Court File and Parties
COURT FILE NO.: FC-17-230 DATE: November 26, 2021 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Mandi Borrens, Applicant AND: Khwaja Murtaza Siddiqui, Respondent
BEFORE: Honourable Madame Justice M. Fraser
COUNSEL: Applicant, self-represented Sarah Ali, for the Respondent
HEARD: November 25, 2021
ENDORSEMENT
[1] The Applicant, ("father"), seeks a temporary order on an urgent basis prohibiting the Respondent, ("mother") from relocating the residence of the child of the relationship, Ariyan born in August 2013 (the "child"), from Ottawa to Arnprior, Ontario. The father alternatively seeks a temporary a temporary order that the child reside primarily with him.
[2] The mother asks that there be an order prohibiting the father from bringing further "urgent" motions.
Background:
[3] The parties cohabited between May 2013 and October 2014. The child is the only child of the relationship. He is presently in grade three.
[4] The mother has always been the primary caregiver of the child.
[5] The present proceeding was commenced in 2017. For reasons which are unclear to me, it is apparent that the parties have not moved this proceeding forward to a trial despite the information provided to me that the parties were directed to proceed to a trial management conference.
[6] On March 13th, 2017, the parties agreed to a Temporary Order which provided that Ariyan would have his primary residence with the mother, subject to the father's access which was specified to occur over several evenings every two weeks as well as overnights every second Friday and every second Wednesday. This schedule was followed until the start of the COVID-19 pandemic.
[7] In March 2020, the father's parenting time stopped and was not reinstated until October 2020.
[8] The parties entered into a "temporary access agreement" on December 23, 2020. On its face, the schedule for the father's parenting time was to be reviewed in February 2021. However, that has not happened, despite the father's objections and so the father's parenting time has continued as per the terms of this agreement to date.
[9] In this respect, the father has parenting time with Ariyan on alternate weekends from Friday at 5:00 pm until Sunday at 7:00 pm and on Wednesday evenings from 5:00 pm to 7:00 pm.
[10] The mother has purchased a home and intends on relocating to the Town of Arnprior, in Renfrew County on November 30, 2021.
[11] There is no dispute that while the father was aware that the mother was looking to purchase a home and leave her rental property. However, he anticipated she would move within the City of Ottawa. The mother only informed the father of her intention to move to Arnprior on October 22, 2021. He only was informed that she had purchased a home in Arnprior at the end of September when the parties attended the motion on November 18, 2021 to determine whether this motion could proceed on an urgent basis.
[12] Given the very short time I have to provide my decision in this matter, I do so reserving my right to provide further and more complete reasons.
Analysis:
[13] The parenting issues in this proceeding are to be determined under the Children's Law Reform Act.
[14] I have concluded however, that the substantive law as it governs the issue of relocation, given this proceeding was commenced in 2017 is not captured by the recent amendments to the CLRA to the extent there are changes to the substantive considerations to be made (See: McLellan v. Birbilis, 2021 ONSC 7084).
[15] In my view, therefore, I continue to be governed by the leading case in Canada regarding the issue of mobility, Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.)
[16] The Supreme Court of Canada stated in Gordon v. Goertz that the focus in the instance of a proposed relocation remains the best interests of the child, not the interests and rights of the parents. The Court also stated that each case turns on its own unique circumstances.
[17] Justice McLachlin in her decision set out a non-exhaustive list of factors which the Court should consider in mobility cases, as follows:
"7. More particularly, the judge should consider, inter alia:
a. the existing custody arrangement and relationship between the child and the custodial parent;
b. the existing access arrangement and the relationship between the child and the access parent;
c. the desirability of maximizing contact between the child and both parents;
d. the views of the child;
e. the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;
f. disruption to the child of a change in custody;
g. disruption to the child consequent on removal from family, schools and the community he or she has come to know."
[18] Ultimately, the question in a mobility case is what is in the best interests of the child in all of the circumstances.
[19] The Ontario Court of Appeal in Bjornson v. Creighton, (2002), 2002 CanLII 45125 (ON CA), 62 O.R. (3d) 236 (Ont. C.A.) held that the principles of Gordon v. Goertz, which concerned the variation of an existing Court order, also apply to first instance custody cases.
[20] Interim motions requesting a move of the residence of children pending a trial on the issues of custody and mobility pose their own unique challenges and problems. Justice McSorley in Kennedy v. Hull, 2005 ONCJ 275 (Ont. C.J.) at paragraph 9 stated:
"The problem is that it is difficult, if not impossible, in many cases to complete the extensive child-focussed inquiry required under Gordon v Goertz on the conflicting and incomplete affidavit evidence that is often available on interim motions. The courts' general reluctance to effect fundamental changes in a child's lifestyle on interim motions has resulted in a slightly more restrictive approach to interim mobility cases that recognize the short-term nature of interim orders and the summary nature of interim motions."
[21] Justice Marshman in Plumley v. Plumley, (1999), 1999 CanLII 13990 (ON SC), 90 A.C.W.S. (3d) 740, [1999] O.J. No. 3234, at paragraph 7, stated that the following considerations apply to interim motions regarding mobility pending trial:
"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."
[22] As stated in Kennedy v. Hull, where there is incomplete and/or conflicting evidence, courts are generally reluctant to sanction fundamental changes to a child's lifestyle and circumstances on an interim basis.
[23] Further, although both parties in a dispute concerning care and custody of a child bears an evidentiary burden in connection with the best interests of the child, the burden is on the moving party who seeks to change the status quo on an interim mobility motion to establish compelling reasons to grant the motion (see: Hazelwood v. Hazelwood 2012 ONSC 5069).
Should an order be made prohibiting the move of Ariyan's residence to Arnprior pending a trial of the issues in this matter? Should there be a temporary order placing the child in the primary care of the father?
[24] I first consider the factors set out in Gordon v. Goertz.
[25] It appears that the mother has been the principal caregiver of Aryan from birth and her ability to provide adequate care for the child is not questioned.
[26] To the credit of the parties, they have managed to arrange the father's ongoing parenting time. However it appears there remains considerable conflict between them and this has impacted their ability to keep their communications civil and respectful.
[27] The father is committed to maintaining a close and loving relationship with Aryan and this is not questioned in this proceeding either.
[28] Based upon the affidavit evidence, it would seem likely that a court will conclude that the frequent contact between the child and both parties is consistent with his best interests.
[29] There is no compelling independent evidence available at this juncture to support Aryan's views. The mother suggests he is excited to move and the father claims otherwise. I hesitate to give weight to either of their positions on this issue.
[30] The mother's move with the child to Arnprior is based upon her decision to own a home and she maintains that a move to Arnprior was the only affordable option for her. In my view, this reason is relevant to meeting the needs of the child and it will improve his living accommodations.
[31] The mother proposes that the father's parenting time will continue uninterrupted. She is prepared to oversee the additional travel to ensure this happens.
[32] I do not see the distance between Arnprior and Ottawa as posing any threat to Aryan's ability to continue to have frequent contact with his extended family.
[33] There is no doubt a move to Arnprior could pose some disruption to Aryan as it pertains to his school. The reality is, however, that Aryan has spent two years attending school virtually. He is only in grade three. I am not at all certain that he has yet had the opportunity to form the friendships with his peers that will ultimately happen.
[34] He has been involved in Jiu-Jitsu and Kickboxing. He goes to a centre located in Ottawa South for this activity.
[35] I next give consideration to the factors set out in Plumley v. Plumley.
[36] There are genuine issues for trial. In particular, the issue of the parenting time each party will have with Aryan will require a determination of the child's best interests and this can only happen once the child's relationship with both parties is examined more thoroughly and this proposed move, with all that it entails, is more fully considered.
[37] However, while these issues remain outstanding, I nonetheless conclude that a change in "status quo" as it existed prior to date will not materially prejudice the determination of these issues.
[38] I conclude that the principal issue which will need to be determined at trial is whether it is in the child's best interest to remain with the mother in Arnprior or whether the child should be transferred to the father's primary care in Ottawa.
[39] Notwithstanding that there are genuine issues for trial, I must consider whether the relocation ought to be permitted notwithstanding such issues, if there is a strong probability that the mother's position will prevail at trial. Based on the enumerated factors which I have considered as set out in Gordon v. Goertz, I conclude that there is a strong probability that the mother's position will prevail at trial.
Disposition:
[40] I have come to the conclusion that the child should reside in Arnprior, in the mother's primary care, pending trial for the following reasons:
(a) I conclude that the mother has been the primary caregiver of Aryan to date and her ability to care for the child is not being challenged. I conclude that it is unlikely that primary custody will change following a trial;
(b) Ariyan is young. He is not at the level of school or engaged in extracurricular activities to the extent that the proposed move will cause him significant disruption. The father's parenting time will continue pending trial;
(c) I am satisfied on the affidavit evidence before me that the mother's intention to move has been made in good faith and is not made for the purposes of frustrating the father's parenting time with Ariyan the child; and
(d) I do not see that permitting the move on an interim basis pending trial will create a new "status quo" that will prejudice the father. It is unlikely for instance, given Ariyan's young age, that any engagement in school or extracurricular activities pending trial will carry such strength or priority that such engagement will effectively predetermine the issues.
[41] Therefore, in this particular case, I have come to the conclusion that the move ought to be permitted on an interim basis.
[42] In these circumstances and for these reasons, the father's motion is dismissed.
[43] I also dismiss the mother's motion. It is very unfortunate when the court is faced with circumstances in which a parent has already put into place decisions which are inevitably going to escalate, and not resolve, the issues between the parties. It indeed made the father's motion necessary and urgent.
[44] This matter shall be scheduled for a trial management conference through the trial coordinator's office.
[45] If the parties cannot agree on the costs of this motion, then the mother may make written submissions as to costs, no more than three pages in length, double-spaced, in addition to any pertinent offers and draft bill of costs, within twenty days of the release of this endorsement. The father has ten days from receipt of the mother's submissions to respond on the same basis. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
M. Fraser J.
Date: November 26, 2021