Court File and Parties

Court File No.: FS-21-00101870-00 Date: 2022 02 22 Ontario Superior Court of Justice

Between: Tauqeer Tariq, Applicant And: Madiha Faheem Khan, Respondent

Counsel: A. Dror for the Applicant/Father Z. Haider for the Respondent/Mother

Heard: February 2, 2022

Endorsement on Interim Relocation Motion

[1] This is a relocation motion.

[2] The child in question is Zahida Khan (“Zahida”), born April 15, 2021.

The Motions

[3] On January 17, 2022, the Respondent Mother, Madiha Faheem Khan (“the Mother”) brought a motion seeking:

a) An order that the Mother be permitted to relocate to Sudbury (the relocation) on March 1, 2022 with Zahida;

b) an order setting a parenting schedule until March 1, 2022;

c) an order that the parenting time schedule, after the relocation, be as follows:

i. The Mother is to bring Zahida to the Greater Toronto Area (“GTA”) one weekend every month, to facilitate parenting time with the Applicant Father, Tauqeer Tariq (“the Father”). The Father’s parenting time is to take place at his residence situated at 1531 Sixth Line, Oakville, from 10:00 am until 2:00 pm, on Saturday and on Sunday;

ii. The Father is to have, if he chooses to exercise it, parenting time once per month in Sudbury from 10:00 am to 2:00 pm at his place of temporary residence or in the community, with supervision by a social worker. The Father’s cost of exercising parenting time with Zahida in Sudbury, specifically the car transportation costs (fuel/gas) and accommodation cost, shall be shared equally between the parties; and

iii. sharing of various holiday times.

[4] On January 21, 2022, the Father brought a cross-motion seeking an order:

a) prohibiting the Mother from leaving the GTA with Zahida without his written consent;

b) setting his parenting time, to be supervised by Brayden Supervision Services (“Brayden”) for the first two weeks only (thereafter unsupervised) at his home, as follows:

a. Every Tuesday and Thursday from 2:30 p.m. to 6:30 p.m.; and

b. Every Saturday from noon until 4:00 p.m.

c) A judicial review of parenting time when Zahida turns 18 months of age.

The Factums

[5] Too often counsel simply ignore Notices to the Profession, the Family Law Rules (“FLR”) and the Rules of Civil Procedure when it comes to the length and formatting of filed documents.

[6] This is a clear case where both counsel simply ignored such directions when filing their factums.

[7] Despite a 20 page limit, the Mother’s counsel filed a 34 page factum.

[8] Despite the formatting requirements, the Father’s counsel filed a 20 page factum but it was single spaced, smaller font size, no spacing between headings and the body.

[9] Had this not been a motion affecting a child, I would have stopped reading the factums at 20 pages or at the 20 page equivalent.

[10] In the near future, the profession will be notified by the Superior Court of Justice that filed documents must strictly comply with the page limits and formatting in the applicable Rules or the court document will not be accepted for filing. If a court document is not accepted for filing, then it CANNOT be uploaded to CaseLines. The presiding judge will not have access to the document. Exceptions will require prior judicial approval to be given in exceptional circumstances and where clearly justified.

The Proceeding

[11] On November 3, 2021, the Father commenced this Application. On the issue of decision making and parenting time, the Father seeks sole decision making (or alternatively joint decision making) and that:

“Zahida shall reside with the parties on a shared and equal basis, understanding that the Applicant Father’s parenting time will graduate over time in accordance with the age, stage of development and overall best interests of Zahida.”

[12] The Father does not specify what temporary or final order for parenting time is sought seeking instead, “a parenting schedule to be particularized in accordance with the age, stage of development and overall best interest of Zahida.”

[13] The Mother’s Answer seeks primary residence, primary decision making, authorization to relocate, and that the Father have supervised parenting time “in accordance with the age, stage of development and overall best interests of Zahida.”

The Facts

[14] The Mother is 36 years old. The Father is 33 years old.

[15] The parents of both parties are in the GTA area. Members of their respective extended families reside in the GTA and also other areas from Brantford to North Bay.

[16] In 2017, the Mother moved to Sudbury to pursue a two year Post Doctoral Fellowship at the School of the Environment, at Laurentian University, Sudbury.

[17] As part of her Post Doctor Fellowship, in May 2018, the Mother started working part-time at Cambrian College, Sudbury, in the Department of Applied Research as a Research Analyst. Later that year, the Mother purchased a home in Sudbury.

[18] During this period, the Mother was provided $1,200,000 funding grant to design and develop an analytical laboratory for Research and Development. This was funding 2 years.

[19] The Father is a Chartered Professional Accountant. He is self-employed in a partnershiop. His office is in Toronto.

[20] In April 2018, the parties met.

[21] At the time, the Father resided in Mississauga; the Mother resided in Sudbury.

[22] The relationship continued with the Mother occasionally returning to Mississauga from Sudbury on weekends and holidays.

[23] In December 2018, during their relationship, the Mother bought a home in the Sudbury area. The Father was clearly aware of the Mother’s ties to Sudbury both employment and residence.

[24] The Father attends Cognitive Behaviour Therapy sessions for depression and generalized anxiety disorder.

[25] In August 2019, the Mother’s funding grant for the analytical laboratory project in Sudbury was extended for a year.

[26] On October 26, 2019 the parties were married.

[27] Apparently, conflict and acrimony soon became apparent in the relationship, described by the Father and the Mother as “hostile and abusive”. However, as is often the case, both point to the other as the aggressor or cause of this hostility.

[28] After the wedding, the parties resided in the Mother’s home in Sudbury for several months. The Mother sought and was granted leave to work remotely as, at that time, the Mother was working on a manuscript writing phase of her doctorate and the analytical laboratory she had designed was in a procurement of equipment phase.

[29] In December 2019, the parties returned to the GTA and moved into a short term rental furnished apartment in Burlington. The Mother rented her Sudbury home.

[30] The parties looked at jointly purchasing a property in Sudbury as late as June 2020. I reject the Father’s suggestion this was an investment property given that, at other places in his evidence, the Father stated they had to sell the Mother’s home to complete a purchase in the GTA.

[31] The Father preferred to settle in the GTA area. Not knowing if the Mother’s funding would be extended after August 2020, the Mother agreed to look at moving to the GTA. The Mother also looked for employment in the GTA. The parties looked at purchasing properties in the GTA area into July and August 2020.

[32] While the parties were grappling with issues in their relationship and where to reside, in early 2020, the Mother continued to work on her laboratory project, mostly remotely but attending in-person in Sudbury when necessary.

[33] Whether there was a final decision to move to the GTA, or it was simply to explore a potential move to the GTA, or potentially stay in Sudbury, is hotly disputed. In my view, it has no impact on the decision in this motion. The fact is that the location of their residence was an area of dispute, was never finalized and the marriage broke down very quickly. The parties were faced with the Mother’s career, employment and connections with the Sudbury area and the Father’s career and busines ties in the GTA.

[34] In August 2020, the location of the parties’ residence became more contentious. That month, the Mother’s project funding was extended for a further year. Now the Mother’s employment was, as a Project Manager, to create a Centre for Mine Waste Biotechnology in Sudbury. Because of COVID this had to be and could be done remotely.

[35] In August 2020, the parties realized the Mother was pregnant. The Father wanted an abortion not wanting children this early in his life (a fact not disputed). The Mother refused. The Father states he changed his mind and became eager about having a child. This pregnancy was another source of dispute.

[36] The acrimony and conflict between the parties escalated. This hostility is not disputed. The Mother requested the Father to leave the residence on at least 3 occasions. Even when residing together, the Father states that “I had been sleeping on the living room floor for months, and there were weeks at a time when Madiha had not spoken to me.”

[37] While the parties continued to reside together, in October 2020, the Mother was offered full time employment by Cambrian College in Sudbury as the Analytical Research Lead. She was completing the analytical laboratory she had designed and helped establish over the prior three years and would now be the lead researcher at that laboratory. Given COVID, the Mother would work remotely. At least for some time.

[38] The Father does not dispute that he knew that the Mother accepted this full time Sudbury position in October 2020, while both the Mother and Father were together in the GTA. The Father states he believed the Mother would be able to do the job remotely – apparently permanently. As I state below, I reject this submission. It makes no sense that the Father would believe that, after COVID, the Mother would continue to be the lead researcher at a laboratory in Sudbury remotely indefinitely.

[39] Both parties make numerous allegations about the other’s alleged misconduct during the marriage. I am not persuaded that the degree of conflict between the parties is of significance to the determination on this motion where the sole issue to be decided is what is in the best interests of Zahida.

[40] The parties separated on December 18, 2020, approximately 5 months before Zahida was born. The Father moved out of their residence in the GTA. He moved into his parent’s home in Mississauga.

[41] Prior to Zahida’s birth, the parties attempted to agree to a parenting plan with some professional assistance. Eventually, the Father and Mother agreed that the Father would see Zahida (when born) twice a week at the Mother’s home.

[42] On April 15, 2021, Zahida was born. The Mother and Zahida moved in with the Mother’s parents in Mississauga. The Father started to exercise his parenting time as had been agreed.

[43] As for the Mother’s employment in Sudbury, the Mother took a maternity leave. She is presently on maternity leave which ends on April 3, 2022. The Mother is currently on E.I. which will end when her maternity leave ends.

[44] Despite their separation, the acrimony and conflict between the parties continued.

[45] The parties returned to parenting mediation. A resolution was arrived at, confirmed by the mediator on June 22, 2021;

1. Parenting Schedule

Week	Monday	Tuesday	Wednesday	Thursday	Friday	Saturday	Sunday
1	Madiha	Madiha	Madiha caring for Zahida before and after Tauqeer’s parenting time. Tauqeer will have parenting time with Zahida from 6-7pm.	Madiha	Madiha	Madiha caring for Zahida before and after parenting time with Tauqeer. Tauqeer will have time with Zahida from 12-1pm on alternating weekends	Madiha
2	Madiha	Madiha	Madiha caring for Zahida before and after Tauqeer’s parenting time. Tauqeer will have parenting time with Zahida from 6-7pm.	Madiha	Madiha	Madiha	Madiha

Madiha and Tauqeer have agreed to the following two week-rotational Parenting plan effective June 22, 2021. Any additional times for spending time with Zahida to be discussed and mutually agreed upon.

[46] The Mother was accommodating of the Father’s requests for parenting time, even when the Father made last minute requests and changes to his scheduled parenting time.

[47] This parenting schedule continued until August 25, 2021.

[48] On August 25, 2021, during one of the Father’s parenting visits, their conflict escalated to the point of the police were called by the Mother. From the respective description of what occurred, it appears that their personal acrimony and conflict simply got out of hand that day resulting in the Mother alleging that the Father had “mishandled” Zahida. Although, there is no suggestion of any risk to Zahida. No charges were laid. The Mother now tries to minimize having called the police suggesting it was only a non-emergency line.

[49] After this incident, the Father refused to have any further parenting time with Zahida at the Mother’s parent’s home. The Father made certain proposals for his parenting time. The Mother didn’t agree. The Mother made certain proposals for the Father’s parenting time. The Father didn’t agree.

[50] As a result, the Father did not exercise any parenting time for about 5 weeks.

[51] In September 2021, the Father’s new counsel suggested he would eventually seek equal parenting time but would be seeking a graduated parenting plan and proposed several parenting professionals to assist the parties in this regard.

[52] The Father had no parenting time with Zahida for approximately 5 weeks from August 5, 2021 to October 2, 2021.

[53] The Father alleges that the Mother was trying to minimize his role in Zahida’s life. I reject this submission. It is clear that the Mother suggested other alternate ways for the Father to exercise his parenting time but the Father rejected these proposals. The parties have been engaged with various parenting professionals to work out a parenting schedule. For example, on September 11, 2021, the Father requested an unscheduled parenting time. The Mother brought the child to the Father’s house but the Mother and Zahida were refused access, the Father did not attend and the parenting time did not go ahead. The Father says he didn’t know about this parenting time.

[54] There is simply no evidence to suggest that the Mother was attempting to minimize the Father’s role in Zahida’s life.

[55] On September 13, 2021, the Mother served a Notice of Relocation under the Divorce Act. The Father served a Notice of Objection.

[56] On September 17, 2021, the Mother was advised that, with the changes to the COVID restrictions (prior to Omicron) she was required to return to work in January 2022 (now again delayed by COVID). The Father does not accept this in-person requirement of the Mother’s employment instead asking for “proof” or questioning that the letter’s wording that it is “anticipating” a return to in-person work in January 2022. For the reasons set out below, I find no merit in the Father’s submissions questioning the expectation and requirement that the Mother will have to return in-person to her laboratory in the future.

[57] Eventually, the parties agreed to retain Ms. Cindy Chisvin in September 2021, a parenting professional proposed by the Father, to work out an appropriate parenting plan. The Mother’s desire to relocate to Sudbury was a topic of discussion at the meetings with Ms. Chisvin in October 2021. Eventually, in late October 2021, the parties agreed that the relocation issue would have to be litigated. This made working out a parenting plan, with or without a parenting professional, difficult.

[58] To overcome the Father’s lack of parenting time, the Mother proposed that the Father have 3 supervised visits per week for 1 hour each with a cost sharing arrangement. The Father agreed. The Father’s parenting time continued on this basis but with parenting time eventually increasing to 1 ½ hours per visit.

[59] To date, all the Father’s parenting time has been supervised.

[60] On January 7, 2022, the Father sought to have parenting time 3 times a week with 4 hours each visit. The Mother proposed parenting time every second day for two hours each day, as supported by Ms. Chisvin. No agreement could be reached.

[61] On January 22, 2022, Ms. Chisvin wrote setting out her recommendations that the Father’s parenting time be moved from the Supervision Center to the Father’s home but that the parenting time continue to be supervised:

I am writing to clarify my recommendation regarding ongoing access for Mr. Tariq and his daughter Zahida Tariq. I am recommending that access be moved from the Centre to Mr. Tariq’s home with the stipulation that the visits continue to be supervised. My professional opinion is that moving Mr. Tariq’s visits to his home will further support his bonding relationship with Zahida. In order to accomplish this important transition, the following points are important:

• As trust between the parties is still quite tentative, this will aid in building the trust between the parties that Zahida is well cared for.
• Supervision will prevent any allegations being made by either party.
• Supervision will ensure that proper Covid protocols are being followed by all family members.
• Supervision will ensure that the parenting decisions made by both parties are being respected by all family members.

This next step in the parenting time process is an important one to support Ms. Khan, Mr. Tariq and especially Zahida.

Positions of the Parties

[62] The Mother submits that it is in Zahida’s best interests that the Mother be permitted to immediately relocate with Zahida, on an interim basis (and will seek a permanent order to this effect at trial), to Sudbury and that the Father’s relationship with Zahida can be maintained and increased through a reasonable parenting schedule.

[63] The Father submits that this motion should not proceed on an interlocutory basis. The Father complains he has not had sufficient time to respond to the Mother’s request to move to relocate or the opportunity to question her. I reject both. The Father has known for at least 5 months of the Mother’s intention to move. A timetable for this motion was set. The Father complains he has not had an opportunity to question the Mother. However, the Father neglects to advise that the Mother offered to be available for questioning on January 27 or 28, 2022, after the Father raised this complaint in his affidavit, but the Father did not proceed with questioning. I can only infer that the Father wants to use the lack of questioning to adjourn this motion and thereby cause the Mother to lose her employment making the relocation moot.

[64] The Father also submits that, given the distance to Sudbury, any relocation, interim or permanent, will have a devastating and negative impact on his relationship with Zahida.

[65] At the end of the day, the competing positions can be broken down as follows:

a) the Mother wants to return to Sudbury with Zahida, continue her primary care of Zahida, allow the Father to have meaningful parenting time and allow her to pursue her career in a unique employment opportunity.

b) the Father objects that he will not be able to have a meaningful relationship with his daughter if the Mother is permitted to relocate to Sudbury.

The Law

The Statutory Provisions

[66] Section 16 of the Divorce Act provides:

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

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

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

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

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

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

(d) the history of care of the child;

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

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

(g) any plans for the child’s care;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(h) any other relevant factor.

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

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

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

[67] Section 16.9 of the Divorce Act provides:

16.91 (1) A person who has given notice under section 16.9 and who intends to relocate a child may do so as of the date referred to in the notice if

(a) the relocation is authorized by a court; or

16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,

(a) the reasons for the relocation;

(b) the impact of the relocation on the child;

(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;

(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;

(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;

(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and

(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.

16.93 (1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.

(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.

(3) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.

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

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

[68] The court has jurisdiction under s. 16.1 of the Divorce Act to make interim orders, which includes an interim order permitting a party to relocate with a child and to impose conditions on such a relocation. See s. 16.1(7) of the Divorce Act.

[69] Notice of Relocation is not an issue in this motion.

The Caselaw

[70] The applicable law on temporary relocation motions was recently summarized by J. Coats in Arabi v. Al Sahnawi, 2021 ONSC 6124:

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

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

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

49 The law can be summarized as follows:

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

b) The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.

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

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

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

1. the existing custody arrangement and relationship between the child and the custodial parent;
2. the existing access arrangement and the relationship between the child and the access parent;
3. the desirability of maximizing contact between the child and both parents;
4. the views of the child;
5. the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;
6. disruption to the child of a change in custody;
7. disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Onus

[71] The Father submits that the onus in s. 16.93(2) does not apply in this case. The Father submits that the section only applies where there is a court order, arbitral award or a written agreement.

[72] I disagree.

[73] Had the legislators wanted to limit the application of the subsection to situations where there existed “written agreements” on the primary care (or vast majority) of the child’s care, they could have easily done so. There is no limitation or constraints as to what type of “agreements” are caught by this subsection.

[74] It makes no sense that, where there has been a de facto agreement that a child spends the vast majority of their parenting time in the care of one parent, even if existing for years, that parent would not benefit from the reverse onus in this subsection.

[75] In this case, there clearly was an “agreement” for the current “care time” by the parents. It is also clear that the Mother has to date had de facto decision making for Zahida. More importantly, there is no agreement on where Zahida was to reside.

[76] In my view, the onus provision in the Divorce Act applies.

[77] In any event, I am satisfied that, even if there was no onus on the Father, the Mother has established a compelling case that temporary relocation should be permitted for the reasons that follow.

Analysis

[78] Before proceeding to deal with each of the factors set out in the Divorce Act, let me deal with the primary areas of submissions made by counsel during this hearing.

The Need and Importance for the Mother’s relocation

[79] I accept that the Mother’s employment requires her to, when COVID permits, return to in-person work at the highly specialized and “new” focused laboratory she was responsible for designing and establishing.

[80] As Dr. Commito, the Director of Applied Research, states, in his affidavit, with the completion of the lab, designed by the Mother, “a $2M facility that is unparalleled for any college or university in Northern Ontario…”, Cambrian College is deliberately holding off the commissioning of the lab until the Mother returns to work in-person, failing which Cambrian College will have to find another replacement. Dr. Commito goes on to say:

I want to make it abundantly clear that I do not envision anyone other than Dr. Khan in this role. She is uniquely qualified for this position based on her interdisciplinary PhD research, familiarity with the equipment, and postdoctoral work with Dr. Nadia Mykytczuk, a world leader in biomining. In working with Dr. Mykytczuk, Dr. Khan has developed a unique skillset and knowledge base that is valuable to our industry partners in the mining sector and who are looking for alternative mine waste remediation solutions. Dr. Khan’s experiences, therefore, align with the College’s broader research aims, chiefly through our Centre for Smart Mining, a federally funded Technology Access Centre with a mandate to facilitate access to technology and research experts in mining.

The work performed for this company has attracted significant political interest, and the company is positioned to become a strategic domestic supplier of battery grade lithium and other chemicals to the growing electric vehicle and energy storage markets in North America.

[81] Dr. Michael Commito’s affidavit sets out that the Mother’s “remote work” was always considered temporary.

[82] The affidavit of Stacey Vehkala, the Labour Relations Generalist at Cambrian College, makes sense and clearly sets out why the Mother is required to return to in-person work at Cambrian College.

[83] The Father’s submission that there is no “proof” that the Mother must return to work in-person this spring has no merit. The Father chooses to ignore the obvious and the uncontested evidence on this motion.

[84] I reject the Father submission that Mother’s employment as an Analytical Research Lead is not a “special opportunity” nor a compelling reason for the Mother to relocate to Sudbury. On the evidence before me, this is a unique and important employment opportunity for the Mother for numerous reasons including:

a) the Mother’s young age, education, prestigious position and opportunity for such a young person;

b) the Mother’s unique experience and qualification in having designed and established the analytical laboratory; and

c) The Father suggests that the Mother’s expertise is not in the area of the Analytical Research Lead. I reject this submission. It is very clear from a careful review of her resume, her unique experience associated with this project and the fact that the industry has been attracted to the analytical laboratory the Mother designed and established. The Mother is uniquely qualified for this employment opportunity.

[85] I accept the Mother’s evidence that there are valid and compelling reasons why the head of an analytical laboratory will have to spend, if not all, a very large portion of her employment in-person and why she is uniquely qualified to accept this employment opportunity.

[86] The Father takes issue with the Mother’s lack of efforts and failure to obtain other employment in the GTA. It is unclear what the complete extent of the Mother’s employment search has been. However, this must be balanced with the employment the Mother currently has in hand and its potential career enhancing opportunity for her and her family - Zahida. While the Father disputes this, it is not surprising to this court that the Mother has not been able to obtain a similar or comparable employment in the GTA.

[87] Lastly, the Father suggests that when the Mother accepted the employment in October 2020, he didn’t know that the Mother would have to return to in-person work in Sudbury, because “she had been working remotely for 10 months”. As I said above, this doesn’t make sense. At some point, COVID restrictions will end. It was obvious to the Father that the Mother’s employment as the Analytical Research Lead would or likely would require her to return to work in-person. The Mother’s need and intention to return to a job she had could not have been a surprise to the Father.

[88] I am satisfied that the Mother’s failure to return to work in-person could or would have a major affect on the Mother’s career path for her. As a result, her return to Sudbury is necessary and very important to her future career. Success in the Mother’s future career will be important and impact on Zahida’s best interests as well.

Whether the Mother’s relocation is intended to deprive the Father of Parenting Time

[89] The Father submits that the Mother’s Notice of Relocation was in response to his seeking expanded parenting. That is not the case. The Father had not been having parenting time in September 2021. The Father was content to go 5 weeks without seeing his daughter as he apparently took no actions to change this. The Father’s parenting time, even before then was limited each week. The Mother agreed to proceed with the parenting professional Ms. Chisvin, the parenting professional suggested by the Father’s counsel. Even after Ms. Chisvin was retained, the Father’s parenting time continued to be limited each week and continued to be supervised. Lastly, the Father’s claim appears to acknowledge that he will continue to have limited parenting time until at least Zahida is 18 months old.

[90] The Father complains that the Mother has been unreasonable and uncooperative in facilitating his parenting time. However, the evidence is that, despite the Father retaining counsel since shortly after separation in December 2020, he took no steps to either have expanded or unsupervised parenting time before responding to the Mother’s motion to relocate in January 2022. The Father’s response is that he wanted or needed to await a “temporary solution before I could seek court intervention to remove the unwarranted supervision”. This explanation makes no sense.

[91] The Father submits that the Mother wants to exclude the Father from Zahida’s life. The Mother’s position throughout has been to ensure that the Father continues to have parenting time with Zahida. I see no evidence of the Mother attempting to “prevent me [Father] from having a relationship since Zahida since her birth…”.

[92] As an example of the Mother’s efforts to exclude him from Zahida’s life, the Father submits that the Mother did not permit Zahida to take his surname. What the Father fails to state is that he wanted to use another surname (Khanum) and the Mother offered, through Ms. Chisvin, to use “either family surname (Tariq/Khan) after (Kharnum, TBD)”.

Father’s Medical Condition

[93] The Father has depression and anxiety issues. As a result he has and continues to see a Cognitive Behavioural Therapist.

[94] The Mother makes various troubling behavioural allegations regarding the Father’s behaviour but there is no direct or corroborating evidence to some of these serious allegations. The Father denies much of the Mother’s allegations.

[95] The Father has provided as an exhibited letter, a written report from Dr. Karter (psychiatry). This report states that the Father is on medication and “has been getting more and more stable in terms of managing anxiety” and “there was no evidence of anger, agitation or hostility. His thoughts are clear and organized. There was no evidence of risk to self and others, no evidence of psychosis”.

[96] Given this information and that the Father’s parenting time under this order will continue to be supervised, this has little effect on this court’s decision on this motion. It may be advisable for the Father to have more fulsome and direct sworn evidence from Dr. Karter or other health professionals should he wish to expand his parenting time or to exclude supervision.

GTA or Sudbury?

[97] In my view, it does not matter whether the parties intended or agreed to move to the GTA permanently or were exploring the possibility of moving to the GTA permanently.

[98] There is conflicting evidence. Clearly, the Mother has strong ties to Sudbury and some ties in the GTA. The Father has ties in the GTA.

[99] Whatever their intention was, the future plans were derailed by their acrimony, conflict and eventual separation. What the parties would have done if the marriage had continued is irrelevant.

The end of Ms. Chisvin’s involvement

[100] The Father alleges that Ms. Chisvin was “terminated” by the Mother after hearing Ms. Chisvin’s recommendation on November 22, 2021. I see no evidence of this. Instead, relocation had become an issue that the parties agreed needed to be litigated making Ms. Chisvin’s ability to come to an agreed upon parenting plan impossible until the issue was decided by the courts.

[101] Further, Ms. Chisvin sent her recommendations in writing in January 2022, recommending the Father have continued supervised parenting time.

The December 24, 2021 Incident

[102] The Mother points to an incident on December 24, 2021 where the Father momentarily left Zahida unsecured on the change table and then requested some help to change Zahida’s diaper.

[103] While troubling, it is the only incident the Mother can point to over the many months that Brayden has been involved and provided written reports on the supervised access visits.

[104] As a result, I am not persuaded that this one incident is significant to the decision on this motion.

The Statutory Factors:

a) The Child’s needs, given the Child’s age and stage of development, such as the Child’s needs for stability.

[105] Zahida is very young. The Mother breast feeds. The Mother has been the overwhelming primary care giver to Zahida in the first 10 months of her life. Zahida continues to need her Mother at this time.

[106] A change of Zahida’s primary care giver would not be in Zahida’s best interests.

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.

[107] Clearly, Zahida’s relationship with her Mother is very much stronger than with her Father. That is simply a factor of the amount of parenting time each of them has had with Zahida.

[108] It is unclear what extent, if any, either of the grandparents have with providing care giving to Zahida.

[109] I am not prepared to speculate, as suggested by the Father and denied by the Mother, that the Mother does not have care giving support in Sudbury.

c) Each spouse’s willingness to support the development and maintenance of the Child’s relationship with the other spouse.

[110] For the reasons set out above, the Mother is willing to support the development and maintenance of Zahida’s relationship with the Father.

d) The history of care of the Child.

[111] Zahida has been in the Mother’s primary care since her birth as the Father has had periodic and limited parenting time.

e) 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.

[112] Both parents are willing to care for and meet the needs of Zahida. But only the Mother is able to do so for the vast majority of the time. Even the Father accepts that his parenting time will be somewhat limited until Zahida becomes older.

[113] The Father has still not had unsupervised parenting time. Ms. Chisvin recommended that the Father’s parenting time continued as supervised.

[114] At this time, the Mother’s ability to be the primary care giver for Zahida is much greater than the Father’s ability.

f) 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.

[115] Communication and cooperation will be a challenge given the acrimony and conflict between these parties.

g) Reason for the Relocation and Impact on Zahida.

[116] The Mother’s reasons for relocation are real and compelling.

[117] I am not persuaded that, given Zahida’s age, the Mother’s temporary relocation to Sudbury with her, until a final determination can be made, will have a negative impact on Zahida. On the other hand, it will allow the Mother’s primary care to continue which is in Zahida’s best interests.

h) The impact of the relocation on the Child.

[118] Given Zahida’s age, temporary relocation to Sudbury will not have any significant impact on her.

i) The amount of time spent with the Child by each person who has parenting time and the level of involvement in the Child’s life of each of those persons.

[119] The Mother has clearly spent much more time than the Father. The Father’s time has all been supervised time with Zahida – with his agreement to such supervision.

j) 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.

[120] The Mother has complied with the notice requirements in the Divorce Act.

k) 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.

[121] Both proposed plans and the pleadings recognize that the Father’s parenting time while Zahida is young will be limited and should be expanded as Zahida becomes older. Clearly, a trial to determine decision making, parenting time and location of residence should be heard as soon as possible and while Zahida is very young to minimize any impact on Zahida.

[122] The Mother has put forward a very reasonable and fair parenting time plan to ensure that the Father continues to maintain and increase his relationship with Zahida.

[123] Even if relocation was rejected, the Father’s proposal is not workable, seeking to exercise parenting on Tuesdays and Thursdays during the work hours on work days. This would be difficult to coordinate given that the Father works full time and the Mother would also likely be working full time.

Conclusion on Relocation

[124] I recognize that courts should be cautious before permitting temporary relocations and should do so only when there are clear and compelling reasons to do so based on a clear evidentiary record.

[125] Considering and balancing all of the above factors, even if the onus was on the Mother to establish a compelling case, I am satisfied that the Mother has established compelling circumstances that she be allowed to relocate to Sudbury on March 1, 2022.

[126] The Mother’s motion is granted. The Father’s motion is dismissed.

[127] The most significant factors which make this a compelling case, even on an interim basis, are:

a) that Zahida is very young,

b) the importance of the employment to the Mother and her career and the fact the Father knew of the Mother’s career in Sudbury before and during the marriage,

c) The Mother’s prior and ongoing connection with Sudbury (including having a home there),

d) The Mother’s willingness to accommodate the Father’s parenting time,

e) The Father’s current parenting time can continue and will be expanded from his current parenting time until an expedited trial ensuring the Father’s relationship with Zahida will have the least negative impact.

[128] An order permitting the relocation will include the terms in the attached order which will ensure a reasonable amount of parenting time for the Father and the potential for increasing his parenting time and removing the supervision aspect of the current parenting time.

[129] Given the proximity to March 1, 2022, there is little point in setting a parenting schedule between the date of the release of these reasons and March 1, 2022.

[130] The attached order will also place this matter on the January 2023 Brampton Blitz list. This will be peremptory on both parties. This will permit a final determination on a complete evidentiary record while Zahida is only 20 months old. If the parties cannot agree on a timetable to be filed with this court (which I will convert into a court order), I will conduct a case conference to establish a timetable to ensure this matter is ready for trial in January 2023.

Supervision

[131] Given the fact that the Father has only had supervised parenting time to date, the Father’s parenting time shall continue to be supervised as follows:

a) While in Sudbury, the Father’s parenting time is to be supervised access at the Father’s temporary residence. The cost of the supervised access shall be divided equally.

b) While in the GTA, the Father’s parenting time shall be at his parent’s home, during which either one of the Father’s parents or one of his siblings, will remain present throughout the entire parenting time to supervise.

[132] Further, unless the parties can agree in writing on expanded or removing the need for supervision during the Father’s parenting time, this matter shall return before me on a date to be set on or shortly after July 1, 2022, solely on the issue of whether the Father’s parenting time should be expanded pending the trial and whether the Father’s parenting time should or should not continue with supervision pending trial.

[133] The Order to issue shall provide with the following paragraphs:

1. The Respondent Mother, Madiha Faheem Khan (“the Mother”) is temporarily, without prejudice to a final determination, permitted to relocate to Sudbury on March 1, 2022, with the child, Zahida Khan, born April 15, 2021 (“Zahida”) until a further order of this court.
2. The Mother shall have temporary, without prejudice until final determination, primary parenting and decision making for Zahida until further order of this court.
3. The following temporary, without prejudice until final determination, parenting schedule shall be, from March 1, 2022 until further order of this court with a full review by me, RSJ L. Ricchetti, on a date to be fixed in early July 2022: (a) The Mother shall bring Zahida to the Greater Toronto Area (“GTA”), at her expense, one weekend every month to facilitate a parenting time with the Applicant Father, Tauqeer Tariq (“the Father”) at his parent’s place of residence at 1531 Sixth Line, Oakville, from 10:00 am until 2:00 pm, on each of Saturday and Sunday on that weekend. During such parenting time, there shall be present at least one of the Father’s parents or one of his siblings to supervise; (b) The Father shall have parenting time on one other weekend every month in Sudbury from 10:00 am to 2:00 pm at his place of temporary residence in Sudbury, with supervision by a social worker. The Father shall be responsible for travel and accommodation costs in Sudbury. However, the cost of the supervised social worker shall be shared equally by the parties (being an increase from the Mother’s current 30% share to offset the Father’s travel costs). During any of the weekends in Sudbury, if the Monday is a statutory holiday, the Father shall also have additional parenting time on the Monday during the same daily time. c) The Mother shall bring Zahida to the GTA, at her expense, for Eid-al-Fitr and Eid-al-Adha, Canada Day, Thanksgiving (Monday October 10) and Christmas Day, to facilitate parenting time by the Father on one day at the same daily time, if the above schedule does not result in the Father’s parenting time during those weekends.
4. The parties shall continue to retain Ms. Cindy Chisvin to develop a detailed graduated parenting plan in accordance with the best interests of the child and in accordance with the changing stages of her development including a review of the need for supervision during the Father’s parenting time.
5. This proceeding shall be tried during the Brampton January 2023 Blitz Sittings. It is peremptory on both parties. Unless the parties can agree in writing on a timetable to ensure this matter is ready for trial during those sittings (which timetable shall be filed with the court and form a court order), either party may request a further conference attendance before me to fix a timetable.

Costs

[134] Costs are reserved to me to be dealt with in writing.

[135] Either party seeking costs shall deliver, within two weeks of the release of these reasons, written submissions (maximum 5 pages) together with attached Bill of Costs, Offers, and authorities.

[136] The party against whom costs are sought, shall have a further two weeks to provide responding submissions (maximum 5 pages) together with attached Bill of Costs, Offers, and authorities.

[137] There shall be no reply without leave.

Ricchetti J. Released: February 22, 2022