COURT FILE NO.: FC-18-662-2

DATE: 2021/05/17

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHRISTOPHER JOHN HEBERT

Applicant

– and –

LAUREN ASHLEY HEBERT

Respondent

Applicant is self-represented

Michael H. Barnhart, for the Respondent

HEARD: May 11 – 13, and 17, 2021

REASONS FOR DECISION

PHILLIPS J.

[1] This trial concerns an application by Mr. Chris Hebert for an order prohibiting Ms. Lauren Hebert from moving with her new partner to Cobourg, Ontario, with her and Mr. Hebert’s two children.

[2] The parties met in 2006. Their daughter, Kayla, was born April 30, 2009. After they married a few years later, the couple had a son, Bowen, born February 22, 2013. Presently, Kayla is 12 and Bowen is 8.

[3] The parties separated in late 2016 and signed a Separation Agreement in January 2017. What has followed is an arrangement where custody has been with the Respondent mother while the Applicant father has had access every second weekend as well as on Wednesday evenings. It is also worth noting that both sets of grandparents play a meaningful role in the children’s lives. In particular, the maternal grandparents are quite involved and close.

[4] In 2018, Ms. Hebert met a man named Holis Stephen through some sort of online dating site. For almost 3 years now, the couple has been engaged in a long-distance relationship. She has travelled to be with him on some of his days off and he has come to Ottawa. They speak on video-phone almost every night. Unfortunately, the circumstances of the COVID-19 pandemic have significantly curtailed the degree to which they have been able to see each other since the spring of 2020. Nonetheless, Lauren Hebert and Holis Stephen presently have intentions to be married.

[5] Because Holis has a child from a former relationship, the original plan between he and Ms. Hebert was to live in Hamilton. However, in an effort to mitigate the effects of such a move the couple now proposes to relocate to Cobourg. Of note for present purposes is that neither Holis nor Lauren has any connection whatsoever to Cobourg. That town has been selected solely because it represents an approximate halfway point between Holis’ home in Stoney Creek, west of Hamilton, and Ms. Hebert’s hometown of Ottawa.

[6] The law with respect to a proposed relocation like this is well established by the Supreme Court of Canada in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27. In addition, the issue of onus has been modified by the recently enacted Moving Ontario Family Law Forward Act, 2020, S.O. 2020, c. 25.

[7] It is self-evident that a move from Ottawa to a town about 3 hours away would be a material change in the children’s circumstances. It is also clear that Lauren Hebert is the parent with whom the children spend the majority of their time. Accordingly, Chris Hebert bears the onus of showing that the proposed move would not be in the children’s best interests.

[8] Gordon v. Goertz directs that a decision about mobility shall be made in the totality of the circumstances. All relevant facts are to be considered. Helpfully, the Supreme Court of Canada provides a list of seven headings that should be included in the analysis so as to guide it:

(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; and

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

[9] The existing custody arrangement is one where Lauren is the paramount parent. While I would not suggest that the children prefer their mother over their father, it is clear that they spend the overwhelming majority of their time with her and see her as the core of their existence. The extent to which both children are currently doing well is largely testament to the positive relationship between Ms. Hebert and her children, and her parenting ability. I accept the content of the Voice of the Child report which indicates that the children value their relationship with their mother and want her to be happy because they love her. It is clear that the move to Cobourg will not change the fact that Lauren Hebert is the centerpiece of these children’s lives.

[10] The existing access arrangement and the relationship between the children and their father is also quite meaningful and positive. While I heard evidence that Mr. Hebert was a too-hardworking, somewhat absentee parent who took a secondary role when the children were little, I accept that partly because of the involvement of Melanie, a new partner, he has evolved into an engaging and interested father. To some extent, the energy with which he is contesting the proposed move now shows his interest in maintaining a full relationship with the children and his desire to advance what he sees as their best interests. More importantly, I accept the content of the Voice of the Child report indicating the positive effects upon the children of Mr. Hebert’s parenting attentions. Both children value and love their father and indeed wish they could see more of him. I consider that the access with Mr. Hebert that has been occurring since the parties separated has been very beneficial for both Kayla and Bowen.

[11] Cobourg is roughly a three-hour drive from Ottawa. A weekend visit to their father’s will, therefore, sit the children in the car for about six hours. Very obviously, that will significantly impact upon the nature, enjoyability and value of Mr. Hebert's already limited access time. In addition, the proposed move will eliminate the access currently occurring on Wednesday evenings. While of course a Zoom call could mitigate that fact, that option and other technological interactions are, in my view, no substitute for the organically natural spirit of interpersonal connection. In my judgment, the proposed move to Coburg will have significant deleterious impact upon Mr. Hebert’s relationship with the children that will result in a compromising of their best interests.

[12] This is an instance where it is desirable to maximize contact between the children and both parents. While I appreciate that neither thinks highly anymore about the other, the evidence shows that both children benefit greatly from the contact they have with both parties. Again, the Voice of the Child report speaks volumes. It is clear that the children think highly of both parents and it is objectively apparent that they benefit significantly from the love and attention directed at them from both mother and father. Indeed, both children effectively told the clinician, Catherine Reid, that they would take more time with their father if they could. Bowen says that he wishes there were eight days in a week so that he could spend four with Mom and four with Dad.

[13] The views of the children in respect of the proposed move to Cobourg are difficult to discern. It is apparent that they know virtually nothing about the place. This is understandable as there really are no plans about where the family would live, what school the kids would go to or, for that matter, any details at all. The kids seem to have a kind of dreamy vision of it. They speak of getting to live in a big house, near the beach, and being closer to Wonderland. I agree with Ms. Reid that Kayla feels torn between her parents, caught in the middle, and is motivated to go along to get along. While Kayla can rationalize how a move would be positive for her mother, her views are motivated primarily by wanting to please her. Fundamentally, it seems to me that both children would rather stay where they are – Ottawa is the only home they have ever known after all – but are willing to entertain a sort of imaginary good-life in Cobourg to make their mother happy.

[14] Ordinarily, the court does not consider the reasons behind a proposed move. However, not only has the landscape in that regard changed by way of the Moving Ontario Family Law Forward Act, it is appropriate in the circumstances to do so. This is because the move to Cobourg is based on very optimistic plans as between Lauren Hebert and Holis Stephen. I consider that Ms. Hebert and Mr. Stephen met online and have had a long-distance relationship only. While they have spoken often by video-conference, they have seen each other only intermittently since meeting. The evidence is that they have been in the same location only for brief clusters of days that represent a tiny minority of the time they have been a couple. I understand that they now have plans to wed and be together forever, but the fact is there is not a lengthy history of depth of relationship that allows me to reasonably forecast whether the couple will last. I have real concern that the Respondent is prioritizing her own interests over those of the children because she has very emotionally based high hopes for her and Mr. Stephen. While hope springs eternal in that regard, I must consider that there is risk that things may not work out as between Ms. Hebert and Mr. Stephen and that the children will suffer considerable disruption as a result.

[15] I note that neither Ms. Hebert nor Mr. Stephen have any connection to Cobourg. That town was chosen almost arbitrarily, merely as being roughly halfway between Hamilton and Ottawa. Neither party has any friends or family even nearby. No steps have been taken to secure residential accommodation or look into which schools the children will attend or what activities they will do and where. Ms. Hebert, employed in the natural healthcare field, proposes to start a new business in that regard completely from scratch. It appears to me that the move to Cobourg is more a leap of faith than the proposed execution of a well thought-out plan.

[16] I also note that Mr. Stephen works on the railway and is away for the bulk of the time. He goes off to work in remote locations and is gone for nine day stretches. It follows that Ms. Hebert and the kids will be dealing with most of the day-to-day problem solving after the move on their own. Again, while there is the telephone, it is no substitute for inter-personal interaction when it comes to navigating life’s ups and downs on a daily contemporaneous basis.

[17] I consider the degree of disruption to the children arising from the move to Cobourg to be very high. The evidence made clear that both enjoy significant support from their grandparents, especially on the maternal side. Changing that to a video conference relationship would significantly undermine it in my view and result in a meaningful loss. Additionally, the kids will have to leave their familiar neighborhood, change schools, and say goodbye to all their friends. I am aware that families move all the time and that the fallout from such relocation must be dealt with, but it remains the case that this move will have significant negative effect on these children's interests. Given the complete absence of any supports in Cobourg and the dearth of knowledge about how anything will be structured and navigated, the proposed move is a leap into the unknown without a net.

[18] Finally, largely because of the effects on travel of the COVID-19 pandemic, neither child has yet developed much of a relationship with Mr. Stephen. I heard of a fun visit to the Toronto zoo and some enjoyable visits in the pre-lockdown days but his relationship with Kayla and Bowen is still quite inchoate. I also heard of some considerable apprehension on the part of Kayla, for instance, about moving to live with Holis as she does not really know him. Holis Stephen struck me as a good man but he is more or less a stranger to these kids.

[19] Lauren Hebert is entitled to pursue a life of happiness. At the same time, however, in the circumstances, her mobility choices must align with the best interests of the children. I have decided that the proposed move to Cobourg would be too disruptive to them. Not only would it meaningfully impair the important and beneficial relationship between the children and their father, Chris Hebert, it would uproot them and put them into an unfamiliar environment without the kind of supports they currently rely on and benefit from. On balance, when I focus on the best interests of the children, I judge the move to Cobourg to involve far more negatives than positives. Put another way, this proposed relocation is contrary to the best interests of these kids.

[20] The application is granted. It is ordered that the children shall remain ordinarily resident in the City of Ottawa and that the current custody and access arrangements shall remain unchanged. In other words the presently occurring access on Wednesday evenings as well as every second weekend shall continue along with the vacation and other holiday arrangements as set out in the Separation Agreement.

Justice K. Phillips

Released: May 17, 2021

COURT FILE NO.: FC-18-662-2

DATE: 2021/05/17

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHRISTOPHER JOHN HEBERT

Applicant

– and –

LAUREN ASHLEY HEBERT

Respondent

REASONS FOR DECISION

PHILLIPS J.

Released: May 17, 2021