Court File and Parties

COURT FILE NO.: FC-14-FS-898-0002 DATE: 2022/01/05 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Stephen P. Dempsey, Applicant AND: Brandy Canning, Respondent

BEFORE: Madam Justice M. Fraser

COUNSEL: Selim James Levy, Counsel for the Applicant Brandy Canning, self-represented

HEARD: November 17, 2021

Endorsement

[1] This motion was brought by the Applicant father, Stephen P. Dempsey (“Dempsey”). He asks for an order requiring that the Respondent mother, Brandy Canning (“Canning”) return their ten-year-old son, Kane to Renfrew County. He asks that Kane’s primary residence be with Dempsey and that Kane be enrolled at the Eganville District Public School. Dempsey additionally asks for a temporary order for child support.

[2] In response, Canning asks that her relocation of Kane’s residence to Welland be maintained pending a hearing of this Motion to Change.

[3] Canning was previously represented in this proceeding but was self-represented at this motion. She filed no evidence in response to the motion.

Background

[4] The parties were married on March 13, 2009. They separated on October 1, 2013. Kane is the only child of the relationship. The parties were divorced on June 13, 2015.

[5] There was a final order dated May 13, 2015 (the “final order”) addressing the parenting time of the parties with Kane. It provided, among other things, that:

a. The parties would have joint custody of Kane;

b. From May 2015 until the end of July 2015 Kane would continue residing on a week-about rotation, unless otherwise agreed upon between the parties; and

c. Commencing August 1, 2015, Kane would reside primarily with Canning in Petawawa. Kane would have parenting time with Dempsey every other weekend, for an equal share of the holidays and for such further times as might be agreed upon by the parties.

[6] Dempsey’s parenting time has not been restricted to the minimum parenting time set out by the terms of this order. From March 2020 until August 2021, the parties shared equal parenting for a large portion of the time. Dempsey also claims to have parented Kane for the greater portion of the time between January 2021 and September 2021.

[7] It seems the shared parenting arrangement was agreed upon as a result of the schools moving to remote learning due to the COVID-19 pandemic. This made a shared arrangement possible. It is not disputed that with the return to “in person” learning that the shared parenting arrangement would not be continued as of September 2021.

[8] In May 2021 Dempsey commenced this Motion to Change to prevent Canning from moving to Welland, Ontario with Kane.

[9] On June 29, 2021 Canning served Dempsey with a Notice of Relocation. On July 2, 2021 Dempsey served Canning with his Objection to Relocation.

[10] A case conference was held on September 2, 2021.

[11] On September 3, 2021, the parties retained a private clinician to prepare a Voice of the Child report.

[12] At some point in September 2021, Canning relocated to Welland, Ontario against Dempsey’s wishes. Kane is presently residing with Canning and is attending school in Welland.

[13] Since the move to Welland and until this motion was heard, Kane has only seen Dempsey twice given the difficulties now posed by the geographic distance between them.

[14] Canning has provided limited details with respect to her relocation and proposed parenting plan.

[15] In her pleadings she indicated that she is enrolled in the “Educational Assistant-Special Needs Support” program at Niagara College in Welland. Canning has not provided further particulars respecting this program (ie. its length, whether there are equivalent programs offered at colleges in closer proximity to Petawawa, whether any effort was made to apply to other colleges and what the result was).

[16] Canning has not provided evidence as to where she is presently living, any individuals who might also be residing with Canning and Kane, or what school Kane is attending.

[17] According to Dempsey, Canning told him that she would be living with a friend, Erica, Erica’s former partner and their two children. He claims that Canning did not provide any details of what arrangements were made for Kane for sleeping or whether this arrangement involved paying rent.

[18] Dempsey asserts that there are other colleges which offer a similar program to that in which Canning has enrolled, including the Pembroke campus at Algonquin College.

[19] No independent evidence was initially available on the motion with respect to Kane’s views and preferences. However, at my request, the clinical social worker, Karen L. Douglas (“Douglas”), who was retained by the parties to prepare a Voice of the Child’s report, submitted a report to be considered as part of this motion.

[20] I note the following information set out in this report, dated November 22, 2021 in particular:

a. Douglas met with Kane remotely due to concerns with the COVID-19 pandemic. She interviewed Kane on two occasions, one occurring while Kane was at Dempsey’s home, and the other occurring while Kane was at Canning’s home;

b. Douglas was able to watch Kane’s interactions with both his parents and observed them to be spontaneous, familiar and overall affectionate. She likewise observed that Kane appeared at ease and relaxed in both settings, including with other members of each household unit;

c. Douglas observed Kane to be a bright young man who was at ease conversing with her about his life. Kane’s views remained clear, independent and consistent;

d. Kane reported that he and Canning moved to Welland in the summer of 2021. He resides with his mother and has his own room in the basement of the house she is sharing with her friend. He now attends Quaker Road Public School;

e. When Kane resides with his father, he shares a bedroom with a step-sibling Logan;

f. Kane describes having a positive relationship with both parents and his extended family on both sides;

g. Kane confirmed the parenting arrangements as it has evolved over time (which was consistent with that which was set out above);

h. He understood that the move to Welland was so that Canning could attend college;

i. He stated that his new school is a “bit different” and that he missed his old school in Petawawa (that he had liked his teachers at Valour and he had had some close friendships);

j. Kane expressed the fact that the move meant that he did not get to see as much of Dempsey and that he spend time trying to think of ways he could spend more time with his father;

k. Kane would like to move closer to his father, or his father move closer to him, so that he could see him more often. He expressed a clear wish that his parents lived closer to each other so that he could enjoy more time with his father; and

l. Kane finds the distance that he needed to travel between Welland and Golden Lake to be hard.

Analysis

[21] The final order made on May 13, 2015 was made in the context of the parties’ divorce proceedings. The variation sought of the parenting time by this Motion to Change is governed by the Section 17 of the Divorce Act R.S.C. 1985 c. 3 (2nd Supp.) as amended (the “Act”).

[22] The parties have joint custody of the children. The Act, as recently amended, replaces the concept of “custody” with “decision-making responsibility” and replaces the concept of “access” with “parenting time”. Pursuant to the transitional provision in Section 35.4 of the Act, unless the court orders otherwise, the parties in this case are deemed to be persons to whom parenting time and decision-making responsibility have been allocated. An interim or final order dealing with decision-making responsibility or with parenting time is a “parenting order” (See Section 16.1(1) of the Act).

[23] Normally, to grant a temporary variation of the final order, I must consider 1) whether there has been a material change shown; and 2) whether it is in the best interests of the child to make the variation sought (see: Tone v. Tone [2021] O.J. No. 2852, 2021 ONSC 3747 (Ont. S.C.J.)).

Material change

[24] There is no dispute in Canning’s Response to the Motion to Change that Canning’s relocation to Welland with Kane constitutes a material change. Rather, Canning asks for a disposition which would also constitute a variation of the terms of the final order. She asks that the final order be varied in a way which would permit the relocation of Kane’s residence to Welland and that Dempsey’s parenting time to occur one weekend per month.

Best interests of Kane

[25] The next issue, then, is whether it is in Kane’s best interest to make a temporary order varying the parenting terms provided in the final order and if so, what terms would be consistent with Kane’s best interests.

[26] Subsection 16(1) of the Act requires any parenting order to be determined by taking into consideration only the best interests of the child.

[27] In determining Kane's best interests I am to "give primary consideration to the child's physical, emotional and psychological safety, security and well-being", while considering "all factors related to the circumstances of the child" (see: subsections 16(2) - 16(3) of the Act).

[28] A non-exhaustive list of factors to be considered in determining Kane's best interests are set out in subsection 16(3) of the Act as follows:

Factors to be considered

(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.

[29] The principle that a child should have as much contact as possible with each parent remains a part of the court's best interests considerations (see subsection 16(6) of the Act). In essence, Kane should enjoy as much contact with each of his parents as is consistent with his best interests.

[30] Subsection 16.92(1) of the Act sets out additional factors that are to be considered in determining the best interests of a child where relocation is requested:

Best interests of child — additional factors to be considered

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.

[31] Subsection 16.92(2) states that 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.

[32] Section 16.93 of the Act, as it pertains to which party must bear to burden must additionally be considered:

Burden of proof — person who intends to relocate child

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.

Burden of proof — person who objects to relocation

(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.

[33] Finally, pursuant to subsection 16.1(2) of the Act, the court may, on application, make an interim parenting order pending the determination of an application.

[34] 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-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."

[35] Marshman J. in Plumley v. Plumley (1999), 90 A.C.W.S. (3d) 740, [1999] O.J. No. 3234, set out the following considerations to apply when considering relocation requests on interim motions 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:

1. 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.

2. 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.

3. 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."

[36] In Consentino v. Cosentino, 2016 ONSC 5621, Pazaratz J. observed that motion judges considering mobility issues on an interim or temporary basis need to be mindful of both short term and long term dynamics, to ensure that the maximum contact principle is not undermined by the unilateral actions of either party.

Onus

[37] I first propose to address the issue of which party bears the onus in this instance. The final order set out the parenting terms. It provided that Canning was to have the vast majority of the parenting time with Kane.

[38] It is acknowledged that Dempsey exercised significantly more parenting time with Kane (due to the pandemic) than was expressly provided for by the specific schedule set out in the final order. However, the final order specifically provided for Dempsey to have such additional time with Kane as may be agreed upon by the parties. As such, I conclude that the final order was substantially complied with as any deviation from the main parenting arrangement was contemplated if agreed upon by the parties and this therefore did not result in non-compliance with the final order.

[39] On this basis, I conclude that section 16.93(2) of the Act applies and that the burden lies with Dempsey (given he opposes the relocation) to establish that the relocation would not be in the best interests of Kane.

[40] That stated, while the reality of the parenting arrangement which was in place immediately prior to Canning’s relocation with Kane, does not change this burden, it is nonetheless relevant as a factor to be considered when addressing the issue of Kane’s best interests as it is relevant to my consideration of the quality of the relationship between Kane and Dempsey as well as the history of care.

Would it be in Kane’s best interests to relocate with Canning on a temporary basis pending the hearing of this motion to change?

[41] Any finding with respect to Kane’s best interests is necessarily limited by the constraints posed by a motion when we do not have the benefit of a full evidentiary record. This is made particularly difficult given the fact that Canning is no longer represented by counsel and did not file any evidence in response to Dempsey’s motion.

[42] To the extent such evidence was available to me, I find the following factors to be particularly pertinent to my determination of Kane’s best interests for the purpose of this motion:

a. Both parties clearly have a close and loving relationship with Kane. Both parties are capable and willing to provide Kane with a stable and caring home. Both parties have demonstrated flexibility and an obvious desire to accommodate what might be best for Kane at any point in time. While it is clear that both parties are continuing to pursue that objective, they differ in their perception of what would be in Kane’s best interests. I do not question that both parties pursue their position in good faith, believing they are promoting what they believe would be best for Kane;

b. Kane spent his early school years primarily in the care of Canning (from August 2015 until March 2021). However, he has, from March 2020 until the end of August 2021 divided his time more equally between Canning and Dempsey. Kane clearly adjusted to and enjoyed the new parenting arrangement;

c. Kane has additionally developed a close and loving relationship with a number of extended family members, including Dempsey’s present partner and his three step-siblings;

d. The proposed move will disrupt and negatively impact the level of interaction Dempsey has more recently enjoyed with Kane. Even with the parties reverting back to the schedule specifically set out in the final order (every second weekend), the “every second weekend” schedule has been rendered impractical given the new geographical distance which between them. The move inevitably negatively impacts Kane’s ability to have frequent and ongoing contact with his extended paternal family, all of whom appear to have a positive loving relationship with Kane;

e. Kane would like to move closer to his father, or his father move closer to him, so that he could see him more often. He consistently has expressed a clear wish that his parents lived closer to each other so that he could enjoy more time with his father;

f. Kane has enjoyed and regrets having to leave the teachers and friends he has had at Valour school in Petawawa;

g. Neither party proposed a plan which would allow Kane to continue to attend Valour;

h. Canning has not presented any evidence which would support the reasons for her move. Her stated purpose in relocating to Welland is to attend a program at Niagara College. Kane will likely indirectly benefit from Canning pursuing further educational opportunities as this will enhance her employability and likely to impact her income earning potential. However, there is no evidence before me to this effect. Furthermore, Canning has not adduced any evidence which would suggest that a move of this distance was necessary (ie that this is a program unique to Niagara College or that Canning was unable to get accepted into an equivalent program at a college which did not require a relocation of this geographical distance). Dempsey asserts that this program was available to Canning locally, although he has not provided independent corroboration for this;

i. No evidence has been adduced to support a contention that a relocation to Welland otherwise provides an improved living situation for Kane; and

j. Kane finds the distance that he needed to travel between Welland and Golden Lake to be hard.

[43] I am satisfied on the evidence that Dempsey has established that relocating Kane to Welland pending the hearing of this matter would not be in his best interests.

[44] In taking into account Kane’s physical, emotional and psychological safety, security and well-being as set out in Subsection 16(2) of the Act, and on the evidence presently before me, I find that that Kane’s relocation to Welland causes a relatively significant disruption to his life.

[45] The most significant disruption is the decrease in the time which Kane is in the care of Dempsey in contrast to what has more recently been the parenting arrangement. Kane has been removed from the school he has attended and he has suffered the loss of his friend group. He has been removed from the community in which he was raised. He will be required to travel a significant distance in order to spend time with Dempsey and extended paternal family.

[46] As such this is not a case where I conclude that there is a strong probability that Canning’s request to relocate will ultimately prevail. There is presently insufficient evidence to make such a conclusion. There are genuine issues which need to be ultimately be determined once all the relevant evidence is available.

[47] Therefore, after considering all the circumstances of this case and the factors set out in Sections 16 and 16.92 of the Act, and for the reasons set out in this endorsement, a temporary order shall issue as follows:

1. Effective January 15, 2022, Canning shall return Kane to reside in Petawawa, Ontario to continue to reside in that community and attend the school (Valour) he has been accustomed to (if and when the school is open for “in person” learning). If, due to the impact of the COVID-19 pandemic on the school system, his schooling is online, the parties are to share parenting time of Kane on a week-about basis. This order is intended, to the extent it is possible, to preserve the status quo which was in place prior to Canning unilaterally relocating Kane to Welland. To the extent I am able to draw a conclusion on a temporary basis, I consider the preservation of the status quo to be most consistent with Kane’s best interests.

2. In the event that Canning does not return Kane to reside in Petawawa then, pending further order and unless the parties agree to alternate terms, Kane shall reside with Dempsey on a temporary basis effective January 15, 2022, pending further interim order of this court and/or the final disposition of this matter. Unless otherwise agreed upon by the parties, and pending further order, Canning shall have parenting time with Kane one weekend per month (which weekend shall be the third weekend of each month unless the parties agree otherwise), the whole of the school March break, and for six weeks during the summer school vacation. In the event the remainder of the present school year entails Kane attending school virtually, then Canning shall have extended parenting time with Kane such that the parties shall have the equivalent of equal parenting time during such times, based upon a schedule to be agreed upon by them.

3. If the parties are unable to agree on the issue of costs for this motion, Dempsey may file submissions concerning costs on or before January 14, 2022. Canning may file submissions concerning costs on or before January 24, 2022. The cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs. If there are no submissions received by January 24, 2022 then there shall be no order as to costs.

Justice M. Fraser Date: January 5, 2022