SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Chenguang Li, Applicant

AND:

Xudong Wu, Respondent

BEFORE: Somji J.

COUNSEL: Kathleen Jin, for the Applicant

Ping Chen, for the Respondent

HEARD: November 13, 2020

COURT FILE NO.: FC-20-1237

DATE: 2020/11/27

REASONS FOR DECISION ON APPLICATION TO RELOCATE CHILDREN ON INTERIM BASIS

Overview

[1] The applicant mother (“mother”) brings an urgent motion seeking interim sole custody of two children, Muyang Li, age 9, and Haoyuan Wu, age 12 months. The mother has employment as a research scientist at Canadian Nuclear Laboratories in Deep River. She seeks an interim order permitting the children to move to and reside with her in Deep River.

[2] The respondent father (“father”) supports the mother’s request to move Muyang who is not his biological child and with whom he has had a limited relationship. However, the father opposes the move of his biological son Haoyuan. The father requests that the parties have interim joint custody of Haoyuan and that Haoyuan reside primarily with him in the matrimonial home in Stittsville, Ontario. The distance between Stittsville and Deep River is approximately 170 kilometers.

[3] The mother is 37 years of age and the father is 54 years of age. The parties met online in the fall of 2018. They cohabited for 66 days and were married on December 12, 2018. Their relationship fell apart within a year. During this time, the mother became pregnant and gave birth to Haoyuan on October 25, 2019. After the marriage collapsed, the parties continued to live separate and apart in the matrimonial home. The mother’s maternity leave ended in October 2020. The mother has been advised by her employer that it is their preference that she return to work remotely in Deep River where she is closer to the laboratory.

[4] While each party seeks additional corollary relief that will be addressed, the central issue in this motion is whether it is in the best interests of Haoyuan to move to Deep River with his mother or to remain in Stittsville with his father on an interim basis.

Issues:

[5] This is a motion for interim relief with respect to the following issues:

1. Is it in Haoyuan’s best interests to move to Deep River?

2. What form of care and custody is in Haoyuan’s best interests?

3. What form of access is in Haoyuan’s best interests?

4. Should there be an order for child support for Haoyuan?

5. Who should occupy the matrimonial home?

6. Should the mother have sole custody of Muyang?

7. Should the father pay child support for Muyang?

8. Should the parties be subject to restraining and communication orders?

Analysis:

Issue 1: Is it in Haoyuan’s best interests to move to Deep River on an interim basis?

The law on interim orders involving the mobility of children

[6] As per s. 16(8) of the Divorce Act, RSC 1985, c 3 (2nd Supp) and s. 24(1) of the Children’s Law Reform Act, RSO 1990, c C.12 (“CLRA”), interim and final orders addressing custody, residence, and access of children must be determined based on the best interests of the child.

[7] The Supreme Court of Canada decision in Gordon v Goertz, [1996] 2 SCR 27, is the leading authority in mobility cases. Goertz clearly states that the best interests of the child is the governing principle. The law was summarized at para 49 as follows:

1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.

5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.

6. The focus is on the best interests of the child, not the interests and rights of the parents.

7. More particularly the judge should consider, inter alia:

(a) the existing custody arrangement and relationship between the child and the custodial parent;

(b) the existing access arrangement and the relationship between the child and the access parent;

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

(d) the views of the child;

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

(f) disruption to the child of a change in custody;

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

[8] In Goertz, the Supreme Court of Canada was addressing a final order for relocation. In Plumley v Plumley, [1999] OJ No 3234 (SC), at para 7, Marshman J. discussed the factors that are important in deciding requests for mobility on an interim or temporary basis:

1. A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.

2. There can be compelling circumstances which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.

3. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at a trial.

[9] On an interim mobility motion such as this one, the burden is on the moving party seeking to change the status quo to establish compelling reasons to grant the motion: Marcuzzi v Lindo, 2010 ONSC 4739, at para 64.

[10] Finally, courts are often reluctant to permit relocation on a temporary basis, recognizing that such decisions can have a strong influence on the final outcome of the case. This is because courts do not like to further disrupt the lives of children by making an order that they may have to reverse later: Boudreault v Charles, 2014 ONCJ 273, at para 26, citing Goodship v McMaster, [2003] OJ No 4255 (CJ), at para 8.

Application of the law to the facts

The mother’s position

[11] The mother advances the following arguments at para 100 of the applicant’s factum in support of Haoyuan’s relocation:

a. that she is the primary caregiver (100 a);

b. that the father has been emotionally abusive towards her and Muyang (100 a to 100 e);

c. that she has taken good care of the baby and supported his health development including care of his anal abscesses (100 f);

d. that she has viable and realistic plans for the children regarding school, medical care, and the support from friends and family (100 g); and

e. that the father has made false allegations against her (100 h).

[12] The mother claims that she has been Haoyuan’s primary caregiver since birth. The mother claims that this is because the father is employed as an engineer and works approximately ten hours per day. The mother claims that she has been largely responsible for attending the baby’s daily needs and that the baby slept with her all but one night a week when he slept with the father. The mother acknowledges that since October 16, 2020, the father has been sleeping with the baby for three nights a week and spending more time with the baby, but she claims he is only doing so in response to her motion.

[13] The mother takes the position that while the parties had disputes in September 2019, they did not separate until May 20, 2020 when they decided to quit marriage counselling. The triggering event was an emotional argument on May 18, 2020 about the father’s treatment of Muyang. She claims the parents decided then that it was best to separate.

[14] Prior to May 2020, the mother claims the parties managed their finances together, cooked for one another, ate meals together, slept in the same bed, and lived like a family despite the difficulties in their relationship. I note, however, that she did report to the police that the parties had started to live separate and apart in the matrimonial home in January 2020.

[15] The mother alleges that the father has been emotionally abusive towards her and her older son Muyang. The mother contacted the Children’s Aid Society (“CAS”) which investigated the allegations.

[16] On August 20, 2020, the mother attempted to move herself and the two boys to Deep River. She called CAS and the police to be present for the move, but in the absence of an agreement, court order, or heightened safety concerns, they could not intervene. According to the police report, the mother did not allege that the father assaulted or threatened her but that he could be emotionally abusive. The mother also acknowledged to the police that the parties had retained counsel, but that nothing had been put in place regarding custody and access.

[17] It is important to note that the mother had known for some time that her maternity leave would be coming to an end in October 2020. If we are to accept May 2020 as the separation date as she suggests, the mother could have reasonably anticipated that there would be disagreement about her taking Haoyuan to Deep River when her leave ended. The mother would have been well aware in the spring that she would have to address the issue with her employer for an accommodation or, alternatively, bring an application to the court to address the issue. In fact, by July 2020, both parties had already engaged counsel and negotiations were underway between the parties with respect to issues of custody, access, and child support. It was clear from the documentation filed that the father was not consenting to Haoyuan’s relocation.

[18] The father was not aware of the mother’s plan to move the children to Deep River on August 20, 2020. He was taken aback by the arrival of the police and the CAS and called his counsel. The father took hold of the baby and refused to hand the baby to the mother or provide his consent for her to leave with the child. After several hours, the mother finally surrendered the car keys and agreed not to leave with the baby at which time the father released the child.

[19] After the failed attempt to move out in August, the mother claims that she and her oldest son have been living in great fear and frustration within the matrimonial home. The mother brought an urgent motion requesting the court to address the issue of interim mobility without a case conference. On September 22, 2020, Engelking J. declined to permit the motion to proceed without a case conference. The matter was then scheduled for a case conference on September 30, 2020. The issues of interim custody, access, and child support were not resolved at the case conference. Justice M. Smith ordered the matter to be scheduled for a motion to address the primary issue of custody and other corollary relief.

[20] The mother is currently working remotely pending a decision on interim custody and relocation of Haoyuan. The parties could not agree on what form of childcare would be best for Haoyuan, particularly during the pandemic. The parents appear to be taking turns caring for Haoyuan at home while both are working, but the exact arrangement in this regard is unclear.

[21] The mother’s plan is that she and the two boys would move to a two-bedroom apartment in Deep River. This is a rental property that she previously had and which is now available to her. Her older son Muyang would be enrolled in the local school and the baby Haoyuan would attend daycare. The mother has secured spots in each place for the children. The mother would continue to work from home, but her proximity to her workplace would permit her to go to the offices of the Canadian Nuclear Laboratory when required. The mother also intends for her own mother to come from China to assist with childcare.

The father’s position

[22] The father opposes the mother’s relocation. He is concerned that such a move would result in him being increasingly alienated from his biological son. The father is devoted to Haoyuan. He wishes to care for him and have him remain in the matrimonial home. He is agreeable to generous access.

[23] The father denies that the mother is the primary caregiver. He claims he has also contributed to the care and well-being of Haoyuan. He acknowledges that the mother has spent more time with the baby but claims it was because she was on parental leave while he was working full-time. As a new father, he attended the training for baby care provided by Queensway Carleton Hospital. He consulted with his own family, friends, and physicians when there were issues around baby care. He established a sleep routine for the baby in June 2020 as he found the mother was allowing both Muyang and the baby stay up until 1 or 2 in the morning. The father claims that Haoyuan is comfortable in his care and refers to the incident of August 20, 2020, at which time the baby was settled in his arms for 3.5 hours without issue.

[24] The father has been involved with the child’s medical visits. He has taken a particular interest in the child’s medical condition involving an anal abscess. His affidavit sets out all the efforts he made to ensure the child’s affected area was cleaned daily and well taken care of to minimize further injury.

[25] The father takes a different view of the marriage and the date of separation. The father alleges that the parties did not know each other well when they married, and it was a mistake to marry so quickly. He explains that the relationship broke down within five months of the marriage in/around May 2019. He indicates that by August 2019, both parties were contemplating divorce. However, the mother was pregnant, and the father was concerned about how a separation might impact both the mother and the baby.

[26] According to the father, the mother spent much of her pregnancy in Deep River. She returned to the matrimonial home on October 12, 2019, just a short time before Haoyuan was born. The maternal grandmother came to live with them after Haoyuan was born. The father claims the relationship with the mother became worse after the arrival of the maternal grandmother. He alleges he felt pressured to financially sponsor the grandmother. He alleges that Muyang started to act up and many of the house rules that had been put in place to discipline him fell apart.

[27] The father claims the parties separated on September 15, 2019, but it is unclear why he has selected that date as the date of separation. Nonetheless, the father claims that by November 15, 2019, the parties had moved into separate bedrooms. The father worked in the basement during the day and slept in a separate room on the second floor at night. The mother occupied the remainder of the house. The mother and Haoyuan slept in the master bedroom and Muyang slept in his own room.

[28] The father claims he was worried that the mother would make false accusations against him for domestic violence. The mother had reported domestic violence vis-à-vis her former spouse who is Muyang’s father. He claims he installed security cameras in the basement and his own room – the areas that he occupied – to protect himself from such accusations.

[29] The father alleges that the mother misused CAS to abduct Haoyuan on August 20, 2020. The father had never consented to the mother taking Haoyuan to Deep River. The father felt pressured by the presence of the CAS workers and the Ottawa Police Service. Neither organization had the legal authority to remove the child. He claims CAS attempted to force him into entering a custody plan, but he refused to do so while under coercion. The father held onto Haoyuan until he was assured the mother would not leave with the child. The whole episode caused him tremendous stress. After the incident, the father acknowledges he was distrusting of the mother and did hide some of the baby’s documents such as his health care card.

[30] The father loves Haoyuan and wishes for him to reside with him in the matrimonial home in Stittsville, Ontario. He claims that this is the only home environment that Haoyuan has known since his birth. Haoyuan’s medical doctors are situated in the nearby city of Ottawa. He takes the view that Haoyuan’s medical condition will require continued monitoring and eventually surgery. The father claims that if Haoyuan remains with him, he would arrange for his care during the day. He has canvassed various options including a daycare situated a few minutes from his home which is currently available. The father is agreeable to providing the mother generous virtual access during the week and access on weekends but does raise concerns about the impact of extensive driving on the child. The father is agreeable that access transitions should occur in Cobden, halfway between Stittsville and Deep River.

Is it in Haoyuan’s best interest to be relocated on an interim basis?

[31] While I accept that the mother has probably spent more time with the child and might be considered the de facto primary caregiver, I find that this is an insufficient basis to warrant relocation. The mother has been on parental leave and this places her – at least time-wise – at an advantage. However, the father has been involved in the care of the child and is equally capable of continuing to care for the child.

[32] The affidavit evidence filed indicates that the father is equally devoted to his son. He has been involved in his daily care including putting him to sleep and caring for his anal abscess. The father has taken steps to obtain training in parenting. The father proposes a viable plan for Haoyuan’s continued care in the matrimonial home and attendance at daycare while he is working. The father has also proposed generous access to the mother on the weekends and to share in the driving.

[33] While I recognize that Haoyuan is just a little over a year old and has a strong bond with his mother, I find that the father has also developed a bond with the child, and it is important that he continue to develop that bond during the child’s tender years. This is consistent with the principle that both parents should have maximum contact with the child to the extent that it is in the child’s best interest. As addressed further below, I find that if permitted to move, there is a risk that the father will be alienated from Haoyuan. For all these reasons, I find that it is not in the best interests of Haoyuan to be relocated on an interim basis.

[34] I should add that both parties allege that the other parent has been negligent in caring for the baby on different occasions. Each parent provides examples of negligent conduct by the other parent. Each parent denies the allegations against them. CAS has not found that either parent is unfit or that Haoyuan needs protection. Many of the facts in this case are contradicted and untested. I agree with the father’s counsel that ascertaining the veracity of these facts requires further disclosure and questioning.

[35] Where there is incomplete and/or conflicting evidence, courts are generally reluctant to sanction fundamental changes to children’s lifestyle and circumstances on an interim basis: Kennedy v Hull, 2005 ONCJ 275, at para 9. For the purposes of the interim order, I am not able to make findings of fact regarding the respective allegations of emotional abuse or parental neglect each parent makes against the other. Should this matter go to trial, it will be up to the trial judge to make such findings of fact after a full trial on the merits.

[36] Counsel for the mother points out that s. 24(4) of the CLRA requires consideration of abuse against a spouse or family member in determining the best interests of the child. In this regard, counsel points to the father’s emotional abuse of the older son Muyang as a basis to rule in favour of the mother’s application. Once again, these allegations are contradicted and untested. While the father acknowledges he has had a difficult relationship with Muyang, he denies that he has emotionally abused him. The father provides a very different explanation of the events described by the mother. Furthermore, these allegations involve Muyang and, even if found to be true, there is no evidence that the father has emotionally abused Haoyuan. Furthermore, the mother is not alleging that Haoyuan is unsafe in the presence of the father. If that were the case, she would not be agreeable to unsupervised access on the weekends.

[37] Counsel for the mother also argues that the father cannot be relied on to respect any access clauses that would be imposed by this Court on the basis of the fact that some of his affidavit testimony is inconsistent with the reports of the CAS. However, as already indicated, there is considerable contradictory and untested evidence in this case. At this interim stage, I am not able to find that the father is not credible or reliable. There is no evidence to suggest that he would not respect the Court’s order on access.

[38] I would also add that it was the mother who tried to take the child to Deep River on August 20, 2020 without the father’s consent and without informing him of what her plans were with respect to the father’s access to his child. This was at a time when the parties had already commenced negotiations and were exchanging settlement offers in relation to custody, access, and child support. Furthermore, the mother has not pursued child support for Muyang from his biological father and does not appear to have encouraged Muyang’s access to his biological father. I find that there is some evidentiary basis for the father’s fear that if permitted to relocate with Haoyuan, the mother will increasingly minimize his contact with Haoyuan, and that there is a risk he will be alienated from his son.

[39] Counsel for the mother also argues that the law favours that siblings not be separated and therefore, Haoyuan should relocate with his older brother Muyang. Muyang is nine years of age and the Haoyuan is one. During the week Muyang will be going to school and Haoyuan will be in daycare and there will be less time for the boys to play. While I agree that their sibling relationship should be fostered, this can continue to occur, at least in the interim, during the weekend access visits, when neither child is in care or school and there is greater opportunity for play and bonding time.

[40] It is important for the mother to return to work. She is highly educated, having completed both a PhD and post-doctorate studies. The mother’s expertise is in computational fluid dynamics. This is a highly specialized field, and it has been difficult for her to find employment opportunities in Ottawa. The mother is 37 years of age and has a promising career ahead of her as a scientist. Returning to work will permit her to move towards financial self-sufficiency and independence.

[41] However, for the reasons cited above, I find that the mother has not discharged the onus of establishing that the status quo should be interrupted and that Haoyuan should be relocated to live with her in Deep River. The mother’s application for relocation is denied.

[42] There will be an order that the Haoyuan will continue to remain in the matrimonial home with the father. As discussed further below, the mother will have generous access.

[43] There will be an order that the father find appropriate childcare as per his plan. As stated to both parties during the motion hearing, it is inappropriate that either parent works while taking care of a one-year old. I understand that as a result of the pandemic, this situation may arise from time to time because of unexpected school and child care closure. Nonetheless, it is in Haoyuan’s best interests that he be with a caregiver or at a daycare while his father is working. It will also provide Haoyuan an opportunity to interact with other people which is important for his personal and social development.

Issue 2: What form of access is in Haoyuan’s best interests?

[44] Whatever primary residence is decided, both parties agreed that the other parent should have some form of weekend access with Haoyuan and that the access exchanges should occur in Cobden, Ontario, which is situated halfway between Stittsville and Deep River, so that both parties share the driving.

[45] If the mother relocates to Deep River, there will be an order that the mother will have access to Haoyuan every weekend. While I recognize that this means a lot of driving for both parents and Haoyuan, it is equally important that Haoyuan have the maximum time possible with his mother in these tender years.

[46] The access exchanges will take place in Cobden which is halfway between Deep River and Stittsville. The father will bring Haoyuan to the Shell Gas Station in Cobden located at 9 Pembroke Street at 3 p.m. on Friday. The mother will return Haoyuan to the father’s care on Sunday at 3 p.m. at the same location in Cobden. For safety reasons, the exchanges will occur on Friday and Sunday afternoons at 3 p.m. to ensure that both parties can drive to Cobden and back home in the daylight. This is particularly important as we enter the winter months.

[47] The mother is currently working from the matrimonial home in Stittsville. She claims her employer is accommodating her pending this motion. She claims that she will lose her job if she does not return to Deep River. However, the email filed from her employer does not appear to state that. Rather, the email states that the employer prefers that the mother work from home in Deep River which would permit her to attend the laboratory in person from time to time. The email correspondence of September 30, 2020, from the employer states as follows:

I would prefer you to relocate to Deep River and work from Deep River (or the local area). While working from home is an option under the current Company and Health Centre guidance, there will be occasions where staff will be required to report to work in-person (following the relevant COVID-19 protocols of course). With Ottawa being two hours away, it would not be practical or efficient for such in-person interactions.

[48] The mother has not presented any evidence that she has made efforts following this email to negotiate a work schedule with her employer that would permit her to work remotely part-time and in-person part time (commuting) – for example, during certain days or weeks of the month when she might not have care of Haoyuan.

[49] Furthermore, we are presently in a pandemic and many employers have taken steps to accommodate their employees to work from home to protect themselves from the virus and in some cases, to address various childcare needs.

[50] To summarize, if the mother is able to arrange with her employer to continue to work in closer proximity to Stittsville and is not required to immediately relocate to Deep River, then the matter can be returned back to this Court to address a different access schedule that would permit the mother to have more time with Haoyuan.

Issue 3: What form of care and custody is in Haoyuan’s best interests on an interim basis?

[51] There will be an award for joint custody on an interim basis so that both parties can continue to share in making decisions on major aspects of the child’s life.

[52] Daily decisions about the child’s care will be made by the parent in whose care the child is under during that time.

Issue 4: Child support for Haoyuan

[53] It is difficult to determine the appropriate child support amount until the mother decides on relocation. If the mother remains close to Stittsville, the access schedule may be revisited which, in turn, could affect the child support amount. Once the mother decides where she will reside, the issue of child support will be more easily determined.

[54] The father will pay for the weekday childcare expenses for Haoyuan until such time as the mother is relocated either to Deep River or nearby to Stittsville. If, following that, the parties cannot mutually agree upon the childcare costs, the matter can be remitted back to this Court for determination on an interim basis.

Issue 5: Who should occupy the matrimonial home?

[55] Counsel for the applicant argues that if the mother is not permitted to relocate, it would be in the best interests of the children to remain in the matrimonial home.

[56] The father works as a computer engineer. He has a large amount of specialized computer equipment set up in the basement of the home. The father is required to work from home until July 2021. He argues that it would be inconvenient for him to move.

[57] The father purchased the matrimonial home in late September or early October 2018. The father has paid for all the mortgage and maintenance costs on the home. The mother has financially contributed to the home by purchasing furnishings and decorations. She has also contributed to the physical care of the home.

[58] The parties married in December 2018. The mother obtained her job at the Canadian Nuclear Laboratories in Deep River in November 2018 and moved there in January 5, 2019 to start her job. The mother resided in the matrimonial home only on weekends until shortly before Haoyuan was born on October 25, 2019 at which point she returned to reside in the matrimonial home during her parental leave.

[59] The mother did not make a claim in her original application for exclusive possession of the matrimonial home. The mother’s factum also states that the mother makes no claim for ownership of the home. Counsel for the father argues that the mother is not entitled on this basis to bring a claim in this motion for a temporary order for exclusive possession.

[60] Pursuant to s 24(2) of the Family Law Act, RSO 1990, c F.3, this Court can make an interim order for exclusive possession of the matrimonial home. Sections 24(3) and (4) of the Family Law Act set out the factors to be considered in determining whether to grant an order for exclusive possession. These factors include the best interests of the children, including the possible disruptive effects of moving accommodations; the existence of support orders; the financial position of both spouses; the availability of other suitable and affordable accommodation; and any violence committed by a spouse against the other spouse or children.

[61] I find that it is in the best interests of Haoyuan that the father has exclusive possession of the matrimonial home on an interim basis. I have ordered that Haoyuan will reside temporarily with his father in Stittsville, and that the father arrange for appropriate childcare while he is working. There will be considerable change in Haoyuan’s life in the next few months. It is preferable for him to remain in his residence that he has known all his life.

[62] I have also taken into consideration that the father works from home and finding another residence to accommodate his computer equipment and set up will not be easy. On the other hand, the mother is already anticipating a move. She has a two-bedroom apartment available to her in Deep River. Whether she will return to Deep River or remain nearby and work remotely is unclear. Should she decide to stay close by, she has the financial means to relocate. Unlike the father, she is not required to find an accommodation that will house the specialized computer equipment.

[63] There will be an interim order that the father will retain exclusive possession of the matrimonial home. Consistent with this order, Haoyuan will continue to reside with the father in the home as his primary residence. The father will continue to make all the mortgage and maintenance payments in relation to the matrimonial home.

[64] The mother has paid for various furnishings for the matrimonial home. The mother will be entitled to remove these furnishings. The mother will also be entitled to take the bedroom furnishings for Muyang so that he can be resettled in his new home comfortably. The mother will also be entitled to take the piano on an interim basis. The affidavits suggest this was a gift to Muyang from the applicant father. If that is not the case, it can be resolved in the final disposition of assets. Muyang will already be experiencing considerable change as he relocates to a new school, home, and city during a pandemic. Muyang has already been exposed to considerable domestic tension. It is in Muyang’s bests interest that he be settled comfortably in his new home.

[65] Both parents will ensure that their respective homes are equipped with proper furnishings for the care of Haoyuan, including a proper crib or bed.

[66] It is important to note that this is an interim order for exclusive possession of the matrimonial home. It does not constitute a finding with respect to any party’s entitlement to the matrimonial home as part of the division of family assets.

Issue 6: Care and custody of Muyang

[67] The father does not dispute that the mother should have sole care and custody of Muyang who his not his biological son. This term will be included in the order.

[68] The mother seeks an order restraining the father from accessing Muyang or being near places where Muyang attends. Based on my review of the evidence filed to date, I am not satisfied that such a restraining order is necessary at this time. The father does not seek to have any access to Muyang. Muyang will no longer be living with or near him. Upon review of the CAS reports, including Muyang’s own statements to the CAS workers, there is no evidence that the father has ever endangered Muyang or that Muyang is at any risk of harm when with the father. Furthermore, given that the parents will be involved in weekly exchanges of Haoyuan, it is very likely that Muyang will join his mother during those car trips. The wording of the proposed restraining order – that the father has no indirect or direct contact with Muyang – could put the father at risk of breach during these exchanges.

Issue 7: Child support for Muyang

[69] The mother seeks child support for Muyang on an interim basis. The father opposes the claim. The father argues that he is not Muyang’s biological father, that he has known Muyang for a very short period, and that he has not during that period established a relationship to stand in the place of a parent.

[70] To obtain interim child support for step-child, the onus is on the mother to prove that the father has demonstrated a settled intention to treat Muyang as a child of his own family. The standard of proof is on a balance of probabilities requiring more evidence or evidence of a greater cogency than required for some civil issues: Neil v Neil, [2002] OJ No 3003 (S.C.), at paras 6 and 21.

[71] In Chartier v Chartier, [1999] 1 SCR 242, the Supreme Court of Canada explained that whether a person stands in the place of a parent must take into account factors relevant to that determination, viewed objectively. At para 39, the Supreme Court of Canada identified several relevant factors for consideration as follows:

The relevant factors in defining the parental relationship include, but are not limited to, whether the child participates in the extended family in the same way as would a biological child; whether the person provides financially for the child (depending on ability to pay); whether the person disciplines the child as a parent; whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; the nature or existence of the child’s relationship with the absent biological parent.

[72] Not every adult-child relationship will be determined to be one where the adult stands in the place of a parent. Every case must be determined on its own facts: Chartier, at para 40.

[73] As stated in Cook v Cook (2000), 182 NSR (2d) 299 (SC), at para 23, the obligation for a step-parent to pay child support results in a long-term obligation which can involve a significant amount of money over many years. Therefore, as explained in Cook at para 28, “the threshold for a parental status finding must be pegged at a sufficiently high point that it avoids the imposition of obligations and the acquisition of access and custody rights except where the step-parent can be clearly shown to have assumed the role of the natural parent and in substantial substitution for the natural parent’s role.”

[74] Muyang is presently nine years of age. The mother and Muyang’s biological father Xin Wang separated when he was around 7 years of age. Muyang currently has no contact with his biological father. The mother explains that Xin Wang had physically assaulted her and Muyang in August 2017. The mother did not pursue an order of child support from the biological father when the parties separated. In August of this year, counsel for the mother attempted to locate the father and obtain child support on behalf of her client. There is controversial evidence in the file as to whether the biological father did previously make a lump sum payment in the amount of $15,000 for Muyang’s child support. The issue of the relationship with the biological father and the pursuit of child support from him for Muyang requires further questioning.

[75] Muyang and the applicant father have had a very limited relationship. They have been cohabiting together since October 2019 when the mother returned from Deep River to live in the matrimonial home. The mother alleges that they have been living as a family since that time with the father assuming a role as Muyang’s parent. The father takes a different position. He acknowledges that he did pay for food in the household, purchased gifts for Muyang, provided rides to school, and participated with Muyang in various activities. However, he claims this conduct is what would have been expected of him as he commenced his new life with his spouse in the matrimonial home. The father claims the familial relationship was very short, and it was neither his intention then nor is it now to take on the role of Muyang’s father.

[76] Muyang was described in the police report pertaining to the August 20, 2020 incident as an intelligent, well-adjusted, and funny nine-year old boy. The evidence filed shows he is an excellent student and a talented piano player. Unfortunately, the applicant father found it difficult to adjust to Muyang’s entry into his life. The applicant father acknowledges that he does not share the same affection for Muyang as his own biological son Haoyuan. The mother alleges that applicant father has emotionally abused Muyang and identifies certain incidents that occurred in the house. The CAS investigation reports that the father offers different explanations for the incidents described. The CAS reports suggest that the father had unrealistic expectations of the young boy which perhaps contributed to the tension. What is clear is that the applicant father and Muyang have had a strained relationship. According to Muyang, the applicant father communicated and played less with him after the arrival of Haoyuan. There is also no prospect that their relationship will develop as the mother now seeks to limit the applicant father’s access to Muyang going forward.

[77] On a motion for interim child support in which the issue is whether a spouse stood in place of a parent, the moving party needs to establish a prima facie case: Maelbrancke v Proctor, 2016 ONSC 1788, at para 9. On the basis of the evidence filed to date, I find that the mother has not established a prima facie case that the applicant father is in the place of a parent to Muyang. The father and Muyang lived together as a family unit for a very short time in the matrimonial home. Much of that time was spent living separate and apart in the same home. The relationship between Muyang and the father was strained and lacking in affection. The affidavit evidence with respect to their relationship is contradicted and requires further questioning. Muyang’s relationship with his biological father also requires questioning and clarification. The evidence on the interim motion does not establish a prima facie case that the father stood in the place of a parent. The mother’s request for temporary child support for Muyang is denied.

Issue 8: restraining and communication orders

[78] The mother alleges that the father is controlling and has been emotionally abusive towards her and Muyang during the year. The father alleges the mother is manipulative. The father alleges she did not want the relationship to end and made false allegations against him in attempt to elicit sympathy from CAS and others to extract financial benefits from the marriage.

[79] To their credit, however, the parties refrained from arguing in front of the children.

[80] Each party seeks a temporary restraining order from the other and clauses that will limit the form and nature of their communications. There will be conditions in the interim order to address communication and contact with the parties to minimize further acrimony between the parties.

Costs

[81] Costs will be awarded to the respondent father as the successful party on this motion. If the parties are not able to agree upon a reasonable amount for costs, the parties can file submissions with the court. These should not exceed three pages plus attachments of Offers to Settle and Bills of Costs. The respondent should deliver his submissions by December 9th and the applicant by December 23rd. The respondent is permitted a brief reply within five further days. These are to be sent by email to scj.assistants@ontario.ca.

Somji J.

Date: November 27, 2020

COURT FILE NO.: FC-20-1237

DATE: 2020/11/27

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Chenguang Li, Applicant

AND:

Xudong Wu, Respondent

BEFORE: Somji J.

COUNSEL: Kathleen Jin, for the Applicant

Ping Chen, for the Respondent

REASONS FOR DECISION ON APPLICATION TO RELOCATE CHILDREN ON INTERIM BASIS

Somji J.

Released: November 27, 2020