COURT FILE NO.: FS-20-97341-00 DATE: 20210108

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Oma Davi Ashley Ramdass Jorge A. Cartaya, for the Applicant Applicant

• and -

Ryan Rakesh Ramdass Malina A. Roshan, for the Respondent Respondent

HEARD: October 27, 2021

REASONS FOR JUDGMENT

Chown J.

Introduction

[1] This is a motion by the respondent father for, among other things, an order requiring the applicant mother to re-establish residency with the child of the marriage in the City of Brampton within 30 days. The mother has also brought a motion for approval of her relocation to Toronto.

[2] For the reasons which follow, I have decided that it is in the child’s best interests to permit her to reside in Toronto.

Current Parenting Schedule

[3] Justice Shaw heard the first part of this motion which dealt with parenting time. Her order set a schedule whereby the father has parenting time:

1. every Tuesday from 5:00 p.m. to 7:00 p.m., and
2. on alternating weekends, a) overnight Saturday at 10:00 a.m. to Sunday at 6:00 p.m., and b) during the day Saturday from 10:00 a.m. to 6:00 p.m.

[4] The mother is required to drop off and pick up their daughter at the father’s residence.

[5] This parenting schedule is subject to review upon a determination of the mobility issue, which is before me on this motion.

Background

[6] The parties were married on March 6, 2016.

[7] The mother and the father lived at a residence on Spadina Avenue in Brampton (the matrimonial home).

[8] The parties have one daughter, R., born on October 13, 2019.

[9] The mother has no other children. The father has another child, age 7, from another relationship. The only information about this child comes from the applicant mother, who says the father has provided little or no care or attention to this child.

[10] When she became pregnant with R., the mother was employed. Her workplace was on Castlefield Avenue in Toronto. She commuted from Brampton five days a week (plus every other Sunday).

[11] The mother started a parental leave when R. was born. On October 1, 2020, the mother commenced new employment, also in Toronto. The hours and specific location of this employment have not been provided, with the mother citing concern for her security.

[12] The parties separated on January 28, 2020. On that date, the father was charged with assaulting the mother. A non-contact order was made in connection with that proceeding and the father was not permitted to return to the matrimonial home. He temporarily moved in with a friend in Markham. The father denies the charges.

[13] After the separation, the mother and R. continued to live in the matrimonial home.

[14] The father’s bail was varied in July 2020 to permit him to move a residence on Tanager Square in Brampton, where he continues to reside with his sureties.

[15] The parties agreed to sell the matrimonial home. The house was sold apparently in July 2020 with a closing date of September 30, 2020.

Unilateral steps

[16] A case conference was held on July 24, 2020 with Justice Emery. It dealt with expanded and unsupervised access for the father. The issue of mobility was conferenced. Justice Emery ordered the parties to use best efforts to settle the issues in the case conference by July 28, 2020, and after that date either party could bring a motion on these issues.

[17] On August 30, 2020, the mother informed the father that she intended to reside with R. at her parents’ residence (i.e., R.’s maternal grandparents’ residence). They lived in East York until August of 2020, when they moved into a residence on Sheppard Avenue East in Toronto.

[18] Without bringing an application for approval, the mother moved with R. to the Sheppard Avenue East residence. Since then, she has facilitated the same access routine as was in place by transporting R. to and from Brampton for the father’s access times.

[19] Although the mother did not seek prior court approval of the relocation of the child from Brampton to Toronto, the move was essentially coincident with her forced move due to the agreed-upon sale of the matrimonial home as well as her return to work after parental leave. She explains in her affidavit that her lawyer’s involvement in a trial and the reduced availability of motion dates due to the pandemic both impacted her ability to obtain an earlier motion date.

[20] The circumstance here is to be distinguished from those cases where there has been a unilateral move to a far-off location without notice, such as in Walsh v Walsh, 2012 ONSC 4965.

Pre-Planning

[21] The father alleges that within weeks of the separation, the mother intended to move to her parents’ residence. As evidence of this the father points to the fact that the mother switched R.’s doctor to a doctor in Toronto as at February 2020. He further alleges that despite this, the mother opposed an early closing date for the sale of the matrimonial home.

[22] The mother and her mother both depose that between the date of separation and the date the mother moved in with her parents, the mother did stay overnight often with her parents.

[23] I do not think the evidence, on balance, leads to the conclusion the mother was scheming to move as early as suggested and that her opposition to an early closing date was part of a scheme to inflict financial harm to the father.

Distance

[24] The distance between the current residences of the parties is 55 km. The travel time varies depending on the time and day. It can be as short as 35 minutes and as long as one hour and 15 minutes because of traffic congestion.

Childcare Arrangements

[25] There is nothing in the materials to indicate what childcare plans may have been under consideration prior to the separation. It appears that childcare only became necessary when the mother returned to work, and that the maternal grandmother has provided all childcare.

Gordon v Goertz Factors

[26] I will consider the factors from Gordon v Goertz, [1996] 2 SCR 27 at para 49.

Change in Circumstances

[27] There are no orders in place for custody or access. Given this, no change in circumstances need be established.

[28] In any event, it was necessary to sell the matrimonial home as a result of the separation, so both parents had to move. The mother’s parental leave ended. A relocation was inevitable, although not necessarily a relocation out of Peel Region.

Existing Custody and Access Arrangements

[29] Neither party argued that the parenting time arrangement crafted by Justice Shaw is unworkable if the mother remains in Toronto and the father remains in Brampton. The mother has not asked for shared transportation responsibilities.

[30] I expect that the Tuesday evening parenting time will be particularly inconvenient for the mother, as the 5:00 p.m. start time will mean she must travel in heavy traffic.

[31] The child will be required to make four one-way trips between Toronto and Brampton per week. I do not find that excessive. Two one-way trips on Tuesdays is not ideal but is acceptable in my view. At her current young age, the child may sometimes sleep during the trip. The trip from Brampton to Toronto starting at 7:00 p.m. on Tuesdays is likely to be in lighter traffic.

Maximizing Contact with Both Parents

[32] This factor has already been considered by Justice Shaw. Although inconvenient for the mother, permitting the relocation will not affect the father’s parenting time. As indicated below, the parenting schedule is subject to review.

[33] The distance of the move is not so great that it will prevent the father-daughter relationship from developing.

Reasons for Moving

[34] The mother has very good reasons for moving, even when considering only reasons relevant to her ability to meet the needs of the child. Indeed, her reasons for moving are tied to her ability to meet the needs of the child.

[35] The following advantages flow from the relocation to Toronto:

1. There is no need for external daycare. The mother’s work hours are not disclosed in the materials, but it appears she works full time hours. The father works 7:00 a.m.to 3:15 p.m. Monday to Friday. Thus, childcare for R. is required. Under the current arrangement, R.’s maternal grandmother is providing childcare for R.
2. There is no need to transport R. to and from daycare. With the mother working in Toronto, if she were required to live in Brampton a decision would be required on where R. would go to daycare. If in Brampton, the mother would be distant from R. during the day and would be unable to respond quickly to R.’s needs. This disadvantage would be ameliorated by the proximity of the father, but the mother is currently the primary caregiver and there is an advantage to her being proximate to the daycare provider. If daycare were found in Toronto near the mother’s employment, R. would face a daily commute which would not be in her best interests.
3. There is no cost for daycare. It may be argued that this benefits the parents more than it benefits R., but there is a benefit to R. if more disposable income is available to meet her needs.
4. Because R. does not routinely need to go anywhere in the mornings, this allows greater flexibility for R. A routine can be maintained but in the event of illness, a poor night’s sleep, or a special occasion, R. can sleep in. Morning routines may be less stressful for her.
5. Because there is so often a natural love and bond between grandparents and grandchildren, it is advantageous for children to be cared for by their grandparents. The relocation permits a strong relationship to develop between R. and her maternal grandmother, which is more likely to benefit R. than the relationship she might develop with daycare providers who are not family members.
6. The maternal grandmother is very experienced at providing childcare and the arrangement permits R. to benefit from her grandmother’s experience.
7. As counsel for the father pointed out, the record does not contain evidence about rental rates in Brampton or Toronto or whether the mother is paying any rent to her parents. However, I am prepared to infer that it will be considerably less expensive for the mother and R. to live with the mothers’ parents than to live in Brampton, pay for childcare, and commute. The mother’s affidavit of October 21, 2020 does state that she would be under considerable stress to find suitable housing and financially support herself in Peel Region. Again, it can be said that this will benefit the mother more than R., but again there is a benefit to R. if more disposable income is available to meet her needs.
8. For the time-being, R. will have less risk of exposure to COVID-19 being cared for by her grandmother in her grandparents’ residence than if she goes to external daycare.
9. The mother’s family and work connections are in Toronto. Her brother also lives at the Sheppard Avenue East residence and her sister (who has a five-year-old daughter) lives in Toronto.

Disruption re Custodial Arrangements and Community

[36] There is no evidence that the relocation will cause disruption for R. in terms of connections with the community, daycare or friends. The mother’s family is in Toronto. The father’s parents live in the U.S.

Plumley Factors

[37] I will consider the factors from Plumley v Plumley, [1999] OJ No 3234 (ONSC).

Upsetting the Status Quo

[38] It was held in S (SL) v S (JA), 2013 BCSC 1775 at para 31 that:

The court should be careful about making an interim order that endorses a parenting regime that is significantly different than one that served the child well for some time after the parties' separation. That is not to say that the status quo should be slavishly preserved — it is only to say that the trial judge will likely be in a much better position than a chambers judge to fully assess all of the factors that will influence a decision about where [the child’s] best interests lie.

[39] The P.E.I. Court of Appeal similarly stated: “The parent seeking the interim order carries the burden of proving that compelling circumstances exist to make an interim order which varies the status quo which existed at the time of the motion.” P(D) v B(R), 2007 PESCAD 25 at para 34.

[40] In G (J) v G (D), 2014 ABQB 446, the court refused to permit a mother to move with the children despite the fact that she had primary care. The court reasoned that to significantly decrease the children's access to one parent on an interim basis would require persuasive evidence that moving was in their best interests. The court held that if either parent wanted a change of residence, that parent should bring the matter forward for a trial. Like here, there was considerable conflict in the information each parent provided. The court held, “In this case, it is wrong to radically change the children's access to either parent on the basis of conflicting affidavit evidence.” Ibid, at para 49. (But see Porter v Bryan, 2017 ONCA 677, supra.)

[41] Because this is an interim arrangement pending trial, the mother faces a substantial burden to justify the change: MB v DAC, 2014 ONCJ 273. See also Papp v Papp, [1970] 1 OR 331 at para 34, and Batsinda, supra, at para 25 (“the existing arrangements, and how well they are working for the child, are relevant factors in deciding such motions. … as a working rule, a disturbance of the status quo at the interim stage requires more cogent evidence than may be required to disrupt the status quo after trial.”)

[42] Mobility cases can rarely be decided without a trial: Guillotte v Sinopoli, 2010 ONSC 4471 at para 17.

[43] Here, the father has explained his perspective in his affidavit, to the effect that the status quo as at the time of separation is applicable and that the mother has “manufactured” a status quo through:

1. The assault allegations which he says are falsified, but which resulted in criminal charges;
2. Stingy and delayed consent to access, and insistence on supervised access;
3. The threatening allegation which he denies, but which resulted in a further criminal charge;
4. Withdrawal of consent to access as a result of the threatening charge;
5. The pandemic, as a result of which his motion for parenting time could not be considered. (He did bring a motion for greater parenting time, but it did not meet the requirements for an urgent motion: Ramdass v Ramdass, 2020 ONSC 1983.)

[44] The status quo as at January 2020, the time of separation, was not of significant duration. R. was only 3 months old at the time.

[45] Although the relocation to Toronto was not inevitable, the circumstance was inevitably required to change with the separation and sale of the matrimonial home. The mother had to move somewhere. The move to her parents’ residence was the most logical choice, is well justified, and in my view is in the best interests of R.

[46] While the court should be reluctant to upset the status quo on an interim basis, in the circumstances of this case the status quo is not a controlling consideration.

Compelling Circumstances

[47] I find the circumstances described above under the heading “Reasons for Moving” to be compelling circumstances in favour of the relocation to Toronto.

Whether Custodial Parent Will Prevail at Trial

[48] I will not express my opinion on the likely trial outcome. In my view this factor does not outweigh the other considerations described above.

Custody

[49] In Bjornson v Creighton, 2009 CarswellOnt 8263 (ONCA), the Court of Appeal held that it was necessary to consider custody before considering mobility. This is in part because of the importance of the views of the custodial parent in the question of mobility, as described by Justice McLachlin, as she then was, in Gordon v Goertz, supra, at para 50.

[50] Here, neither party has been granted interim custody. Neither party can claim the status of custodial parent.

[51] In Porter v Bryan, supra, the parties had agreed to joint custody and a shared parenting schedule. The mother sought to move their child from Cochrane to Thunder Bay. Her work in Cochrane was incompatible with caring for the child as a single parent, so she resigned her position. She could not find work in Cochrane but could find work in Thunder Bay. The motions judge disallowed the mother’s motion. The Court of Appeal allowed her appeal, stating:

[14] The Supreme Court of Canada held in Goertz, at para. 48, that where assessing a motion to relocate:

…the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent’s parenting ability.

[15] The motion judge held that in circumstances of joint and shared custody, there is no primary caregiver, and therefore neither parent’s interests can have greater weight than the other’s.

[16] We do not agree that the legal status of joint and shared custody forecloses the possibility that one parent can be, for the purposes of a mobility motion, the primary caregiver. On the record before us, it is evident that although the parties have joint and shared custody, the mother is nevertheless the primary caregiver. This conclusion is not only supported by the mother’s evidence, but from the father’s admission on his Form 35.1 affidavit, his answers in cross-examination, and affidavits from two of the father’s aunts. Accordingly, the consideration articulated in Goertz comes into play, and the mother’s reason for moving bears special consideration.

[52] In this case, the mother is also the primary caregiver. There is no evidence here that the mother cannot find employment in Brampton, but the child’s best interests are well served by the living arrangement in Toronto. The best interests of the child are the “superordinate consideration” (Berry v Berry, 2011 ONCA 705 at para 10 and Porter, supra, at para 10), but the mother’s reasons for moving bear special consideration.

Best Interests

[53] In my view it is in R.’s best interest to maintain the current living arrangement and I decline to order that the mother must return R. to Brampton.

Decision

[54] R. shall continue to reside at the Sheppard Avenue East, Toronto, residence until the parties agree or this court orders otherwise.

[55] Justice Shaw’s order that the mother shall be responsible for drop off and pick up shall continue.

REVIEW

[56] Justice Shaw’s endorsement said that the parenting schedule she devised is subject to review upon a determination of the mobility issue. If the parenting schedule is revisited, the order that the mother continues to be responsible for transportation may also be revisited.

[57] If the parties seek changes to the parenting schedule or its terms and cannot resolve the issue, counsel may write me through email to my judicial assistant to request a hearing. Counsel may not write with argument, just to request a hearing. This applies only for the next 90 days. After that, if the parties seek changes to the schedule it should be brought forward in regular motions court.

Costs

[58] The mother may make written costs submissions to me by email to my judicial assistant by January 15, 2020. The father’s responding submissions shall be sent by the same method by January 22, 2020. Submissions shall not be more than two single-spaced pages not including offers to settle, costs outline or supporting dockets. No reply submissions may be made without leave.

Signed: Justice R. Chown Released: January 8, 2021