Court File and Parties

Court File No.: 480-21 Date: 2022-03-22 Ontario Superior Court of Justice

Between: Katrienne Cecile Walton, Applicant – and – Andrew William Davis, Respondent

Counsel: David Sherman, for the Applicant Self-Represented, for the Respondent

Heard: March 18, 2022

Judgment

The Honourable Mr. Justice A. Pazaratz

[1] This file has a somewhat complex history, but today’s motion is quite straightforward.

[2] The Applicant mother resides in Whitehorse in the Yukon. She moved there approximately two years ago.

[3] The Respondent father resides in Hamilton. The mother says he had agreed that he and their now seven-year-old daughter Adelie would also move to Whitehorse from their home in Hamilton. The father says no final agreement had been reached with respect to relocation.

[4] As a result, the father and Adelie have remained in the Hamilton-Grimsby area for these past two years. The child has travelled to spend time with the mother in Whitehorse on a number of occasions. But the child has always attended school here. She has been in the same school in Grimsby since September 2021.

[5] In the application currently before the court the mother proposes that the child reside primarily with her in Whitehorse. The father proposes that the child remain primarily resident with him in the Hamilton-Grimsby area.

[6] A combined Settlement Conference/Trial Scheduling Conference is scheduled for April 4, 2022 at 2:00 p.m.

[7] Against that backdrop, around the end of February 2022 the parties signed a Consent which set out that the child would spend the March 2022 school break with the mother in Whitehorse. The Consent very specifically set out that the child would be picked up by the mother on March 11, 2022 at 11:00 p.m. at the father’s residence, and that the mother would accompany the child back to Hamilton on March 20, 2022.

[8] However, the mother has now brought an urgent motion asking that she not be required to return Adelie to Hamilton. She proposes that the child remain with her and finish out the school year in Whitehorse. The father opposes the request.

[9] The mother’s affidavit sets out that there have been some developments at the father’s end which have entailed some disruption for the child. The father disputes the nature of the changes which have occurred, and their impact on the child.

[10] The mother also sets out that there would be certain advantages to the child remaining in Whitehorse. She feels it would be an enriching experience for the child, and it would also assist the trial judge by allowing some evidence to be obtained as to the child’s views about life in Whitehorse with her mother.

[11] The father filed an affidavit giving a significantly different description of past events; the quality of the child’s relationship with each parent; and the strengths and weaknesses of each parenting proposal. He emphasized that the child has been happy and well-cared for residing primarily with him in this community these past two years, and that Adelie is thriving in her current school. He warns that it would be very disruptive and upsetting for the child to unexpectedly be removed from her daily routine, her school, her primary parent, and the father’s extended family.

[12] It is not unusual that two parents have vastly different views as to the best interests of their child. That’s why they are pursuing their respective positions. That’s why they are likely to proceed to trial, where all of the evidence can be presented, tested and thoroughly considered.

[13] The issue before me today is whether the child should be subjected to a sudden and significant change prior to that thorough best interests analysis taking place. And indeed, whether such a change should be imposed in the face of the specific agreement between the parties that the child would only be going to Whitehorse for the March school break, and that she would be returning this coming weekend.

[14] The mother’s materials set out nothing that could be characterized as an urgent need to change the child’s situation. The law is very clear that in parenting disputes the status quo should not be disrupted except in situations where a serious problem exists which urgently requires rectification to safeguard the best interests of the child. F.K. v. A.K. 2020 ONSC 3726 (SCJ). There is no such urgency here. The amount of disruption which the mother suddenly seeks to impose is far greater than the relatively minor issues which the mother is describing at the father’s end.

[15] Indeed, much of what the mother sets out in her material was known to her when she signed the Consent in which she very specifically agreed that the child’s time in Whitehorse was limited to the March school break. When she signed the Consent – and throughout this proceeding – the mother had counsel. The father is self-represented.

[16] Where parents live far apart, it is not unusual for children to spend periods of time with a non-primary resident parent during school breaks. It would be counter to public policy – and contrary to this child’s best interests – if the mother could convert a time-limited visit into an opportunity to reverse parenting arrangements and create a new status quo, on the eve of trial.

[17] To her credit, the mother in this case is not exercising self-help. She has brought a motion asking for permission to have the child remain with her. She has undertaken that if she is not granted permission, she will return the child to the father pursuant to the Consent.

[18] The mother’s motion is dismissed. The child is to be returned to the father no later than March 20, 2022.

[19] The father initially requested costs but withdrew that request. No costs.

Pazaratz J. Released: March 22, 2022