COURT FILE NO.: FS-20-16510 DATE: 20200805 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
German Leira-Lopez Applicant – and – Sonia Montanari Respondent
Counsel: Claudia Falquez-Warkentin and Alison Delgado, for the Applicant Oren Weinberg and Maria Belfan, for the Respondent
HEARD: July 31, 2020 M. Kraft, J.
Nature of the Motion
1The issue on this motion is whether it is in the best interests of a 22-month-old child to move to Italy with her mother on a temporary basis, pending trial. The evidence is uncontroverted that the parties had planned to move to Italy as a family unit in the summer of 2020 so the mother could begin a new employment position. Unfortunately, the parties separated on April 4, 2020, and the father now resists the move.
2In this case, the father seeks an order preventing the relocation of the parties’ child from Canada to Italy on both a temporary and permanent basis. On this motion, he also seeks an order establishing an equal parenting schedule and for temporary sole custody. The mother seeks a temporary order for sole custody and a temporary order allowing her to relocate with the child to Italy to pursue new employment, pending trial.
3The mother’s job opportunity in Italy expires on August 15, 2020 if she does not confirm on or before that date that she will be moving. As a result of the time-limited nature of the employment opportunity, the parties proceeded to have the Court hear this as a “long motion”. Issues of child support, spousal support and property division are outstanding and have not been canvassed.
[4] In support of his motion, the father relies on the following material: a. His own affidavit, sworn on May 13, 2020; b. His own affidavit, sworn on July 2, 2020; c. The affidavit of Aracelly Leira, sworn on June 30, 2020; d. The affidavit of Horatio Campisi, sworn on June 30, 3030; e. Transcripts of the cross-examination of the mother conducted on July 22, 2020; f. His application; and g. His Factum.
[5] In support of her motion to permit the move to Italy with the child pending trial, the mother relies on the following material: a. Her own affidavit, sworn on June 9, 2020; b. Her own affidavit, sworn on July 12, 2020; c. The affidavit of Annachiara Totola, sworn on June 8, 2020; d. The affidavit of Gabriele Dasso, sworn on June 9, 2020; e. The affidavit of Luigi Montanari, sworn on June 6, 2020. f. The affidavit of Rita Cugini, sworn on June 9, 2020; g. The affidavit of Rosanna Marganelli, sworn on June 6, 2020. h. The affidavit of Silvia Montanari, sworn on June 6, 2020. i. The transcripts of the cross-examination of the father, conducted on July 21, 2020; j. Her Answer; and k. Her Factum, dated July 31, 2019.
Procedural Issue regarding Third-Party Collateral Affidavits:
[6] At the commencement of the motion, an argument was made by the mother that some of the third-party collateral affidavits filed in support of the father ought not to be admitted into evidence record because: a. These affidavits exceeded the 40-page limit set by Nakonechny, J., in her Endorsement, dated May 26, 2020; and/or b. These affidavits were written in Spanish and had not been translated by a certified translator; and/or c. These affidavits had been translated by a certified translator, but the translator was a law clerk who worked in the father’s solicitors’ office and was, therefore, not independent.
7Counsel for the father acknowledged that the filing of the third-party affidavits exceeded the 40-page limit set by Nakonechny, J. She also acknowledged that some of the affidavits were not properly translated. As a result, the father only sought to rely on two third-party affidavits - one sworn by Aracella Leira-Lopez on June 30, 2020, and one sworn by Orazio Campisi on June 30, 2020.
8Section 125(b) of the Courts of Justice Act provides that documents filed in courts shall be in the English language or “shall be accompanied by a translation of documents into the English language certified by affidavit of the translator”. In this case, the two third-party affidavits, on which the father seeks to file and upon which he seeks to rely, were attached to the affidavit of a translator who was a certified translator, albeit the translator is employed as a law clerk at Davies Spina Falquez LLP, the same firm as the father’s matrimonial lawyer. It did not appear that issue was being taken with the translation itself.
9Even though two of the third-party affidavits exceeded the page limit and were translated by a certified translator who is also a law clerk employed at the firm of Davies Spina Falquez LLP, the same firm as the father’s counsel, this Court allowed these two third-party affidavits to be filed in support of the father’s motion. The mother had filed six third-party affidavits in support of her motion.
Procedural History
10Despite having separated only three months ago, on April 4, 2020, this case has seen a flurry of litigation initiated by both parties. The separation occurred as a result of an incident between the parties that occurred on April 4th, 2020, which resulted in the father being charged with assault. The father was removed from the home. The father denies the allegations. The assault charge is pending.
11On May 13, 2020, the father brought an urgent motion seeking, among other things, an order restraining the mother from moving the child from Toronto to Italy; an order that the child reside with him primarily or, in the alternative, an order that the child reside with both parties pursuant to a shared-residential parenting schedule; an order for sole custody or, in the alternative, joint custody; and an order that he have liberal and unsupervised parenting time with the child, to be increased on a progressive basis.
12The matter came before the triage judge on May 14, 2020. Shore, J. ordered, on a “without-prejudice” basis, that neither party remove the child from the Province of Ontario until further court order or agreement of the parties. Shore, J. ordered the parties to attend a case conference before Nakonechny, J. on May 26, 2020.
13On May 20, 2020, the father issued an Application, a Financial Statement and a Form 35.1 for Custody and Access.
[14] On May 26, 2020, Nakonechny, J. conducted a case conference. The parties had consented to the following terms of a temporary “without-prejudice” order, pending the return of the father’s motion and the mother’s cross-motion for an order permitting the move, as follows: a. The applicant father shall have parenting time with the child commencing Tuesday, May 28, as follows: i. Every Tuesday, Thursday and Saturday from 9:30 a.m. to 11:30 a.m.; and ii. The access shall be unsupervised, but the access exchanges shall be supervised by an agreeable third-person; b. Commencing June 11, 2020, the applicant shall have parenting time with the child as follows: i. Tuesdays and Thursdays from 9 a.m. to 1:00 p.m.; and ii. Saturdays from 10 a.m. to 5:00 p.m. c. The exchanges shall continue to be supervised. d. The matter was to return before Nakonechny, J. on June 22, 2020 for a continued case conference. e. The two motions were to proceed for a full-day hearing on a date to be provided at the Return of Operations court on July 6, 2020.
15On June 11, 2020, counsel had a conference call with Nakonechny, J., to arrange a timetable for the delivery of pleadings and questioning for a “long motion”. The Endorsement of Nakonechny, J. indicates that counsel was to appear at the Return of Operations Court (“RO Court”) on July 6, 2020 to schedule a long motion to address the mobility issue.
16On June 22, 2020, the mother filed an Answer, Financial Statement and a Form 35.1 for Custody and Access. On June 25, 2002, the mother filed motion materials seeking sole custody of the child and permission to move with the child to Italy. In support of this motion, the mother filed her own affidavit, along with a number of third-party collateral affidavits in support of her position.
17On July 6, 2020, at the RO Court, Shore, J. scheduled this matter to be heard by way of a long motion on July 31, 2020 at 10:00 a.m.;
18On July 7, 2020, the father filed a Reply, a second affidavit in support of his motion, along with a number of third-party collateral affidavits in support of his position;
19Nakonechny, J. continued the case conference on July 21, 2020, to address the scheduling of questioning of both parties in advance of the July 31st long motion return date.
20The long motion proceeded before me on July 31, 2020.
Background Facts
21This was a short, 2.5-year marriage. The parties met online in 2017. They began to live together in December 2017. They were married on March 2018. They have one child, Clara Leira-Montanari, born on September 21, 2018 (the “child”). She is 22-months old.
22Again, the parties separated on April 4, 2020 as a result of an incident that took place between them. The father was charged with assault against the mother. The father was removed from the parties’ rental home. The father signed an Undertaking that he have no direct or indirect contact with the mother, except through a mutually agreeable third party, to arrange access to Clara.
23Both parties depose that the marriage involved conflict throughout its duration. The mother alleges that she suffered psychological and physical abuse at the hands of the father. The father alleges that the mother was controlling; would cause constant fights, and often yelled. The father deposes that he often responded to the mother’s outbursts with silence. The mother deposes that the father’s silence was a method he used to try and “control” her. The father deposes that the conflict went both ways and that during the marriage, he asked the mother for a divorce on two occasions. The mother admits that he asked for a divorce in June 2019.
24The father strenuously denies that he assaulted the wife on April 4, 2020 or that he was violent toward her during the marriage. The father is defending the assault charge.
25The evidence is clear that there was conflict in the parties’ marriage. On the evidence before this Court, I am not in a position to decide whether violence was involved.
26The mother was born in Italy. She came to Canada 14 years ago to complete a Ph.D. program in Medical Sciences. She has been employed at Nikon, Canada since 2015 as a Bioscience Sales Specialist. The mother’s family and extended family live in Bologna, Italy, including her parents and two siblings.
27The father was born in Spain. He works in construction and is skilled in the trades of carpentry, drywalling, demolition, renovations, roofing, etc. He worked in Spain and then in Chile for 1.5 years. He came to Canada to visit in 2016. He did not intend to stay in Canada when he came in 2016. In fact, he was on his way back to Spain, to assist his family in starting a restaurant business, when he met the mother. He decided to stay in Canada to pursue his relationship with her. The father has three siblings and a mother who live in Spain.
28The mother speaks Italian and English. The father speaks Spanish, Italian and two Portuguese languages, Catalan and Galego. The father speaks “broken” English [the father’s term].
29The father obtained a work permit to work in Canada in September 2018. The mother sponsored the father for permanent residence status when they became married in March 2018. The father became a Permanent Resident of Canada in 2019.
30For the first year of the parties’ marriage, the father worked sporadically in various construction jobs and the mother worked full-time.
31The mother took maternity leave to be with Clara for the first six months after Clara’s birth. During that maternity leave, both parties depose that the mother was the primary caregiver of the child.
32The father is self-employed and works full-time as a drywaller for Brunetti Drywall. There is no dispute that the mother earned more than he did during the marriage.
33The mother returned to work full-time after six months. Clara was placed in full-time daycare and attended daily, from 8:30 a.m. to 5:00 p.m., until the lockdown of Toronto occurred as a result of the Covid-19 health crisis in mid-March 2020.
34The mother’s evidence is that the father’s sibling and mother reside in Cacabelos, Spain, and his younger sister lives in Valladolid, Spain. Since the mother’s family resides in Castel Maggiore, Bologna, Italy, she deposes that she and the father often talked about returning to Europe. The mother submits that the parties regularly discussed returning to Europe to be closer to their extended families and to have a better lifestyle. The father denies this.
35In January 2020, the mother had found a job opportunity in Italy at a company known as CrestOptics. The mother deposes that this job opportunity is lucrative, offers her a higher income than she is earning at Nikon and also has the potential for upward mobility. The parties discussed the job opportunity and decided to move to Italy as a family unit in the summer of 2020. The CrestOptics position requires the mother to travel for the first 12-18 months for 30-50% of the time.
36In planning for this move, the parties contacted international movers and began to list their items for sale online.
37The father acknowledges that he agreed to move to Italy but denies that they had always planned to return to Europe. The father deposes that his agreement to move to Italy was premised on them moving as a family unit and to the family’s parenting status-quo (during the marriage) being maintained, namely, that he would look after the household and the child while the mother was working full-time and particularly when the mother was travelling for her new job. The father asserts that he would never have agreed to the mother moving to Italy with the child if they were not moving to Italy as a family.
38Once the Covid-19 health crisis began, Clara’s daycare closed. At that time, the mother began to work from home remotely for Nikon. The father stopped working and began caring for the child while the mother still worked full-time.
39The circumstances of the separation were abrupt as a result of the April 4th, 2020 incident when the criminal charge was laid against the father. After the father was removed from the house, he received correspondence on April 16, 2020 from Sara Mintz of the law firm, Boulby Weinberg LLP, that the mother had retained them as matrimonial counsel. Following the receipt of this letter, the father retained matrimonial counsel and immediately tried to gain access to the child. When he had no success, the father brought this urgent motion referred to above, seeking an order allowing him to spend time with Clara.
40According to the father, in light of the significant changes that have taken place, he no longer wishes to move to Italy. He deposes that he has no prospective employment in Italy. He does not wish to move to a country or city where he will be alone with no friends and family. The mother’s position is that there is nothing keeping the father in Canada and that he ought to move to Italy as he initially planned. She deposes that the father, as a national of Spain, can easily live in Italy and work there as it is a member of the European Union. The father does not dispute this (Transcripts of Father’s cross-examination, Q:137-138). However, he states the mother’s position totally ignores the fact that the marriage has broken down and the family’s plans made prior to April 4th, 2020 no longer make sense. The father does not consent to the mother moving to Italy with the child.
41According to the father, since the separation the mother has been extremely restrictive in terms of allowing the father to have parenting time with Clara. According to him, from April 4th, 2020 onward, he made several attempts, through counsel, to reach agreement with the mother as to when she would permit him to see the child. The mother refused to agree to Clara having any parenting time with the father on an unsupervised basis. When the mother would not agree to the father having any unsupervised access to the child, the father brought the urgent motion. The Undertaking in the criminal proceedings that the father signed after the assault charge was laid did not prevent him from seeing Clara.
42It was not until the parties had the case conference before Nakonechny, J. on May 26, 2020, that the mother agreed that the father see the child on an unsupervised basis, almost 7 weeks after the April 4th, 2020 incident. At first, the mother only agreed to Clara seeing her father for two one-hour time periods.
43The father wished to spend more time with Clara and had been trying to increase his parenting time from April 4, 2020 onward. The mother will not consent to more parenting time and will not allow the father to have overnight time with Clara. In fact, the mother’s parenting plan proposal should the father move to Italy is that he spend only 15 hours with the child weekly for the next six months and that he has no overnight time with Clara until she is three years old. The mother’s plan for Clara’s care when she has to travel for work is that Clara be looked after by her family in Italy.
44Currently, the father sees Clara on Tuesdays and Thursdays from 9:00 am to 1:00 p.m. and on Saturdays from 10:00 a.m. to 5:00 p.m.
The Parenting Roles During the Marriage
45Although the father agrees that the mother was the primary caregiver for Clara during her maternity leave, the parties’ evidence is in dispute about the respective roles they each otherwise played in terms of parenting Clara before they separated.
[46] The mother’s evidence is that she was always the primary caregiver of the child. The mother alleges that during the marriage, she was the breadwinner and also took on the full responsibility of raising Clara, with little assistance from the father. The mother deposes that the father places his own wants before everything else, including the child’s needs. In particular, in her affidavit sworn on June 9th, 2020, the mother asserts that: a. She was responsible for all household tasks, including cleaning the house, cooking, organizing, banking, communications with third-parties, grocery shopping and running all of the errands before the child was born. The father did the laundry and ironing only; b. She organized everything for the child, including her supplies, clothing, food, toys, items, etc.; c. She did all of the research for the child, including how to celebrate her first birthday; placing the child on 25 waiting lists for daycare when she was born; following up with an application process; engaging in visits and conversations with various daycares; finding the child’s doctor; taking the child to mommy/baby yoga classes, music circles, reading classes, and setting up playdates; d. She meets the child’s developmental needs and researches activities, craft activities, nature activities, dancing and singing activities; takes her to city landmarks, takes her to the park, and plays with her; e. She makes breakfast for the child every morning; took her to daycare, and picked her up from daycare approximately 80% of the time from day care; and f. She arranges for and attends the child’s doctors’ appointments.
47The mother deposes that she tried to involve the father in the care of the child, but he refused to assist in her care. Other than bed and bath time with the child, the mother claims that the father was minimally involved in her care.
48The father strenuously denies the mother’s characterization of his parenting role during the marriage. The father has deposed that he shared the responsibility of looking after the child with the mother but acknowledges that for the first six months of Clara’s life, the mother assumed the majority of the responsibilities as she was on maternity leave.
[49] In the father’s affidavit sworn on May 13th, 2020, he deposes that he “took on the greater part of [the child’s] care when the mother [she] returned to work in addition to household tasks”. In particular, the father’s evidence is that: a. He attended all of the mother’s ultrasound and medical appointments during her pregnancy except for one occasion; b. He cleaned, did laundry, folded clothing and did the cooking for the family; c. He arranged his work schedule to leave early in the day so he could pick the child up from daycare; d. He suspended his workday whenever the child was ill and “he would drive to the child’s school to pick her up and take her home or to the hospital whatever [sic] was needed”; e. He has an extremely close bond with the child which he developed by bathing her every evening and putting her to bed every evening. He also put Clara back to bed when she woke up in the middle of the night. If Clara was unable to sleep at night, he would place her next to him in bed to ensure that she felt secure. This practice lasted for 6 months; f. He took the child to the doctor and the hospital when necessary; as the child suffered a few health setbacks since she was born; picked her up at “school”; spent play time with her and her friends at her “school” and at home; cooked for the child and mother on the weekends; took the child grocery shopping with him on the weekend and also did other activities with her so that the mother could finish her work reports or any other work related tasks she had to complete; g. Other than for daycare, Clara was never looked after by a babysitter or stranger, but was looked after by him or the mother; h. Again, when Clara’s daycare was closed after the COVID-19 lockdown in March 2020, he stopped working and looked after Clara so that the mother could continue working either in the home or when required, outside of the house, when required; and i. He and the mother made all decisions about the child equally and discussed decisions about the child’s schooling, medical care and her day to day activities although the mother would often be the contact person with the third parties involved with the child, such as doctors, because her command of the English language was better than his.
50The father deposes that the lockdown in mid-March due to the Covid-19 health crisis was particularly stressful for the mother since it was difficult for her that she could not leave the home, combined with the new demands of her work which included daily virtual conferences, phone calls, writing reports, with the distractions of the house. The father deposes that “the pressure spilled into [their] our relationship as [the mother] became more irascible, demanding and short tempered”.
51According to the father, up until the assault charge, the mother had had no concerns about the father looking after Clara.
52Both parties have attached photographs of themselves with the child as Exhibits to their respective affidavits. It appears from these pictures that both parents have spent time playing with, resting with, doing activities with, feeding, helping Clara with bath time, etc. The pictures do not, obviously, show the amount of time that each parent was involved with the child on each of these activities.
53Attached as Exhibit “A” to the mother’s affidavit sworn on July 9th, 2020 is the Catholic Children’s Aid Society (the “Society”) file. The Society became involved with the family as a result of the April 4th incident but closed their file by June 3, 2020. The Society’s notes indicate that after the father was removed from the home as a result of the assault charge, the mother hired a babysitter from 9:00 a.m. to 4:00 p.m. to babysit and do household work daily so that she could focus on her work; she has another friend come over and sometimes stay overnight with her; and a third friend grocery-shopped for her.
54The father submits that the fact that the mother had to have three people replace him once he was removed from the home demonstrates the true picture of the role he played in terms of child care and household responsibilities during the marriage.
The Job Opportunity in Italy – The Reason for the Move
55The mother has been employed by Nikon Canada since 2015 as a Bioscience Sales Specialist. Her base salary is $61,200 a year. She has an annual car allowance of $6,000 and a potential for bonuses. In 2018, the mother’s Line 150 income was $88,332. In 2019, the mother’s Line 150 income was $154,510. The mother deposes that her income is highly dependent on commissions, which fluctuate annually. The father deposes that when he agreed to move to Italy in early 2020, he was not aware of her income in 2019. He only learned of her 2019 income in this case and submits that he was surprised to learn that the mother’s income in 2019 was as high as it was. It was higher than her income would have been from her proposed job in Italy.
56The mother’s proposed offer of a position at the Italian company, CrestOptics, is time-limited; if the mother does not advise CrestOptics by August 15, 2020 that she is taking the job, she will lose the position.
57The mother’s base salary at CrestOptics will be $91,000 CAD (60,000 Euros), plus an additional bonus of $45,500 CAD (30,000 Euros). The employment contract also includes a relocation package of $9,100 CAD (6,000 Euros). In total, the mother’s compensation from CrestOptics will be $145,000 CAD per year, with room for more advancement within the company. Given that the mother earned $154,510 from Nikon in 2019, the father takes the position that the financial opportunity at CrestOptics is not necessarily superior to her current position.
58In addition to a guarantee of higher income, the mother deposes that she will be paying less in income taxes in Italy than in Canada, as she will be part of a program that sets her tax rate at 30% for 6-8 years, as compared with her current tax rate in Canada which she deposes is 43%. Finally, the mother deposes that the cost of living is far less in Bologna than it is in Canada. The mother’s evidence is that her family owns four houses on the same street. There is an available house for her and the child. Her only responsibility for housing costs will be hydro, electricity, internet and property taxes.
59The mother’s contract at CrestOptics sets out that she will be required to travel in the first 12-18 months of her new employment for 30-50% of the time. The father deposes that their plan had been that he would look after the child when the mother was away from home during required travel periods. Now that the parties are separated, if the mother is permitted to move, the child will have to be cared for by the mother’s family members if the father does not relocate to Italy. Essentially the move to Italy will result in the child being away from both her father and her mother for about 30-50% of the time.
60The father asserts that the understanding was that in Italy, the mother would be the breadwinner for the family, and he would stay at home and look after the child and household needs because the mother needed to travel two weeks out of every month. The mother’s father had agreed to find him part-time employment so he could work during the weeks that the mother was in Italy and would be able to care for the child when she needed to travel.
61The father deposes that in presenting the move to Italy to him, the mother painted a picture of a better financial life for the family in Italy where she could advance in her career with her new employer which would benefit all of them. In January 2020, when the mother discussed the proposed move to Italy with the father, she would have already been aware of her income with Nikon in 2019. During her questioning, the mother admitted that she established the First Centre of Excellent for Nikon in 2019 (Transcript of the mother’s cross-examination, Q: 217) which resulted in her income increasing from $88,232 in 2018 to $154,516 in 2019 (Transcript of the mother’s cross-examination, Q: 153-154).
62The mother admits that her contract with CrestOptics sets out that she will be expected to travel 30-50% of the time for the first 12-18 months at CrestOptics. She deposes that after 12-18 months; her travel will be limited to one or two days per month. The mother deposes that if she is permitted to move to Italy with the child, her family members will assist her with child care when she is travelling.
63The mother continues to work at Nikon. Given the uncertainty of this case, she has not terminated her employment at Nikon.
64The mother did not adduce any evidence to suggest that she had inquired of CrestOptics of the whether the position would be available to her at a later date, if she had to await a determination at trial or the likelihood that she would be able to find a suitable alternate position in Italy, if this position is not available after August 15, 2020 and she still wishes to move to Italy with Clara. Her request to move is based on the position that was offered to her once she and the father agreed to move to Italy.
65The CrestOptics offer was made to the mother before the pandemic. No evidence was adduced about the impact, if any, of the Covid-19 pandemic on her income potential at either the CrestOptics position or at Nikon.
April 4th Incident that Led to the Separation
66Not surprisingly, the party’s evidence differs dramatically as to what transpired on April 4th, 2020.
[67] In the two affidavits filed in the support of his motion, the father has deposed as follows: a. On April 4th, 2020, the father was on a FaceTime call with his sister in Spain and the child was showing her aunt the toys she was playing with. The mother interrupted the conversation to tell him that she wanted to clean up the bathroom and asked him to look after Clara so she could do so; b. The father asked the mother to stay with the child for a few minutes so he could go outside to smoke a cigarette and finish his conversation; c. The mother then came outside with the child in her arms and launched forward toward him, grabbing the phone out of his hands. The father tried to grab his phone back and the mother fell; d. The mother failed to mention to the Catholic Children’s Aid Society that the child was in her arms when she launched toward him forcefully to grab his cell phone from his hands; and e. The Society’s report states “[the mother] tried to grab the phone from [him]”.
[68] In the mother’s affidavit sworn on June 9th, 2020, she sets out her version of events that transpired on April 4th, 2020, as follows: a. She requested that the father watch the child while she cleaned the bathroom. The father agreed. b. During the cleaning, the father wanted to go outside to have a cigarette while he was talking to his sister in Spain on the telephone. c. Shortly thereafter, she noticed that Clara was running up and down a corridor of the apartment and she left the bathroom to check on her. She saw that the father had left the apartment to have a cigarette outside. f. She decided to confront the father about leaving the child unsupervised. She took the child in her arms and went downstairs. The father was still on the phone with his sister via FaceTime. She asked the father to get off the phone and she reached for the phone, while the father insulted her and swore at her loudly. The father then kicked her hard on the right leg while she was holding the child, luckily not dropping the child. g. She then went back upstairs with the child and the father followed upstairs shortly thereafter. The father came into the bathroom and continued his rage, pushing her hard onto the tile floor where she hit her tailbone.
[69] The mother attached notes from her family doctor, Dr. Raffaele Sacco, as Exhibit “H” to her affidavit, sworn on June 9, 2020. Dr. Sacco’s notes repeat the mother’s rendition of what transpired on April 4th, 2020. Dr. Sacco’s notes also state as follows: “There is no history of physical/sexual abuse directed at the child”.
[70] Attached as Exhibit “A” to the mother’s affidavit sworn on July 9th, 2020 is the Catholic Children’s Aid Society (the “Society”) file. The file contains the Society’s records with the family from April 4th, 2020 to June 4th, 2020. The Society’s records indicate as follows: “It is verified that the child is at risk of physical harm at the hands of the caregivers as a result of partner violence as the parents got into an argument and aggression while they were taking care of the child in the family home.”
71During the oral submissions of counsel on the hearing, much was made of the messages and texts from the mother to the father following the April 4th, 2020 incident. The father deposes that these texts/messages are evidence of the mother’s fabrication of the assault charge. The mother deposes that these texts/messages are part of a pattern of abuse in which she as the victim, would try and “makes things right” after an incident of abuse inflicted by the father.
72In the three days following the assault charge, the mother repeatedly contacted the father by text messages, Messenger and voice messages. In these messages, the mother begged the father to return home; offered to meet the father with the child to allow him to spend time with her; apologized to the father; expressed that the child needs her father; and asked the father to move to Italy with her. Additionally, the mother telephoned the father incessantly.
73The text messages indicate that the mother wanted the father to come with her to Italy before the Canadian courts dealt with the assault charge. She also asked the father in the texts to delete the messages she was sending him. The father did not respond to the mother’s numerous calls and texts immediately following the criminal charge laid against him as he did not wish to breach the terms of his Undertaking.
[74] Among the messages that the mother sent to the father are these: a. On April 6, 2020, the mother wrote two among several others: i. “The court date will be deleted if the tickets for Italy will be prior to it. I would like to speak to a lawyer with you to understand…. If you want to come home tonight come at 6 and I will leave you alone until 9 p.m. otherwise you can take Clara tomorrow morning at 9 am: ii. Today I wanted to take Clara to the park, and I can leave her with you. We can meet at 11 a.m. in front of the brewery” b. On April 7, 2020, she wrote four among several others: i. “I can’t live without you and Clara asks for you every five minutes…. Please come home tonight and then delete all the things I wrote to you. Honestly with a low-profile life no one considers you. I was wrong. Please come home. I will delete the call history” ii. “I have already grand ideas on what to do. Please come home now wherever you are, come to your home even if you want to see me you will see Clara who always asks about you” iii. “We can book flights right before your court date and leave in May instead of June, your passport is Spanish and will not show records. Also, we can hire the best lawyer in Toronto for these cases” iv. “Clara and myself need you in the house.” c. On April 8th, 2020, she wrote four among several others: i. “Tomorrow morning I will call again the office and ask them again [if] you can come back and I can also go to the police and ask him.” ii. We can have a quick walk of I can leave you with Clara. I love you. iii. You can go to Spain with Clara next week and I will join you when I complete the move on June 1st” iv. Everyone that I have talked to, to make you come home, I have told them that I have provoked you, that I was very stressed due to the COVID-19 isolation. Very stressed about the situation in Italy, the 18-month-old baby, that we were getting ready to move, that I want you home because we leave at the beginning of June, with a job offer already accepted”.
75The mother deposes that she admits that she wrote these texts to the father, left him many messages, and apologized to him and begged him for forgiveness. She explains the texts as a pattern of behavior reflective of her reaction to his abuse and violence, one where she runs back to her abuser to try to “make things right”. She also deposes that now that she has spent time away from the father and has accessed the support of others, she “understand[s] the cycle of violence and [has] broken it for [herself]”.
76The father deposes that the texts sent by the mother in the days following the assault are her true feelings about the incident and demonstrate that she regrets reporting the incident as an assault to the police. He argues that the texts are demonstrative of the mother’s manipulative tendencies and ought to be viewed in the context of her trying to “control” a situation as opposed to being “victimized” by the father.
Parties’ Positions as to whether the Move to Italy is in the child’s Best Interests
[77] The mother submits that is in the child’s best interests to move to Italy for the following reasons: a. The parties had agreed to move to Italy as a family unit and planned to do so because they believed it was in the family’s and child’s best interests to do so; b. The move will allow the child and mother to have a better quality of life; c. The mother’s extended family lives in Italy and the child will be surrounded by family members who can assist the mother with child care and whom the child can become more bonded to and connected with; d. The mother’s job opportunity is lucrative and offers her slightly more income than she is earning at Nikon and more opportunities for advancement; e. The mother’s cost of living in Italy will be far less than it is in Toronto because there is a program in Italy to encourage Italian nationals to return and she thus will only be taxed at a tax rate of 30%, as compared to the higher taxes in Ontario; f. The mother’s family owns a row of housing in Bologna. A three-bedroom house is available for her and the child at very little cost. The mother will only have housing expenses, which are utilities and property taxes; g. The child will be closer to her father’s extended family who live in Spain, about an hour flight away from where the mother and child will be living. h. There is more green space for the child in the new home in Italy than where she is currently living in Toronto - an upper level of a home that does not have a backyard. i. The home in Italy will be close to the daycare the child will attend. j. The child will have the benefit of “a village” to assist her, including her maternal grandparents, aunts, uncles and cousins, and the paternal extended family who are “close by”.
78The father does not believe it is in the child’s best interests to move to Italy. Given the separation, he no longer wishes to move to Italy. The separation has altered the plan they had significantly. If the mother and child are permitted to relocate, the child will lose her opportunity to continue to bond with the father. She will spend significant periods of time in the care of neither parent over the next 12 to 18 months, as the mother travels extensively for purposes of her new position. Clara is only 22-months old and if the child moves to Italy, it will be years before she can travel to see her father in Toronto and spend extended time with him.
[79] Specifically, the father submits that it is not in the child’s best interests to move to Italy for the following reasons: a. Her relationship with her father will be seriously jeopardized given her young age; b. Seeing both parents as much as possible is of pivotal importance to a child who is almost two years old; c. The mother’s plan is not child-focused as she is proposing to replace the child’s relationship with her father with her maternal extended family members; d. The mother has deposed that she is required to travel 30-50% of the time in the first 12-18 months of the new employment position. This means that the child will be in the care of neither of her parents for extended periods of time; e. In Toronto, the child will be in the care of her parents; f. In Toronto, the child will have the benefit of both parents earning an income and having stable positions. The mother will continue to work for Nikon, where she has been employed since 2015 and the father will continue to work for his employer; g. Since April 4, 2020, the mother has demonstrated that she now has little regard for the father’s role in the child’s life. She intends to continue the minimization of the father in Clara’s life, as can be seen from the following: i. The mother’s plan for the father to spend time with the child has been and continues to be highly restrictive. She proposes in her Notice of Motion that if the father moves to Italy and resides within 50 kms of Bologna, his time with Clara will remain as it is currently for six months; two weekdays on Tuesdays and Thursdays, from 3:00 p.m. to 6:30 p.m. and Saturdays, from 10:00 to 5:00 p.m. Thus, this proposal assumes that the father will uproot his life in Canada to move to Italy and see Clara according to this schedule. On six months after moving to Italy, the mother proposes that an extra weekend day on alternate weeks be added to the schedule. The mother proposes no overnight time for the father until the child turns 3 years of age; ii. If the father does not move to Italy, but moves within a two-hour flight to Bologna, Italy, the mother proposes that the father spend two consecutive seven-day daytime periods with the child in two months of the year, but no overnights during the seven-day period; ten three-day periods consecutively (no overnights) with the parents alternating flying with Clara. This suggested parenting schedule provides the child with approximately 44 day-time visits a year, or the equivalent of one visit a month. This is significantly less time that the child is in the father’s care now and provides that if the father is living in Spain, for example, that he would not be entitled to see Clara overnight for a weekend; and iii. If the father does not move to Italy, but moves outside of a two-hour flight to Bologna, Italy, the mother proposes that the father spend four consecutive seven-day daytime periods with the children in four months of the year, but no overnights during the seven-day period, which amounts to the father seeking Clara one week, daytime only, a quarter. Again, this is significantly less time that the child is in the father’s care now and provides that if the father is living in Europe that he would not be entitled to see Clara every month.
80A move from Canada to Italy, at 22-months old, even on a temporary basis would prevent Clara from spending meaningful parenting time in both parents’ homes. If the child were older and able to travel on her own the circumstances may be different. At this young age it is critical that the child spend meaningful time with both parents. While it is beneficial for the child to spend time and bond with alternate caregivers such as the maternal extended family members that cannot outweigh the importance of the child spending time and bonding with her father.
81Essentially, the mother still wants to move to Italy despite the parties’ separation. The upside is an increase in guaranteed income and a lower tax rate on the mother’s income from all sources. The fact that the mother and child will be near her family is very positive and understandably desirable for the mother, but the maternal extended family does not on its own replace the father and should not be preferred over the child’s father.
82If the child is permitted to move with the mother on a temporary basis, Clara’s relationship with the father will be seriously jeopardized. The mother does not dispute the fact that the plan for the first 12-18 months in Italy was that the father would be looking after the child when she was travelling for work. This plan no longer works as a result of the separation.
83The mother has not provided evidence that confirms either that her Nikon position will be available now to her if she is not entitled to move. Nor can she in good father advise her new employer that she can stay in Italy permanently. The mother has provided no evidence about either the likelihood of replacing her Nikon position in Canada or the CrestOptic position in Italy if she is denied the right to move Clara to Italy or if she is permitted to move to Italy by this Judge.
84The father submits that the mother manufactured the assault charge to diminish his role with the child and she has restricted his parenting time with the child in order to create a “status quo” and improve her changes of moving to Italy despite the separation. He points to the texts the mother was sending him in the three days following the April 4th, 2020 incident as proof of this manipulation.
85The mother admits that she sent these texts but explains that she did so as part of a cycle of abuse where she felt guilty after the assault and was desperate to not upset the father. During the questioning of the mother conducted on July 22, 2020, she deposes that she was in shock and panicking, after the April 4th incident and that the texts and voicemails demonstrated that she was “desperate and abused, and [the messages/texts] a confirmation of the abuse” (Q: 346). Without an oral hearing it is impossible to make any factual determinations regarding the motivations for the mother’s actions, if any, on April 4, 2020, or to the bases for her significant restriction of the father’s access to the child.
86It is similarly impossible for this Court to determine whether the mother or the father was the primary caregiver to the child at any point other than in Carla’s first six months of life. When the mother returned to work full-time when the child was 6 months old, she was placed in full-time daycare from 8:30 a.m. to 5:30 p.m., when both parties were working. When the Covid-19 pandemic hit and daycares closed, the mother worked from home and the father looked after the child for about three weeks. Although it turns out not to have lasted, for a short period of time, it appears that the mother had been content to allow the father to care for Clara during the workday or perhaps for an undetermined period of time when the daycares closed in Toronto in mid-March. Despite comments to the contrary, the mother was not able to manage looking after the child, on her own, once the father was not allowed to return to the home as a result of the criminal charge. The evidence demonstrates that the mother had to hire and/or rely on three separate individuals to assist her with child care and household-related responsibilities at a time when she was working in Toronto. This fact, in and of itself, is proof that the father was involved in more child care and household responsibilities than the mother is willing to acknowledge. Further, it suggests that the child will likely spend significant time in the care of third parties if the mother moves to Italy.
87The fact that the mother has only agreed to what this court considers a very restrictive parenting schedule does not bode well for Clara. It is concerning to this Court that the mother has not been more generous in her proposals regarding the father’s time with the child, whether she moves or not. The mother’s reluctance to agree to increased parenting time for the father and her refusal to allow overnight time now even if she were permitted to move is a sign to this Court that the mother may well not promote or encourage the child’s relationship with her father, if the child moves to Italy.
Analysis:
[88] In Plumley v. Plumley, Marshman, J. set out three factors a Court should consider in determining a mobility case on an interim basis. These three factors are: “1. A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial. 2. There can be compelling circumstances that might dictate that a judge 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 or the best interests of the children might dictate that they commence school at a new location. 3. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at a trial.”
[89] In Datars v. Graham, Quigley, J. opined that “It is difficult if not impossible in most cases to complete the extensive child-focused inquiry required under Gordon v. Goertz, [1996] 2 SCR 27 , 1996 CarswellSask 199 (S.C.C.) on the typically conflicting and incomplete affidavit evidence that is often available to the court on interim motions”. He further stated: Consequently, the general reluctance of the court to effect fundamental changes in a child's lifestyle on interim motions has resulted in a slightly more restrictive approach to interim mobility cases, one that recognizes the short-term nature of interim orders and the summary nature of interim motions. As well, since the decision on an interim motion in a mobility case will often strongly influence the final outcome, particularly where relocation is permitted, caution is called for, especially since even more disruption may be caused in a child’s life if an interim order permitting the move is later reversed after trial: Downey v. Sterling, 2006 ONCJ 490; Goodship v. McMaster, [2003] O.J. No. 4255 (Ont. C.J.).
[90] Similarly in the case of Vanderhyden v. Vanderhyden, another interim mobility case where the issue was whether a mother ought to be permitted to move from Ottawa to Toronto with the child to permit her to resume a modeling career, Polowin J. referred to the decision of De Sousa J. in Terris v. Terris, Court file number 02-FL-502 dated June 21, 2002 (unreported) where that learned family law judge made the following observations with respect to interim mobility motions: “The other point of distinction that must be mentioned in this case is the fact that this decision is being made on a temporary basis until the court can deal with the matter at trial with the benefit of examination and cross-examination of witnesses. This is particularly relevant where evidence is conflicting and there is a triable issue of whether a parent should be permitted to change the residence of the child. I accept the wisdom of the jurisprudence that establishes that on a temporary basis, there must be a pressing reason for an immediate move and there is case law cited in support of that and that is also provided in counsel's material. This does not in any way affect the overriding test of the best interest of the children in any decision, temporary or permanent.”
91Similar to this case, in the case of Tegart v. Westland, [2007] O.J. No. 709, the issue was whether it was in the best interest of the children that the applicant mother be permitted to move with the children from Caledon, Ontario to Red Deer, Alberta. It was intended that the move would be permanent in order to permit the mother to take up a full-time position as a social worker in the new location. In considering the considering the principles established in Gordon v. Goertz, and Bjornson v. Creighton cases which involved decisions reached after trial, Van Rensburg J. noted that such a move should be done only after the court has an opportunity to determine what is in the best interest of the children after a full and complete hearing of all the relevant evidence: see Johnston v. Johnston, [2006] O.J. No. 3382; Downey v. Sterling, 2006 ONCJ 490, Van Rensburg J. concluded on the interim mobility request in the case that was before her that the mother would not be permitted to move with the children from Toronto to Red Deer Alberta on an interim basis, in spite of the good job she had secured there. Exercising caution, the court concluded, on all of the Gordon v. Goertz factors, that it could not be concluded at the time of the interim motion that the move was in the children’s best interest, having regard to inevitable result that the frequent and meaningful contact between the children and their father would necessarily be reduced.
[92] Following the line of cases that stand for the proposition that requesting a move of the residence of children pending a trial on the issues of custody and mobility pose their own unique challenges and problems, Justice McSorley in Kennedy v. Hull, 2005 ONCJ 275 (Ont. C.J.) at paragraph 9 stated: “The problem is that it is difficult, if not impossible, in many cases to complete the extensive child-focussed inquiry required under Gordon v Goertz on the conflicting and incomplete affidavit evidence that is often available on interim motions. The courts’ general reluctance to effect fundamental changes in a child’s lifestyle on interim motions has resulted in a slightly more restrictive approach to interim mobility cases that recognize the short-term nature of interim orders and the summary nature of interim motions.
93In this case, the issue of custody is a genuine issue for trial. While the mother argues that the move to Italy may result in a financial benefit to her and the child, the evidence demonstrates that the mother has recently been earning roughly the same amount of income from Nikon in Canada as she will from CrestOptics in Italy. Furthermore, while the mother may lose her employment opportunity at CrestOptics in Italy, she has not given notice to her Canadian employer, Nikon and, as a result, she still can advance in her career at this company. The mother’s “family unit’s” financial security is not at risk.
94Further, if the trial judge, who will have the benefit of receiving the viva voce testimony of both parties and any third-party collaterals determines that a move to Italy is in the child’s best interests, the emotional benefits of the child having her maternal extended family near her in Italy will still exist. CrestOptics already agreed to delay the mother’s starting date from May to July to August 2020. There is nothing in the evidence before the Court that indicates that the position will not be available to the mother at a later date, if she succeeds in her request to move to Italy at trial.
[95] As mentioned about, the leading case on mobility is Gordon v. Goertz, [1996] 2 SCR 27, 1996 CarswellSask 199 (S.C.C.), in which the Supreme Court of Canada established the relevant legal principles a Court must consider in a mobility case. The focus is on the child's best interests. The court must make consider the following: a. The existing custody arrangements and relationship between the child and the custodial parent; b. The existing access arrangements and the relationship between the child and the access parent; c. The desirability of maximizing contact between the child and both parents; d. The views of the child; e. The custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; f. Disruption to the child of a change in custody; and g. Disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
[96] Considering the Gordon factors in the context of this case, it is by not means a fait accompli that the mother will succeed with her request to change Clara’s residence to Italy for the following reasons: a. In this case no custody order or agreement has ever been in place regarding the child since the parties’ abrupt separation on April 4, 2020. It is only since that date that the mother has had the de facto care of the child. The status quo before that date in terms of each parent’s role and parenting responsibilities is disputed and not clear from the evidence. The fact that the mother has restricted the child’s access to the father since April cannot be relied on by her as demonstrative of a parenting status quo; b. The existing “access” arrangement between the child and father is extremely restrictive as a result of the mother’s refusal to allow the child more time with her father. There is no evidentiary justification for the restricted “access”. The fact that it took the mother almost seven weeks to allow the child an opportunity to spend unsupervised time with her father after he was removed from the home on April 4, 2020, suggests that there is a real possibility that the mother is unwilling or unable, at least at the current time, to place the child’s need to have a meaningful relationship with both parents ahead of her own emotional (and also, possibly financial) needs; c. A move to Italy on a temporary basis will not permit the child to have maximum contact with both parents that is consistent with her best interests at this time. While the child could certainly weather an extended trip to Italy and a return to Canada, if the mother is unsuccessful at trial, she is not yet two years of age and she will undoubtedly lose the regular physical contact with her father which, up until separation, involved daily interaction, which included time with him at bedtime, bath-time, and pick-ups from day care. The mother’s job prospects in Canada at the time of trial are unknown. If the mother is permitted to move the child to Italy pending trial, it is by no means as clear that the child would be returned to live in Toronto where she would spend meaningful time in her father’s care as it would have been had the mother not moved the child on a temporary basis, should she take the new job in Italy.; d. The mother’s punitive manner in dealing with the father’s parenting time since April 4, 2020, strongly suggests that she will not be a parent who promotes or fosters a close parenting relationship between the father and child in Canada without further court intervention, let alone if she is permitted to move to Italy with the child, pending trial.; e. The views of the child are unascertainable given that she is only 22-months old; and f. While the mother has a time-limited employment opportunity at CrestOptics in Italy that might be lost if she is not permitted to move to start the job immediately, the mother has also deposed that she has not given notice to her current employer, Nikon, in Canada and the evidence confirms that the mother is earning roughly the same level of income regardless of in which country she lives.
97As set out in Berry v. Berry, 2011 ONCA 705, a parent’s reason for moving should be considered only in exceptional cases and only when relevant to the parent’s ability to meet the needs of the child. Here, the mother has the ability to meet the needs of the child whether she stays in Canada and remains employed by Nikon or is permitted to move to Italy.
98Sufficient weight must be given to the principle that a child should have as much contact with each parent, as is consistent with the child’s best interests. In Gordon v. Goertz, McLachlin, J. pointed out that the maximum contact principle is one of the two statutory factors set out in ss. 16(10) and 17(9) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), and added that “the reviewing judge must bear in mind that Parliament has indicated that maximum contact with both parents is generally in the best interests of the child” (Goertz, at para. 25).
99Similarly, the Court of Appeal in Berry stated, “While the maximum contact principle is not absolute, it is mandatory.” In this case, an order permitting the mother to move to Italy pending a trial will certainly render maximum contact between the child and both parents impossible.
100Further, the court decided in Woodhouse v. Woodhouse (1996), 29 O.R. (3d) 417 (C.A.), that while being with a happy parent has a positive effect on a child, the legal test still focuses on maximizing contact with both parents and minimizing disruption to the child.
101Given that this a temporary motion, the court must be mindful of the reality that its decision now may effectively create a status quo notwithstanding any order I might make to avoid this result. If I order that the child may travel to Italy with the mother and remain there pending trial, the mother will undoubtedly accept the new position in Italy and terminate her long-held position with Nikon, Canada. There is no evidence at all before the Court on this motion that would suggest that the mother would be able to return to Nikon or that other suitable employment will be available to her in Toronto at the time of the trial.
102The reason for the mother’s move to Italy must be weighed against the fact that the mother has resided in Toronto, Canada, for fourteen years. Her graduate education took place in Toronto and her entire employment history is in Canada. The child was born in Canada and has only lived in Canada. While it is understandable that the mother wants to have the support of her extended family in Italy perhaps more now that the parties have separated, the evidence does not suggest that she will not be able to be just as happy and a good mother to the child in Toronto.
103While it is true the father had agreed to move to Italy, there is no dispute that he did so while the family was intact. The steps he should or should not be expected to take to maintain a relationship with the child in Italy will undoubtedly be canvassed at trial where that trial judge will have the benefit of observing all of the evidence.
104During oral argument it was submitted that the mother would stay in Toronto, if the Court does not grant her permission to move to Italy on an interim basis. If the amendments to the Divorce Act are in force at the time of the trial of this matter, this question would not be permitted to be asked of the mother. However, it was brought to the Court’s attention that she was asked this question by counsel and she did answer it in that fashion. There is good reason to give little, if any, weight to this evidence. It puts a “custodial” parent in an impossible position. I have disregarded the mother’s answer in deciding this issue.
105The allegations of intimate partner violence are pending in a criminal proceeding. The existence of criminal charge does not equate to there being a strong probability that the mother’s position on parenting will prevail at trial, as the mother argues. While the Court must consider any violence and abuse in assessing a parent’s ability to act as a parent under the Children’s Law Reform Act’s provisions (s.24) and the amendments to the Divorce Act which may well be operative at the time of a trial, a party’s past conduct is also relevant if it affects the ability of that person to as a parent of a child (s.16(9) of the current Divorce Act). Circumstances relating to intimate partner violence may well be relevant to a determination of custody/access issues under the Divorce Act as it now stands.
106Children have advantages when both parents are both physically and emotionally accessible to them and when both parents are participating in direct caretaking tasks and decision making. Given the child’s young age, this is a critical period in her life which may impact her subsequent psychosocial and emotional development and must be given special attention in all family law cases, particularly in mobility cases involving children under 3 years of age.
107During the marriage, Clara had the benefit of multiple supports in place- her mother, her father and her day care workers - which created continuity for the child, with an expanded caregiving environment that included family and educational connections. If the child is permitted to move with the mother to Italy on a temporary basis, she will nonetheless lose the continuity in being cared for by her father and her daycare workers, once daycare reopens.
108I am not persuaded that the mother should be permitted to take steps before trial that might well not have been in the child’s best interests but potentially rendered academic by the time of trial. The temporary parenting schedule that should be in place pending trial in this matter must support the child having organized attachments to both parents and provide regular opportunities for both parents to be involved with the child’s direct care, such as playing, soothing, settling, routines, transitions and teaching, Given that the child has been denied the opportunity of spending longer periods of time with her father, including any overnights since April 4, 2020, it is important that the parenting schedule between now and trial have well-articulated “step-ups”, that is, graduated periods of time with her father. It is also important to maximize the time the child can be cared for by a parent as opposed to by a third-party such as a babysitter.
109Given the conflicting evidence before the Court, a determination of whether it would be in the child’s best interests to move to Italy with her mother, and the parenting plan that is in the child’s best interests, whether she resides in Toronto or Italy, must be determined at trial.
Order
[110] Accordingly, this court orders on a temporary basis, as follows: a. Clara Leira Montanari, born September 21, 2018, shall not be removed from the City of Toronto, Province of Ontario and/or from Canada without the written consent of both parties or Court order; b. Commencing immediately, the child shall reside with the father as follows:
- On Tuesdays, from 9:00 a.m. to 5:00 p.m.;
- On Thursdays, from 9:00 a.m. to 5:00 p.m.;
- On Saturdays, from 10:00 a.m. to Sundays at 10:00 a.m. c. Commencing on September 8, 2020, the child shall reside with the father as follows:
- Tuesdays, from after day-care to Wednesday morning;
- Thursdays, from after day-care to Friday morning;
- Alternate Saturdays, from after day care to Sundays at 5:00 p.m. d. Commencing on November 2, 2020, the child shall reside with the father as follows:
- Tuesdays, from after day-care to Wednesday morning;
- Thursdays, from after day-care to Friday morning;
- Alternate Fridays, from after daycare to Sundays at 5:00 p.m. e. Pick-ups and drop-offs of the child shall take place at daycare unless otherwise specified or agreed to in writing or email. If the exchange of the child cannot take place at the daycare, the parties shall have the access exchanges take place at a supervised access center, if available. If such centers are not available, then all access exchanges shall be supervised by a third party of the mother’s choosing. f. If the child is not attending daycare as a result of the Covid-19 health crisis, then the drop-off times on Wednesday and Friday mornings shall be at 9:00 a.m. Similarly, the pick-up time of the child on alternate Fridays shall be at 5:00 p.m. g. Neither party shall audio record, video record, photograph, or direct any third-party to record any access exchanges. h. In order to ensure that the mother may proceed to have her request to change the child’s residence to Italy at the earliest possible time, the trial of the issues in this case shall be expedited if possible. i. The case shall be case managed between now and the date of the trial by a judge to be assigned by a Family Team Leader. The case management judge will preside over all conferences. Any non-urgent or urgent motions that must be heard before trial shall be heard by Kraft, J., so long as she is a member of the Family Team and available within a reasonable period of time to hear the particular motion in issue. j. The parties shall schedule a case conference with the case management judge on a date before September 11, 2020, the purpose of which shall be to canvass next steps in the proceeding. k. Each party has an equal right to make major decisions impacting the child’s health, education and religious upbringing pending trial. l. This endorsement is an order of the court, enforceable by law from the moment it is released. Notwithstanding rule 25 of the Family Law Rules, the terms of this paragraph constitute an order of this Court and this order is effective from the date it was made and is enforceable as an order of the court without the need for a formal version of the order to be prepared, approved of by the parties and then issued by the court office. No formal order is necessary unless an appeal or a motion for leave is brought, or alternatively unless one becomes necessary for enforcement by a third party. A party who wishes to prepare a formal order for approval and issuance may do so and submit the materials by Form 14B to the court. m. Either party may seek costs of the motion and/or cross-motion. A party seeking costs shall serve and file submissions that are no longer three pages (plus a bill of costs plus copies of dockets or disbursements and any offers to settle) by August 24, 2020. A response to a party’s request for costs shall be no more than three pages in length and shall be served and filed within five days of receipt of a party’s request for costs. Reply submissions, if any, shall be no more than one page in length and served and filed within 3 days of receipt of responding submissions.
M. Kraft, J.
Released: August 5, 2020