COURT FILE NO.: FS-16-307
DATE: 20210901
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Elisabetta Apa
Joshua David, for the Applicant
Applicant
- and -
Birju Vagadia
John David Ekpenyong, for the Respondent
Respondent
HEARD: August 19th, 2021
REASONS FOR DECISION
LEMAY J
[1] The parties were married on June 10th, 2005 and separated on September 19th, 2012. As far as I am aware, the parties are not yet divorced. The parties have four children ranging in ages from 15 to 8. A final Order relating to access and custody was made on March 4th, 2015 after a trial. This Order gave the Applicant sole custody of the children and provided the Respondent with access on alternate weekends and on Wednesday after school through to Thursday at 7:00 p.m. There was also holiday access and summer vacation access that was provided to the Respondent.
[2] In 2015, the Applicant served and filed a Rule 15 Motion to Change. The Respondent has not, to date, served or filed a Response to this Motion to Change. As a result of the Order of Baltman J. scheduled for March 5th, 2021, a viva voce undefended trial has been scheduled for the week of September 27th, 2021.
[3] In the meantime, the Applicant has advised that she intends to move from Mississauga to Cambridge, Ontario with the children. This would likely have the effect of making the Respondent’s access on Wednesday evenings impossible.
[4] The Respondent has brought an urgent motion seeking to have an order for an undefended trial set aside as well as an order precluding the Applicant from moving the children to Cambridge. This urgent motion was scheduled on terms by Kumaranayake J. for August 19th, 2021.
[5] The Applicant has brought a cross-motion seeking an Order from the Court confirming that she has the right to move the children to Cambridge and dismissing the rest of the relief sought by the Respondent. Both motions were heard before me on August 19th, 2021.
[6] For the reasons that follow, all of the motions are dismissed with the exception of a variation to the order for an undefended trial that will permit the Respondent to participate in that trial on the terms outlined below. For clarity, the Applicant’s request to move to Cambridge is denied, without prejudice to her right to raise that request as part of the undefended trial.
Background
a) The Parties and the Final Order
[7] The parties were married on June 10th, 2005. They have four children, Alijah, age 15, Jeremiah, age 12, Abigail, age 10 and Gabriel, age 8. The parties separated on September 25th, 2012. They were engaged in contentious litigation between 2012 and March of 2015.
[8] In 2015, there was a trial in this matter. At the conclusion of the trial, a Final Order was issued by the Court. The provisions of this Order that are relevant to the issues that I have to decide are:
a) The Applicant had sole custody of the children of the marriage, and their primary residency was with her.
b) The Respondent was entitled to access on alternating weekends from Friday after school until Monday morning drop off, with an extension if there was a holiday at either end of the weekend.
c) The Respondent would be consulted by the Applicant in respect of decisions made about the children.
d) The Respondent also has summer access, alternating March breaks and an equal division of the Christmas holidays.
[9] In addition to the provisions relating to the children, this Order also contained provisions relating to support and to the provision of information by the Applicant.
b) Events Since the Trial
[10] The Applicant’s Affidavits are replete with allegations that the Respondent has not followed the Court’s orders since they were made in March of 2015. The Applicant alleges that child support has not been adequate and that the Respondent is hiding information on his income from the Applicant.
[11] In addition, the Applicant alleges that the Respondent has not been exercising his access with the children in the past several years. In that respect, the Applicant notes, inter alia,:
a) The Respondent did an upgrading course in 2015 and 2016 to become an airplane mechanic and was not really participating in the children’s lives at that time.
b) Between 2018 and 2020 the Respondent was in Montreal and was not exercising his access to the children on a regular basis during this time.
c) The Applicant has, on occasion, exercised his access rights in a way that prevent the children from being able to engage in their extracurricular activities.
[12] The Respondent, on the other hand, alleges that the Applicant has been trying to interfere with and/or wreck the Respondent’s relationship with the children.
[13] In any event, the Applicant’s Motion to Change seeks to eliminate the weekday access for the Respondent and limit his access to every second weekend. It also seeks to have income imputed to the Respondent and require the Respondent to pay retroactive child and spousal support. It also seeks a divorce.
[14] This Motion to Change was filed by the Applicant sometime in 2015. She did not move it forward until 2020, when she filed a 14B motion to move forward with an uncontested trial as the Respondent had not filed a Response to the Motion to Change. This motion was served on the Respondent and no response was received from him.
[15] As a result, on March 5th, 2021, Baltman J. issued an Order for an undefended trial. The Respondent was served with Baltman J.’s order on March 31st, 2021. That fact is undisputed.
c) The Motions Before Me
[16] On July 28th, 2021, the Applicant swore an Affidavit seeking an urgent motion. He served this Affidavit, together with a Notice of Motion, on the Respondent on August 5th, 2021. In his notice of motion, the Respondent seeks the following relief:
a) An order to set aside the “temporary” order of Baltman J. dated March 5th, 2021 as that Order was obtained in the absence of the Respondent.
b) An order for the applicant to comply with the final order issued by Justice Douglas, dated March 4th, 2015.
c) An order that the Applicant not be entitled to any further order of the court unless the Court orders otherwise.
d) An order barring the Applicant from moving to Cambridge with the children.
e) Costs.
[17] These materials were placed before Kumaranayake J., who issued an endorsement on August 10th, 2021. In Kumaranayake J.’s endorsement, she directed that the Respondent provide additional information to the Court for his motion. She did not make a finding that the matter is urgent. She only stated that the motion might be urgent. She directed that the matter be heard on August 19th, 2021 as part of the regular motions list.
[18] The Applicant was put on notice of this motion on August 5th, 2021. She served a Responding Affidavit and Notice of Motion Record dated August 6th, 2021. That material was not accepted by the Court, although I directed that the Notice of Motion be placed in the Court file. The Applicant’s August 6th, 2021 Affidavit was in addition to making a request for the cross-motion to be heard on the basis of urgency, the Applicant’s cross motion seeks the following relief:
a) An order dismissing the Respondent’s motion.
b) An order, if required, granting the Applicant leave to move the Children to Cambridge.
c) In the alternative to paragraph (b), an Order permitting a long motion to be heard to address the mobility issues.
d) An order restraining the Respondent from bringing any further motions in this matter.
e) Costs.
[19] In addition to this motion and the cross-motion, the Respondent brought a motion in the parties’ original family law file in Newmarket for similar relief. I understand that this motion was brought without notice, but I am not aware of whether anything has been done with this motion by the Court in Newmarket.
Issues
[20] At the hearing of the motion, I had a discussion with counsel about the issues that flowed from these dueling motions. Based on that discussion, I am required to address the following two issues:
a) Whether the Applicant should be permitted to move to Cambridge with the children.
b) What should be done with this case procedurally.
[21] I will deal with each issue in turn.
Issue #1 – The Move to Cambridge
a) The Law
[22] During the argument of the motion, I had a detailed discussion with the parties about the recent changes in the Divorce Act R.S.C. 1985 c. 3. There have been significant changes to what were formerly called the access and custody provisions of the Divorce Act. The new concepts under the Divorce Act are the concepts of “decision making authority” and “parenting time.”
[23] Section 16.1 gives the Court the power to make an order, including an interim order, for both decision-making authority and parenting time. When it comes to making decisions on mobility issues, the key provisions in the Divorce Act are as follows:
16.7 Section 16.8 does not apply to a change in the place of residence that is a relocation.
16.8 (1) A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to change their place of residence or that of the child shall notify any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention.
(2) The notice shall be given in writing and shall set out
(a) the date on which the change is expected to occur; and
(b) the address of the new place of residence and contact information of the person or child, as the case may be.
(3) Despite subsections (1) and (2), the court may, on application, provide that the requirements in those subsections do not apply or may modify them, including where there is a risk of family violence.
(4) An application referred to in subsection (3) may be made without notice to any other party.
16.9 (1) A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to undertake a relocation shall notify, at least 60 days before the expected date of the proposed relocation and in the form prescribed by the regulations, any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention.
(2) The notice must set out
(a) the expected date of the relocation;
(b) the address of the new place of residence and contact information of the person or child, as the case may be;
(c) a proposal as to how parenting time, decision-making responsibility or contact, as the case may be, could be exercised; and
(d) any other information prescribed by the regulations.
(3) Despite subsections (1) and (2), the court may, on application, provide that the requirements in those subsections, or in the regulations made for the purposes of those subsections, do not apply or may modify them, including where there is a risk of family violence.
(4) An application referred to in subsection (3) may be made without notice to any other party.
16.91 (1) A person who has given notice under section 16.9 and who intends to relocate a child may do so as of the date referred to in the notice if
(a) the relocation is authorized by a court; or
(b) the following conditions are satisfied:
(i) the person with parenting time or decision-making responsibility in respect of the child who has received a notice under subsection 16.9(1) does not object to the relocation within 30 days after the day on which the notice is received, by setting out their objection in
(A) a form prescribed by the regulations, or
(B) an application made under subsection 16.1(1) or paragraph 17(1)(b), and
(ii) there is no order prohibiting the relocation.
(2) The form must set out
(a) a statement that the person objects to the proposed relocation;
(b) the reasons for the objection;
(c) the person’s views on the proposal for the exercise of parenting time, decision-making responsibility or contact, as the case may be, that is set out in the notice referred to in subsection 16.9(1); and
(d) any other information prescribed by the regulations.
16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,
(a) the reasons for the relocation;
(b) the impact of the relocation on the child;
(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;
(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.
(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.
16.93 (1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.
(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.
(3) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.
2…… relocation means a change in the place of residence of a child of the marriage or a person who has parenting time or decision-making responsibility — or who has a pending application for a parenting order — that is likely to have a significant impact on the child’s relationship with
(a) a person who has parenting time, decision-making responsibility or an application for a parenting order in respect of that child pending; or
(b) a person who has contact with the child under a contact order.
[24] These provisions establish a process for dealing with how the Court will consider mobility applications made by parents with decision-making authority. Notice must normally be given to the other parent of any move, regardless of whether it is a relocation, unless the Court orders otherwise. The Court has a discretion to order otherwise in cases where the Court views it appropriate, but the section specifically mentions domestic violence as a factor the Court should consider in exercising that discretion.
[25] Once notice is given, the opposing party has the right to object to the move. If there is no objection to the move, then the party with decision making authority is entitled to move. If there is an objection (as is the case here), the matter must be considered by the Court. These provisions formalize the requirements for considering a relocation set out in Gordon v. Goertz, [1996] 2 S.C.R. 27. They also place the best interests of the child as a paramount factor for the Court to consider. The manner in which these provisions are to be considered has been discussed in Authier v. Noel, 2021 ONSC 5326 and Siddiqui v. Khan 2021 ONSC 4673.
[26] In this case, the legislation and the underlying facts require me to consider a series of issues, as follows:
a) Has notice been given by the parent seeking to move the children?
b) Does the move amount to a relocation?
c) If so, is the move in the best interests of the children?
[27] I will address each of these questions in turn.
a) Has Notice Been Given?
[28] I start by noting that there is no regulation setting out the form of the notice that is required. There is, however, some information that is required by the provisions of the Divorce Act. That provision requires the party seeking to move to set out the expected date of the relocation, the new address the parties are moving to and how parenting time is to be shared.
[29] In this case, the only information that I have about the notice that has been given from the Applicant to the Respondent comes from two text messages. The first one, sent in August of 2020, indicates that the Applicant has decided that she may have to stay where she is for another year.
[30] The second message, in its entirety, reads as follows:
U insisted u had to keep the kids until today….yet u left them home alone…oh and tell ur lawyer to get it right, we aren’t moving to London we are moving to Cambridge…..already have notice and will be moved out as of Sept. 1.
[31] I do not view either of these communications as being evidence that the Applicant has advised the Respondent of the information that is required under the new Divorce Act provisions. It is clear from the second text message that the Respondent is confused as to where the Applicant is moving to. There is also nothing in the record that tells me either where the Applicant is moving to in Cambridge or what employment she will be pursuing when she gets to Cambridge.
[32] I acknowledge the issues with respect to the second point. One of the problems with these new notice provisions is that they seem to require an address for the move sixty days before it takes place. In cases where parents are seeking the approval of the other side before they move to a different City, the parent who wishes to move may not have purchased a house or found rental accommodation at the point when they provide notice that they intend to move. However, some details of the move including the benefits of the move, the effect it will have on the children’s schooling and the effect that it will have on access are still required for the other parent to consider whether they should accede to the move and, if necessary, for the Court to adjudicate the issues.
[33] Although I have found that notice was not properly given under these sections, I will address the other issues that have been raised as it will assist the parties in moving forward with this matter.
b) Does The Move Amount to a Relocation?
[34] For a move to be a relocation, the Divorce Act requires that there be a substantial impact on, inter alia, the children’s relationship with a party who has contact with the child under a contact order.
[35] The Applicant argues that her move to Cambridge will not have a significant impact on the children’s relationship with the Respondent for two reasons:
a) The distance between the Applicant’s current house and the Respondent’s residence is 36.1 kilometers, while the distance between Cambridge and the Respondent’s residence would only be 81.9 kilometers.
b) The Respondent has not exercised his access with the children on a regular basis over the past number of years. As a result, this move will not affect the Respondent’s relationship with the children.
[36] The Respondent disagrees and argues that the Applicant has no reason to move to Cambridge other than that she is trying to interfere in the Respondent’s relationship with the Applicant. He also argues that the move to Cambridge would interfere in his relationship with the children because he would have to travel two hours each way on both Wednesdays and Thursdays in order to exercise his right to mid-week overnight access. The Respondent argues that this would make his weekly Wednesday/Thursday access impossible to exercise.
[37] The parties did not provide me with any case-law on the issue of whether this move is a relocation or not. However, in considering this issue, I am guided by the following points:
a) The question of whether a particular move is a “relocation” is a question to be determined on the facts of each case.
b) The distance that a party is moving with the children is a relevant factor to consider in whether the move is a relocation as is the change in the length of commute for the parents.
c) The amount of parenting time that is lost by a moving party as a result of the move must be considered both in absolute terms and as a proportion of that parent’s total parenting time.
d) The age of the children is a factor to be considered. Older children are more easily able to maintain a long-distance relationship than young children.
e) Whether the parenting time that is envisioned by the existing arrangements is actually being exercised must also be considered.
[38] In this case, the problem that I have is that I do not have enough clear information on these points in order to make a decision as to whether or not this is a “relocation” within the meaning of the legislation. In particular, I note that there is a dispute between the parties over whether (and why) access is not being exercised all of the time. There is also no direct evidence about the length of time for the commute, although I do recognize that the drive from Woodbridge to Cambridge may be longer (and substantially longer) than the drive from Woodbridge to Cambridge.
[39] Therefore, I cannot determine whether this is a relocation or not. However, I do accept that the distance from Cambridge to Woodbridge, where the Respondent lives, would make it either very difficult or impossible for the Respondent to exercise his overnight access during the middle of the week.
[40] Finally, given the allegations made by each party about the other, determining either the scope of the children’s relationship with the Respondent or whether a relocation would interfere with that relationship is not something that should be done on the written record before me. Given that this matter is already scheduled for three hours of hearing sometime the week of September 27th, 2021, I have arranged with the trial office to provide one to two days of Court time that week. Whether that time is needed will depend on what materials are filed in response to my directions in respect of the second issue.
c) Is the Relocation in the Best Interests of the Children?
[41] As I noted in the previous section, I cannot definitively conclude whether the Applicant’s proposed move to Cambridge would interfere with the Respondent’s relationship with the children. This makes it difficult to determine whether the relocation is in the best interests of the children.
[42] In addition, the Applicant has described the reasons for the move in her Affidavit as follows:
Benefits of Relocation to Children: The proposed relocation will be undoubtedly beneficial to our children and is in their best interests. We would be moving out of public housing into a 4 bedroom house with a large backyard and an ability to enjoy the outdoors. Presently, my unit is Mississauga has a by-law that prevents the children from playing outside of the unit. The children will also be closer to their school, a 10 minute walk or 2 minute drive compared to the 20 minute drive to school that the children currently incur. The Respondent has routinely called my home as "the ghetto" when speaking to the children.
Greater Financial Stability: The Respondent has paid a limited amount of child support for our children, $7200 towards special expenses since 2019 to present. He has made no effort to inquire about their living situations or how they manage on my single salary. The Respondent has never enrolled the kids in any activities of any kind. His sole activity is occasionally picking up and dropping off the children to school. This move would provide myself and children the freedom and flexibility to live freely and independently without scrutiny or control from the Respondent. I would be able to realize my dream of again being an independent home owner. This success, I have achieved through the support of my children and family. The Respondent has initiated this urgent motion to restrict my and the children's movement solely with the intention of exerting influence and control. The Respondent's physical, verbal, emotional and financial abuse towards myself and the children is well documented and contained in his affidavit materials. His ongoing attempts to control my life and that of the children should not be condoned nor permitted.
[43] The problem with this description is that the Applicant has not provided any details on the schools that the children are currently enrolled in, where they will be going to school if they move to Cambridge, what extracurricular activities they participate in, how that participation will be continued in a move to Cambridge, what family relationships they have in Cambridge (as opposed to Mississauga) and what other facts relating to the children that would justify either a move to Cambridge or a decision to remain in Mississauga.
[44] In the absence of this information, it is difficult to know whether this move is in the best interests of the children. I acknowledge that the burden of proving that the relocation would not be in the best interests of the children rests with the Respondent, as the children spend the vast majority of their time with the Applicant. However, the Applicant has pointed to a significant reduction in the amount of time that he is spending with the children as not being in their best interests. Given the lack of other evidence in the file, I am prepared to accept that the Respondent has, although only barely, met his burden at this point.
[45] In light of these facts, I am of the view that this application requires further evidence. This brings me to the question of what should be done procedurally with this case.
Issue #2 – What Should be Done Procedurally With This Case?
[46] An undefended trial has been set for this matter. I understand that it has been set for the week of September 27th, 2021 and that Court time has been set aside for an in-person hearing. The Applicant asks me to set aside the Order of Baltman J. At the hearing on August 19th, 2021, I advised that I was not prepared to set this order aside for two reasons:
a) The Respondent has delayed in moving to set this Order aside. The Respondent was served with the Order of Baltman J. on March 31st, 2021. He did nothing to set this order aside for several months and there was no explanation for this failure.
b) The Respondent has not provided a draft Answer or otherwise provided any documentation to show that he would be ready to move this matter forward if the Order of Baltman J. was set aside. This documentation is required if the Respondent is going to be permitted to participate in the Motion to Change
[47] In terms of the Motion to Change, I note that the finances of the parties are inextricably linked with the parenting time questions that are raised by this Motion to Change. For example, if full child support was being paid that would affect the Applicant’s explanation as to why the move was necessary. I also note that section 16.92(1)(g) of the Divorce Act requires the Court to consider the compliance of each party with their obligations under, inter alia, “family law legislation.”
[48] I am now going to provide some directions on how this matter should be handled going forward. The undefended trial concerns two issues- parenting time and financial issues. If the Respondent is going to be permitted to participate in this matter, he must file materials dealing with both the financial issues and the parenting issues.
[49] Further, at the hearing the week of September 27th, 2021, the parties will only have a maximum of two days. As a result, any evidence that the parties wish to rely upon must be presented in Affidavit form. These Affidavits can then, subject to the directions of the judge hearing the matter, form the bulk of a party’s examination in chief. Cross-examination can then, at the discretion of the judge hearing the matter, be conducted.
[50] The Court is continuing to hear matters by ZOOM. I see no reason why this matter would not be heard by ZOOM, and the Trial Office will provide counsel with a ZOOM link in due course.
[51] The following timetable will apply to the materials for this motion:
a) Any additional originating material that the Applicant wishes to rely on in respect of the parenting changes she is seeking is to be served and filed by September 8th, 2021.
b) The Respondent must file his Form 15B Answer by September 15th, 2021. That form must have a current financial statement, the last three years Income Tax Returns (the full returns are required) and documentation on the mortgage on the property he currently owns.
c) At the same time that the Respondent files his Form 15B Answer, the Respondent may also file a further Affidavit setting out any additional facts and documents he is relying upon for the parenting issues. The Respondent is not permitted to file any additional materials without leave of the judge hearing the undefended trial unless he files a complete Form 15B Answer as described in paragraph (b).
d) Any additional reply material on the parenting issues that the Applicant wishes to rely upon is to be served and filed by September 22nd, 2021.
[52] The question of the extent to which the Respondent can participate in the Motion to Change is to be left to the judge hearing the Motion to Change on review of the materials that the parties have filed at that time.
[53] For clarity, however, the Respondent may not raise any additional issues in respect of parenting other than the issues raised by the Applicant. In other words, the Respondent may not raise any issues in respect of decision making authority for the children or for expanded access over and above what is already provided to him by the existing Order.
[54] This brings me to the financial issues. The Applicant is seeking retroactive child and spousal support in part on the basis that the Respondent is an airplane mechanic earning $120,000.00. There is evidence from the Applicant that the Respondent is an airplane mechanic. However, there is no evidence as to how much money he earns (or could earn) in this job. The Applicant may also wish to file additional documentation on the financial issues.
[55] To that end, the Applicant has until September 22nd, 2021 to file any additional documentation that she wishes to rely upon in respect the financial issues. This documentation must be included in an Affidavit. For clarity, the Applicant has the right to file additional information even if the Respondent does not file an Answer. Indeed, the Applicant is encouraged to file this additional information.
[56] As a final matter, there is the question of the Respondent’s decision to bring an urgent motion in Newmarket. Given that the children currently live in Mississauga and that the Applicant’s Notice to Change was brought in Brampton, the Respondent’s decision to bring an urgent motion in Newmarket is of concern to me. There was no explanation for the Respondent’s decision to bring an urgent motion in Newmarket when he knew that this proceeding was continuing in Brampton.
[57] I do not intend to make any findings as to why the Respondent brought an urgent motion in Newmarket. I would simply observe that this motion would have the effect of making this matter more complex and more difficult for the Applicant to litigate.
[58] I also note that the children live in Mississauga and that family law proceedings are generally required to be brought in the judicial district where the children are ordinarily resident. See Rule 5(1) of the Family Law Rules.
[59] For these reasons, the proper venue for this proceeding is Brampton, and an order will issue precluding the Respondent from bringing any more motions in Newmarket (or anywhere else) in respect of this action. Neither party may bring any other motions without leave of the judge hearing the undefended trial on September 27th, 2021.
Conclusion and Costs
[60] For the foregoing reasons, I order as follows:
a) The Applicant’s request to move the children to Cambridge is dismissed for now, but will be adjudicated on its merits at the hearing on September 27th, 2021.
b) The Respondent’s motion to set aside the Order of Baltman J. dated March 5th, 2021 is dismissed.
c) The Respondent may participate in the undefended trial if he files a complete Form 15B Response to the Motion to Change. This complete Form 15B must also include documentation respecting the mortgage on the property the Respondent owns. The extent of the Respondent’s participation is, subject to the directions I have provided herein, a question for the judge hearing the matter to determine.
d) The Respondent may not raise any additional issues in respect of parenting other than those raised by the Applicant. Specifically, the Respondent may not seek either enhanced parenting time or any decision-making authority over the children.
e) Any additional material that the Applicant wishes to rely on in respect of the parenting changes she is seeking is to be served and filed by September 8th, 2021.
f) Any additional material that the Respondent wishes to rely on in respect of the parenting changes being sought by the Applicant is to be served and filed by September 15th, 2021 in the form of an Affidavit. This material may only be filed if the Applicant complies with the requirements in paragraph (c), above or if the judge hearing the matter grants leave.
g) Any additional reply material that the Applicant wishes to rely upon is to be served and filed in the form of an Affidavit by September 22nd, 2021.
h) The Applicant may file any additional material that she wishes to rely upon in the financial portion of the undefended trial by September 22nd, 2021 regardless of whether the Respondent files a complete Form 15B.
i) The Respondent is precluded from bringing any motions in Court File No. FS-12-041668 or from bringing any other motions anywhere outside of Brampton in respect of the issues between the parties.
j) The parties are precluded from bringing any further motions in this matter without leave of the judge hearing the undefended trial.
[61] This brings me to the subject of costs. Normally, the motion judge would fix the costs of a motion. However, in this case I have essentially determined that the motion should be deferred for the presentation of additional evidence. As a result, it would be difficult for me to fix costs in this matter as I cannot yet tell who is going to be successful in this motion. Costs of the proceeding before me are reserved to the judge hearing the matter the week of September 27th, 2021.
LEMAY J
Released: September 1, 2021
COURT FILE NO.: FS-16-307
DATE: 20210901
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Elisabetta Apa
Applicant
- and -
Birju Vagadia
Respondent
REASONS FOR DECISION
LEMAY J
Released: September 1, 2021