Court File and Parties

COURT FILE NO.: F1575/14 DATE: 20160818 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jordan Marion Billard, Applicant AND: Danny Joseph Valente, Respondent

BEFORE: Justice D. R. Aston

COUNSEL: Sheila Gibb, for the applicant Peter D. Eberlie, for the respondent

HEARD: August 17, 2016

Endorsement

[1] At the conclusion of the settlement conference, December 7, 2015, Korpan J. endorsed the record “this matter is capable of settlement”. However, it did not settle and on May 17, 2016, Vogelsang J. added the case to the trial list for November 7, 2016 and fixed a trial management conference for October 17, 2016.

[2] Subsequent to that, the parents have each brought motions - the father’s is at tab 20 and the mother’s at tab 23 of the continuing record. When these motions came before the court August 17, 2016, the parties filed a consent striking certain paragraphs of the affidavits filed by the father and providing leave to deliver amended pleadings by October 17, 2016. I do not accept that timeline for the amended pleadings because it risks delay at the trial management conference stage, but an order is otherwise granted to reflect the handwritten consent dated August 17. That order will also provide that the mother’s amended application with be served and filed by September 13, 2016, the respondent’s amended answer served and filed by September 23, 2016 and any reply served and filed by September 30, 2016.

[3] The child at the centre of the storm, Eden, turned four years of age earlier this month. She was not quite two when her parents separated. Her father moved to Abu Dahbi in December 2014. His time with his daughter since then has been limited to his brief returns to Canada or the United States about three times a year. The parties have been able to agree on his access on those occasions. The father now says he is returning to London on September 6, 2016. It remains to be seen whether that will be a temporary or permanent relocation.

[4] The claims in the father’s motion for joint custody and a 50/50 shared parenting schedule effective September 2016 are adjourned to the motions court September 13, 2016. So too his request for “an assessment conducted by a qualified child therapist”.

[5] There is a separation agreement signed in June 2014 which provides for joint custody. It also contains a clause constricting the mother from changing the child’s “permanent residence” away from London. Subsequent events have overtaken that original agreement. For starters, Eden has been almost exclusively in her mother’s care since the father moved to the Middle East 20 months ago.

[6] The last temporary order in this case dates back to 18 months ago – the consent order of Grace J. February 25, 2015. Mr. Valente had already relocated to Abu Dahbi. The order granted him Skype access to two-and-a-half year old Eden at least two times a week. It also contained a provision that Eden would have visits with the father’s three older children, Eden’s half siblings, and other extended family members on the first three Sunday afternoons each month. None of these specific family members are parties to the case. None have filed any material on the motions now pending. Notice to the respondent is effectively notice to them. Service on those individuals is dispensed with as requested in paras. 7 and 8 of the notice of motion at tab 29.

[7] I pause to observe that the access provisions in this order of February 25, 2015 are specifically “while the respondent, Danny Joseph Valente, is living and working in Abu Dahbi, UAE”. If Mr. Valente quits his job and gives up living in Abu Dahbi these access provisions are no longer in force. The court should have better evidence on his circumstances by September 13, 2016. For the moment, the access provision remains in effect.

[8] The mother’s motion seeks to vary the provision in favour of the father’s proxies for Sunday afternoon access so that she can explore the prospect of moving to Kelowna, B.C. She is prepared to continue access to the father’s family members over one weekend every five weeks (Saturdays and Sundays from noon to 5 p.m.) and pay the transportation costs related to those visits.

[9] Ms. Billard had entered into a new spousal relationship after she and Mr. Valente separated, but that relationship has ended. She is left in dire financial straits. She has an opportunity to put her specialized job skills to work in Kelowna and wishes to live there with a man with whom she has become romantically involved. The issue of any long term relocation will be an issue at trial in November. The temporary order she is seeking would allow her to work some blocks of time over the next two and a half months pending trial.

[10] In typical relocation cases, relocation on a temporary basis is difficult to achieve if contested because it substantially impacts on the status quo and, in particular, the ability of the “non-custodial” parent to exercise access to the child. In typical cases the issue is not on the eve of trial when such an order is requested. This case is exceptional on the facts because the temporary relocation, if allowed, would minimally impact on the time the father has been spending with his daughter, if at all, and because a trial is scheduled for about 10 weeks from now.

[11] Ms. Billard presently lives in a friend’s basement and has no employment in London. Her proposed move offers obvious advantages to her, and in turn to Eden. The narrow issue at this moment, viewed through the lens of the child’s best interests, is whether the advantages of the proposed move outweigh the benefits of continued Sunday afternoon access with the father’s proxies.

[12] They do, particularly when the mother is willing to continue some of that access at her own expense. I am satisfied that the mother’s proposal is in the child’s best interests.

[13] I share the applicant’s scepticism that the respondent intends to resume permanent residence in Canada. He was not forthright in his affidavit evidence when he moved to Abu Dahbi in December 2014. He apparently owes Canada Revenue Agency massive tax arrears. He cannot point to any job prospect or the investigation of a job prospect. He has not provided any corroboration of the status of his employment contract or accommodation in Abu Dahbi, notwithstanding requests for that corroboration weeks before the motion.

[14] All that said, if he does satisfy the court on the return of his motion September 13, 2016 that he will be in London at least until the scheduled trial, an appropriate access regime can be put into place consistent with the access he has had on previous temporary returns to Canada.

[15] A temporary order is granted as requested in paras. 3 and 4 of the applicant’s notice of motion at tab 23. The relief requested in paras. 2 and 3 of the father’s notice of motion at tab 20 are dismissed.

[16] If counsel are unable to agree on costs, brief written submissions may be made within the next 30 days.

“Justice D. R. Aston” Justice D. R. Aston Date: August 18, 2016