Introduction

[1] By Zoom on July 8, 2021, this Court heard one insular piece of the Applicant father’s (updated) Motion dated 30 June 2021 – whether he and the child that he shares with the Respondent mother ought to be permitted to move from Oakville to Ancaster. The child, a boy, is six years old.

[2] The status quo is that the father is the child’s primary parent. The mother has fairly limited and completely supervised access with the child, per previous Temporary Court Orders.

[3] Time is of the essence; the parties effectively gave this Court one business day to decide the matter as the move is scheduled for July 12^th. The mother represented herself at the hearing of the Motion, having apparently discharged her counsel earlier this week. Her materials, including a factum, were prepared while she had counsel. I must say that I was very impressed with the mother’s presentation today. I have been involved with this file on many occasions, and I have expressed my serious concerns, in several written decisions, about the onslaught of motions and the extremely high conflict in this case. But I had never heard directly from the mother before. I was quite stunned, given the psychiatric and behavioural concerns expressed in prior Court filings. I am not in any way an expert in mental health, and perhaps it is common for someone with significant mental health concerns to present as the mother did at Court on July 8^th, but I will state simply that her organization, focus, and communication skills were better than many lawyers who have appeared before me over the years. I think that it is a shame that she has such a tangential relationship with the child currently, and I would recommend that the mother focus all of her energy on getting the Office of the Children’s Lawyer involved in this case, as ordered by Coats J., and enhancing her contact with the child over the next few months.

[4] She has not persuaded me that I should prevent the proposed move, however. This Court orders, temporarily, that the father may move with the child from Oakville to Ancaster, Ontario.

Analysis

[5] Both sides agree, and I concur, that the proposed move must be assessed in terms of what is in the best interests of the child – section 16.92(1) of the Divorce Act, as amended. Both sides also agree, and I again concur, that the pivotal consideration is the impact of the proposed relocation on the child – section 16.92(1)(b). Finally, both sides agree, and I also concur, that this child’s special needs are a priority factor to consider in determining his best interests generally and specifically whether the proposed relocation should be permitted – section 16(3)(a).

[6] On an interim motion, which this is, a court will generally be more reluctant to upset the status quo and permit the move where a genuine issue for trial exists – Plumley v. Plumley, 1999 CanLII 13990 (ON SC), [1999] O.J. No. 3234 (S.C.J.), at paragraph 7.

[7] These parents do not agree on the extent of the child’s special needs. In particular, they do not agree on whether the boy has autism. The mother says that he does, relying upon two independent diagnoses made in 2017. The father says that perhaps the child no longer meets the criteria for an autism diagnosis, relying upon recent findings made by a different medical professional, Dr. Ansari.

[8] Respectfully, the said dispute is not necessary to resolve here. At the very least, the child has a diagnosed mental health issue that has never been disagreed with, namely, as per his pediatrician Dr. Vasylevych, confirmed in writing as recently as August 2020, the boy has an anxiety disorder. We know from the records filed that the child has received considerable supports at school, including but not limited to an individual education plan. He has received professional therapy from more than one source. Even Dr. Ansari has elected to refer the child to Dr. Burke Baird, a specialist in pediatrics and an associate professor of pediatrics at McMaster University’s Faculty of Health Sciences.

[9] The key question is, given the child’s clear special needs and the ongoing services that he requires to meet those needs, and even assuming that he is autistic, can it be safely concluded that the proposed move is in the boy’s best interests? On a temporary basis, I have concluded that the answer to that question is “yes”.

[10] First, given the current status quo and the duration for which it has persisted, it cannot reasonably be said that there exists a genuine issue for trial as to which party will have greater decision-making authority and parenting time with the child. In terms of the child-centred issues, contact between the mother and the child (supervision, frequency, and duration, included) is the genuine issue.

[11] Second, the mother argues that the child will lose all of his support services in Halton Region if he is permitted to move to Ancaster. When I asked the mother during the hearing how this Court would know that, she was unable to point me to anything in the evidence filed. She stated that it was a notorious fact, similar to how school board boundaries are determined. With respect, it is not a notorious fact to me. For example, I am told that the boy’s music therapy occurs during supervised visits between the mother and the child. Presumably, those visits will continue, and why the music therapist could not continue to attend escapes me. Further, as another example, there is no reason to suspect that the child would lose his relationships with Doctors Ansari and Vasylevych. Also, as yet another example, I know from many other cases that there are individual education plans available for special needs children who attend schools in the Regional Municipality of Hamilton-Wentworth.

[12] Third, the mother spoke very positively about Dr. Burke when she made her submissions at Court on July 8^th. The proposed move to Ancaster will place the child even closer to Dr. Burke than is the current situation.

[13] Fourth and finally, this is not at all an instance where the primary parent who has proposed the relocation has done so with haste or the absence of sufficient planning. The father’s affidavit sworn on June 17, 2021, for example, is focussed almost entirely (81 paragraphs) on what the child needs and how the move will accommodate those needs. Beyond the obvious in terms of medical professionals, the father has ensured that Erin Oak Kids can continue, and he has secured a spot at a suitable school for the child, and he has upgraded the residence from the current one-bedroom apartment that he shares with the child, and so on.

[14] The mother’s concerns are to be taken seriously. But her position effectively amounts to a request that this Court stop the father and the child from moving away thirty minutes to the neighbouring municipality because of speculative assertions advanced by the supervised access parent. I am not prepared to do that. The proposed move may occur.

[15] If the father wishes to pursue costs of the Motion, his counsel may contact the trial office in Milton to arrange a brief videoconference to hear submissions in that regard. Remember, though, only one aspect of the updated Notice of Motion has been decided.

(Original signed by)

Conlan J.

Date: July 8, 2021

N.B. v. A.B., 2021 ONSC 4869

Case Summary

Introduction

Analysis

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legislation 2