Superior Court of Justice - Ontario

COURT FILE NO.: 640/19-01

DATE: 2020/09/21

RE: TANISHA LORRAINE STEPHENS-HINDS, Applicant

AND:

NICHOLAS VAUGHN ANTHONY HINDS, Respondent

BEFORE: Justice I.F. Leach

COUNSEL: Frank Philcox, for the Applicant

Salim J. Khot, for the Respondent

HEARD: September 18, 2020

ENDORSEMENT

Introduction

[1] Before me, in this family law proceeding, are a motion brought by the Applicant mother and a cross-motion brought by the Respondent father.

[2] In her motion, the Applicant seeks an interim order:

a. granting the Applicant sole custody and decision-making authority in relation to the parties’ two young daughters, who currently are six and five years old respectively;

b. directing that the children’s primary residence shall be in the city of Windsor, with the Applicant; and

c. amending an existing interim court order, providing “week about” sharing of parenting time, to instead implement an arrangement whereby the Respondent would have access with the children on alternate week-ends, in addition to whatever access the parties might agree upon through a third-party.

[3] In his cross-motion, the Respondent seeks an interim order:

a. directing that the primary residence of the children shall be with the Respondent, (who lives here in the city of London);

b. declaring that the habitual residence of the children is here in London, and shall not be changed thereafter by either party without the other party’s written consent or further order of the court;

c. directing that the children are to attend St Pius X Catholic Elementary School here in the city of London;

d. directing the Applicant to provide the Respondent with certified true copies of government-issued identification documents relating to the children, including but not limited to their health cards, birth certificates and passports;

e. directing that the children shall have parenting time with the Applicant every week-end from Friday after school until Sunday at 7:00pm;

f. directing that exchanges of the children shall take place at the children’s school or some other public place agreed upon by the parties, with the Applicant designating a third party to facilitate such exchanges while the Applicant remains bound by provisions requiring her to have no direct contact or communication with the Respondent; and

g. including provisions authorizing and directing the assistance of police to enforce the provisions of the order relating to the children’s residence and parenting time.

[4] Both motions have been brought in advance of a case conference, currently scheduled for October 16, 2020.

[5] However, as indicated in the endorsement released by Justice Korpan on August 26, 2020, and the endorsement released by Justice Mitrow on September 11, 2020, both motions were found, (in accordance with the triage procedures adopted to implement the Consolidated Notice to the Public and Profession issued by the Chief Justice on May 19, 2020), to be presumptively urgent, warranting their hearing on an exceptional basis during the current suspension of regular court operations.

[6] In my view, both motions unquestionably raise issues requiring urgent resolution, given the circumstances outlined below.

[7] To the extent necessary, I therefore agree with the preliminary determinations regarding urgency made by Justice Korpan and Justice Mitrow.

[8] I also find that there is a “situation of urgency”, within the meaning of Rule 14(4.2) of the Family Law Rules, requiring the hearing and determination of both motions in advance of a case conference.

Further background

[9] I have spent a good deal of time reviewing and considering the motion material filed to date by the parties, and the submissions made by counsel during the video-conference hearing that took place “before” me on September 18, 2020. My failure to mention any particulars in that regard, owing to time constraints, should not suggest otherwise.

[10] While I intend to highlight additional matters during the course of these reasons, I think the following summary should provide sufficient initial context, for present purposes:

a. The parties married in 2011, when both were living in Brampton.

b. While living in Brampton:

i. The Applicant was working in Toronto for a company that provided fundraising services for non-profit charities.

ii. The Respondent was working as a bus driver for Greyhound Canada, (“Greyhound”), in Toronto and the surrounding area.

iii. The parties had two biological children; a daughter born in January of 2014, and a second daughter born in May of 2015. The Applicant took maternity leaves from her employment in relation to both children, while the Respondent continued working outside the home to financially support the parties’ growing family.

c. In May of 2015, however, shortly after the birth of the parties’ second child, the family relocated to the city of London, where the Respondent had been transferred by Greyhound to pursue a new employment opportunity. The parties immediately moved into a newly purchased matrimonial home located on Moreau Crescent in the city of London.

d. The relationship between the parties unfortunately began to deteriorate in 2016, if not before; e.g., with increasing conflict, lack of trust, and each spouse accusing the other of adultery. Attempts at counselling and reconciliation were unsuccessful, and the parties separated on or about November 16, 2016.

e. For many years after their separation, the parties nevertheless both continued to reside at the Moreau Crescent property with their children, living separate and apart under the same roof, and occupying separate bedrooms. (The home has four bedrooms, such that each parent and each child was able to have his or her own separate room.) During that period:

i. The Respondent continued to work as a driver for Greyhound.

ii. The Applicant pursued a degree at Western University, majoring in the study of criminology through the Faculty of Social Sciences. She began her studies at Western in May of 2017, and obtained her degree in May of 2019. She thereafter was licenced by the Law Society of Ontario, to practice as a paralegal.

iii. In September of 2018, the parties’ older daughter began attending school, on a full time basis, at St Pius X Catholic Elementary School here in London. She completed Junior Kindergarten there in June of 2019, and began Senior Kindergarten there in September of 2019.

iv. In September of 2019, the parties’ younger daughter also began attending school, full time, at St Pius X Catholic Elementary School.

v. Both girls participated in ballet and gymnastics lessons here in London, where they also both have taken French lessons from a babysitter.

vi. While the parties apparently were able to make many decisions relating to the children on a joint basis, (or at least without active or strenuous opposition from the other), there were growing tensions between them.

vii. In or around August of 2019, the parties filed a joint application for divorce. The application included an indication that custody would be joint, with parenting time to be shared between the parties on a “50/50 basis”. However, when the joint application for a divorce came before Justice Templeton on August 22, 2019, (as a “rota basket” application in writing), a divorce order was denied because it was not clear that reasonable arrangements had been made for the support of the children, as required by s.11(b) of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.), as amended.

f. Matters then took a significant turn in February of 2020, after an alleged altercation between the parties at the Moreau Crescent property, following which the Applicant was arrested, and formally charged with assault, resisting arrest, causing a disturbance and mischief under $5,000. The Respondent was removed from the matrimonial home, and taken into custody. What did and did not happen at the time is alleged underlying incident is very much in dispute. In that regard:

i. The Respondent says the parties were having a dispute about the cost of childcare when the Applicant took his “Playstation 4” into the backyard. According to him, when he tried to retrieve that item, he was punched in the face by the Applicant, who also attempted to steal the Respondent’s cellular phone. The Respondent says the Applicant then took deliberate steps to delete a video recording of the incident, made by the external surveillance cameras installed as part of the home’s security system.

ii. The Applicant firmly denies that she committed any such assault, or any other criminal act, and is actively defending the criminal charges against her. She denies deleting any video recording of the relevant interaction between the parties, and says that any such recording would vindicate her.

g. Following her arrest, the Applicant apparently was held in custody for a time before being released on bail. The terms of her judicial interim release apparently included a standard condition whereby the Applicant was to have no contact or communication with the Respondent, except through third parties for the purpose of making arrangements in relation to the children.

h. When the Applicant was released from custody by the London Police Service, on February 12, 2020, she apparently then made immediate arrangements, (without any notice whatsoever to the Respondent), to pick the children up from their London School, remove the children and a number of their belongings from the matrimonial home in London, and relocate the children to the home of the Applicant’s mother, (i.e., the children’s maternal grandmother), who by that time had moved to the city of Windsor.

i. Without the Respondent’s consent, and without providing the Respondent with notice of any kind, the Applicant also unilaterally then enrolled the girls at Christ the King French Immersion Catholic Elementary School in the city of Windsor, which the girls started attending shortly thereafter, prior to the local onset of the COVID-19 pandemic in mid-March this year.

j. When the Respondent discovered that the Applicant had removed the girls unilaterally from their London school and the matrimonial home, he initially was unable to locate them and therefore contacted the police, who apparently treated the matter as a missing persons report. The police ultimately located the girls at their maternal grandmother’s home in Windsor.

k. The Respondent also then learned, from the principal of the girls’ London school, that the Applicant had indicated her intention to enroll the children at Christ the King Catholic Elementary School in Windsor. When the Respondent attempted to contact that school to obtain further information in that regard, he was informed by the school’s principal that the he was not on the emergency contact list for the girls, and also not listed on the school’s “pick up” sheet; i.e., a list indicating persons authorized to pick children up from the school.

l. The Respondent then filed a motion here in London, urgently seeking a return of the children. However, that did not come before Justice Tobin until March 20, 2020, (i.e., the Friday of the “March break” vacation week), at which time the Applicant failed to participate. In her absence, Justice Tobin made an interim order directing the children to be in the Respondent’s care from March 23rd to March 30th, 2020, and adjourned the motion to a further hearing on April 2, 2020. In the result, the Applicant had succeeded in depriving the Respondent of any and all access to the children from February 12, 2020, to March 23, 2020.

m. By the time the Applicant’s motion came back before Justice Tobin on April 2, 2020, local onset of the COVID-19 pandemic had resulted in closure of all Ontario public schools, and had rendered both parents unemployed for the foreseeable future. (The Applicant already was unemployed. The Respondent’s work for Greyhound had been suspended, and he began to receive financial support through the “Canada Emergency Response Benefit” program introduced in response to the pandemic.) In the circumstances, (i.e., with the girls being unable to physically attend school in London or Windsor, and both parents being available at all times to care for the children if placed in their respective care), Justice Tobin was able to make an order essentially directing a return to equally shared parenting time through a “week about” arrangement, with access exchanges taking place at the maternal grandmother’s residence in Windsor, with the grandmother’s assistance. However, Justice Tobin’s order also included provisions making it clear that a return of the children to school or a return of the Respondent to his employment would constitute a material change, and necessitate an urgent review of the parenting schedule if the parties were unable to reach an agreement.

n. Despite the order made by Justice Tobin, the Applicant then once again withheld the children from the Respondent, requiring the Respondent to bring another urgent motion requesting a “police assistance” order; i.e., an order designed to help ensure the Applicant’s compliance with Justice Tobin’s order. That motion came on for hearing before Justice Carey on July 8, 2020, at which time the motion was resolved by a consent order granting the Respondent a degree of supplemental “make up” access, (i.e., between July 8 and July 20, 2020), after which the “week about” arrangement directed by Justice Tobin was to be followed. The consent disposition did not include granting of the “police assistance” order the Respondent had been seeking.

o. Matters then came to a head again when it increasingly became clear that Ontario’s public schools would be re-opening in September, with contemplated “in-school learning” for elementary school students. In that regard:

i. On August 12, 2020, (i.e., two weeks before seeking permission, on August 26, 2020, to bring her motion herein on an urgent basis), the Applicant again took unilateral steps to enroll the girls at Christ the King Catholic Elementary School; i.e., for the “in-person” learning resuming there in September of 2020.

ii. When the Respondent received notice of the Applicant’s urgent motion, on or about August 31, 2020, he took immediate steps to retain new counsel and submit, (on September 3, 2020), his own request for permission to bring a cross-motion on an urgent basis. Through inadvertence, court staff apparently did not place that request before Justice Mitrow for consideration until September 11, 2020.

iii. In the meantime, the Respondent learned that he was unable to take preparatory steps, similar to those taken by the Applicant, to ensure that the girls were once again enrolled at St Pius X Catholic Elementary School in London. In particular, he effectively was prevented from doing so because the Applicant also had taken all of the required government issued identification documents for the girls with her to Windsor. The Respondent nevertheless received assurances from the London school’s principal that the girls will be welcomed back at the school once their identification documentation is provided.

iv. The Respondent also obtained information about the schedule of resumed “in-person” classes at Christ the King French Immersion Catholic Elementary School in Windsor; information confirmed by documents the Respondent tendered in evidence. That information indicated that the grade 1 program, (in which the parties’ older daughter had been enrolled), would begin on Thursday, September 10, 2020, and that the Senior Kindergarten program, (in which the parties’ younger daughter had been enrolled), would begin on Monday, September 14, 2020. In the circumstances, the Respondent anticipated that, even if the girls began attending school in Windsor on the scheduled dates, he till would be able to exercise a degree of access with the girls starting on Monday, September 7, 2020, according to the schedule set by Justice Tobin’s order. However, the Applicant then indicated, through her mother, that the Respondent should not “waste his time” attending in Windsor expecting such access, as the Applicant was intending to send the girls to school starting September 8, 2020, and therefore intended to deny the Respondent the access he was expecting to begin on September 7, 2020. When the Respondent nevertheless did attend in Windsor on September 7, 2020, in accordance with Justice Tobin’s order, to request access with the girls, that access was denied. In an effort to see the girls, in accordance with Justice Tobin’s order, the Respondent called the Windsor police, who then met with the Respondent around the corner from the maternal grandmother’s residence. However, the attending officers indicated that they were unable to assist the Respondent with enforcement of Justice Tobin’s order, as it did not include provisions expressly indicating that “police assistance” was authorized to enforce the order.

p. Beyond those acknowledged or largely undisputed facts, the competing affidavits tendered by the parties not only provide additional information. They also offer very different and conflicting perspectives on underlying events, and what residential and parenting arrangements would be in the best interests of the children moving forward.

q. The substantive relief sought in the Applicant’s formal notice of motion is outlined above. However, the Applicant’s broader perspective and current position include the following assertions:

i. She says she was not only the children’s primary caregiver, but actually “completely responsible” for their care; e.g., initially as a “stay at home” mother, who then took the girls to the Western University daycare service while she was completing her degree studies.

ii. In contrast, the Applicant says, the Respondent worked irregular and long hours, (e.g., up to 14 hours a day, and for as much as 14 days straight, but typically 70 hours a week), was frequently away from home on long distance trips and overnight stays, “rarely saw” the girls, and did “nothing” to look after their physical needs. Moreover, the Applicant says she deliberately did not permit the Respondent to assist with dressing or bathing of the girls because she believes the Respondent has an addiction to pornography; i.e., evidence whereby the Applicant suggested, (implicitly but strongly, and without any other supporting evidence), that the Respondent might have a sexually deviant interest in his daughters.

iii. The Applicant says that post-separation life in the same household as the Respondent became increasingly oppressive and intolerable. For example, the Applicant says the Respondent:

1. repeatedly lied to the Applicant and bullied her;

2. used the matrimonial home’s security cameras, and his cellular phone, to monitor the Applicant’s movements and conversations;

3. used remote devices to control the Applicant’s access to the internet;

4. intimidated the Applicant through threats to never pay child support if and when the Applicant left the residence with the children; and

5. made demeaning comments suggesting that the Applicant was not entitled to any relaxation, as her taking care of the children was “not a real job”.

iv. According to the Applicant, she never intended to remain in London after completing her university degree, and always intended to relocate to Windsor with the children in order to live with the Applicant’s mother. In that regard, the Applicant takes the position that she and the children have no family, employment or other meaningful ties to London. Moreover, she claims the Respondent was “well aware” of the Applicant’s longstanding intention to relocate to Windsor with the children, (as reflected in the joint divorce application, which indicates on its face that communications relating to the application should be sent to the Applicant at her mother’s address in Windsor), and that the Respondent agreed that relocation of the Applicant and the girls to Windsor would happen while the Respondent remained in London, at the former matrimonial home.

v. Although the submitted joint divorce application admittedly includes an indication that the parties would share parenting time with the children on a “50/50” basis, the Applicant says that was never her intention or the Respondent’s real desire. In particular, the Applicant says she agreed to that indication only because it would facilitate the Respondent’s stated desire to pay no child support, and the Applicant felt that going along with the indication and Respondent desire would facilitate the divorce, and her relocation to Windsor with the girls.

vi. As noted above, the Applicant firmly denies any criminal conduct on her part. She is defending the charges laid against her, and is pursuing a stay of proceedings in that regard. She claims the Respondent made false accusations maliciously, simply because the Applicant refused to let the girls sleep overnight at the Hamilton home of one of the Respondent’s friends; a friend whom the children did not know.

vii. The Applicant strongly rejects the notion that any of her actions should be characterized as “self help”. In that regard:

1. She emphasizes that the criminal charges and non-contact provisions in the terms of her release on bail effectively deprived the Applicant of any residence in London, as she had no income and no place to go but her mother’s residence in Windsor – a step consistent with her already formed and indicated intentions.

2. The Applicant says she took the girls with her to Windsor, not only because that was her stated intention, (accepted by the Respondent), but also because “someone had to take care of [her] daughters”; i.e., the implication being that the Respondent was utterly incapable of doing so.

3. While accepting that the Respondent was denied access to the girls after their relocation to Windsor, the Applicant attributes that to concerns expressed by the Children’s Aid Societies in London and Windsor, (and subsequent investigation that included interviews of the children), after the Applicant relayed certain statements said to have been made by the parties’ older daughter. In particular, the Applicant reported that the older daughter was indicating that the girls had been left alone with one of the Respondent’s male friends, (while the Respondent went to shop for groceries), and that the male friend in question had instructed the girls to change into bathing suits before walking in on them, (while they were still changing), talking with the girls while looking at their exposed private areas, and instructing the girls to keep it a “secret”. In the circumstances, the Applicant says, she did not want to provide the Respondent with access while such concerns were being investigated.

viii. The Applicant emphasizes that the girls have been extremely happy at their new school in Windsor, where they enjoy the benefits of French immersion, as opposed to the intermittent French lessons they were receiving in London. According to the Applicant, the girls also will be able to continue dance lessons at a Windsor studio affiliated with the one that provided such lessons to the girls in London.

ix. Moreover, the Applicant notes that, in the current living situation she and the girls now enjoy, the Applicant’s mother, (who is said to work primarily from home), is able to provide the Applicant and the girls with support and assistance.

x. In terms of future plans, the Applicant says she does not intend to live with her mother permanently. In that regard, the Applicant indicates that she is now pursuing a career in the entertainment industry, (e.g., as an actor and screenwriter), notes that the headquarters for that industry is “not in London”, and that the Applicant accordingly intends to relocate, with the girls, to the Greater Toronto Area; a place where the Applicant has lived and worked in the past.

r. The substantive relief sought in the Respondent’s notice of motion is also outlined above. However, the Respondent’s broader perspective and current position include the following assertions:

i. He says he has always shared equally in caring for the children, that “all tasks” relating to the children were shared, that he has been an active parent and present for most of the children’s activities and milestones, and that the parties, despite their separation, were able to co-parent in a friendly and civil manner up until this year.

ii. According to the Respondent, he enjoys a strong and loving bond with his daughters, who enjoy spending time with him, and who feel safe, happy and comfortable in his care. He emphasizes that he is fully capable of providing that care.

iii. The Respondent says the Applicant’s assertions regarding his work schedule are grossly exaggerated; e.g., insofar as his driving a bus for the number of hours and straight days alleged by the Applicant would be contrary to regulations established by Transport Canada. Moreover, the Respondent indicates that he also has made confirmed arrangements with Greyhound enabling him to have a flexible work schedule when his employment with Greyhound resumes; i.e., such that he should be able to perform most of his work while the girls are in school, using the services of a specified babysitter, (a retired Early Childhood Educator), on occasions when work would prevent him from being with the girls outside of school hours.

iv. The Respondent firmly denies the abusive and other inappropriate conduct attributed to him by the Applicant. He also emphasizes that there is no evidence whatsoever to support any suggestion that he has ever abused, mistreated or harmed the children in any way. According to the Respondent, it is the Applicant who repeatedly has demonstrated a lack of responsibility in relation to the girls; e.g., leaving the girls at home while the Applicant travels frequently to Toronto, (sometimes at highly unusual hours and/or without providing the Applicant or the girls with any notice), in addition to longer strips, such as a week long trip the Applicant made to the Virgin Islands, while the Respondent stayed home with the girls. The Applicant is also said to have left the girls alone in her vehicle, during hot summer weather with the car windows slightly open, while the Applicant went went shopping; a situation that engaged the concern of bystanders and police officers who attended on scene prior to the Applicant’s return.

v. The Respondent feels strongly that the Applicant’s recent conduct has not been child-centred, but focused instead on the Applicant’s priorities and hostility towards the Respondent. In that regard, the Respondent emphasizes that:

1. the children’s home and habitual residence unquestionably has been in London for the past five years;

2. the children are familiar and comfortable with their home in London, which is the only home the younger daughter has ever known prior to the Applicant taking the girls to Windsor;

3. the children have friends, activities and familiar teachers here in London;

4. the children enjoy time with the Respondent, which is presumed to be in their best interests; and

5. the Respondent nevertheless acted unilaterally to uproot the children, and relocate them to a home and school in Windsor where they have no ties, (apart from the presence of the Applicant’s mother), while repeatedly denying the children access with their father even in the face of court orders.

vi. The Respondent denies the allegations regarding his male friend, emphasizing that he (the Respondent) has never left the children alone with another male, that the Respondent has video evidence to confirm that he had no visitors to his home at the time in question, and that the Children’s Aid Societies have investigated the reported concern and closed their files. The Respondent believes the Applicant is coaching the children in relation to this and other matters, involving the children in adult conflict while simultaneously attempting to alienate the children from the Respondent.

[11] I turn next to an overview of legislative provisions and general principles applicable to such decisions.

General principles

[12] The court’s jurisdiction to entertain and make orders of any kind relating to child custody and access, (whether on a permanent, interim or interim interim basis), where the parents of children have been married, is set forth in section 16 of the Divorce Act, R.S.C. 1985, c.3.

[13] That section also outlines the considerations which must govern exercise of the court’s jurisdiction and discretion.

[14] In particular, pursuant to s.16(8) of the Divorce Act, supra, the court is directed, in making such decisions, to consider “only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child”.

[15] However, other legislative guidance includes a direction, pursuant to s.16(10) of the Divorce Act, supra, that “the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child, and for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact”.

[16] Authorities in this area have confirmed that determinations pursuant to these broad provisions of the Divorce Act are inherently a very fact specific exercise, in respect of which Ontario courts nevertheless frequently have structured analysis by referring to the expanded legislative definition of the “best interests of [a] child” set forth in s.24(2) of the Children’s Law Reform Act, R.S.O. 1990.[^1] Indeed, our Court of Appeal has held that, despite differences in wording in the Divorce Act, supra, and Children’s Law Reform Act, supra, courts are to apply the same considerations in determining the best interests of a child.[^2]

[17] The provisions of s.24(2) of the Children’s Law Reform Act, supra, outline eight broad categories of a child’s “needs and circumstances”, consideration of which should be included in determining the “best interests of a child” in this context, namely:

a. the love, affection and emotional ties between the child and:

i. each person, including a parent or grandparent, entitled to or claiming custody of or access to the child;

ii. other members of the child’s family who reside with the child; and

iii. persons involved in the child’s care and upbringing;

b. the child’s views and preferences, if they can reasonably be ascertained;

c. the length of time the child has lived in a stable home environment;

d. the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

e. the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

f. the permanence and stability of the family unit with which it is proposed that the child will live;

g. the ability of each person applying for custody of or access to the child to act as a parent; and

h. any familial relationship between the child and each person who is a party to the application.

[18] Pursuant to s.24(3) of the Children’s Law Reform Act, supra, a person’s past conduct shall be considered only in accordance with the provisions of s.24(4) of the Act, or if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

[19] Pursuant to s.24(4) of the Children’s Law Reform Act, supra, in assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

a. his or her spouse;

b. a parent of the child to whom the application relates;

c. a member of the person’s household; or

d. any child.

[20] Our courts frequently have had to grapple with application of these basic legislated principles, and determination of what might be in the best interests of a child, in situations where mobility issues have come to the fore; i.e., where one parent wishes to relocate, with a corresponding proposed relocation of a child’s principal residence from one community to a more distant one.

[21] Most of the leading decisions in that regard deal with situations where a custodial parent seeks to relocate with a child, with detrimental implications for ongoing access between the child and his or her non-custodial parent. In such situations, general principles emphasized by our courts include the following:

a. Courts must bear in mind Parliament’s indication that maximum contact between a child and both of his or her parents is generally in the best interests of the child. The principle is not absolute. If it were, very few relocation requests would ever be allowed. However, the principle should be respected to the extent that such contact is consistent with the best interests of the child. On the other hand, in cases where a child’s needs are likely to be served by relocating with a custodial parent, in a manner that offsets the loss or reduction of contact with the access parent, custodial arrangements should not be varied and the move should be permitted. Factors to be considered in such cases include:

i. existing custody and access arrangements, and relationships between the child and each parent;

ii. the desirability of maximizing contact between the child and both parents;

iii. the views of the child;

iv. the custodial parent’s reason for moving, but only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

v. the disruption to the child of a change in custody; and

vi. the disruption to the child consequent on removal from family, schools and the community he or she has come to know.[^3]

b. In determining the best interests of a child in such situations, careful attention also should be paid to the potential negative effects on a child if the custodial parents is retrained from moving, and the positive effects on a child if the custodial parent is permitted to relocate. In that regard, the range of considerations necessarily extend beyond a focus restricted to employment considerations; e.g., to include consideration of the social, psychological and emotional aspects of a desired relocation.[^4] Having said that, the positive effect on children being with a happy custodial parent may not outweigh the detriment that dislocation would cause.[^5]

c. Consideration of a child’s young age also assumes significance in mobility cases. In particular, while a particularly young child may not be as cognizant of a significant relocation, or have lengthy ties to a particular community, the tender years of a child are important for bonding with an access parent and extended family, and during such time children are not as amenable to extensive or independent travel between parents.[^6]

d. More generally, it has been emphasized that cases involving custody, access and mobility rights are intensely fact-driven, such that references to other authorities often are of little assistance, except insofar as they state the basic principles to be applied.[^7]

[22] Again, the above principles have been developed primarily in the context of dealing with proposed relocation by a custodial parent; i.e., in situations where one parent already has been awarded formal custody over a child, and proposes a relocation with potential detrimental effects on the exercise of established rights of access.

[23] In cases where rights of custody and access have yet to be formally determined, and proposals for relocation of a parent and children are being considered in the context of an interim motion, application of the “best interest” test reflected in the above principles is supplemented by additional concerns. In that regard:

a. Courts recognize the need to be particularly cautious before making ostensibly “temporary” child relocation orders, and generally do not permit such relocations on the basis of contentious evidence where doing so is unnecessary.[^8]

b. In relation to proposed relocation of a parent and child to another city, in the middle of a custody dispute, courts must be particularly vigilant in preventing the creation of an effective “fait accompli” that actually may not be consistent with a child’s best interests.[^9]

c. Generally, a court will be more reluctant to upset the “status quo” on an interim motion, to permit a proposed relocation, when there is a genuine issue for trial. However, there may be compelling circumstances, (e.g., financial benefits available if the move is permitted but likely to be lost if it is not, and/or situations where the best interests of a chid require commencement of schooling in other location), or a strong probability of the parent desiring a move prevailing at trial, which might dictate that justice ought to allow a proposed move in response to an interim motion.[^10]

d. Moreover, while it may be a “fine ideal” to emphasize that the making of interim orders on mobility issues is unwise, in situations where underlying factual issues are seriously contested and likely to go to trial, the court process does not follow the same rhythms as real life.[^11]

[24] In that regard, I also think it helpful to bear in mind more general considerations about the challenging nature of making important parenting determinations on an urgent and interim basis, bearing in mind the potential for such “interim” decisions to assume, in practice and effect, more extended and lasting significance. In particular:

a. Frequently, the material filed by parties is hastily prepared, incomplete, and untested. Moreover, the facts are often still evolving.

b. Already elevated emotions are heightened by the fact that the parties are in a state of transition; e.g., with one or both parties relocating to new homes. Even without ongoing custody litigation, that would be stressful for all concerned, including children.

c. The obvious strategic dynamics associated with temporary motions cannot be ignored. Counsel frequently embark on arguments based on preservation of a "status quo" even before there is agreement on what the status quo might be, and even “interim interim” orders, intended to have only temporary effect, often have significant long-term implications. Being fair to the parties as litigants is important. However, being fair to the children is even more important.

d. In such a context, temporary orders are meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be more fully canvassed at subsequent stages in the process, and quite often at a trial.

e. To the extent it can be ascertained, the status quo ordinarily should be maintained until trial, unless there is material evidence that the children's best interest demands an immediate change.

f. Courts must be mindful of, and actively discourage, efforts by parents to unilaterally create a new status quo through manipulation, exaggeration or deception.

g. Physical separation between parents usually entails some continuing geographic proximity, usually within the same community. Where travel time and arrangements are not a serious complicating factor, courts can determine timesharing and other parenting issues purely on the basis of "best interests" considerations, including maximizing contact between a child and both of his or her parents.

h. Frequency of contact is particularly important for young children, and where parents continue to reside in relatively close proximity to one another, courts have more options to ensure a sensitive and evolutionary approach to parenting issues.[^12]

[25] With the above context, legislation and general principles in mind, I turn finally to an assessment of the parties’ competing submissions in this case.

Assessment

[26] As I noted in Bell v. Ferguson, 2015 ONSC 7267, determination of a child’s best interest in relation to residence and access issues is an inherently imperfect exercise in a context such as this, where the available evidence is confined to paper affidavits that contain emphatic allegations and denials, and perceptions and positions that are entirely contradictory.

[27] I do not have the benefit of any cross-examination on affidavit material, let alone the opportunity to assess the credibility and reliability of witnesses that comes in the context of a trial.

[28] Nor do I have the benefit of the more objective views of witnesses who are not expressly or implicitly aligned with one party or the other, such as the objective insight frequently offered by the Office of the Children’s Lawyer.

[29] However, this is also a case now requiring an immediate interim decision, as the children should be starting school somewhere, and they obviously cannot do so on a “week about” basis while living in two distant cities; i.e., London and Windsor.

[30] Moreover, as the Applicant currently has no employment, no resources, and no residence but the home of her mother in Windsor, and the Respondent’s home and employment are here in London, the immediate realistic possibilities effectively have been channelled into the somewhat binary options of:

a. granting the relief requested by the Applicant - which essentially would see the children relocate their primary residence and schooling to the city of Windsor with their mother on a court-approved basis, in turn realistically limiting the Respondent’s possible parenting time to week-ends; or

b. granting the relief requested by the Respondent - which essentially would require the children to maintain their primary residence and schooling here in London, with their father, on a court mandated basis, in turn realistically limiting the Applicant’s parenting time to week-ends unless and until the Applicant returns to London and acquires a new separate residence here.

[31] For the reasons that follow, I find that the children should maintain their primary residence here in London, and continue to attend the same school here, on an interim basis; i.e., until the underlying issues have been formally and finally decided, barring any further interim order of the court.

[32] Moreover, for the time being at least, (e.g., unless and until the Applicant returns to London and acquires a suitable new and separate residence here, at which time a return to shared parenting time should be reconsidered), that in turn means the children should reside primarily with their father, with the Applicant enjoying access to the children on week-ends.

[33] Many considerations have factored into that assessment, but they include the following:

a. In my view, the evidence provides no reason to doubt that the children have love, affection and emotional ties with each of their parents. For his part, the Respondent does not suggest the children do not care for their mother. For her part, the Applicant, despite her personal criticisms of the Respondent, acknowledges – albeit in a somewhat grudging way - that the children “do wish to have a relationship with their father”, although the Applicant also suggests that the children have that wish “now that Greyhound bus lines has shut down their Ontario routes and their father is no longer away from home most of the time”.

b. I expect the children also have affection for their maternal grandmother, (with whom they now have resided for much of the past seven months), and that those feelings are reciprocated by the Applicant’s mother; someone who also helped look after the parties’ older daughter when they lived in Brampton.

c. In my view, there is no objective evidence allowing the views and preferences of the children, in relation to primary residence and parenting time arrangements, to be reasonably ascertained. All of the evidence before me is being presented through the lens of two parents with diametrically opposed views as to where the girls are likely to be the most happy, and which of the competing party proposals they are likely to prefer. This is not, for example, a situation where I have been provided with objective observations and information presented by the Office of the Children’s Lawyer, or by neutral third parties.

d. As for the length of time the children have lived in a stable home environment, in my view that factor weighs heavily in favour of London. In particular, I agree with the Respondent that, until seven months ago, London and the house on Moreau Crescent realistically were the only home the older child probably could remember, and the only home the younger child had ever known. The children’s habitual residence undeniably was in London. Their house was here. Their school was here. Their friends were here. Their extracurricular activities were here. In contrast, it seems to me that the children’s life in Windsor is not only relatively short-lived, but also lacking in any established roots and stability. Without limiting the generality of the foregoing:

i. There is no evidence that the children, apart from their school-related experience, know anyone in Windsor apart from the Applicant and the Applicant’s mother.

ii. The Applicant’s evidence indicates that her mother previously lived in Brampton, and that the parties resided with her in Brampton until their move to London in 2015. That suggests to me that the Applicant’s mother has lived in Windsor for no more than five years, and probably less time than that.

iii. The children attended school in Windsor for no more than 4-5 weeks before the onset of the COVID-19 pandemic resulted in the closure of all Ontario schools. At most, they have resumed attendance at the Windsor school for the past two weeks, in circumstances where other students in their respective grades apparently may not have started school until sometime later than that. In the circumstances, I think it unlikely that the children have formed, at this point, any significant or lasting bonds with new friends or teachers in Windsor.

iv. For reasons no doubt also related in part to the COVID-19 pandemic, it seems the children also have yet to pursue any extra-curricular activities, (such as renewed dance lessons), in Windsor.

e. In my view, the ability and willingness of each parent to provide the children with guidance and education, the necessaries of life and any special needs of the children, (none of which were identified in the tendered evidence), is essentially a neutral factor in this case. In that regard:

i. It seems that each parent has or will have access to the financial resources required to provide for the children in the immediate wake of either of the competing proposals being accepted. In particular:

1. The Respondent has been and will be gainfully employed by Greyhound, managed to obtain a degree of substitute employment delivering food during the pandemic, and for many years now successfully has been covering all expenses relating to the matrimonial home, (including mortgage payments), without financial contributions from the Applicant. He has continued to do so despite the pandemic and suspension from his regular employment with Greyhound.

2. Although not currently working outside the home, the Applicant clearly has the financial support of her mother, who is not only providing accommodation and food for the Applicant and the children, but apparently provided a financial contribution towards the parties’ acquisition of the Moreau Crescent property. If the children reside primarily with their mother, the Applicant also will be entitled to a measure of child support from the Respondent.

ii. Despite the criticisms each party makes of the other’s parenting ability, it seems to me that each is also demonstrably capable of looking after the non-financial needs of the children. In particular, not only did each parent leave the children in the care of the other parent while family continued to reside in the same house, but each parent has been able to look after the children during the “week about” arrangements ordered by Justice Tobin.

f. As for the plans proposed by each parent for the children’s care and upbringing:

i. Each parent makes it clear where they intend the children to live, attend school and pursue extracurricular activities in the immediate future. In my view, it is neither possible nor appropriate to say that London or Windsor offers a markedly superior environment for the children compared to the other city. The two communities have a comparable size and population, and both have extensive access to educational, health and other resources. There generally are few opportunities that the children would be able to pursue in one city but not the other, while this matter proceeds to trial.

ii. However, it seems to me that the Respondent’s plan for the children’s care and upbringing is more stable than that of the Applicant. In that regard:

1. The Respondent generally intends to continue providing the children with the home and community they have enjoyed for the past five years. He has no plans to move from London, or from the matrimonial home, if he can arrange financing to purchase the Applicant’s share of the net equity in the property. He intends to resume working for this long term employer in the relatively near future, (as soon as the pandemic permits the resumption of its operations), armed with confirmation of a new flexible work schedule that will allow him to spend maximum time with the girls when they are not in their familiar school. He has specified alternative child care that is gender and age appropriate, with professional qualifications. He plans to have the girls resume their established extracurricular activities here in London.

2. In contrast, the Applicant admittedly does not intend to remain in Windsor, and instead plans to relocate to the Greater Toronto Area to pursue her new career goals at some point in the relatively near future. Just how long she and the children will remain in Windsor, before that anticipated move to Toronto, is uncertain and unknown. However, it seems clear that, if the Applicant follows through with her desired plans, the children effectively will have been uprooted from their stable home in London only to be uprooted from Windsor as well, (thereby being separated from their maternal grandmother whom they recently have come to know on a more sustained basis, and the new Windsor school where they are said to be extremely happy), when they are moved again to Toronto. Precisely were the Applicant and the children will live when they relocate to the Greater Toronto Area, and where the children will go to school, remains a matter of complete speculation at this point. The same is true in relation to the precise nature of the Applicant’s future employment, how much time that new employment will leave the Applicant to spend with the children, and who will be looking after the children when the Applicant cannot do so.

iii. I think it noteworthy that the Respondent’s plan for the children’s care and upbringing clearly contemplates significant ongoing contact between the children and their mother; e.g., each and every week-end, at a minimum. Conversely, I think there are very troubling indications that the Applicant seems intent on minimizing the Respondent’s future involvement in the children’s lives – which is always a concern, but particularly so when the children are still so young and therefore still in the crucial stages of bonding with their father. In that regard:

1. Although the Applicant says the Respondent was well aware of her plans to move to Windsor with the children, and agreed to those plans, I find that extremely hard to reconcile with the Respondent’s obvious concern and undisputed actions in the wake of the children’s sudden departure from London; e.g., actions underscoring his desperate desire to locate the children, his ongoing efforts to have the children returned to London, and his continually demonstrated determination to ensure continued contact and parenting time with his daughters.

2. In my view, the Applicant’s precipitous and unilateral relocation of the children to Windsor, without notice to the Respondent, was remarkable, unfortunate and not in the best interests of the children. At best, while the circumstances may have left the Applicant without an immediately available alternative residence in London, and sincere concern for the girls’ ongoing care, the situation called for calm, further discussion, (albeit necessarily through third parties at that point), and planning to ensure that any further significant changes in the children’s lives, (i.e., beyond the reality of no longer being able to live with both parents under the same roof), were minimized or necessarily introduced in an orderly way, for the children’s sake. However, the Applicant, (no doubt extremely bitter because of the interaction with the Respondent that led to her arrest, criminal charges and time in custody), instead seems to have reacted in a fashion intensely focused on her own desire to leave London and the Respondent behind as quickly as possible, in a manner that seemed calculated to surprise, upset and hurt the Respondent – without much thought as to the impact such a precipitous and sudden move would have on the girls.

3. In my opinion, the Applicant’s subsequent withholding of the children from the Respondent, until the Respondent was put to the time and expense of bringing a motion to obtain a formal court order, is not indicative of a parent intent on keeping her children’s father in their lives. Nor does it seem reflective of any concern that the children understandably may have wanted to see their father, after having been removed from London without any opportunity whatsoever to say good-bye to him.

4. That impression of the Applicant’s underlying problematic attitude, (i.e., an apparent desire to minimize involvement of the Respondent in the future lives of the children), is reinforced by her complete failure to advise the Respondent of her arrangements for the children’s schooling in Windsor, and her failure to include the Respondent on the children’s emergency contact list at their Windsor school.

5. It is also reinforced by the Applicant’s subsequent failure to abide by Justice Tobin’s order, in turn forcing the Respondent to bring yet another motion to ensure ongoing contact and time with his daughters. None of that should have been necessary, and would not be expected from a mother sincerely intent on facilitating ongoing contact between her children and their father.

6. I think it similarly telling that, in recent weeks, the Applicant moved forward with unilateral arrangements for the children’s schooling in Windsor, and arrangements her the hearing of her urgent motion, (without any apparent advance disclosure or discussion through counsel or third parties of possibilities), effectively leaving the Respondent with absolutely no choice but to respond in an equally litigious manner with another motion of his own.

7. Finally, in contrast to the Respondent’s contemplation of the Applicant spending each and every weekend with the children, if the children live primarily with him in London, the Applicant indicates that she is willing to have the children see their father only on alternate weekends, in the absence of further party agreement; an agreement which hardly seems likely or even possible, given the Applicant’s demonstrated approach to this matter so far.

g. As for “the permanence and stability of the family unit with which it is proposed that the [children] will live”, the competing proposals both contemplate that the children will remain together, and residing primarily with one parent or the other. While the Applicant’s proposal adds the maternal grandmother into the family unit “mix” the girls would experience if their primary residence is in Windsor with their mother, that obviously is a relatively recent development, and one which apparently is not destined to last if the Applicant is intent on a further relocation with the children to the Greater Toronto Area, leaving the maternal grandfather behind in Windsor.

h. As for the ability of each party to act as a parent:

i. For the reasons outlined above, I think each party has a demonstrated ability to care for and parent the children, despite the failings and criticisms suggested by the other party’s evidence.

ii. Although each party made reference to alleged adultery on the part of the other, and the Applicant placed considerable emphasis on the Respondent’s alleged addiction to pornography, (with the Respondent vehemently denies), in my view evidence relating to such past conduct has no demonstrated relevance to either party’s ability to act as a parent, and accordingly must not be considered, in accordance with the legislated directive in s.24(3) of the Children’s Law Reform Act, supra.

iii. Although the Applicant says the Respondent abused her in various non-physical ways, those allegations are firmly denied by the Respondent, and there currently is no objective evidence to substantiate such untested allegations.

iv. Although the Applicant is currently facing criminal charges alleging that she physically assaulted the Respondent and harmed his property, the Applicant denies any such misconduct, is defending the charges, and is presumed to be innocent in that regard. Moreover, the Respondent himself indicates that the children did not witness the alleged incident – such that, even if the alleged misconduct it occurred, it likely had no collateral impact on the children.

v. I see nothing in the evidence to suggest that either party has ever deliberately harmed the children, or threatened to harm the children.

vi. Although there are suggestions that each party may have exposed the children to the risk of harm, (e.g., by the Applicant leaving the children alone in a hot car with the windows slightly open, or the Respondent leaving the children unattended with a male friend who was alleged to have engaged in improper behaviour), in my view that evidence is clearly disputed and/or unpersuasive in the present context, in terms of establishing that either party is a demonstrably poor parent. Again, prior to the present dispute, each party was content to leave the children in the exclusive care of the other at various points in time, even after the parties had separated. Both parties clearly seem to love their children, and presumably knew the home situation and parenting abilities of their spouse better than anyone. In such circumstances, I think it very unlikely that either party would have left the children alone with the other if he or she had any sincere concerns that doing so would subject the children to any serious risk of harm.

i. Each party clearly has the same familial relationship of parent to both children.

[34] In my view, the above considerations, mandated by s.24(2) of the Children’s Law Reform Act, supra, generally favour the Respondent’s current position, and not that of the Applicant.

[35] Beyond such considerations, however, I think it important to emphasize again that this is not a situation where the court is being asked to consider a proposed relocation by a custodial parent.

[36] It is, instead, a situation where rights of custody and access have yet to be formally determined, and proposals for approved relocation of a parent and children are being considered in the context of interim motions.

[37] Having regard to the additional concerns that frequently arise in such a context:

a. The evidence in this high conflict case is certainly contentious. It is also untested, and limited by the constraints and restrictions imposed by the triage procedures currently in place because of the ongoing pandemic. In such circumstances, courts usually are reluctant to permit “temporary” relocations of children unless they are necessary, and I am not persuaded that the Applicant’s relocation of the children to Windsor was necessary in this case. Without limiting the generality of the foregoing:

i. The criminal charges and terms of release faced by the Applicant may have made it necessary for the Applicant to relocate temporarily to Windsor; i.e., if she had no means of securing an immediate alternate residence in London.

ii. However, I see nothing to justify a further conclusion that it was necessary for the girls to be relocated immediately to Windsor as well. The girls still had a safe and familiar home available to them here in London. Nothing was preventing them from continuing their attendance at St Pius X Catholic Elementary school, among familiar friends and teachers. Nothing was preventing them from continuing to engage in their familiar extracurricular activities here in London.

iii. The Applicant claims to have acted on the premise, (since proven to be demonstrably false), that she alone was capable of caring for the children, and a related premise, (also proven to be demonstrably false), that the Respondent was unable to care for the children – if only because he was thought to be incapable of making arrangements with his employer to ensure a flexible work schedule, structured around the girls’ schooling, and/or incapable of locating a suitable babysitter for times when work might prevent his ability to be with the girls outside of school hours.

iv. The Applicant also failed to explore short term solutions that might have permitted her to remain in London, continuing to enjoy shared parenting time, while urgent issues of custody and access were being properly negotiated or determined by the court if/as necessary, without either party resorting to unilateral action. In that regard, I note the Respondent’s willingness and intention, (expressed even before the Applicant’s relocation with the girls to Windsor), to explore and complete arrangements sufficient to “buy out” the Applicant’s equity in the matrimonial home; an outcome that, (subject to the availability of financing), eventually will result in an estimated payment of $77,5000 to the Applicant. If such arrangements are carried out on an expedited basis, the Applicant would have the financial resources, even without securing employment or financial assistance from others, to remain in London - if only in rented accommodation – while issues of custody and access are being properly addressed. That in turn might facilitate an interim continuation of evenly shared residential arrangements and parenting time, prior to trial.

v. Alternatively, following her release from custody, the Applicant could have gone alone to Windsor, for a few days, while arrangements were made for indirect communications with the Respondent to discuss how matters would proceed.

vi. The fundamental point is that there were less Draconian alternatives that could have been explored and attempted, by the Applicant, short of an abrupt unilateral relocation of the children to a new city and a new school, in the middle of the school year, without any notice to the Respondent. In my view, such precipitous actions were simply not necessary. Nor, for the reasons outlined above, were they child-centred.

b. In this case, I think there are very real and clear concerns that the Applicant’s unilateral relocation of the children to Windsor threatens the creation of an effective “fait accompli” that actually may not be consistent with the children’s best interests. In that regard:

i. Although the Applicant denies engaging in “self-help”, in my view that is precisely what she has done, and done repeatedly in relation to the children’s residence, and parenting time in relation to the children. In my view, the new “status quo” the Applicant emphasizes and relies upon, (i.e., the children living with the Applicant and her mother in Windsor and going to school there, over the past seven months, despite their five-year habitual residence in London), is clearly one created entirely through the Applicant’s unilateral conduct, without party discussion or court approval. Similarly, the Applicant repeatedly has tried to promote and ensure a new reality of her having more parenting time with the children than the Respondent, despite the shared parenting time previously enjoyed by the parties, and despite interim court orders requiring equally shared parenting time. As a matter of general policy, resort to such self-help generally should be discouraged and not rewarded.

ii. However, for the reasons outlined above, I think there also are very good reasons to doubt, in any event, whether it actually would be in the children’s best interests to permit their interim removal from their habitual residence London, in order to facilitate an intended time-limited relocation of the children to Windsor, before a contemplated further relocation of the Applicant and children to the Greater Toronto Area, (in precise circumstances that currently are speculative and unknown), all against a backdrop of indications that the Applicant may be intent on minimizing the Respondent’s future involvement in the children’s lives. Moreover, permitting a formal relocation of the child’s primary residence to Windsor also would result in a required transfer of these proceedings from London to Windsor, which will further delay any final determination of the children’s future. The Applicant’s proposal therefore involves repeated change, upheaval, and prolonged uncertainty in the lives of these very young children; children no doubt already struggling to coping with the reality of no longer being able to live with both of their parents on a daily basis. In my view, none of that seems like an attractive prospect, having regard to the best interests of the children.

c. As I indicated earlier in these reasons, courts generally are more reluctant to upset the “status quo” on an interim motion, and permit a proposed relocation, when there is a genuine issue for trial. In that regard:

i. I think the relevant “status quo” in this case, (temporarily upset by the Applicant’s unilateral relocation of the children to Windsor), is the children’s much longer residence here in London, in their familiar London home on Moreau Crescent, attending St Pius X Catholic Elementary School, (with familiar teachers and friends), while engaging in the extracurricular activities they were pursuing here in London.

ii. In my view, there is nothing to suggest that any kind of significant financial opportunity will be lost, to the detriment of the children, if the Applicant is not permitted to move with the children to Windsor, before a contemplated further relocation to Toronto. The Applicant had and still has no employment in Windsor, and she apparently is not planning to stay there to pursue such employment. While living in Windsor, the Applicant may save some amount of money if she is permitted to live in her mother’s Windsor residence free of charge; i.e., instead of incurring the cost of acquiring a residence of her own in Windsor or here in London. However, any such savings are not only unquantified, but apparently destined to be short-lived and offset by the Applicant’s intended relocation to Toronto; a community where the Applicant not only has no confirmed employment prospects, but where accommodation is notoriously far more expensive than that available here in London.

iii. In my view, the evidence does not support a conclusion that the best interests of the children required any urgent commencement of schooling in Windsor rather than London. Even on the Applicant’s own evidence, the children’s relocation to Windsor was not precipitated by any compelling need for the children to attend Christ the King French Immersion Catholic School in Windsor. It was prompted instead by the Applicant’s criminal charges, her terms of release, and her corresponding inability to continue living in the Moreau Crescent residence while the Respondent lived there as well. While French immersion may be beneficial for the children, there are such programs available here in London as well, and the children already were taking French lessons here.

iv. Finally, I do not think the evidence warrants a conclusion, at this early stage of the proceedings, that there is a strong probability of the Applicant prevailing at trial.

[38] For all these reasons, I think the Applicant’s motion must be dismissed, and that much of the relief sought by the Respondent should be granted on an interim basis – albeit with modifications I think appropriate in the circumstances.

[39] Those precise modifications will be made clear in the terms of the order I intend to set out below.

[40] Prior to doing that, I will simply indicate my view that the interim order should make allowance for the possibility that the Applicant may choose not to remain in Windsor if the children’s interim primary residence remains in London; e.g., if she wishes to be closer to the children, and/or secure her own residence in London, which in turn might facilitate a return to equal sharing of parenting time on an interim basis.

[41] For similar reasons, I think arrangements for the Respondent’s contemplated purchase of the Applicant’s share of the net equity in the matrimonial home should be expedited, with a view to maximizing the available resources of the Applicant. That in turn will permit the Applicant to consider a broader range of options than continued residence with her mother in Windsor; i.e., if that current residential arrangement effectively is dictated by financial necessity.

[42] While I have given thought to the possibility of the travel obligations between London and Windsor for child exchanges being divided between the parties, (e.g., by specifying an exchange location somewhere between the two communities), on balance I think it inappropriate to make such an order, at least for the time being. Without limiting the generality of the foregoing:

a. Such provisions would create unnecessary complications if the Applicant chooses to return to London on an interim basis, instead of staying in Windsor or relocating to Toronto.

b. Such provisions effectively may reduce the amount of time, or meaningful time, the Applicant will have with the children on week-ends; e.g., if the Respondent cannot leave with the children for the exchange point until the children have finished school on Friday afternoons. If the Applicant is given the option of personally picking up and dropping off the children in London, (e.g., staying her temporarily in the meantime), that may extend and maximize her meaningful time with the children.

c. I am mindful of the reality that the current travel challenges have been created by the Applicant’s unilateral decision to relocate from London to Windsor. In the circumstances, it seems unfair to burden the Respondent with a mandatory obligation to incur significant time and/or expense associated with interim exchanges outside of London.

d. Having said that, the provisions of my order will leave open the possibility of exchanges taking place at public places agreed upon by the parties, (including agreed public places outside of London), failing which they will take place at the specified default locations here in London.

Order

[43] In the circumstances, I make the following order on an interim without prejudice basis:

a. The habitual residence of the children is declared to be the city of London, Ontario, and that habitual residence shall not be changed by either party without the other’s written consent or further court order.

b. The children shall once again be enrolled at St Pius X Catholic Elementary School in London, Ontario, as soon as possible, and thereafter continue to attend that school pending any further order of the court.

c. The Applicant shall forthwith provide the Respondent with certified true copies of the children’s government-issued identification documents, including but not limited to their health cards, birth certificate and passport, and any other documents and information required to facilitate the children’s renewed registration as students at St Pius X Catholic Elementary School in London, Ontario.

d. The primary residence of the children shall be with the Respondent, with the Applicant having parenting time with the children every weekend from Friday after school, (or at 3:30pm on Fridays when the school is closed), until Sunday at 7pm, and at such further times as the parties may agree upon in writing, through counsel or another mutually acceptable third party. At all other times, the children shall remain in the primary care of the Respondent.

e. Exchanges of the children shall take place at a public place agreed upon by the parties, failing which they shall take place:

i. at the children’s school in London, unless the school is closed at the time of a required exchange; and

ii. in the parking lot of the London Police Service headquarters at 601 Dundas Street, London, if the children’s school in London is closed at the time of a required exchange.

f. The Applicant shall designate a third party to facilitate such exchanges while the Applicant remains bound by provisions requiring her to have no direct contact or communication with the Respondent.

g. If the Applicant secures a permanent residence within the city of London, that shall constitute a material change necessitating an urgent review of the residential arrangements for the children within the city of London and the sharing of parenting time between the parties

h. For the purposes of enforcing the custody and access provisions contained in this order, the Sheriff of the County of Middlesex, the London Police Service, the Ontario Provincial Police, the Royal Canadian Mounted Police, and any other police service having jurisdiction in any area where it appears the children may be, and to whose attention this order has been drawn, may locate, apprehend and deliver the children to the care of the parent entitled to parenting time pursuant to the provisions of this order, with the provisions of this paragraph of the order to expire one year from the making of the order or upon their variation by further court order, whichever is sooner.

i. Within four weeks of this order, the Respondent shall confirm his willingness and ability to purchase the Applicant’s share of the net equity in the matrimonial home or his inability to do so. In the latter case, the parties shall proceed with negotiated arrangements to list the matrimonial home for sale. If the parties are unable to reach agreement in that regard, within a further period of four weeks, the parties shall seek further directions from the court.

Costs

[44] Because my decision was reserved, counsel were unable to make cost submissions having regard to the substantive outcome of the motions. I accordingly indicated, during the course of the video hearing “before” me, that I would make provision for written submissions concerning costs associated with the two motions, if the parties were unable to reach an agreement in that regard.

[45] In the circumstances, if the parties are unable to agree on an appropriate cost disposition:

a. The Respondent may submit written cost submissions, (maximum five pages, not including any bill of costs or settlement offers), within one week of the release of this endorsement.

b. The Applicant may submit responding written cost submissions, (maximum five pages, not including any bill of costs or settlement offers), within two weeks of the release of this endorsement.

c. The Respondent may submit reply written cost submissions, (maximum two pages), within one week of receiving the Respondent’s written cost submissions.

d. If no written cost submissions are received within two weeks of the release of this endorsement, no costs shall be ordered in relation to either motion.

Further return date

[46] As noted above, a case conference for this matter already has been scheduled for October 16, 2020. The matter accordingly was adjourned to that date.

Justice I.F. Leach

Justice I.F. Leach

Date: September 21, 2020

[^1]: See, for example, K.A.T. v. J.T., [1989] O.J. No. 1963 (U.F.C.), at paragraphs 25-26.

[^2]: See Woodhouse v. Woodhouse, 1996 CanLII 902 (ON CA), [1996] O.J. No. 1975 (C.A.).

[^3]: See Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27; and Reeves v. Brand, [2018] O.J. No. 1425 (C.A.).

[^4]: See Bjornson v. Creighton, 2002 CanLII 45125 (ON CA), [2002] O.J. No. 4364 (C.A.)

[^5]: See Woodhouse v. Woodhouse, [1994] O. J. No. 3921 (Gen.Div.), affirmed, supra; and Meijers v. Hasse, [2007] O.J. No. 2506 (S.C.J.).

[^6]: See Karpodinis v. Kantas, 2006 BCCA 272, [2006] B.C.J. No. 1209 (C.A.).

[^7]: See, for example, Scheiber v. Phyall, [2002] B.C.J. No. 1462 (C.A.).

[^8]: See B.(M.) v. C.(D.A.), 2014 ONCJ 273, [2014] O.J. No. 2694 (O.C.J.).

[^9]: See Cosentino v. Cosentino, [2016] O.J. No. 4622 (S.C.J.).

[^10]: See Plumley v. Plumley, 1999 CanLII 13990 (ON SC), [1999] O.J. No. 3234 (S.C.J.); and Monachese v. Madill, [2017] O.J. No. 6992 (O.C.J.).

[^11]: See Konkin v. Aguilera, [2010] O.J. No. 3677 (S.C.J.).

[^12]: For authority emphasizing the considerations set out in this particular paragraph, see in particular Coe v. Tope, 2014 ONSC 4002, at paragraph 25, and the numerous authorities cited therein.