Schomberg without having to put down last months rent or a security deposit. The father notified the mother through counsel on July 11, 2023 that he and the children would be moving to Schomberg as of September 1, 2023.

[ 11 ] The father’s position is that the move is of such a short distance that it does not amount to a relocation as contemplated by the Children’s Law Reform Act (the Act).

The mother’s position on the motion

[ 12 ] The mother’s position is that the father’s move is a relocation as it significantly impacts her relationship with the children. The mother noted her objection to the move immediately upon being advised through counsel of the relocation. Despite her objection, the father proceeded with the move.

[ 13 ] In addition to moving the children’s permanent residence in the face of the mother’s objection, the father changed the children’s school without even consulting her. This change included moving their son out of a French Immersion program. The mother says the father lacks the authority to make unilateral decisions for the children as neither party has an order granting them sole decision making responsibility.

The evidence

The uncontested evidence

[ 14 ] The following relevant facts are agreed to by the parties or are not contested:

(a) The parties began living together in the spring of 2015, were married on October 13, 2018 and separated in the fall of 2020. The mother is from Mexico and the father from Guatemala.

(b) The father was charged with assaulting the mother in October 2020. The charges were eventually dismissed.

(c) The father returned to live with the mother and the children in approximately December 2020 although the mother says this living arrangement was forced upon her and she did not consent to the father’s return to the home.

(d) The parties separated at some point between September and October of 2020 [1] but continued to share the same residence with the children until at least August 26, 2022 [2].

(e) Between late August and early September 2022 until November 2022, the children spent time in the care of each parent as arranged between them until November 2022 when they began residing primarily with the father.

(f) The children have continuously been in the father’s primary care since November 2022.

(g) The mother had difficulty obtaining housing and applied for subsidized housing. She secured a two bedroom apartment in Etobicoke in April 2023.

(h) The father has a 29 year old son from a previous relationship who has a learning disability, is incapable of being self supporting and lived with the parties during their relationship.

(i) The father’s 29 year old son has lived with the father since the parties separated.

(j) The parties’ son, Thatho, was born with a condition that has impacted his hearing. He is deaf in his left ear and he has been fitted for a hearing aid.

(k) On January 3, 2023, the mother was charged with assaulting the father. This charge remains outstanding and the terms of the mother’s release prohibits contact between her and the father. No restrictions are placed on the mother’s contact with the children.

(l) After losing his job during the Covid-19 pandemic, the father was on Ontario Works until he obtained employment in July 2023 as a driver working for a friend’s company earning $25.00 per hour.

(m) The mother is unemployed and in receipt of Ontario Works. She is attending school to improve her English.

(n) On February 14, 2023, the parties executed an Agreement that provides for the children’s primary residence with the father and for the mother to have parenting time every other weekend from Friday to Sunday and every Wednesday from 11:00 a.m. until 7:00 p.m. with Sharon and from after school until 7:00 p.m. with Thatho. Both parties were represented by counsel when this Agreement was signed.

(o) On June 9, 2023, the parties agreed to a temporary order setting out the time the children will be in each parent’s care that mirrored the Agreement they signed in February 2023, except that as of September 2023, the mother’s parenting time with both children on Wednesdays will be from 4:00 p.m. until return school Thursday morning.

(p) During the summer months in 2023 the parties shared parenting of the children equally.

(q) While residing in Toronto, the father and his three dependent children shared a bachelor apartment in Toronto not far from the mother’s two bedroom apartment and the children’s school.

(r) On July 11, 2023, counsel for the father sent the mother’s lawyer email correspondence advising that the father was moving the children’s residence to Schomberg, Ontario as of September 1, 2023. On July 13, 2023, counsel for the mother advised the father’s lawyer that the mother objected to the move.

(s) The children’s doctors, specialists and dentists are in Toronto.

(t) Before the father moved to Schomberg, Thatho attended Elmlea Junior School and was in the French Immersion program. Sharon was not yet school age and did not attend school in Toronto but was registered to attend in September 2023.

(u) Thatho’s school in Toronto had implemented accommodations for him for his hearing loss and assigned specialist teachers and others to work with him.

(v) The father and his three dependent children now live in a five bedroom house with a finished basement in Schomberg.

(w) The father did not obtain the mother’s consent before transferring the parties’ son from his school in Toronto and enrolling both children in Schomberg Public School.

(x) Sharon is currently in Junior Kindergarten and Thatho is in grade 3.

(y) The mother is not paying the father child support for the two children and has not done so since the children began residing primarily with him in November 2022.

The contested evidence

The father’s relevant evidence

[ 15 ] The father’s position is that his move to Schomberg is not a relocation as it is only a 30 minute drive from his previous residence in Etobicoke. He says that as the move is not “likely to have a significant impact” on the children’s relationship with their mother, it does not amount to a relocation under the Act.

[ 16 ] The father explains that he was living in a bachelor apartment in Etobicoke with his three dependent children while looking for larger housing in Toronto. He was on Ontario Works and says he could not afford the required first and last months rent and the often required security deposit. He also has poor credit which negatively impacts any application he makes for new housing. To exacerbate his difficulties, his apartment experienced a bed bug infestation in June 2023.

[ 17 ] The father provided five addresses of two bedroom apartments he enquired about in Toronto in the vicinity he was living. He says he could not afford the market rent for these apartments which is between $2000.00 and $2800.00 per month plus utilities.

[ 18 ] While searching for new accommodations the father says his friend offered him a full time job as a driver. His friend told him that his brother has a house he could rent for $2500.00 per month including utilities in Schomberg. Because the landlord and his friend are brothers, the father says he was not required to provide last months’ rent or a security deposit nor was his poor credit rating an issue.

[ 19 ] The father describes his new accommodations as a five bedroom house with a finished basement. All three of his children now have their own bedroom and there are acres of yard space for the children in the front and back yard.

[ 20 ] The school the children are enrolled in is a five minute drive from the father’s home and the children are bused to and from school. The father has employed a “live-in nanny” to help with the care of the children until the father returns home from work and to prepare meals. The father says she also assists “in the communications and exchange transfers” with the mother.

[ 21 ] The father describes the move as one being out of necessity. He says it is not too far from the mother and as such will not have a negative impact on her parenting time or the children’s relationship with her.

[ 22 ] The father acknowledges that the mother’s Wednesday overnight parenting time may be difficult for her to exercise now that the children are in Schomberg as she does not drive or have a car. The father says that if the mother cannot pick up and drop off the children mid week, he will agree to modify her parenting schedule to include an additional weekend every other month to compensate for the elimination of the mid week parenting time. He says that the mother should be responsible for the pick up and drop off of the children in Schomberg for that additional bi-monthly weekend. He continues to bring the children to Toronto for the pick up and drop off on alternate weekends as per the current court order.

[ 23 ] The father denies any suggestion that he made this move to disrupt or interfere with the mother’s relationship with the children. He says that he has continued to facilitate the mother’s alternate weekend parenting time by driving the children to and from Toronto or arranging for a third party to do so. He has also agreed to the mother’s requests to take the children to appointments on her own as the terms of her release prohibit her from having contact with the father.

[ 24 ] The father relies on the fact that in June 2023 he agreed to an equal parenting schedule for the summer months which demonstrates he promotes the children’s relationship with their mother.

[ 25 ] The father’s evidence is that he moved out of necessity and to provide his children with comfortable, stable living conditions that he could afford and for no other purpose.

[ 26 ] The father’s evidence is that he has no intention of changing any of the children’s doctors or medical providers all of which are in the Toronto area.

[ 27 ] The father says that the pick up time for the mother’s parenting time on Wednesday evenings would have to change regardless of the move because of his obtaining employment. He says he can no longer have the children available for the mother at 4:00 p.m. and proposes a change to 5 p.m. if she can travel to Schomberg to pick them up.

The mother’s relevant evidence

[ 28 ] The mother’s position is that the father relocated the children’s residence in the face of clear opposition from her. This relocation resulted in the father unilaterally changing their son’s school and removing him from a French Immersion program they agreed he would attend. He also enrolled their daughter in a different school then they had agreed she would attend as of September 2023.

[ 29 ] The mother says that the father, who does not enjoy a court order granting him sole decision making responsibility for the children, is not permitted to make these decisions for the children on his own.

[ 30 ] The mother says that despite the relocation of the children’s permanent residence being approximately 30 minutes from the father’s previous home, it significantly impacts her relationship with the children as she cannot exercise her weekly parenting time from Wednesday after school until Thursday return to school. The mother does not have her drivers’ license or a car. There is no public transportation between her home and Schomberg and the cost of UBER is prohibitive for her.

[ 31 ] The mother says the children have always lived in Toronto where their school, friends, doctors and servicer providers are located. In addition, the mother can be more involved in the children’s lives outside of her parenting time only if they live in Toronto as she has no means of getting to Schomberg on a regular basis to attend school meetings, extracurricular activities etc.

[ 32 ] The mother says that she is seeking a final order for primary residence of the children or in the alternative a shared parenting regime. She says the order she is seeking on a final basis will be frustrated by a temporary order permitting the father to maintain the children’s primary residence in Schomberg.

[ 33 ] The mother takes issue with the apartments the father made enquiries about stating that some are houses and not apartments. One is on Yonge Street which, according to her, makes it more expensive and one is a “luxury building”. She says that she did her own research and that the father could find more affordable housing. For example, the mother obtained information about a two bedroom apartment in a high rise at 10 Willowridge Road in Etobicoke where they use to live that rents “from $2300.00” per month. The application must be accompanied by proof of income and a “bank letter”. There is no information about whether utilities are included.

The law

Parenting orders

[ 34 ] Subsection 24(1), (2) and (3) of the Children’s Law Reform Act (the Act) are instructive and provide that,

(1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

(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) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

[ 35 ] Subsection 24(4) of the Act requires the court to consider the following factors in relation to the impact of family violence pursuant to subsection 24(3)(j),

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and

(h) any other relevant factor.

[ 36 ] Subsection 24(6) of the Act provides that a parenting order must give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

The issue of relocation

[ 37 ] The Act was recently amended to include provisions addressing the relocation of a child’s permanent residence. The Act now 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.

[ 38 ] “Relocation” is defined by the Act as,

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;

[ 39 ] The additional relevant provisions of the Act are 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. 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.

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.

39.4 (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.

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.

(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.

(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.

[ 40 ] The court finds that the notice requirements as set out above apply to the parties who at all material times had equal rights to decision making responsibility with respect to the children and both were exercising parenting time with them. The father did not comply with the notice requirement.

Who bears the onus of proof on this motion?

[ 41 ] As there is a temporary court order in place that the children reside primarily with the father and the mother has parenting time alternate weekends from Friday to Sunday and every Wednesday from after school until return to school Thursday morning, the court finds that the children do not spend substantially equal time in the care of each party, nor does either party have care of the children for the vast majority of the time. Therefore, subsections 39.4(5) and (6) of the Act are not applicable.

[ 42 ] The burden of proof on this motion, therefore, falls to both parties to prove why the relocation is or is not in the best interest of the children pursuant to subsection 39.4(7) of the Act.

Caselaw

[ 43 ] In Jennings v. Cormier, 2022 ONCJ 338, this court summarized the relevant case law with respect to requests to relocate on a temporary motion in paragraphs 37 to 43 as follows:

37. In The well established 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.

38. In Boudreault v. Charles, 2014 ONCJ 273, at paragraph 26 Justice Stanley Sherr set out the following additional principles for the court to consider on 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 590.

(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. 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 my comments in: Downey v. Sterling, 2006 ONCJ 490, [2006] O.J. No. 5043 (OCJ) and Costa v. Funes, 2012 ONCJ 400.

(e) Courts will be more cautious in permitting a temporary relocation in the absence of a custody order. See: Mackenzie v. Newby, supra.

(f) 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).

(g) In assessing whether the three considerations in Plumley, the court must consider the best interest factors set out in subsection 24 (2) of the Children’s Law Reform Act (the Act) and any violence and abuse in assessing a parent’s ability to act as a parent as set out in subsections 24 (3) and (4) of the Act as well as the leading authority on mobility cases, Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.).

39. 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. [3] However, this opportunity will be lost if the other parent delays in bringing the matter to court. [4]

40. 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. [5] This is applicable by analogy as in this case the mother moved in the face of a written objection to the move by the father.

41. Orders permitting relocation on temporary motions have been denied due to insufficient notice to the other parent as required under the Act. [6]

42. 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. [7]

43. Self-help measures taken by parents ought to be discouraged by the court. [8]

Application of the evidence to the law

Are there compelling circumstances that would justify a temporary relocation order?

[ 44 ] It is a well known fact that there is a housing crisis in Toronto. Torontonians who are lucky enough to find rental housing, often spend a significant portion of their net disposable income on rent.

[ 45 ] The father was living in a bachelor apartment with two young children and a dependant adult son. This simply was not sustainable. The court accepts the father’s evidence that he had to find more spacious accommodations for himself and his children to meet all their needs.

[ 46 ] When the father commenced this litigation he was in receipt of social assistance. On June 9, 2023 when the parties attended at court on a Case Conference, both were unemployed and agreed to exchange evidence of their job searches by July 15, 2023, or if they had obtained employment, details of same. According to the father’s Financial Statement sworn on May 31, 2023, he was receiving $1157.00 per month in social assistance and $1300.58 in child tax credits for a total monthly income of $2,457.00.

[ 47 ] The court accepts that when the father first began looking for larger housing for his family, he was in receipt of social assistance which made his search difficult not only because he could not afford the rent but because he faced difficulty being approved for a larger home on his limited income.

[ 48 ] The father’s Financial Statement sworn on May 31, 2023, discloses three bank accounts of which two are in overdraft. In addition, he discloses over $20,000.00 in debt. His net worth is zero.

[ 49 ] The court accepts the father’s evidence that with his poor credit rating it is difficult to obtain housing suitable for himself and his children.

[ 50 ] The court finds that there are compelling circumstances supporting a temporary relocation order.

Disruption to the status quo

[ 51 ] A court is required on all temporary motions addressing parenting issues to give considerable importance to the status quo. There is good reason for this. A court should not interfere with the status quo unless there are extremely compelling reasons to do so on a temporary motion to the extent that doing so would have the effect of defeating one of the party’s claims at trial. This is the case especially because a motions judge is not often able to make factual findings on a motion when it is faced with conflicting affidavits [9]. It is for this reason that courts are very reluctant to make temporary orders that significantly alter the status quo and should not do so in the absence of compelling reasons.

[ 52 ] A relocation of a child’s permanent residence will more likely be allowed on an interim basis when the court finds the relocation is in the child’s best interests and that it does not materially interfere with a parent’s ability to exercise parenting time and to maintain a meaningful relationship with the child. [10]

[ 53 ] The mother says that if the father is permitted to maintain the children’s residence in Schomberg, her claim to primary residence or at least shared parenting will be defeated. The court rejects this submission.

[ 54 ] The children have lived primarily with the father for the last year. The mother has exercised parenting time during this same period until September 2023, except for the summer, on alternate weekends from Friday to Sunday and every Wednesday evening. The move to Schomberg is only interfering with her mid week overnight parenting time which was to commence in September 2023. The court finds that she can be compensated for this lost time in a manner that does not alter the status quo regarding parenting time or negatively impact her relationship with the children or her position at trial.

[ 55 ] While the mother may not be able to be as present at the children’s school as much as she would like, she will still be able to attend the school both remotely and on occasion in person. She will also be able to continue to attend medical appointments with the children as all their service providers are in Toronto. She could seek a variation of the terms of her release so that the parents can attend the children’s medical appointments together. If she is unable to do so, she can also continue to make requests through counsel for her to be permitted to be able to take the children to some of their appointments on her own.

[ 56 ] In terms of the children’s friends, Spanish speaking community and activities in Toronto, the mother will certainly be able to maintain friendships the children have made or connections with her community during her parenting time. This will not change in any significant way until trial.

[ 57 ] The mother is concerned about the children being enrolled in extracurricular activities in Schomberg that she will not be able to participate in. The court was provided with no evidence of the children being enrolled in extracurricular activities either in Toronto or Schomberg. In any event, the mother can enrol the children in any activities she wishes during her parenting time. It is not out of the ordinary for some parents to be unable to participate in the children’s activities during the other parents’ parenting time.

[ 58 ] The mother’s concerns that the children will lay down extensive roots in Schomberg and that this will negatively impact her position at trial that they should be placed in her primary care, is not persuasive as this court can offer the parties a trial in March 2024. If trial dates were only available many months from now, the mother’s concerns in this regard may have been given more weight by the court.

[ 59 ] The parenting arrangements that have been in place for the children for the last year can be preserved until there is a trial. If the mother is unable to exercise mid week overnight parenting time, adjustments to the parenting schedule can be made to compensate her and the children for that time.

Removing Thatho from French Immersion

[ 60 ] The mother argues that if Thatho does not return to French Immersion immediately, he will not be able to do so at all. The court does not have sufficient evidence to conclude that this is accurate. In any event, Thatho needs permanent stable housing. This is a priority for him and his family. At this stage, the need for stable housing for the family must be given priority over attendance at a school that offers a French Immersion stream.

Family Violence

[ 61 ] Both parties make allegations against the other of domestic violence. The mother is currently facing assault charges involving the father from an incident he says occurred in front of the children. The father says that she struck him in the face, scratched and kicked him. As a result of the charges, the mother cannot have any communication with the father.

[ 62 ] The mother’s evidence is that she was the victim of domestic violence during the relationship and that she was slapped by the father. Her 35.1 Affidavit (decision-making responsibility, parenting time, contact) discloses that the father has “thrown things at me and pushed me and would break things like my phone by throwing it against the wall and damage property.”

[ 63 ] For this motion, it is relevant that the mother is currently charged with assaulting the father and is prohibited from having contact with him but the allegations made by the parties do not have a significant impact on the court’s decision on this motion.

Is the father’s position likely to prevail at trial?

[ 64 ] The court cannot find on the evidence before it that the father’s position is likely to prevail at trial. While it is not disputed that he has been the children’s primary caregiver since November 2022, this does not mean that it is likely that the children will remain in his primary care and be permitted to remain in Schomberg following a trial.

[ 65 ] The court finds that its inability to conclude that the father’s position is likely to prevail at trial is not fatal to his motion to maintain the children’s primary residence in Schomberg for the following reasons:

(a) This is not a significant move in terms of distance. According to the father it is a 30 minute, 45 km drive from his previous residence. According to the mother it is 35-55 minute, 45 km drive from her home to the children’s school. [11]

(b) The status quo in terms of the parenting schedule can be preserved with some modifications until trial.

(c) There is a compelling reason for the move of the children’s permanent residence from Etobicoke to Schomberg.

(d) The mother’s claims as set out in her Answer and Claim are in no way defeated by allowing the children to continue to reside in Schomberg until there is a trial in this matter and final orders are made.

(e) This matter can proceed to trial in March 2024.

Father’s failure to comply with notice requirements under the Children’s Law Reform Act

[ 66 ] The Act requires the father to give the mother 60 days notice of his intention to change the children’s primary residence. It is understandable that sometimes it will not be possible to give an entitled person 60 days notice. It is conceivable that people seeking new housing may be successful in securing housing that will require a move in less than 60 days, making this notice period problematic. The father notified the mother through counsel on July 11, 2023 of his impending move on September 1, 2023, 11 days short of the 60 day requirement. The short notice of the move provided to the mother is the least offensive action taken by the father and would not, in of itself be a basis for dismissing the father’s claims on this motion.

[ 67 ] Subsection 39.4(2) of the Act provides that,

“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.

[ 68 ] It is extremely troubling for the court that the father saw fit to move the children’s permanent residence from Toronto to Schomberg despite the mother’s clear written objection to the move. He did so despite having a proceeding before the court. While he believes that the move does not amount to a relocation, he should have erred on the side of caution and requested an urgent motion date from the court to address the issue when the mother advised through counsel that she objected to the move.

[ 69 ] It is unreasonable to conclude that the move, even if it is only 30 minutes away, is not a relocation given that the mother does not drive, does not own a car and there is no public transportation available to her to get to Schomberg every Wednesday evening to pick up the children for her mid week overnight parenting time and to return them to school the next morning.

[ 70 ] The elimination of the mother’s weekly Wednesday overnight parenting time is significant. It not only reduces the time the children are with their mother, it also all but eliminates her in person interaction with school officials and makes it extremely difficult for the mother to attend at the school in the event of an emergency or if a child is ill and must be picked up.

[ 71 ] This move is not insignificant. This was a relocation. The father should have come before the court when the mother advised that she objected to the move.

[ 72 ] It is equally if not more troubling that the father, who does not have an order granting him sole decision making responsibility, removed the parties’ son from school and the French Immersion stream without consulting the mother let alone obtaining her consent.

[ 73 ] It is always very difficult for the court to decide cases where litigants come before it asking to approve a relocation of a child’s primary residence after it has already been done. Courts grapple with these requests knowing that approving a parent’s move of a child’s residence after the fact, especially when it is objected to by the other parent, may communicate to the public that seeking forgiveness after a move has already been carried out is easier than requesting permission in advance.

[ 74 ] The children, including the father’s 29 year old dependent adult son deserve stable housing. Dismissing the father’s motion would result in significant turmoil to the father and the children in his care. They will be without housing and for how long, no one knows. This is not in their best interests especially given that the status quo can be maintained in terms of the mother’s parenting time.

[ 75 ] Requiring the children to return to the area of their former school right now is not in their best interest. The turmoil and instability this will cause them, their father and their older sibling is not justified given the relatively short distance of the move, the ability of the court to alter the mother’s parenting time to maintain the status quo and, given that a trial can proceed in three months. If the children’s residence is to be returned to the Toronto area, it should be done following a trial after the trial judge has heard all the evidence and can craft a timeline for the return that will minimize the turmoil and instability to the father and this three dependent children.

[ 76 ] Permitting the father to maintain the children’s residence in Schomberg may appear to the mother that he is being forgiven for his poor behaviour and that he has succeeded in flouting the law. This cannot be further from the truth. The trial judge will scrutinize his behaviour and consider what he has done when being asked to make final orders. When a trial judge hears the father’s evidence at trial which will be subject to cross examination, his conduct and the choices he made that resulted in this motion having to be heard, may form the basis of negative findings of fact against him that could impact the final orders granted by the trial judge. In other words, until the completion of this case, no one should assume that what the father has done comes without consequences.

Should the relocation be permitted on a temporary basis and if so, what variation, if any should be made to the temporary parenting order?

[ 77 ] After a consideration of the best interests of the children, the court finds that the father should be permitted to maintain their primary residence in Schomberg, Ontario on a temporary basis pending trial. The benefit to the children and their family of having secure, stable housing, especially amid a housing crisis, outweighs the changes made to the children’s school and the court’s disapproval of the father’s conduct.

[ 78 ] Subsection 29(1) of the Act provides that a court shall not vary a parenting order unless there has been a material change in circumstances that affects or is likely to affect the best interest of the children. Subsection 29(2) of the Act provides that a relocation in accordance with subsection 39.4 of the Act constitutes a material change in circumstances unless the relocation had been prohibited by a court.

[ 79 ] As the court is allowing the relocation of the children’s residence to Schomberg, the move amounts to a material change in circumstances. The court must therefore determine what if any change should be made to the temporary parenting order.

[ 80 ] The temporary parenting order must be varied as the mother cannot travel to Schomberg every Wednesday to pick up the children and deliver them to school on Thursday morning. As the father acknowledges, additional weekend parenting time in place of the mid week parenting time would serve to maintain the status quo until trial.

[ 81 ] The father proposes the children be in the mother’s care an additional weekend every other month and that she travel to Schomberg to carry out the pick up and drop off. A more appropriate adjustment to the parenting schedule to maintain the status quo is to provide the mother with an additional weekend every month with the pick up and drop off in Toronto. It makes little sense to require the mother to travel to and from Schomberg to exercise the additional weekend of parenting time given the facts set out above and specifically in light of the father’s decision to relocate despite the mother’s objection and to change the children’s schools without the mother’s knowledge or consent.

Order to go on a temporary basis as follows:

[ 82 ] The father is permitted to maintain the children’s primary residence in Schomberg, Ontario pending trial of this matter.

[ 83 ] The mother shall have parenting time to the children the first three full weekends of every month from Friday at 5:00 p.m. until Sunday at 7:00 p.m. or Monday until 7:00 p.m. if Monday is a holiday. Pick up and drop off shall take place at the McDonalds restaurant located in the Walmart at Rexdale Plaza, as the parties previously agreed, unless otherwise agreed by the parties through counsel in writing.

[ 84 ] A Settlement Conference/Trial Management conference shall be scheduled by the trial coordinator in consultation with counsel for the parties on a date in January 2024. The parties shall serve and file a Settlement Conference Brief and Offer to Settle in advance of the court date. The parties shall also prepare a joint Trial Scheduling Endorsement Form and have a copy available for the court on the next court date.

[ 85 ] This case will be referred to the March 2024 trial sittings.

[ 86 ] If either party wishes to seek an order for costs of the motion, they shall serve and file with the Trial Coordinator Cost submissions not exceeding three pages, not including a Bill of Costs or Offers to Settle, within 20 days of the date of this decision.

Released: November 15, 2023 Signed: Justice Melanie Sager

[1] The father claims the date of separation to be September 1, 2020 while the mother claims it was October 31, 2020. [2] The father says they lived together until September 26, 2022 and the mother claims it was until August 26, 2022. [3] Hazelwood v. Hazelwood, 2012 ONSC 5069 [4] Rifai v. Green, 2014 ONSC 1377 [5] Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 68. [6] Arabi v. Al Sahnawi, 2021 ONSC 6124 [7] Tariq v. Khan, 2022 ONSC 1167 para. 124. [8] Dejong v. Dejong, 2020 ONSC 5367, para. 21 [9] N.F. v. S.G., 2023 ONSC 2644, paragraphs 54 to 55. [10] Schlegal v. Schlegal, 2016 ONSC 4590, paragraph 25, M.K. v. J.K., 2020 ONCJ 387, paragraph 61. [11] Neither party provided evidence of the distance between her home and the father’s new residence in Schomberg.