CITATION: Taylor v. Saunders, 2022 ONSC 5943
DIVISIONAL COURT FILE NO.: 539/22 DATE: 20221017
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
WINSLOW TAYLOR
Leah Cornblum, for the Respondent
Applicant (Respondent on Motion)
– and –
DIANNA SAUNDERS
Katelyn Bell, for the Moving Party
Respondent (Moving Party)
HEARD at Toronto: October 17, 2022
MATHESON J. (Orally)
[1] This is the matter of Dianna Saunders and Winslow Taylor. They are the parents of Aryanna Taylor (DOB December 26, 2013) currently eight years of age.
[2] Up until these recent court proceedings, there has been no court order or agreement regarding the parenting of Aryanna. Today the moving party mother seeks a stay pending the determination of her motion for leave to appeal Justice Tweedie’s decision and pending appeal, if leave is granted. That motion for leave to appeal is scheduled to be heard by a panel of this court on or about November 7, 2022.
[3] For the purposes of these reasons for decision, I refer to the parties as mother and father, and Aryanna as the child.
[4] I will not recount the entire history of this matter in this oral decision. Very briefly, the parties lived together in Mississauga when the child was an infant. The parties did not get married. The parties separated, and there were some changes regarding where they lived. As of the beginning of this year, 2022, all concerned were living in the Guelph/Cambridge area. The father has had parenting time throughout, seeing the child regularly, although there has been some change due to the recent events with respect to his opportunities to see the child on a day-to-day basis, as he has done when she has lived in the Guelph/Cambridge area.
[5] Early this year, the mother decided to buy a house, and looked in different areas. In the end, she purchased a house in Chatham, an area in which she has had no pre-existing established connections.
[6] Unfortunately for all concerned, the mother did not give notice to the father as required under s. 39.1 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12. She moved to the new house in Chatham in June with the child, and around the time of the move, informed the father of this significant change. The mother also enrolled the child in school at the new location in Chatham, with the plan that the child would begin in a private Christian school in September.
[7] Over the course of the summer, it became apparent that, while the father had no objection to the child attending a Christian school, there was an issue about private school. The child continued to spend time in the Guelph/Cambridge area and had activities and saw her friends, even though she had been relocated by her mother to Chatham.
[8] The father ultimately retained a lawyer and brought an urgent ex parte motion regarding the relocation. That motion was ultimately heard with notice to the mother by Justice Tweedie and resulted in the temporary order that is challenged in this court. The mother had notice of that motion as of September 1, 2022.
[9] Justice Tweedie proceeded on the basis that the only issue before her was a question of what was in the best interests of the child. She considered factors set out in s. 39 regarding relocation and factors regarding temporary orders. She found that the mother had failed to comply with her notice requirements and was therefore unable to rely on the creation of a new status quo. As is apparent from her reasons for decision, Justice Tweedie considered a number of factors including the reason for the move, the impact on the child and on the other parent, here the father, and the merits of the situation. She found that it was in the child’s best interests to continue to live in the Guelph/Cambridge area for the period pending the final determination of the relocation issue. She made a number of other findings regarding the facts, as set out in her reasons for decision, that I need not repeat here.
[10] In the temporary order, Justice Tweedie ordered that the child be returned to the Guelph/Cambridge area pending the final determination of the relocation issue. She furthered ordered that the child be enrolled in school in the Guelph/Cambridge area, and she ordered that this all be accomplished by September 24, 2022.
[11] The mother then sought leave to appeal in this court and sought a stay pending appeal.
[12] The mother did return the child to the Guelph/Cambridge area, as required, either on or close to the relevant date. They have been living there in the meantime either entirely or principally staying with a friend.
[13] The mother did not register the child in a school in the Guelph/Cambridge area. The child had already started at the new school in Chatham. Instead of registering the child in a school in the Guelph/Cambridge area, the mother had the child continue school at the new school attending virtually.
[14] Therefore, as of today, the child is living in the Guelph/Cambridge area, is able to see her friends and be relatively close to her father and is attending school virtually in the Chatham area.
[15] There is no dispute between the parties about the relevant considerations in a motion like this. There are a number of factors including whether there is a serious question to be tried, irreparable harm and the balance of convenience, none of which are sealed compartments, and all of which relate to the justice of the case. In this kind of case, the over-arching consideration is what is in the best interests of this child, having regard to all relevant factors.
[16] As I have said to counsel, one of the most important facts, in my view, when focused on the best interests of this child, is the fact that there is a very short period of time between now and the determination of the leave to appeal motion on its merits. An expedited date was provided for that leave motion, which will be addressed in about three weeks from today.
[17] With respect to whether there is a serious question to be tried, I am prepared to assume that there is, for two reasons: first, because the threshold is low, and second, because this matter will be determined on its merits in such a short period of time that I do not think this factor is going to have a significant impact on this motion.
[18] On irreparable harm, we are in a difficult situation. That difficult situation arose because mother decided to make a major step of purchasing a home in another community without giving father the required notice, and moving the child there, rather than approaching this in an orderly way. Many of the consequences and potential irreparable harm argued before me today are a direct consequence of that decision by the mother. As a result, the child was moved to a community where she had no prior ties, enrolled in a new school, and taken away from a community where she had a school, friends, and family. Before me, the mother, who uprooted this child, now says that the child should not be uprooted and therefore her motion should be granted.
[19] I certainly agree that it is not in the interests of this child to be continually uprooted. I was concerned that the mother would try and use the time in Chatham, and the time at the new school, in her favour, to support her after-the-fact request that she be permitted to relocate in the manner she already did. However, I am assured by her counsel that she will not attempt to do so. Otherwise, I would have a concern about irreparable harm to the father who could have the final determination of this issue impacted by a stay.
[20] All these matters are relevant to the question of the balance of convenience. I agree with the father that the mother should not be rewarded for her behaviour – that is a well-established legal principle. I also agree that the relationship between a child and both her parents is important to her best interests, and that the added distance between Guelph/Cambridge and Chatham is significant to that consideration.
[21] Nonetheless, I find it very significant that the motion for leave to appeal will be decided very shortly.
[22] For the purposes of this motion my focus is on the child’s current situation. What makes most sense, going forward from today? As I mentioned earlier, the current situation in this is that the child is living in the Guelph/Cambridge but attending her new school virtually in Chatham. That is partly supportive of the father’s position, and partly supportive of the mother’s position.
[23] Considering the question of what would be least disruptive to this child, I find that the current situation should continue for at least the next three weeks. It would be least disruptive to the child if the mother and child continue to reside in the Guelph/Cambridge area for the next three weeks. The child can continue to see her friends, and do activities in that area, and have ready access to her father. I have concluded that the child should continue to attend her new school virtually because I think all agree before me that it would be very disruptive to this child if she resumed in-person attendance at the new school only to learn that she was going to be going back to school in Guelph/Cambridge. I see no reason why she should be put through that process in a three-week period. It would also be very disruptive to get her registered in the new school for the next three weeks, although I am happy to hear that the father has been moving forward with possible arrangements in that regard.
[24] The mother has submitted that she may not be able to continue to live with her friends for three more weeks. While that may be so, it is up to the mother to provide a stable living situation for the child in the Guelph/Cambridge area, for that period of time.
[25] While the father has had some difficulty getting prompt notice of where the mother and child have been living, I do not suggest it has been a major problem. But because of that difficulty, I am going to impose terms to ensure that the father is notified of where the mother and child are living in this in the period of time, while proceedings are pending in this court.
[26] If leave to appeal is denied, the terms that I will shortly read to you will automatically come to an end after the roughly three-week period. If leave to appeal is granted, the parties have agreed to seek an expedited appeal date in this court. These terms shall continue if leave to appeal is granted, subject to further order of the court. If the appeal cannot be scheduled before year-end, either party is also free to bring a motion to vary these terms, if they wish to do so.
[27] I therefore order as follows:
(1) At least three days in advance of any move, mother shall email father and provide the following information about where the child will be residing: address, nature of location (e.g., a friend’s house), names of persons residing there or name of proprietor (e.g., for an Airbnb), phone # and any other information needed for the father to have effective contact with the child.
(2) The child shall continue to live in the Guelph/Cambridge area at least until the court has decided the mother’s motion for leave to appeal, about three weeks from now.
(3) The child shall continue to attend the new Chatham school virtually at least until the court has decided the mother’s motion for leave to appeal about three weeks from now.
(4) If leave to appeal is refused, these terms no longer apply although I encourage the parents to continue with #1.
(5) If leave to appeal is granted, the parties shall seek an expedited appeal date and these terms shall continue to apply subject to any further order of the court and, if the appeal cannot be scheduled to be heard before year end, either party may bring a motion seeking an amendment to these terms.
[28] Due to divided success, there shall be no order as to costs.
___________________________ MATHESON J.
Date of Oral Reasons for Judgment: October 17, 2022
Date of Written Release: October 21, 2022
CITATION: Winslow Taylor v. Dianna Saunders, 2022 ONSC 5943
DIVISIONAL COURT FILE NO.: 539/22 DATE: 20221017
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
WINSLOW TAYLOR Applicant (Respondent on Appeal)
– and –
DIANNA SAUNDERS Respondent (Appellant)
ORAL REASONS FOR DECISION
MATHESON J.
Date of Oral Reasons for Judgment: October 17, 2022
Date of Written Release: October 21, 2022