Overview and Factual Background

[1] The Applicant, Laura Zrymiak, and the Respondent, Anthony McNamee, were married in 2005 and separated in 2013. They have joint custody of their daughter, K, who is eight years old. K resides primarily with the Applicant. K resides with the Respondent on alternating weekends from Thursday after school to Monday morning and, during the other weeks, from Thursday after school to Friday morning.

[2] The issue on the Respondent’s motion and the Applicant’s cross-motion is whether the Applicant should be permitted to relocate from Toronto to Kemptville with K.

[3] Until this school year, K has been enrolled in French immersion at a Toronto public school (the “Toronto school”). The parties agree that K has difficulty reading English, as further detailed below. They had discussed changing schools or obtaining enrichment or support for K. On August 12, 2020, the Applicant sent a letter to the Respondent proposing that K be enrolled in a school in Kemptville, Ontario.

[4] After the Applicant’s letter, the parties engaged in discussions with the assistance of their parenting coordinator but were unable to reach a resolution. The Respondent enrolled K in the Toronto school. On September 15, 2020, the Applicant advised the Respondent by e-mail that she had enrolled K in the Kemptville school.

[5] The Respondent brought an urgent motion to restrain the Applicant from moving K’s primary residence outside of Toronto and from registering K in a school in the Ottawa/Kemptville area. The Respondent further sought an order directing that K be returned to Toronto and enrolled in the Toronto school.

[6] The Applicant brought a cross-motion for an order allowing her to move with K to Kemptville “on a final basis” and to enroll her in the South Branch Elementary School in Kemptville (the “Kemptville school”) where she can participate in a literacy program. In the alternative, the Applicant seeks an order permitting her to move to Kemptville on an interim basis until the matter can be heard at trial.

[7] In an endorsement dated September 17, 2020, Shore J. found that the Respondent’s motion was presumptively urgent, and the matter was scheduled to be heard by me on September 24, 2020.

[8] Based on the evidence before me, I find that it is in K’s best interests that the Applicant be permitted to relocate to Kemptville and that K be enrolled in the Kemptville school on an interim basis only, until the matter can be determined at trial.

Preliminary Matters

[9] The Respondent has also brought a motion to strike portions of the Applicant’s affidavit on the basis of settlement privilege. As noted above, the parties had extensive discussions with the assistance of a parenting coordinator. Those discussions were confidential and without prejudice. The Respondent had included in his motion record an email that he sent to the parenting coordinator and a redacted email from the Applicant that included some of the substance of their discussions. The Applicant further detailed those discussions in her affidavit. The Applicant submits that the Respondent waived any privilege that attached to those discussions.

[10] At the hearing, I ruled that the references to the discussions with the parenting coordinator were not admissible as evidence on the motion because they are protected by settlement privilege. In their parenting agreement, the parties agreed that discussions with the parenting coordinator were confidential and without prejudice. They engaged in those discussions on the basis of that understanding. It is important to protect the confidentiality of parties’ efforts to resolve matters outside the court process. Moreover, I find that any waiver by the Respondent was inadvertent. The email sent by the Respondent to the parenting coordinator contained no reference to the substance of the parties’ negotiations. In addition, the fact that the Respondent redacted certain portions of the email from the Applicant demonstrated that he did not intend to waive the settlement privilege. As a result of my ruling, I did not consider any of the communications with the parenting coordinator or any evidence of the without prejudice discussions between the parties.

[11] The Respondent also objected to the admissibility of two letters from Katherine Shaw- Byrd, attached as exhibits to the Applicant’s affidavit, on the basis that they were expert evidence and did not comply with the requirements of the r. 20.2 of the Family Law Rules, O. Reg. 114/99. Ms. Shaw-Byrd is a special education teacher and literacy specialist at the Kemptville school. She is also the Applicant’s cousin. The Applicant’s position is that the documents were not intended to serve as expert evidence but to assist the court by providing information about K’s reading ability.

[12] The first document is a “Reading Assessment” that Ms. Shaw-Byrd conducted with K in September 2019. The second is a letter dated September 18, 2020 from Ms. Shaw-Byrd providing further information about the Empower Reading Intervention Program (the “Empower program”) and about a further assessment of K’s reading ability. The assessments are attached. Ms. Shaw-Byrd expresses various views, including that K requires an intensive, remediation intervention program, that tutoring would not be sufficient, and that K would benefit significantly from the Empower program.

[13] At the hearing, I ruled that the documents from Ms. Shaw-Byrd were admissible as evidence of the facts contained therein, but that I would not rely on them for any opinion expressed by her. There is no reason to believe, and the Respondent has not suggested, that the information relating to the Empower program or to K’s literacy testing is inaccurate. Moreover, the information is relevant and helpful to the court for the purposes of determining the issues on this motion. However, it would not be appropriate to place any reliance on the views expressed by Ms. Shaw-Byrd, who is not an independent expert, where the rules relating to expert evidence have not been observed.

Analysis

The Parties Positions

[14] The Applicant’s position is that it would be in K’s best interests to attend the Empower program at the Kemptville school because K is significantly behind in her English literacy and requires immediate intervention in order not to fall further behind. The Applicant states that the support and intervention that K requires is not currently available in Toronto.

[15] The Respondent’s position is that while K requires some enrichment and assistance with her English language skills and literacy, the problem is not as acute as the Applicant portrays it to be. The Respondent submits that K’s needs could be met by accessing appropriate services in Toronto. The Respondent states that K’s relocation to Kemptville would be a significant disruption to the existing parenting schedule and would negatively impact their relationship. The Respondent alleges that the Applicant wishes to move to Kemptville with K to be closer to her family and extended family and to “marginalize” the Respondent from K’s life.

The Applicable Principles

[16] Under s. 28(l)(c)(iii) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA), the court has jurisdiction to make an order “prohibiting a party from changing the child’s residence, school or daycare facility without the consent of another party or an order of the court.”

[17] In Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, at para. 49, the Supreme Court of Canada set out the principles to be followed when determining a mobility issue. The focus is on the best interests of the child in the particular circumstances of the case, and not on the rights and interests of the parents. Specifically, the court must consider:

(i) The existing custodial arrangement and the relationship between the child and the custodial parent;

(ii) The existing access arrangements and the relationship between the child and the access parent;

(iii) The desirability of maximizing contact between the child and both parents;

(iv) The views of the child;

(v) 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;

(vi) Disruptions to the child of a change in custody; and

(vii) Disruptions to the child consequent on removal from family, schools and the community he or she has come to know.

[18] The Supreme Court further highlighted that the maximum contact principle referred to in s. 16(10) of the Divorce Act, R.S.O. 1985, c. 3 (2nd Supp.), while mandatory, is not absolute. The court’s task is to compare the alternatives that are available and then to determine which is in the child’s best interests.

[19] Subsection 24 of the CLRA lists the factors relevant to determining the best interests of the child, which include the following:

(a) the love, affection and emotional ties between the child and,

(viii) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ix) other members of the child’s family who reside with the child, and

(x) persons involved in the child’s care and upbringing;

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

(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.

[20] In addition, on an interim motion relating to a mobility issue, the case law has identified the following relevant considerations:

(i) 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;

(ii) There can be compelling circumstances that might dictate that a judge ought to allow the move; and

(iii) 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 trial.

Plumley v. Plumley, [1994] O.J. No. 3234 (Sup. Ct.), at para. 7.

Should the Applicant Be Permitted to Relocate to Kemptville with K?

[21] Before addressing the considerations specified in Gordon v. Goertz, I note that both parties raise concerns about how the other party has proceeded in this matter. I will not address that dispute other than to note that the result is a last-minute, urgent motion, which is a far from satisfactory way to make an important decision about a child’s residence and schooling.

[22] In fact, the parties’ parenting plan, attached to their parenting agreement dated April 14, 2015, requires that they discuss all matters pertaining to K’s health, education and welfare and make all major decisions jointly. If a proposed change of residence by either party would impact the parenting plan, the relocating parent was required to notify the other as early as possible and not less than 60 days prior to the move.

[23] The Applicant did not provide the Respondent with 60 days’ notice. The Applicant’s affidavit does not state when K was offered a spot in the Empower program at the school. The Applicant’s August 12 letter, which was sent through counsel, appears to relate to a different school in Kemptville.[^1] The discussions with the parenting coordinator took place thereafter. While the Applicant states that she has not changed K’s residence, the fact is that K has been enrolled in and is attending the Kemptville school. The Applicant states that she continues to maintain a home in Toronto and she and K stay with her parents when they are in Kemptville.

[24] It is also worth noting Corbett J.’s comments in a case, Konkin v. Aguilera, 2010 ONSC 4808, at para. 27, which also dealt with an interim mobility issue:

I acknowledge some of the cases consider that it is unwise to make interim orders on mobility issues, when the matter may remain contested at trial. That is a fine ideal, but the court process does not follow the same rhythm as real life. The goal of an interim order here, as in other contexts is to preserve a reasonable state of affairs that accords with the best interests of the child pending trial. As I indicated to the parties orally, I would have preferred to have heard this issue as a trial, to have listened to the various family members testify, and to have more time to reflect on the matter. But a decision must be made now, rather than months or years from now, and a legitimate and timely request to move should not be thwarted by the inevitable effluxion of time inherent in the litigation process.

[25] I have considered the guidelines articulated by the Supreme Court in Gordon v. Goertz as further detailed below.

[26] The parties have joint custody of K. The Respondent’s parenting time has progressively increased to the current schedule, as described above. K resides primarily with the Applicant, which would not change if the move is permitted. The parenting plan requires that the parties live in close enough proximity to each other to allow for the parenting plan to work. The distance between Toronto and Kemptville means that the relocation will inevitably impact the parenting plan.

[27] The Applicant’s reason for moving is to enroll K in the Empower program. At this stage, based on the evidence before me, the nature and extent of K’s literacy challenges is difficult to determine. K has just entered grade four. The Respondent provided two of K’s report cards, for grade 1 and 3, that do not identify any academic difficulties or areas of concern. However, because K is in French immersion, the report cards do not specifically assess her language and literacy skills in English.

[28] The testing conducted by Ms. Shaw-Byrd demonstrates that K is reading significantly below grade level. Ms. Shaw-Byrd explains that K is able to read standard levelled readers, used by most schools, up to level 13. As a benchmark, schools expect a grade one student to read at level 16. K is thus reading at or below a grade one level. K’s scores on certain assessments were particularly low, for example, on sound combinations, she scored 3 out of 30. The available evidence demonstrates that K has significant challenges in reading English.

[29] The Applicant has put forward a plan to address K’s literacy challenges that is comprehensive and well-suited to K’s individual circumstances. Based on the information provided by Ms. Shaw-Byrd, the Empower program is an intensive reading intervention program that students participate in for one hour a day, five days a week for a total of 110 hours. The Upper Canada School Board has allocated resources to implement the program, while the Toronto District School Board has not. Empower instructors are specially trained and have additional qualifications. K is one of four students from her cohort in the program. She is able to enroll in the Empower program at no cost to the parties. In addition, in the event that the COVID-19 pandemic requires the school to go online again, Ms. Shaw-Byrd has agreed to become part of K’s “bubble” to continue teaching her individually in person.

[30] The Applicant confirmed with a teacher at the Toronto school that the Empower program is not offered there. In addition, the Applicant’s inquiries to the Toronto school for literacy support for K, which were made in September 2019, appear to have gone unanswered. While the Empower program is offered by the Toronto Catholic District School Board, K would not be able to enroll in the program this school year because she was not assessed last year and does not have a spot.

[31] By contrast, the Respondent’s plan for addressing K’s literacy issues is much less specific. The Respondent proposes that K continue to attend the Toronto school. In addition, the Respondent has provided a list of five private tutoring agencies or programs. However, K has not been provided with literacy support at the Toronto school. Moreover, the Respondent has not stated how any of the programs or agencies he has identified would be able to address K’s specific challenges.

[32] The Respondent’s lack of a specific plan may in part result from his view that K’s challenges are not as serious as the Applicant portrays them to be. However, the Respondent acknowledged in email to the Applicant that “at minimum our daughter will require tutoring, enrichment and/or a customised literacy program to improve our daughter’s English language literacy.” He further stated they would have to address the issue by changing schools or finding enrichment programs. While one would expect that an option comparable to the Empower program would be available to K in Toronto, the Respondent has not provided evidence of such a program or option that would be available to K in the near future.

[33] Without greater certainty as to how K’s educational needs would be met in the short term, I cannot find that it would be in K’s best interests to continue to attend the Toronto school. Because K is in grade four, it would be in her interest to address her reading challenges sooner rather than later, so that her difficulties would not affect her confidence or ability to learn other subjects that would require her to read.

[34] Enrolling K at the Kemptville school, however, is more than a change of schools. It requires that she move at least four hours from Toronto, where she has resided for most of her life, and away from her father. Under the existing schedule, K spends a significant amount of time with the Respondent. If K relocates to Kemptville, she will see the Respondent less frequently and for shorter periods of time. The Respondent’s evidence is that he and K share a close relationship and that he is very involved in her education, including attending parent teacher interviews. Given the distance, if K attends the Kemptville school, it will be more challenging for the Respondent to play as active a role in her education.

[35] The Applicant has put forward a proposal to make up for some of the Respondent’s lost parenting time. The Applicant has offered that the Respondent have an additional weekend each month, and that K stay with him during certain school and statutory holidays, as further detailed below. The Applicant has also offered to drive K between Kemptville and Toronto on two of the three weekends when K would be with him. The extension of the Respondent’s parenting time would help address some of the lost time to ensure that they have as much contact as possible despite the geographical distance.

[36] Aside from K’s educational needs, the evidence supports the Applicant’s position that the relocation to Kemptville would have additional benefits for K. The Applicant’s extended family live in Kemptville. K has been going there since her infancy, and has spent long weekends, Christmas holidays, and multiple weeks over the summer there. K enjoys a close relationship with her maternal grandparents, aunts, uncles and cousins, with whom she plays games, swims, and does other activities. The Applicant further submits that under the current circumstances, it would be preferable for K to live in Kemptville, where the risks and limitations associated with COVID-19 may be less than in Toronto.

[37] In addressing the factors articulated in Plumley v. Plumley, I find K’s educational needs constitute compelling circumstances to allow the move on an interim basis. While there may be a genuine issue for trial, based on the evidentiary record before me, there is a strong probability that the Applicant’s position would prevail at trial. I am therefore satisfied, on an interim basis, that it is in K’s best interests to be enrolled in the Empower program at the Kemptville school for the 2020-21 school year and that she be allowed to relocate temporarily to Kemptville for this purpose.

[38] However, I further note that, given the significance of the relocation, I have been provided with little evidence about certain matters relevant to the guidelines articulated in Gordon v. Goertz as they would apply to a final determination. I recognize that the evidentiary records before me are limited because the motions were brought on an urgent basis. It will be necessary to provide more complete evidence for a final determination of K’s best interests. Specifically:

• The potential disruption to K that would result from leaving Toronto, the school, and the community that have been her home for most of her life. Perhaps predictably, the Applicant’s affidavit detailed only the positive aspects of the move. The Respondent’s affidavit focused on the effect of the move on the relationship between him and K;

• The issue of K having to spend eight to ten hours in transit between Kemptville and Toronto for three weekends a month, and the effect that the travel time would have on K’s school work or extracurricular or social activities;

• The Applicant’s continued ability to work remotely, when her employer is located in Toronto;

• How long K would be enrolled in the Empower program; and

• K’s views, to the extent they may be ascertained.

[39] As noted above, the Empower program provides for instruction one hour a day, every school day, for a total of 110 hours of instruction. This means that the program could be completed within a school year. At the hearing, Applicant’s counsel advised that the hope is that K would be reading at grade level by the end of this school year. While the Applicant seeks an order permitting the relocation on a final basis, she has provided no information as to why enrolling in the Empower program would require a permanent move to Kemptville.

[40] Based on my findings, I am prepared to permit the Applicant to relocate to Kemptville with K on an interim basis for the purpose of enrolling K in the Empower program for the 2020-21 school year. A final determination of K’s residence requires a trial, which should take place in sufficient time before the next school year. By that time, K’s reading ability and educational needs could be reviewed. It is also expected that a more complete evidentiary record would be available.

[41] The Applicant has committed to making up some of the Respondent’s lost parenting time, including, an additional weekend each month, Thanksgiving and Easter weekends in 2021, March Break in 2021, and certain Professional Activity Days. In my view, given that K will see the Respondent less frequently and for shorter periods, it would be appropriate to amending the parenting schedule to extend the Respondent’s parenting time for the periods proposed by the Applicant. In my view, the Respondent should also be provided with an additional week during the summer holidays, to be scheduled as agreed between the parties.

[42] The Applicant has offered to drive K to and from Kemptville on two of the three weekends for the Respondent’s parenting time. Given that the Applicant did not comply with the parties’ parenting plan in making the decision to move, it would be appropriate that she be responsible for all of the transportation. The parties are free to agree, on an ad hoc basis, that the Respondent drive K to and from Kemptville in the event that he wishes to spend some of the travel time with K.

[43] The evidence discloses significant conflict between the parties. The Respondent alleges that the Applicant has interfered with K’s ability to contact him by telephone or video-call and that, contrary to their parenting plan, the Applicant does not allow him to attend K’s extracurricular activities, such as swimming and gymnastics. Given that the Respondent will see K less frequently, K should be provided with ample opportunity to communicate with the Respondent through alternative means, and the Respondent should be able to attend K’s extracurricular activities.

[44] The Applicant alleges inappropriate conduct on the part of the Respondent, specifically, that the Respondent has allowed K to sleep in his bed. The Respondent denies the allegation and explains that this only occurred when renovations prevented K from sleeping in her own bedroom. I make no findings on the evidence before me but note that the Applicant has not previously sought relief in respect of this alleged conduct and, on her motion, does not seek to restrict the Respondent’s parenting time, other than as would be necessitated by the move to Kemptville.

Conclusion

[45] Accordingly, the Respondent’s motion for an order preventing the Applicant from relocating to Kemptville with K is dismissed. The Applicant’s cross-motion for an interim order permitting her to relocate to Kemptville with K is granted on the following terms:

(a) The Applicant may move K’s residence to Kemptville, Ontario on an interim basis and may reside there until July 31, 2021, subject to agreement between the parties or further court order;

(b) The Applicant shall enroll K in the Empower Reading Intervention Program at the South Branch Elementary School for the academic year 2020-2021;

(c) The Applicant shall share all information relating to K’s education with the Respondent as provided in the parties’ parenting plan;

(d) The Applicant shall be responsible for driving K to and from Toronto, unless the parties agree otherwise;

(e) For the 2020-2021 school year, the parenting schedule in the parties’ parenting plan is amended so that the Respondent’s parenting time takes place on weeks one, two and three each month and commences on Friday after school to Sunday at 4:00 p.m.;

(f) The parties’ parenting schedule for 2020-2021 is further amended to extend the Respondent’s parenting time is further extended to include the Professional Activity Days on the weekends when K will be with him, Thanksgiving weekend, March Break, Easter weekend, and an additional week during the summer vacation;

(g) The Respondent shall have liberal access to K by telephone, or video-call, which the Applicant shall facilitate;

(h) The Respondent shall be able to attend K’s extracurricular activities, including, but not limited to, swimming and gymnastics; and

(i) The parties shall request a case conference, to be held before November 30, 2020, to discuss next steps in the proceeding, with a view to scheduling a trial to commence before June 15, 2021.

[46] Notwithstanding the terms of this endorsement, the parties are free to discuss a final resolution of the residency issue and any other matter.

Costs

[47] At the conclusion of the hearing, I directed counsel to file their bills of costs and any relevant offers to settle with the court, which I would not access until reaching a decision on the motion. After reaching my decision, I reviewed the bills of costs and offer to settle made by the parties.

[48] The overall objective in determining costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case: Boucher v. Public Accountants Council of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.), at para. 24. There is a presumption that the successful party will be entitled to costs: r. 24(1), Family Law Rules.

[49] The Court of Appeal has identified the four fundamental purposes that modern cost rules are designed to foster: (i) to partially indemnify successful litigants; (ii) to encourage settlement; (iii) to discourage and sanction inappropriate behaviour by litigants; and (iv) to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, at para. 10.

[50] In assessing the success of a party, the court looks to the positions taken by the parties at trial, Berta v. Berta, 2015 ONCA 918, at para. 102, as well as to the offers to settle exchanged by the parties as compared with the terms of the final order: Lawson v. Lawson, 2008 23496 (ON SC), [2008] O.J. No. 1978 (Sup. Ct.).

[51] Other than as provided in rr. 24(8) or 18(14) there is no provision in the Family Law Rules that provides for a general approach of “close to full recovery” costs: Beaver v. Hill, 2018 ONCA 840, at para 11.

[52] In the result, the Applicant was not successful in obtaining a final order permitting the relocation but obtained an interim order. As the successful party, the Applicant is entitled to costs.

[53] The Applicant’s offer to settle, dated September 21, 2020, was for substantially the relief obtained on the motion and included additional terms adjusting the parenting schedule. In my view, the result obtained was not more favourable than the Applicant’s offer to settle because the result provides for more make-up time than was offered by the Applicant. As a result, there is no basis for full indemnity costs.

[54] As for the factors relevant to determining the amount of costs, the Respondent was required to bring an urgent motion because the Applicant advised that she had enrolled K in the Kemptville school. The Applicant contends that she did not bring a motion sooner because she was misled by the Respondent’s participation in discussions with the parenting coordinator. I make no findings in respect of either party’s participation in the process with the parenting coordinator. Once the discussions came to an end, it became inevitable that a motion would be brought.

[55] Based on the foregoing considerations, I fix partial indemnity costs of the motion at $3,000, including HST and disbursements, to be paid by the Respondent to the Applicant.

[56] This endorsement is an order of the court enforceable by law from the moment it is released. Counsel may also forward an approved, draft order consistent with the terms of this Endorsement to me through the Family Scheduling Office.

Nishikawa J.

Date: September 28, 2020

[^1]: The Applicant did not name the school in the letter and provided only a link to a website.

Zrymiak v. McNamee, 2020 ONSC 5850

Case Summary

Overview and Factual Background

Preliminary Matters

Analysis

The Parties Positions

The Applicable Principles

Should the Applicant Be Permitted to Relocate to Kemptville with K?

Conclusion

Costs

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 5

Legal Tests 2

Legislation 3