Overview and Factual Background

[1] The Applicant, Ashleigh Semkiw, and the Respondent, Austin Giles Sutherland, were married from 2006 to 2018. They have three children, twin boys, who are seven years old, and a five-year old girl.

[2] The parties separated in January 2018. On October 1, 2018, they entered into a Separation Agreement resolving all matters between them. The Separation Agreement provided for joint custody of the children and equal parenting time. In the Separation Agreement, both parties agreed to maintain a permanent residence for the children in Toronto for seven years.

[3] The parties were divorced on April 18, 2019. The Applicant married her current spouse, Colin Parrish, on April 25, 2019. Mr. Parrish also has a child from a previous marriage who resides in Ontario.

[4] The Applicant commenced this Application in December 2019. In her Application, she seeks sole custody of the children and an order allowing her to move their permanent residence to Argyle, Texas, where she now resides with Mr. Parrish and their baby, who was born in July 2020.

Relocation to Texas

[5] In April 2018, before the parties entered into the Separation Agreement, the Applicant and Mr. Parrish purchased a residence in Argyle, Texas. The Applicant is vague as to when she relocated to Texas and states only that it was "subsequent to the execution of the Separation Agreement." In her affidavit, the Applicant states that since 2018, she and Mr. Parrish have been going back and forth between Toronto and Texas every other week. She maintained her rental property in Toronto until June 2020.

[6] The Applicant submits that it became necessary for her to relocate to Texas because Mr. Parrish moved there for his employment and because she faced significant issues with her family and community after separating from the Respondent. The Applicant states that as a result of the parties' separation, she was "ex-communicated" from the evangelical church and shunned by its members, including her parents. The Applicant alleges that she was "under the impression" that the Respondent would consent to her relocation to Texas with the children.

[7] The Respondent disputes the Applicant's account of events. The Respondent states that it is the Applicant who refuses to have a relationship with her parents. The Respondent further states that he and the children now attend a different church.

Procedural Background

[8] In July 2020, the Applicant wanted the children in Texas for the birth of her baby. In her endorsement dated July 2, 2020, Horkins J. dismissed the Applicant's motion for summer parenting time in Texas: Semkiw v. Sutherland, 2020 ONSC 4088. Horkins J. further ordered that "[i]f the Applicant does not return to Toronto to live, as set out in the Separation Agreement, the children shall reside with the Respondent pending a further court order in this Application."

[9] In November 2020, the Applicant and the Respondent reached an agreement on the Applicant's parenting time with the children in Texas over American Thanksgiving. Since the separation, other than that period of approximately two weeks, between June and November 2020, the Applicant has not seen the children.

[10] On December 1, 2020, I heard the Applicant's motion for an order for parenting time with the children in Texas during the Christmas holidays, as well as the Respondent's motion for summary judgment dismissing the Application. In my endorsement dated December 2, 2020, I dismissed the Applicant's motion for Christmas parenting time in Texas and held that the Applicant would have to exercise her parenting time in Toronto: Semkiw v. Sutherland, 2020 ONSC 7477.

[11] In this motion, the Respondent seeks summary judgment dismissing the Application on the basis that it raises no genuine issue requiring a trial. In the alternative, the Respondent seeks to dismiss the Application for lack of jurisdiction. In the further alternative, the Respondent seeks an order enforcing the dispute resolution clause in the Separation Agreement.

[12] At the motion hearing, the Applicant sought to adjourn or dismiss the Respondent's summary judgment motion on the basis that the Respondent was only permitted to bring his motion to contest the court's jurisdiction. The case conference endorsement of Akbarali J. dated October 2, 2020 allowed the Respondent to bring his motion for summary judgment "on a jurisdictional issue." At the hearing, Respondent's counsel advised that the issue of the court's jurisdiction was "conceded" for the purposes of the summary judgment motion and that the Respondent had made clear from the outset that he would seek to have the application dismissed at the earliest opportunity. While a summary judgment motion on the merits of the Application would seem to go beyond the scope of the motion that was authorized, I nonetheless determined it appropriate to hear the Respondent's summary judgment motion.

Issues

[13] The issues to be determined on this motion are as follows:

(a) Does the Separation Agreement preclude the Applicant from moving the children's residence to Texas, such that the Application raises no genuine issue requiring a trial?

(b) Does this court lack jurisdiction over the Application?

(c) Should the parties be required to attend mediation/arbitration, pursuant to the dispute resolution provisions of the Separation Agreement?

Analysis

The Parties' Positions

[14] The Respondent's position is that summary judgment dismissing the Application ought to be granted because the Separation Agreement precludes the Applicant from relocating the children to Texas and is determinative of the issue. In the alternative, the Respondent submits that the Applicant's parenting time should be resolved in accordance with the dispute resolution provisions in the Separation Agreement.

[15] The Applicant's position is that the Separation Agreement is not determinative of the Application because it allows for the issue of the children's residence to be revisited. The Applicant submits that the issue of whether relocating the children to Texas is in their best interests raises genuine issues requiring a trial.

The Principles of Summary Judgment

[16] Pursuant to r. 16(1) of the Family Law Rules, O. Reg. 114/99, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. If there is no genuine issue requiring a trial of a claim or defence, "the court shall make a final order accordingly": r. 16(6).

[17] Rule 16(4) requires that the party making the motion serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. Rule 16(4.1) states that the party responding to the motion "may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial."

[18] The Supreme Court of Canada has held that "summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims:" Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 5. An issue should be resolved on a motion for summary judgment if: (i) the motion affords a process that allows the judge to make the necessary findings of fact and (ii) apply the law to those facts, and (iii) is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial: Hryniak, at para. 49.

[19] On a motion for summary judgment, the judge must first determine whether there is a genuine issue requiring a trial based only on the evidence before them, without using fact-finding powers. If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the following powers under rr. 20.04(2.1): (i) weighing the evidence; (ii) evaluating the credibility of a deponent; and (iii) drawing any reasonable inference from the evidence: Hryniak, at para. 66. See also: r. 16(6.1) of the Family Law Rules.

[20] The court is entitled to assume that the record on a summary judgment motion contains all the evidence that the parties would present if the matter proceeded to trial: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at paras. 26-27, aff'd 2014 ONCA 878, leave to appeal to SCC refused, [2015] S.C.C.A. No. 97 (9 July 2015). It is a "well-established rule that both parties on a summary judgment motion have an obligation to put their best foot forward:" Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, at para. 9.

[21] In Chao v. Chao, 2017 ONCA 701, at paras. 24 and 28, van Rensburg J.A. held that the principles laid out in Hryniak apply to summary judgment motions under the Family Law Rules. Specifically, parties are required to put their "best foot forward" and the motion judge is entitled to assume that the evidence before them is the best evidence available.

[22] On a motion for summary judgment, the moving party bears the burden of demonstrating a prima facie case that there is no genuine issue requiring a trial. If the burden is met, the onus shifts to the responding party "to set out specific facts that there is a genuine issue that requires a trial.": Turk v. Turk, 2015 ONSC 5845, at para. 47.

Does the Separation Agreement Preclude the Applicant from Moving the Children's Residence to Texas?

The Terms of the Separation Agreement

[23] As noted above, the parties resolved all matters arising from their separation in a Separation Agreement dated October 1, 2018. In the Agreement, the parties acknowledged that the Agreement is a separation agreement entered into under s. 54 of the Family Law Act, R.S.O. 1990, c. F.3.

[24] The parenting provisions of the Separation Agreement provide that:

• The parties have "shared/joint custody" of the children;

• The children will reside with the Applicant and the Respondent equally;

• The parties intend to share all holidays and special events equally; and

• The parties will make important decisions about the children's welfare together.

[25] In respect of the issues of the children's residence and mobility, paragraphs 4.13 and 4.14 of the Separation Agreement (together, the "Mobility Provisions") state as follows:

4.13 Ashleigh and Austin will live near each other so that the children will have frequent contact with both parties. Each party shall maintain the children's permanent residence within 35 kilometres of the intersection of the QEW and Islington Avenue in Toronto, Ontario for a period of seven (7) years from the date of this Agreement. Neither party shall move the children's permanent residence at any time beyond this radius within seven (7) years from the date of this Agreement without the other's written consent or court order.

4.14 The above-noted restriction on moving the children's permanent residence is not intended to limit the parties' ability to take the children out of the jurisdiction of the court for the purposes of travel with the children, including but not limited to visiting Colin Parrish in Texas, but the children's residence while they are in the care of Ashleigh, shall not be moved to Texas or elsewhere in violation of subparagraph 4.13 regardless of whether Ashleigh and Colin ever marry.

[26] In her Application, the Applicant alleges that she was under "immense social and financial pressure" to execute it. She states that but for this pressure, she would not have agreed to the Mobility Provisions. The Applicant does not, however, allege a material change and does not seek to set aside the Separation Agreement.

What is the Proper Interpretation of the Mobility Provisions?

[27] The Respondent's summary judgment motion is based on his position that paragraph 4.13 of the Separation Agreement prohibits the Applicant from moving her residence beyond the 35-kilometre radius specified in paragraph 4.13. The Respondent cites as further support paragraph 4.14, which prohibits the children's residence from being moved to Texas or elsewhere, irrespective of whether the Applicant and Mr. Parrish were married. Under the Respondent's interpretation of the Mobility Provisions, the Separation Agreement creates an absolute prohibition on moving the children's residence outside the 35-kilometre radius, or to Texas, for seven years. In other words, the Respondent's position is that the Mobility Provisions are determinative of the children's residence and, in the absence of a material change, the Application is improper.

[28] In further support of his position, the Respondent points to the fact that the Applicant and Mr. Parrish had purchased the property in Texas in March 2018, while the parties were in the process of negotiating the Separation Agreement. He argues that he specifically negotiated the Mobility Provisions to prevent the Applicant from relocating the children's residence to Texas.

[29] The Applicant's position is that the Mobility Provisions do not constitute an absolute prohibition on moving the children's residence outside the 35-kilometre radius. She submits that the inclusion of the words "without the other's written consent or court order" at the end of paragraph 4.13 means that she is only prohibited from relocating the children's residence outside the 35-kilometre radius without the Respondent's consent or a court order. The Applicant submits that this is precisely why she commenced the Application.

[30] According to the Applicant's interpretation, paragraph 4.14 does not assist the Respondent because it refers back to paragraph 4.13, which precludes the children's residence from being moved to Texas "in violation of subparagraph 4.13[.]" The Applicant's submits that there would not be a violation of paragraph 4.13 if she obtains a court order or consent to move the children to Texas.

[31] When interpreting any contract, the "overriding concern is to determine the intent of the parties and the scope of their understanding": Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 47. The "decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract.": Sattva Capital Corp., at para. 47.

[32] In my view, based on the ordinary meaning of the language used in the Mobility Provisions, the provisions do not constitute an absolute prohibition on relocating the children's residence for seven years. The Mobility Provisions only prohibit the Applicant from relocating the children's residence outside the 35-kilometre radius or to Texas for seven years without the other party's consent or a court order. In her endorsement, Horkins J. also found that "[a] change in residence during the seven year period requires written consent or a court order.": 2020 ONSC 4088, at para. 9.

[33] If, as the Respondent submits, paragraph 4.13 was intended to be an absolute prohibition on relocating the children outside the 35-kilometre radius for seven years, the words "without the other's written consent or court order" would be meaningless and unnecessary. If the intent was to allow for relocation with consent or by court order only after the seven-year period, this too could have, and would have, been expressed more clearly.

[34] Moreover, the language of paragraph 4.14 does not assist the Respondent. Under paragraph 4.14, the Applicant cannot relocate the children to Texas in violation of paragraph 4.13. However, she would not be violating paragraph 4.13 if she obtains the Respondent's consent or a court order first.

[35] I recognize that this interpretation is somewhat difficult to reconcile with the first sentence of paragraph 4.13, which states that the parties will live near each other so that the children will have frequent contact with both parties. This language suggests that the parties intended to provide the children with stability and frequent contact with both parents for a period of seven years. To this extent, the Applicant's unilateral move to Texas would seem to contravene the spirit of the Mobility Provisions and the parenting terms of the Separation Agreement, which provide for joint custody and shared parenting of the children. However, by including the language regarding consent or court order, the parties allowed for a change of residence within the seven-year period.

[36] Based on my interpretation of the Mobility Provisions, the Application is not improper, as the Respondent alleges. Rather, to the extent that the Applicant is seeking a court order to relocate the children's residence, the Application is consistent with the terms of paragraph 4.13. It would have been a breach of the Mobility Provisions to relocate the children's residence to Texas without the Respondent's consent or a court order. In addition, because paragraph 4.13 contemplates relocating the children's residence, on consent or by court order, the Applicant is not required to demonstrate a material change or to seek to set aside the Separation Agreement.[^1]

[37] In my view, the Respondent's reliance on Duncan v. Duncan, 2012 ONSC 4331, is misplaced. In that case, the court granted summary judgment dismissing the mother's application to set aside a separation agreement and to seek additional spousal support. Having second thoughts about financial arrangements agreed to in a separation agreement is very different from bringing an application regarding mobility and parenting where one parent no longer resides in the jurisdiction.

[38] Even if my interpretation of the Mobility Provisions is incorrect, summary judgment would not be appropriate in the circumstances. This is because the parties' evidence as to the circumstances surrounding the negotiation of the Separation Agreement, which would inform the court's interpretation of the Mobility Provisions, differs in significant respects. The Applicant states that when the parties were negotiating the Separation Agreement, the Respondent was aware of her intent to relocate to Texas and that they even discussed a potential parenting plan under that scenario. The Applicant specifically refers to a closed mediation with Paul Ricketts in April 2018. The Respondent denies any discussion of parenting time that contemplated the Applicant or the children moving to Texas. To the contrary, the Respondent states that he specifically bargained for the prohibition on relocating the children's residence for seven years because he was aware that the Applicant and Mr. Parrish had purchased a residence in Texas. Based on the parties' differing accounts, there would be a genuine issue requiring a trial as to the parties' intent and understanding of the scope of their agreement. Either way, the matter could not be determined on a motion for summary judgment.

[39] The Respondent's motion for summary judgment is based on his position that the Mobility Provisions preclude the children's relocation to Texas and are determinative of the issues in the Application. Because the Mobility Provisions are not determinative of the issue, the issue of whether the Applicant ought to be permitted to move the children's residence to Texas must be determined in accordance with the children's best interests. A determination of that issue would require a thorough analysis of a broad range of factors, which would require a trial. As a result, this is not a case in which the need for a trial could be avoided by using the enhanced fact-finding powers or by ordering a mini-trial. Indeed, based on the parties' affidavits, there are significant issues of fact that are highly contested.

Should the Application Be Dismissed For Lack of Jurisdiction?

[40] As noted above, the Respondent raised the court's lack of jurisdiction as an alternative basis for summary judgment. At the hearing, the Respondent's position on jurisdiction was unclear. While conceding jurisdiction for the purposes of the summary judgment motion, the Respondent nonetheless maintained his position that the dispute ought to proceed to mediation/arbitration. Even then, the Respondent sought to carve out the issue of mobility from the mediator/arbitrator's jurisdiction.

[41] Lack of jurisdiction is generally a threshold issue that ought to be determined before engaging in the merits of a dispute. If the court does not have jurisdiction over the dispute, it would not be in a position to adjudicate the Respondent's summary judgment motion on the merits. The Respondent cannot both attempt to have the Application dismissed on the merits and reserve an objection to the court's jurisdiction in the alternative; those positions are inherently inconsistent.

[42] In my view, by bringing a motion for summary judgment to dismiss the Application on its merits, the Respondent has attorned to the jurisdiction of the court. The court thus has jurisdiction over the parties' dispute.

[43] In any event, the court would have jurisdiction where the children's best interests are engaged: Shoshi v. Vuksani, 2013 ONCJ 459; Family Law Act, s. 56(1).

Should the Parties Be Required to Comply With the Dispute Resolution Provisions?

The Dispute Resolution Provisions

[44] Under paragraphs 6.1 and 6.2 of the Separation Agreement (the "Dispute Resolution Provisions"), the parties agreed that if they disagreed "about any parenting issue or any reviewable or variable term of this Agreement including the parenting terms of this Agreement," they will first try to resolve the dispute through negotiation, failing which they would mediate the dispute. In the event that they could not resolve the matter through mediation or "time is of the essence on the issue in dispute," they agreed to arbitrate the issue "upon mutually agreeable terms."

The Parties' Positions

[45] The parties' respective positions on whether this matter should proceed to mediation/arbitration appear to have evolved during the course of this proceeding. The parties attended a mediation on October 26, 2020, although this may have been limited to the issue of Christmas holidays. A further mediation scheduled for November 6, 2020 was cancelled by the Applicant.

[46] Despite having commenced the Application in court, the Applicant has indicated that she is prepared to proceed to arbitration on the issue of the children's residence. In her factum on this motion, the Applicant states that the issue of mobility and any other ancillary issues must proceed to arbitration. However, the Applicant denies that she should pay the Respondent's costs of this proceeding, because it was the Respondent who refused to mediate/arbitrate the mobility issue.

[47] As noted above, after the Applicant's move to Texas, the Respondent was agreeable to mediate/arbitrate the issue of a parenting schedule, but not the issue of mobility. In his factum on this motion, the Respondent states that "if the court determines that the Application has merit and should proceed to a trial, the Respondent argues that the right forum is mediation/arbitration." The Respondent continues to resist mediation/arbitration of the mobility issue. The Respondent further submits that mediation has failed and that the parties should now proceed to arbitration.

Disposition

[48] Paragraph 6.1 states that it applies to any dispute about "any parenting issue or any reviewable or variable term of this Agreement including the parenting terms of this Agreement." In my view, based on the express terms of paragraph 6.1, the issue of the children's residence falls under the Dispute Resolution Provisions of the Separation Agreement. The children's residence is a "parenting issue." Moreover, the Mobility Provisions fall under Section 4 of the Separation Agreement, which deals with custody, parenting time, decision-making, and residence, all of which are parenting issues. The section bears the heading "Parenting." Paragraph 6.1 also refers to "any reviewable or variable term" of the Agreement. Because paragraph 4.13 can be altered on consent or by court order, it is a reviewable or variable term.

[49] Accordingly, there is no basis in the Separation Agreement to carve out the issue of mobility from the Dispute Resolution Provisions agreed to between the parties. The parties should be required to adhere to the Dispute Resolution Provision to resolve the dispute over the children's residence. Based on the positions put forward on the motion, neither party is opposed to proceeding to arbitration, which is likely to be a more expeditious manner of resolving their dispute, particularly during the current pandemic. The parties shall therefore proceed with arbitration on mutually agreeable terms.

[50] The Applicant alleges that the Respondent has delayed this proceeding and is likely to cause further delay and requests that this Application be stayed only after an arbitrator is appointed. This concern can be addressed by providing a timeline for the appointment of an arbitrator.

Conclusion

[51] Accordingly, the Respondent's motion for summary judgment is dismissed.

[52] The parties shall proceed with arbitration. The parties shall agree to an arbitrator within 30 days of this decision. The Application is stayed.

[53] At the hearing, I indicated that I would provide an opportunity for submissions on costs of the summary judgment motion. Counsel submitted bills of costs after the hearing. The Applicant has suggested that costs be dealt with by the arbitrator. The parties are free to agree to costs or to have the issue of costs submitted to the arbitrator.

[54] If the parties are unable to resolve the issue of costs, the Applicant shall submit her costs submissions, with any relevant offers to settle, by February 12, 2021. The Respondent's costs submissions shall be submitted by February 26, 2021. No costs submissions shall exceed three double-spaced pages, excluding attachments. Attachments shall be limited to offers to settle, if any. Any case law shall be hyperlinked in the submissions. No reply submissions shall be made without leave. Cost submissions shall be sent by email to my judicial assistant, at roxanne.johnson@ontario.ca. If no costs submissions are received within this time frame, the parties will be deemed to have resolved costs or submitted them to the arbitrator.

[55] This endorsement is effective as an order of the court without further need to enter or issue an order.

Nishikawa J.

Released: January 28, 2021

COURT FILE NO.: FS-15-14506

DATE: 20210128

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Ashleigh Semkiw

Applicant

– and –

Austin Giles Sutherland

Respondent

REASONS FOR JUDGMENT

Nishikawa J.

Released: January 28, 2021

[^1]: This should not be taken to suggest, however, that the Applicant does not have to demonstrate a material change to alter the custody provisions of the Separation Agreement, which contain no similar wording providing for a change on consent or by court order. I express no views on the interpretation of those provisions of the Separation Agreement, which are beyond the scope of this motion.

Semkiw v. Sutherland, 2021 ONSC 708

Case Summary

Overview and Factual Background

Relocation to Texas

Procedural Background

Issues

Analysis

The Parties' Positions

The Principles of Summary Judgment

Does the Separation Agreement Preclude the Applicant from Moving the Children's Residence to Texas?

The Terms of the Separation Agreement

What is the Proper Interpretation of the Mobility Provisions?

Should the Application Be Dismissed For Lack of Jurisdiction?

Should the Parties Be Required to Comply With the Dispute Resolution Provisions?

The Dispute Resolution Provisions

The Parties' Positions

Disposition

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 2

Legislation 2