Court File and Parties

COURT FILE NO.: 369/17 (St. Catharines) DATE: 20200403 SUPERIOR COURT OF JUSTICE – FAMILY COURT – ONTARIO

RE: ATHENA HALL, Applicant (responding party) AND: Dave Thomas, Respondent (moving party)

BEFORE: The Honourable Mr. Justice R. A. Lococo

COUNSEL: Carly White, for the Applicant Nathalie G. Fortier, for the Respondent

HEARD: In writing

Endorsement – COVID 19 Protocol

[1] The Respondent Dave Thomas brings an emergency motion for an order to prevent the Applicant Athena from moving their two children (aged six and five) outside of St. Catharines without the consent of the Respondent father or further court order. By endorsement dated March 27, 2020, MacPherson J. permitted this motion to proceed on an emergency basis, acting as Triage Judge for family matters during the suspension of regular court operations in connection with the COVID-19 health emergency. In that endorsement, MacPherson J. made the preliminary determination that this motion is urgent and should be referred to a judge for determination.

[2] This emergency motion is brought in the context of the Applicant mother’s application brought in December 2019, seeking leave to move with the children from St. Catharines to Watertown, New York, where her husband resides. The Respondent father opposes the children’s move, expressing concern that the distances involved would exacerbate current difficulties relating to his access to the children.

[3] There has not yet been a case conference for the application. Given the suspension of regular court services, a case conference has yet been scheduled.

[4] The Respondent father’s access is currently governed by a final order dated December 8, 2017, made following an uncontested hearing of the Applicant mother’s previous application. The 2017 final order granted her sole custody of the children, with reasonable access to the Respondent father upon reasonable notice, in the Applicant mother’s discretion.

[5] In February 2020, having brought the current application, the Applicant mother advised the Respondent father that “sometime between April and May 2020”, she intended to make an interim move with the children to Kingston, Ontario, which is considerably closer to Watertown NY than St. Catharines is. The Respondent father opposed the interim move.

[6] On February 27, 2020, Respondent father's counsel requested that the Applicant mother sign a consent to a temporary order that: (i) neither party would move the children from St. Catharines without prior written consent of the other; (ii) neither party would travel outside of Ontario with the children; and (iii) the parties would use AppClose for communications between them. The mother agreed to the use of AppClose for making access arrangements but did not agree to her mobility being limited.

[7] On March 19, 2020, following the COVID-19 suspension of regular court operations, Respondent father's counsel sought assurances that the mother would not be moving with the children to Kingston and requested that the prior consent be signed, failing which an urgent motion would be brought. On March 20, 2020 the mother advised that she intended to move to Kingston as planned. The Respondent father then brought this emergency motion.

[8] The Applicant mother has filed an affidavit in response to the emergency motion, through counsel retained for that purpose. She disputes that the Respondent father’s motion is urgent and asks that it be denied. In her affidavit, she deposes (among other things) she has abided by the previous court order, providing the Respondent father with reasonable access to the children upon reasonable notice, in her discretion. She also states that she would continue to do so upon her move to Kingston, noting that the existing order would not preclude her interim move to Kingston as long as she provides reasonable access to the children.

[9] While it is true that nothing in the December 2017 final order would specifically preclude the Applicant mother from moving with the children to Kingston (or Watertown NY), there is no doubt that any such move would have a practical impact on the Respondent father’s access to the children, given the distances involved. That being said, under the terms of Justice MacPherson’s endorsement, the only issue before me for determination is whether a temporary order should issue preventing the Applicant mother from moving with the children from St. Catharines pending determination of her application. In her endorsement, MacPherson J. specifically states that she did not consider any current access difficulties to be an urgent matter for consideration, nor did the Respondent father seek any relief in this motion relating to his access.

[10] The same observation applies to the ultimate issue on the application, that is, whether the Applicant mother should be allowed to move with the children to Waterdown NY. By bringing her application, the Applicant mother has placed the issue of her mobility before the court. I consider it appropriate that she did so, given the terms of the existing final order and the circumstances when it was issued, including the age of the children at that time and fact that the final order followed an uncontested hearing. Given the intervening emergence of the COVID-19 threat, it is unfortunate that the timing of the application (and virtually all other court proceedings) has been inevitably affected. However, based on the evidence before me, pending the court’s consideration of the mobility issue on a final basis, I do not consider it appropriate at the present time to permit such a significant change to the status quo that would result from moving the children’s residence from St. Catharines. The Applicant mother declined to consent to an interim restriction on her mobility and confirmed her intention to proceed with a move to Kingston as early as this month. In these circumstances, I confirm Justice MacPherson’s preliminary finding of urgency and find that the Respondent father’s emergency motion should be granted.

[11] Accordingly, a temporary order will issue prohibiting the Applicant mother from moving the residence of the children to a place outside of St. Catharines, Ontario, without the prior written consent of the Respondent father or further court order.

[12] If the parties are unable to agree on costs, the Respondent father may serve and file brief written submissions (not to exceed three pages) together with a costs outline within 14 days. The Applicant mother may respond by brief written submissions within a further seven days. If no submissions are received within the specified timeframe, the parties will be deemed to have settled costs.

[13] Please submit any written costs submissions by email (in Word format) to the following email address: St.Catharines.Superior.Court@ontario.ca. The subject line of the email must indicate “COST SUBMISSIONS for Lococo J.” The body of the email must contain the court file number, the short title of proceedings, and counsel’s contact information.

" R. A. Lococo J. "

The Honourable Mr. Justice R.A. Lococo Date: April 3, 2020