COURT FILE NO.: FS-21-72

DATE: 2021 09 16

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Anas Arabi, Applicant

AND:

Hadeel Al Sahnawi, Respondent

BEFORE: Coats J.

COUNSEL: Ari Rubin, Agent for the Applicant

Marcy Segal, Counsel for the Respondent

HEARD: August 25, 27 and September 2, 2021

ENDORSEMENT

A. Issues:

[1] In the Respondent’s motion, argued before me, the Respondent is seeking the following relief:

i. An order permitting the Respondent mother to immediately relocate with the parties’ children, S.A., 10 years of age, and H.A., 8 years of age, to Montreal, Quebec, on a temporary and without prejudice basis, pending further court order; and

ii. If the move is permitted, an order for the Applicant father to have supervised parenting time with the children, through Brayden Supervision, every other Saturday and Sunday, from 9:00 a.m. to 5:00 p.m., pending further court order.

[2] The Applicant seeks an order that the Respondent’s Motion be dismissed and that the Respondent not be permitted to relocate with the parties’ children to Montreal, Quebec.

B. Basic Background Information:

[3] The parties were married on October 17, 2009. They separated on June 13, 2021.

[4] They are the parents of two children, S.A., 10 years of age and H.A., 8 years of age.

C. History of Proceeding:

[5] This matter first came before the court as an urgent motion commenced by the Applicant. There had been no Application yet commenced. The Respondent had left the home with the children and the Applicant did not know where they had gone.

[6] On June 18, 2021, the Applicant’s motion was adjourned by Miller J. to August 4, 2021 so that both parties may serve and file more fulsome materials. Justice Miller indicated that she was making no findings on the conflicting evidence before the court and she made the following orders on a without prejudice and temporary basis pending return of the motion:

Ms Al Sahnawi is to return with the children to the matrimonial home at R[…] Drive, Oakville, Ontario June 19, 2021 by 6:00 p.m.

Ms Al Sahnawi is to absent herself from the home by 9:00 a.m. on Sunday June 20, 2021.

Mr. Arabi must be on the street outside the home and must not enter the home until Ms Al Sahnawi leaves. There is to be no communication between the parties except by email or text or through counsel.

Mr. Arabi must leave the home by 5:00 p.m. June 20, 2021. Ms Al Sahnawi must not enter the home until Mr. Arabi leaves.

Mr. Arabi may spend Tuesdays and Thursdays between 9:00 a.m. and 5:00 p.m. at the matrimonial home with the children starting June 22, 2021.

Mr. Arabi may spend alternate weekends Saturday 9:00 a.m. to 5:00 p.m. and Sunday 9:00 a.m. to 5:00 p.m. starting July 3, 2021.

Ms Al Sahnawi may select one week before August 4, 2021 to take the children to Montreal. The duration of that week shall not interfere with Mr. Arabi’s weekend.

Any day in which the children are in the sole care of Ms Al Sahnawi, the children may communicate with Mr. Arabi by FaceTime at 6:00 p.m. for and up to one hour, and Ms Al Sahnawi shall facilitate that.

Neither party is to engage in hookah smoking in the presence of the children.

[7] The Respondent then brought an urgent motion. It was argued before Chozik J. on July 16, 2021. The Respondent was seeking orders that the Applicant’s parenting time be reduced and requiring that his parenting be supervised, pending the return of the Applicant’s motion on August 4, 2021. It was undisputed that during the Applicant’s last parenting time with the children, the eldest child locked herself in the bathroom and called 911. Chozik J. was satisfied that supervision was warranted, as a short-term solution. She was not satisfied that the Applicant’s parenting time be reduced.

[8] Chozik J. made clear in her Endorsement that she was not prepared to make any findings of fact at that time as to whether the claims the child made in the 911 call were true or whether she had been coached, or whether there were attempts at alienation. In her view, it was premature to make such factual findings.

[9] Chozik J. made the following Order on July 16, 2021:

1. The Respondent shall take the one week set out in Miller J.’s Order to go to Montreal from July 17, 2021 until July 23, 2021;

2. The Applicant’s parenting time as ordered by Miller J. shall resume on July 24, 2021; his parenting time shall be supervised by Brayden Supervision;

3. The Applicant shall pay for the services of Brayden Supervision, but this order is subject to a readjustment at the hearing of the Applicant’s motion or such time as the parenting issues are resolved;

4. On consent, the Office of the Children’s Lawyer is requested to conduct a clinical investigation pursuant to s.112 of the Courts of Justice Act;

5. A case conference is scheduled for September 24, 2021 at 10:30 am;

6. The Applicant shall file his pleadings forthwith; the Respondent shall file her pleadings in accordance with the Family Law Rules unless leave of the court is granted to do otherwise;

7. Neither party shall make negative or disparaging comments about the other parent or her or her family, or discuss litigation issues in the presence of the children, and shall discourage third parties from doing so;

8. Costs of today’s motion are reserved to the hearing of the main motion on parenting;

9. On consent, Dr. Farhat will release the children’s medical records to each party, within 15 days of today’s Order. Both parties will pay the requisite fee for copying of the records.

10. Halton C.A.S. shall release all records, relating to the children of the parties’ marriage, S.A., [I have initialized it for the purpose of this endorsement – full name in original] d.o.b. […], 2011 and H.A., [I have initialized it for the purposes of this endorsement – full name in original] d.o.b. […], 2013, to the parties’ counsel, within 30 days of today’s date. The parties will also sign any required releases to affect this Order.

The Applicant’s motion is to remain as previously scheduled for hearing on August 4, 2021 on the regular motion list.

[10] Chozik J. made the standard Order referring the matter to the Office of the Children’s Lawyer. When the Respondent’s motion was argued before me the Children’s Lawyer had not yet determined whether to accept the referral.

[11] Paragraph 6 of numbered paragraphs of Chozik J.’s Endorsement provided for the Applicant to file his pleadings forthwith. When the motion was argued before me no Application had yet been issued. There was a draft filed. No Answer had yet been filed as no Application had been issued.

[12] Chozik J. ordered that a Case Conference take place on September 24, 2021. To date no conference has taken place, not even an Early Case Conference.

[13] On August 4, 2021, the Applicant’s initial urgent motion as well as the Respondent’s urgent motion, were returnable before Kurz J. Mr. Cox had removed himself from the record as the Applicant’s counsel. Requests for certain records remained outstanding. The Applicant requested an adjournment to retain new counsel. The Respondent raised with Kurz J. that she wished to bring a motion to temporarily move to Montreal. That motion was scheduled to take place on August 25, 2021 at 10:00 a.m. Kurz J. adjourned the Applicant’s initial urgent motion to this same date, not to be argued, but for the court to determine when the Applicant’s motion would be made returnable.

[14] The Applicant’s motion is now returnable on October 21, 2021 at 10:00 a.m. This is his motion for equal parenting time and will now include his request that he and the children attend reunification counselling.

D. Legislation and Caselaw:

[15] In the Applicant’s draft application filed he has claimed a divorce. I am therefore referencing the provisions of the Divorce Act. It would make absolutely no difference to the outcome of this motion if I were to apply the provisions of the Children’s Law Reform Act.

[16] Section 16.9, 16.91, 16.92, 16.93, 16.94 and 16.95 of the Divorce Act are the relocation provisions:

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.

16.94 A court may decide not to apply subsections 16.93(1) and (2) if the order referred to in those subsections is an interim order.

16.95 If a court authorizes the relocation of a child of the marriage, it may provide for the apportionment of costs relating to the exercise of parenting time by a person who is not relocating between that person and the person who is relocating the child.

[17] Section 16.92(1) lists additional best interests factors to be considered in a relocation case. Section 16(1) to 16(7) provide the following in terms of the initial best interests factors:

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.

[18] The legal principles applicable to temporary motions on mobility (now called relocation) are set out at paras. 31 to 33 of Abbas v. Ayoade, 2020 ONSC 5821, as follows:

[31] The legal principles applicable to interim motions on mobility are well settled and are outlined in Plumley v. Plumley, 1999 13990 (ON SC) where the court stated at para. 7:

It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis:

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.

There can be compelling circumstances that might dictate that a judge 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.

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.

[32] In Geoffrion v. Bélanger, 2017 ONSC 5349 the court referred to Datars v. Graham, 2007 34430, 41 RFL (651) where the court stated at para. 16:

The problem that this court faces on this motion, however, as McSorley J. observed in Kennedy, is that it is difficult if not impossible in most cases to complete the extensive child-focused inquiry required under Gordon v. Goertz on the typically conflicting and incomplete affidavit evidence that is often available to the court on interim motions. Consequently, the general reluctance of the court to effect fundamental changes in a child's lifestyle on interim motions has resulted in a slightly more restrictive approach to interim mobility cases, one that recognizes the short-term nature of interim orders and the summary nature of interim motions. As well, since the decision on an interim motion in a mobility case will often strongly influence the final outcome, particularly where relocation is permitted, caution is called for, especially since even more disruption may be caused in a child’s life if an interim order permitting the move is later reversed after trial: Downey v. Sterling, [2006] O.N.C.J. 490; Goodship v. McMaster, 2003 53670 (ON CJ), [2003]O.J. No. 4255 (Ont. C.J.) .

[33] Recently Akbarali J. reviewed the law on interim mobility motions in Yenovkian v. Gulian, 2018 ONSC 5331. Considering all the circumstances of that case, and in the best interests of the children, the mother was permitted to move with the children back to England on a temporary basis pending trial of the custody and access issues in Ontario. The court considered, inter alia, the following in permitting the move:

(a) the evidence of the mother had been the children’s primary caregiver;

(b) the father had exercised less access than he could have and that was available to him;

(c) the mother had an appropriate interim plan for the care of the children, whereas there was an absence of any workable plan put forward by the father for the children;

(d) the mother did not have permanent legal status in Canada, she had visitor’s status only which was about to expire;

(e) allowing the move would be less disruptive to the children.

[19] At para. 26 of Boudreault v. Charles, 2014 ONCJ 273, Justice Sherr set out additional principles to be applied regarding temporary relocation cases:

[26] The following are additional principles regarding temporary relocation cases:

a) The burden is on the parent seeking the change to prove compelling circumstances exist that are sufficient to justify the move. See: Mackenzie v. Newby, [2013] O.J. No. 4613 (OCJ).

b) Courts are generally reluctant to permit relocation on a temporary basis. The decision will often have a strong influence on the final outcome of the case, particularly if the order permits relocation. The reality is that courts do not like to create disruptions in the lives of children by making an order that may have to cause further disruption later if the order has to be reversed. See: Goodship v. McMaster 2003 53670 (ON CJ), [2003] O.J. No. 4255 (OCJ).

c) Courts will be more cautious about permitting a temporary relocation where there are material facts in dispute that would likely impact on the final outcome. See: Fair v. Rutherford-Fair 2004 CarswellOnt 1705 (Ont. S.C.J.). In such cases, the court requires a full testing of the evidence. See: Kennedy v. Hull, [2005] ONCJ 275.

d) Courts will be even more cautious in permitting a temporary relocation when the proposed move involves a long distance. It is unlikely that the move will be permitted unless the court is certain that it will be the final result. See my comments in: Downey v. Sterling 2006 ONCJ 490, [2006] O.J. No. 5043 (OCJ) and Costa v. Funes [2012] O.J. No. 3317 (OCJ).

e) Courts will be more cautious in permitting a temporary relocation in the absence of a custody order. See: Mackenzie v. Newby, supra.

f) Courts will permit temporary relocation where there is no genuine issue for trial (see: Yousuf v. Shoaib, [2007] O.J. No. 747 (OCJ)), or where the result would be inevitable after a trial (see: Mackenzie v. Newby, supra, where the court observed that the importance of the father’s contact with the child could not override the benefits that the move would have on the child).

g) In assessing whether the three considerations in Plumley, the court must consider the best interest factors set out in subsection 24 (2) of the Children’s Law Reform Act (the Act) and any violence and abuse in assessing a parent’s ability to act as a parent as set out in subsections 24 (3) and (4) of the Act as well as the leading authority on mobility cases, Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.). The law is summarized in paragraphs 49 and 50 of that case as follows:

49 The law can be summarized as follows:

a) The inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

b) 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.

c) Each case turns on its own unique circumstances. The only issue is the best interests of the child in the particular circumstances of the case.

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

e) More particularly, the judge should consider, inter alia:

1. the existing custody arrangement and relationship between the child and the custodial parent;

2. the existing access arrangement and the relationship between the child and the access parent;

3. the desirability of maximizing contact between the child and both parents;

4. the views of the child;

5. 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;

6. disruption to the child of a change in custody;

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

50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new.

h) These principles apply with necessary modifications to an initial consideration of custody and access and not just to a variation of access. See: Bjornson v. Creighton (2002), 2002 45125 (ON CA), 31 R.F.L. (5^th) 242 (Ont.C.A.).

i) The financial security of the moving parent is a relevant factor in mobility cases. See: Greenfield v. Garside, 2003 53668 (ON SC), 2003 CarswellOnt1189 (Ont. SCJ).

j) Several cases have recognized that requiring a parent to remain in a community isolated from his or her family and supports and in difficult financial circumstances will adversely impact a child. The economic and financial benefits of moving to a community where the parent will have supports, financial security and the ability to complete their education and establish a career are properly considered in assessing whether or not the move is in the child’s best interests. See: MacKenzie v. Newby, supra, paragraph 53, where in paragraph 54, Justice Roselyn Zisman also accepted the following passages from Lebrun v. Lebrun [1999] O.J No. 3393 (SCJ) where the court wrote at paragraphs 32-34 as follows:

32 The children's need for shelter, food and clothing which could be provided by adequate earnings by the mother must take priority over the disruption of a move, and reduced contact with the father and his family. The intellectual and emotional flowering of these children cannot occur until their basic physical needs are met.

33 The economic realities require that the mother be free to pursue employment which will permit her to escape the welfare rolls. I am confident she will manage the move in a way which promotes the children's best interests.

34 An order restricting the residence of the children would, as in Woods v. Woods reflex, (1996) 1996 18119 (MB CA), 110 Man. R. (2d) 290 C.A., condemn the mother and children "to a life of penury with a dissatisfied [mother] bereft of work and dignity. The alternative is to empower the [mother] to improve their lives from both a material and psychological standpoint." While the security of the positions offered to the mother cannot be assured, I am satisfied that the prospects of good, full-time employment are much better in southern Ontario. Leave is granted to the mother to move the residence of the children within Ontario.

k) There is case law that says that if a primary caregiver is happier, this will benefit the child. See: Del Net v. Benger, 2003 CarswellOnt 3898 (Ont. SCJ).

l) The level of co-operation that the moving parent will provide in facilitating access to the other parent is also a relevant consideration in a mobility application. See: Orrock v. Dinamarea, 2003 CarswellBC 2845 (B.C.S.C.).

[20] Where an interim move will not materially interfere with the ability of a party to exercise access, then a court will be more likely to accept an interim move. (Schlegal v. Schlegal, 2016 ONSC 4590, at para. 25 and M.K. v. J.K., 2020 ONCJ 387 at para.44.

[21] In Konkin v. Aguilera, 2010 ONSC 4808, at para. 27, Justice Corbett addressed the concerns courts have in allowing temporary relocations:

[27] Finally, I acknowledge some of the cases consider that it is unwise to make interim orders on mobility issues, when the matter may remain contested at trial. That is a fine ideal, but the court process does not follow the same rhythm as real life. The goal of an interim order here, as in other contexts, is to preserve a reasonable state of affairs that accords with the best interests of the child pending trial. As I indicated to the parties orally, I would have preferred to have heard this issue as a trial, to have listened to the various family members testify, and to have more time to reflect on the matter. But a decision must be made now, rather than months or years from now, and a legitimate and timely request to move should not be thwarted by the inevitable effluxion of time inherent in the litigation process.

[22] Konkin was relied upon in Ricketts-Shastry v. Shastry, 2020 ONSC 4862.

[23] In Bell v. Palma, 2019 ONCJ 582, the court permitted a temporary move from Toronto to Barrie where there was agreement on the most important facts material to the decision, there was no disagreement about the time the child had spent with each party or about the positive quality of the child’s relationship with each party. Further, if the trial judge does not make a final order approving the move, the residential status quo could easily be restored.

[24] In my view there is nothing in the amendments to the Divorce Act which would make this caselaw not applicable to the amended legislation. The same considerations and concerns identified in these cases continue to apply to temporary relocation motions.

E. Analysis:

[25] For the reasons set out herein I decline to grant the relocation order requested by the Respondent and her motion is dismissed. In my view, this motion is premature, and the court lacks a fulsome record to determine whether such a relocation is in the children’s best interests.

[26] Section 16.9(1) of the Divorce Act required the Respondent to give at least 60 days notice before the proposed relocation. Section 16.9(2) prescribes what must be in the notice. It appears that the Respondent intended to move to Montreal in time for the children to start school there and certainly before the end of September, 2021. The Respondent provided a notice to the Applicant dated August 26, 2021, which notice indicated she intended to relocate with the children on August 30, 2021. She provided a few days notice and not the 60 days notice required. She provided this notice after she had already served her motion seeking permission to relocate with the children and after the first return date of her motion.

[27] Section 16.9(3) of the Divorce Act does authorize the court to modify the notice provisions or to determine that the provisions do not apply, including where there is a risk of family violence. In my view, this is not an appropriate case for an abridgment. Within this 60-day window, the parties will have had a Case Conference, an opportunity to obtain judicial input and to structure this file. Within this 60-day window the Applicant’s motion for equal parenting is scheduled to be argued. To date there has been no findings of fact made either by Miller J. or Chozik J. Both Miller J.’s Order and Chozik J.’s Order clearly indicated that there had been no findings of fact. Further, within this 60-day window the Court would be expected to be advised as to whether the OCL has accepted the referral.

[28] Section 16.9(3) of the Divorce Act refers to modifying the notice requirements if there is a risk of family violence. The Respondent has claimed that there is a history of violence. The Applicant has denied same. There have been no factual findings in this regard. There have been no criminal charges. The Children’s Aid Society records are not before the Court.

[29] In determining not to abridge the notice requirements, I have also considered that there are no pleadings before the Court – no application or answer. This proceeding is in its earliest of stages.

[30] The parties agreed in arguing this motion that the onus of establishing that the relocation is in the best interests of the children is on the Respondent. This is in accordance with s. 16.93(1) of the Divorce Act and consistent with the principles set out in Plumley and Boudreault. The Respondent has not met this onus.

[31] It is not possible to complete a child focussed inquiry of the children’s best interests at this very preliminary stage. The Affidavit material is incomplete. More material will be filed for the October 21, 2021 motion. The Affidavits filed to date are highly conflicted. There is no agreement or consensus as to each party’s relationship with the children, or agreement as to the time spent with the children pre-separation or as to the quality of the parent-child relationship. This is unlike the situation in Bell.

[32] None of the conflicting Affidavit material has been tested by questioning.

[33] Further, important records pertaining to the children’s best interests, ordered to be produced by Chozik J., are not yet before the Court. There has been no factual finding related to parenting time. The orders to date have been without prejudice orders, to be in place until a temporary determination can be made. That motion is October 21, 2021

[34] The OCL has not yet decided whether to accept the referral. If they do, this will assist the court in determining whether such a relocation is in the children’s best interests.

[35] The Respondent argues that there are compelling circumstances for the relocation. First, the Applicant is not seeing the children. Second, she has received notice to vacate the rental accommodations at the end of September and can’t afford alternate accommodations in this area. She will live rent free in Montreal with family.

[36] I do not accept either as a compelling circumstance.

[37] Chozik J.’s Order for supervision was only to last until the matter was argued on August 4, 2021. The Applicant had one supervised visit after the order. It did not go well from his perspective. He is requesting that the children engage in reunification therapy with him. He sees this as the path forward. This is an issue for October 21, 2021. It is premature to conclude that he has determined not to see the children in the longer term. The Respondent’s proposed plan for the Applicant’s parenting time with the children if she is granted permission to relocate, would have the court decrease the Applicant’s parenting time from that set out in Miller J.’s Order, which Chozik J. did not do, and when the issue of the Applicant’s parenting time with the children has yet to be argued on a fulsome record.

[38] In terms of financial matters, the Respondent has not established compelling circumstances. The Respondent will have to vacate the rental accommodation; however, in terms of the parties’ respective financial circumstances much is in dispute. None of the allegations have been tested by questioning. The matter is at a very preliminary stage in terms of disclosure and in terms of knowing what each party’s circumstances are.

[39] On a preliminary basis, I am unable to determine that the Respondent lacks the ability to secure accommodations in Ontario. Since separation she has received $2,738.15 per month in self employment, Child Tax Credit and CERB. The Respondent says the CERB will end in September 2021. She will still have the Child Tax Credit and self-employment income. The Applicant paid the rent, utilities, internet and insurance until August 1, 2021 and no one has paid the rent since. The Respondent has not had to pay the rent since separation. There is no accounting as to how she has used her income since separation.

[40] In addition, the Respondent has borrowed $55,000 from family since the separation. While her family does not have a legal obligation to support her and the children, clearly, she has had access to funds on a temporary basis.

[41] The Respondent claims the Applicant is working and should be paying spousal support and increased child support. In July of 2021 the Applicant began paying the Respondent child support in the amount of $307.19 per month based on an imputed income of $19,000.

[42] The Respondent has attached to her motion material many bank records of the Applicant. The bank records leave unanswered many questions. What is the source of the deposits in his bank account? What COVID-19 related business loans did he receive and how were the borrowed funds used? What balance remains available to borrow?

[43] It is unclear what the Applicant’s income is and whether increased income should be imputed to him. The Respondent will be able to bring a motion for support after the Case Conference. Perhaps, a clearer picture will be known then of both parties’ circumstances once full disclosure is exchanged.

[44] The Respondent’s financial circumstances are also not clear. The Applicant says the Respondent had gold and that he purchased five ounces of gold for her in March of 2020. The Respondent denies this. There is no reconciliation as to how the Respondent has used the money borrowed from family. There is no indication as to whether the Respondent has applied for further government assistance, and whether or not any such assistance is available to her. There is also no proof of efforts by the Respondent to secure housing in Ontario.

[45] The Applicant has offered to pay first and half of last month’s rent to the Respondent to assist her in finding housing and increased child support based on his earning minimum wage income. I will make those orders.

[46] In terms of the children’s best interest, to the limited extent I can assess same on the incomplete record before me, by dismissing the Respondent’s motion the children will remain in the community in which they have resided for five years, in schools that they are familiar with. If the Respondent was permitted to change the residence of the children now on a temporary basis, it would be disruptive to the children if the trial judge were ultimately to determine that the children’s residence be back in Ontario.

F. Conclusion and Costs:

[47] I therefore order as follows:

1. The Respondent’s motion to relocate the children to Montreal is dismissed.

2. The Applicant shall within 2 days pay to the Respondent $3,000. as first and half of last months rent.

3. The Applicant shall pay to the Respondent interim without prejudice child support for the two children in the amount of $440. per month commencing September 1, 2021 and on the first day of each month thereafter. This is based on an imputed income of $28,700.00.

4. SDO to issue.

[48] I encourage the parties to resolve the issue of costs of the Motion. If they are unable to do so, the Applicant shall serve and file brief written submissions as to costs, limited to three pages (double spaced with regular font and margins), with a bill of costs attached, to be served and filed within 30 days of today.

[49] The Respondent shall serve and file brief written responding submissions as to costs, limited to three pages (double spaced with regular font and margins), (with a bill of costs attached), to be served and filed within 60 days of today.

[50] The Applicant may serve and file a one-page submission in reply (double spaced with regular font and margins), within 75 days of today.

[51] If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

[52] If I have not received response or reply to submissions within the specified timelines after the Applicant’s initial submission, I will consider that the parties do not wish to make any further submissions and I will decide on the basis of the material that I have received.

Coats J.

Date: September 16, 2021