Court File and Parties
BELLEVILLE COURT FILE NO.: FC-21-266 DATE: 20220211 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Mitchell Douglas Paro, Applicant AND Jessica Lynn Bell, Respondent
BEFORE: Madam Justice Tami L. Waters
COUNSEL: Ian D. Kirby, Counsel for the Applicant Eve Theriault/Karen Sisson, Counsel for the Respondent
HEARD: October 21, 2021
Endorsement on Motion
[1] This motion was brought by the Applicant father, Mitchell Douglas Paro (“Applicant”). He asks for an order requiring that the Respondent mother, Jessica Lynn Bell (“Respondent”) return their one-year-old daughter, Coralee to the County of Hastings (Trenton, Ontario). He asks that Coralee’s primary residence be with the Applicant and that if the Respondent fails to return, alternatively a shared parenting arrangement in a 2/2/3 arrangement, alternatively as this Honourable Court deems just which may include weekends and mid-week parenting time.
[2] The Respondent brought a cross-motion in response, seeking that the primary residence of Coralee be with the Respondent in Vankleek Hill, Ontario and setting out a comprehensive parenting schedule with parenting exchanges to occur in Brockville, Ontario. The Respondent further requests in the alternative, a parenting plan wherein she has primary residence of Coralee in Belleville, Ontario and setting out a comprehensive parenting schedule.
Background
[3] The parties entered a relationship on or about January 2017 and commenced cohabitation in late 2017/early 2018 and at the time this cohabitation occurred at the Applicant’s parent’s home. The parties moved on or about January 2021 to a home in Trenton. The parties separated in June 2021. Coralee is the only child of the relationship and was born on September 28, 2020.
[4] The litigation history of this matter is as follows:
a. On or about July 21, 2021, the Applicant brought an urgent 14B Motion seeking the immediate return of Coralee, requesting substituted service, primary care of Coralee, sole decision-making and police enforcement. This motion came about because of the Respondent relocating with Coralee on or about June 25, 2021 to Vankleek Hill, Ontario.
b. On July 22, 2021, the Honourable Justice Malcolm in her Endorsement, indicated that the matter was urgent, and she ordered parenting time, substituted service, and scheduled a Case Conference for August 4, 2021.
c. On August 4, 2021 a Case Conference was held and the Case Conference continued August 5, 2021. At that time a long motion was scheduled for October 21, 2021. The Honourable Justice Tellier’s August 4, 2021 Endorsement was very clear that the only issues for determination at the October 21, 2021 motion are: Whether the child should be returned to her habitual residence or whether she is permitted to remain in the care of her mother near Hawkesbury on an interim basis. Justice Tellier further ordered that the only other issues for determination are issues that are ancillary to any such order with respect to the relocation issue.
d. Justice Tellier’s August 5, 2021 Endorsement and Order set out the procedural terms upon which the parties must follow moving forward. Also contained in the Endorsement and Order were terms referring to the maintaining of Coralee’s physician, continued enrollment in parenting courses for the Applicant, an interim “without prejudice” parenting plan and the issues accompanying parenting time such as parenting exchange locations.
Issues
[5] The issues in front of the court are as follows:
a. Should the Respondent be permitted to move the child’s residence from Trenton, Ontario to Vankleek Hill, Ontario?
b. Are there any ancillary issues to any such order? (As directed by the Endorsement of Tellier, J. of August 5, 2021.)
Legal Framework
[6] This is an interim motion wherein the key issue is the requested move of a residence of a child pending a trial on the issues of decision making and parenting. This type of motion carries with it unique challenges. In Kennedy and Hull, 2005 ONCJ (Ont. C.J.), Justice McSorley clearly identified the unique challenge this type of case brings wherein he stated at paragraph 9:
"The problem is that it is difficult, if not impossible, in many cases to complete the extensive child-focused inquiry required ... [based] 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."
[7] The considerations to apply when considering the issue of a relocation request on an interim motion are set out by Justice Marshman in Plumley v. Plumley (1999), [1999] O.J. No. 3234:
"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."
[8] It is important to address the issue of the status quo as it relates to a temporary motion. In Pereira v. Ramos, 2021 ONSC 1737, the court adopted the pre-amendment case law with respect to the issue of the status quo on temporary motions, at para 38:
“Although on a temporary motion, courts should be cautious against ordering a disruption to the status quo, that is not to say there is a strict presumption in favour of the status quo. Each case turns on its own particular facts, and in this matter although I considered the status quo, the court is mindful of parties who have imposed a status quo through unilateral decisions and without consulting or obtaining the consent of the other party, as is the case in the matter at bar. In L.M.B. v. F.J.D., 2020 ONCJ 239, at para 31, Cheung, J. writes:
The legal status quo is not a status quo created by one party unilaterally taking matters into their own hands, without any consent form the other party. ( See Batsinda v. Batsinda, 2013 ONSC 7899, [2013] O.J. 6120 (Ont. S.C.J.), paragraph 28 and Kimpton v. Kimpton, [2002] O.J. No. 5367 (Ont. S.C.J.), paragraph 1 ).
[9] As noted above, the Respondent relocated to Vankleek Hill. There was no existing Order in place at the time of the relocation. The relocation occurred at the time of separation. The Respondent did not provide any notice of her intention to relocate. The recent amendments to the CLRA, specifically at s.39.3 and 39.4, prescribe a process for relocation. It is key to identify these sections of the CLRA as they relate to this matter.
Relocation
39.3 (1) A person who has decision-making responsibility or parenting time with respect to a child and who intends a relocation shall, at least 60 days before the expected date of the proposed relocation, notify any other person who has decision-making responsibility, parenting time or contact under a contact order with respect to the child of the intention. 2020, c. 25, Sched. 1, s. 15.
Notice requirements
(2) The notice shall be in the form prescribed by the regulations or, if no form is prescribed, shall be in writing and shall set out,
(a) the expected date of the proposed relocation;
(b) the address of the new residence and contact information of the person or child, as the case may be;
(c) a proposal as to how decision-making responsibility, parenting time or contact, as the case may be, could be exercised; and
(d) any other information that may be prescribed by the regulations. 2020, c. 25, Sched. 1, s. 15.
Authorization of relocation
Best interests of the child
s. 39 (4) (3) In determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with section 24, as well as,
(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 is an applicant for a parenting order with respect to the child, 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 has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement;
(e) the existence of an order, family arbitration 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 decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses; and
(g) whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance. 2020, c. 25, Sched. 1, s. 15.
Factor not to be considered
(4) In determining whether to authorize a relocation of the child, the court shall not consider whether, if the child's relocation were to be prohibited, the person who intends to relocate the child would relocate without the child or not relocate. 2020, c. 25, Sched. 1, s. 15.
[10] The burden of proof with respect to the circumstances in this case must be examined. Given that there is no existing order, family arbitration award or agreement relating to the parenting of the child, sections 39.4(5) and 39.4(6) of the CLRA are not applicable. Therefore, s. 39.4(7) does apply:
S. 39.4(7) 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
[11] Therefore, the onus is placed on both parties to show whether the relocation is in the best interest of the child.
[12] In Moreton v. Inthavixay, 2021 ONCA 501, the Ontario Court of Appeal asserted that there is no requirement that the issue of custody must be determined prior to the issue of relocation. The circumstances of the case and the best interests of the children dictate the determination of the issues.
[13] Under circumstances where an interim move will not interfere materially 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; M.K. v. J.K., 2020 ONCJ 387).
Legal Analysis
[14] The Respondent provided no notification of the relocation to Vankleek Hill, Ontario. The parties, by both of their evidence, identify that the move occurred at the time of separation. The recent amendments to the CLRA are clear. There is an obligation of the party intending to relocate to provide notice in accordance with s. 39.3 of the CLRA.
[15] The post-separation status quo had not been established given the timing in which the separation and relocation occurred. The Respondent, in her factum, set out that Justice Sherr in Nyari v. Velasco, 2009 ONCJ 272, found that it is most appropriate to only consider the status quo established prior to a separation when the relocation occurred before any post-separation status quo is established. The difficulty in attempting to determine the pre-separation status quo in this case is that the evidence provided by the parties does not lend itself to a clear determination of the status quo pre-separation.
[16] The Respondent asserts that the circumstances surrounding the move to Vankleek Hill, Ontario are compelling. She further asserts that there is a high likelihood of her success at trial. To be specific, she asserts that this likelihood of success directly applies to her being assigned primary residency of Coralee at trial.
[17] The Applicant suggests that he has always been an active, engaged parent and that he participated in all facets of Coralee’s daily care. His assertion is that his role has been impacted by the Respondent’s gatekeeping of caregiving to Coralee.
S. 39 (4) (3)
(a) the reasons for the relocation;
[18] The Respondent cites that the reasons for her relocation include that the home (residence) had become conflict ridden, that the Respondent was feeling stressed, unhappy and unsupported and that the Respondent wished to be in close proximity to her mother for support.
[19] The Applicant’s evidence suggests that the Respondent has a support system in the Trenton, Ontario area and that the Respondent’s reasoning for the relocation does not outweigh his role in Coralee’s life.
(b) the impact of the relocation on the child;
[20] The Respondent indicates that the relocation has not resulted in significant disruption to the child. I am uncertain as to how this assertion can be verified. She further cites that there are positive benefits to the child being relocated which include the positive effect on the health and well-being of the Respondent. Further, the Respondent’s submissions assert that residing in Trenton will cause undue stress and financial hardship on her which she suggests will negatively impact Coralee.
(c) the amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child's life of each of those persons;
[21] There is conflicting evidence with respect to the amount of time spent with the child by each person who has parenting time. There is not any consensus with respect to the role of the Applicant, in particular. Given Coralee’s age and the timing of the separation, it is difficult to understand how the Respondent can state that the Applicant has had generous parenting time since separation.
(d) whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement;
[22] The Respondent concedes that she did not comply with the legal requirements as they relate to notice.
(e) the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside;
[23] There does not exist an order, family arbitration 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 decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses;
[24] The Respondent asserts that the relocation is reasonable when considering the historical perspective of the family, including the roles each party fulfilled.
[25] With respect to financial issues, the Respondent’s submission is that the increased costs (financial) associated with travel as a result of her relocation some approximately four (4) hours away from Trenton, Ontario are outweighed by the benefits of the move as they impact Coralee.
[26] The Applicant’s submission with respect to the level of reasonableness displayed by the Respondent is that she has been unreasonable. He asserts that the Respondent taking Coralee without any notice and then disallowing any contact with Coralee and her father for a period of more than a month is unreasonable. The Applicant went without parenting time for the period of June 25, 2021 until August 14, 2021 without seeing Coralee despite requests through counsel to do so.
(g) whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance. 2020, c. 25, Sched. 1, s. 15.
[27] The Respondent admits non-compliance with the notice provisions of the CLRA.
[28] There exists insufficient evidence with respect to the likelihood of future compliance.
[29] The Applicant’s position is that the Respondent unilaterally decided to take the matter into her own hands and move Coralee a significant distance (approximately four hours) from her habitual residence. He asserts that the Respondent has not followed the only court order that is in existence and in his evidence cites various examples of non-compliance with the August 5, 2021 Order of Justice Tellier.
[30] Upon an application of the factors as set out in s.39.4(3) of the CLRA the rationale for the relocation was lacking merit and the focus appeared to be primarily on the alleged well-being of the Respondent and not Coralee. The impact of the move on Coralee, according to the Applicant, ignored the role of the Applicant in Coralee’s life. Further, the impact of the move places an emphasis on the Respondent’s family and does not prioritize the role of the Applicant as Coralee’s father.
[31] As set out in s. 39.4 (3) of the CLRA, the best interests of the child in accordance with section 24 must be considered in determining whether to authorize the relocation. Each factor related to the circumstances of the child has been reviewed to the limited extent that I can assess same on the incomplete record before me.
[32] S.24(3)(a) – Upon review of Coralee’s needs, her age and stage of development, and in particular her need for stability, the significant uprooting for the engagement of approximately a four-hour car ride between the parties’ residences does not lead to stability. Further, Coralee’s current service providers are in the Trenton, Ontario area.
[33] S.24(3)(b) – There is competing affidavit evidence with respect to the nature and strength of Coralee’s relationship with each parent. With respect to extended family, once again, upon review of the evidence, Coralee has had the opportunity to form bonds with both maternal and paternal extended family.
[34] S.24(3)(c) – The Applicant’s evidence indicated a willingness to support the development and maintenance of the relationship between Coralee and the Respondent. Of note was the willingness to assist financially in securing housing for the Respondent to remain in the Trenton, Ontario area and the attempts to engage in a parenting plan from the outset.
[35] The Respondent’s evidence with respect to this factor was problematic. The unilateral decision to relocate with Coralee and the time frame which occurred without any parenting time to the Applicant was clearly not supporting the Applicant’s relationship with Coralee.
[36] S.24(3)(d) – The Applicant’s evidence suggested that he has engaged extensively with Coralee’s care pre-separation. The Respondent’s evidence asserts that she was Coralee’s primary caregiver pre-separation.
[37] S.24(3)(e) – There is no evidence in front of the court with respect to the views and preferences of Coralee. Given Coralee’s age, this is not evidence that can be ascertained.
[38] S.24(3)(f) – There was little evidence provided with respect to Coralee’s cultural and heritage issues. The Applicant’s evidence suggests that the Respondent and the maternal grandmother speak predominantly French to Coralee. The development of an appreciation of both parents’ heritage can only benefit Coralee.
[39] S.24(3)(g) – Both parties have indicated that extended family would be involved in any plans for the child’s care. As a result of the uncertainty surrounding the matter, detailed plans of care were not in evidence.
[40] S.24(3)(h) – Both parties’ evidence asserted a willingness and ability to care for Coralee.
[41] S.24(3)(i) – The evidence of the Respondent provided clarity on the ability of the parties to communicate in a meaningful manner. Of note were the many text messages between the parties that demonstrated cooperative communication specifically directed at the issues of feeding, appointments and various other topics that relate to Coralee’s well-being.
[42] S.24(3)(j) – The Respondent alleged that “tensions” in the house prompted her relocation with a view to providing “respite for Coralee”. The evidence that was introduced by the Respondent was an Occurrence Summary from the OPP following her attendance to the local OPP station on the day in which she decided to relocate. Ultimately the evidence demonstrated that the Respondent had no safety concerns at the time of the filing of the Occurrence Summary.
Decision
[43] This matter is a classic example of the problems associated with the review of conflicting and incomplete affidavit evidence available at an interim motion. Upon review of the evidence, at times, it appeared as though two (2) completely different matters were being litigated.
[44] In applying the Plumley principles, based on the evidence provided, it is determined that there is a genuine issue for trial. There have been no compelling circumstances presented that indicate I ought to allow the relocation to Vankleek Hill, Ontario. Further, I see no probability that the Respondent’s position will prevail at a trial. There is simply not enough evidence to indicate which party will prevail at trial.
[45] The Respondent ignored the CLRA notice requirements and relocated the child virtually on the eve of separation. The move to Vankleek Hill, Ontario by the Respondent was self-serving. The evidence indicates that the focus of the relocation is on the Respondent’s needs and not necessarily in the best interest of the child, Coralee. Vankleek Hill, Ontario is approximately four (4) hours away from Coralee’s habitual residence of Trenton, Ontario.
[46] The pre-separation status quo is not clearly ascertained by the evidence.
[47] The relocation to the community of Vankleek Hill, Ontario is a significant geographical distance. It is a barrier to the Applicant enjoying parenting time with Coralee.
[48] The Respondent’s theme in her evidence is that the relocation to Vankleek Hill, Ontario will provide Coralee with respite from the conflict the parties were engaging in prior to the separation. A relocation of such nature is extreme. There was no time frame in which the parties lived separate and apart with a view to establishing a parenting regime in the geographical catchment area of Coralee’s habitual residence.
[49] I do not accept the Respondent’s submissions that the Applicant would not see Coralee, a child who turned one (1) in September 2021, for many days between parenting times. For a child as young as Coralee, it is imperative to have frequent parenting times with both parents.
[50] I will not make a designation of primary parent at this stage of this matter, as requested, based on allegations of “tension” between the parties or insufficient evidence.
[51] The Applicant has raised the issue of the concern of the Respondent not allowing his involvement in the parenting of Coralee. This issue shall be dealt with in due course.
[52] Any decisions that need to be made moving forward can be addressed at the next Conference or by way of further motion or ultimately at trial.
Order
Order to go as follows:
[53] The child, Coralee Emma-Lynn Paro, born September 25, 2020, shall have her residency situated in the geographic area of no more than 50 kilometres from Trenton, Ontario. The child’s residency shall be established in the stated geographic region no later than March 1, 2022.
[54] Until the return to the Trenton, Ontario area, the Applicant shall have parenting time every weekend (commencing February 18, 2022) from Friday at 5:30 pm until Sunday at 5:30 pm. The Respondent shall be responsible for all transportation and shall deliver and retrieve the child from the Applicant’s residence.
[55] Commencing on March 2, 2022, a 2/2/3 parenting schedule shall be implemented as follows:
a. March 2, 2022 at 5:30 pm to March 6, 2022 at 5:30 pm – Coralee shall reside with the Applicant;
b. Commencing March 7, 2022, the 2/2/3 schedule shall fully commence as follows:
i. Monday and Tuesday with the Respondent;
ii. Wednesday and Thursday with the Applicant;
iii. Friday to Sunday alternating between the parties with the March 11, 2022 time frame being parenting time for the Respondent;
iv. All parenting exchanges shall occur at 5:30 p.m.
[56] The parties shall contact the Trial Coordinator to schedule a Settlement Conference to be scheduled no earlier than July 2022.
[57] I encourage the parties to resolve the issue of costs of the Motion. If the parties are unable to do so, they shall serve and file a maximum three (3) page submission with their Bill of Costs attached and shall do so no later than February 18, 2022. Such submissions shall be brought to my attention for determination. If the submissions are not received by February 18, 2022, the parties will be deemed to have settled the issue of costs as between themselves.
Madam Justice Tami L. Waters Date: February 11, 2022