Court File and Parties

COURT FILE NO.: FC-1204/21 DATE: 2022-04-04

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

S.F. Applicant K. Meddoui, for the Applicant

- and -

D.R. Respondent B. Guslits, for the Respondent

HEARD: March 18, 2022, via Zoom

REASONS ON MOTIONS

Justice J. Fregeau

The Motions Before the Court

[1] The parties have two children. The respondent, D.R., (the “father”) has brought a motion seeking a Temporary Order for the return of the child, L.F.R., to London, Ontario.

[2] The applicant, S. F., (the “mother”) has brought a cross-motion seeking a Temporary Order allowing L.F.R. to remain with her in Springhill, Nova Scotia (“Springhill”). The mother also requests an Order that L.F.R. reside primarily with her and secondarily with the father and that the child D.F.R. reside primarily with the father and secondarily with her.

[3] The mother’s Notice of Motion further requests an Order for specified periods of parenting time going forward if an Order is granted allowing L.F.R. to remain with her in Springhill.

[4] Both parties request that this matter be referred to the Children’s Lawyer.

Background

[5] The parties were married on May 24, 2003 and separated on October 1, 2009. There are two children of the marriage, D.F.R., (16 years old) and L.F.R., (14 years old). The mother has a child from a previous relationship, A.F. The mother is now married to her same-sex partner, S.S.

[6] The parties entered into a separation agreement on October 1, 2009. The separation agreement provides that the parties have joint custody of the children and that the children have their primary residence in the home of the mother who has day-to-day care and control of them. The separation agreement provided the father with regular, periodic access including alternate weekends and time during holiday periods. Historically, the parties have been flexible in regard to the parenting time of the other parent.

[7] The separation agreement also includes the following:

4.06(a) - It is agreed between the parties that the residence of the children will continue in London, Ontario. This will include the City of London and the surrounding 25 miles. Neither parent shall change the residence of the children without first consulting with the other, and in any event the residence of the children will remain in the Province of Ontario, subject to written agreement of the parties to the contrary or an Order of the Court of competent jurisdiction in Ontario.

4.06(b) - In the event the custodial parent wishes to change the residence of the children to a place which would adversely affect the amount of time the children could spend with the access parent, the custodial parent shall give the access parent 120 days’ notice of his or her intention to do so and the particulars thereof. The custodial parent shall be at liberty to change the residence of the child at the expiration of that period of time unless the parties have agreed to the contrary or the access parent has obtained an Order of a Court of competent jurisdiction in Ontario preventing the change.

[8] In September 2020, the father attended the mother’s home to pick the children up for his scheduled parenting time. An unfortunate incident occurred which resulted in the father calling the police and alleging that S.S. was withholding L.F.R. from him. The police attended and were able to de-escalate the situation. However, L.F.R. was very upset and confused by the father’s actions.

[9] L.F.R. refused to go with his father for parenting time that weekend. The father and L.F.R. did not speak to each other until April/May 2021, a period of approximately seven or eight months, despite the fact that the father continued to have his regular parenting time with D.F.R. L.F.R. thereafter had some daytime visits with his father in the spring of 2021 and spent 20 days with his father in July 2021. In February 2021, the mother and D.F.R. had a disagreement which resulted in D.F.R. choosing to reside exclusively with the father and refusing to communicate with his mother.

[10] The father deposes that the mother “expressed a desire to relocate to Nova Scotia to [him] in early 2021”. He further deposes that they did not reach a consensus and that the mother thereafter commenced this proceeding seeking a court order allowing her to relocate to Nova Scotia with L.F.R.

[11] The mother’s affidavit provides much more detail as to the relocation issue. The following is the mother’s version of her interactions and discussions with the father in relation to her proposed relocation to Nova Scotia with L.F.R.

[12] According to the mother, she and S.S. began to seriously consider a move to the east coast in January 2021 for a variety of reasons, including the relative affordability of housing, the slower-paced lifestyle and the safety and sense of community in a smaller urban setting. The mother’s thoughts were shared with L.F.R. at that time. The mother deposes that L.F.R., who came out as transgender to her in December 2020, was excited about moving to a new place with his new identity.

[13] The mother deposes that D.F.R. and L.F.R. have never been close and that they are currently “distant” with one another. The mother also deposes that L.F.R. has a close relationship with both her new partner, S.S., and her other child, A.F.

[14] In late April/early May 2021, the mother broached the subject of her relocation to Nova Scotia with the father and the two of them discussed details, including that L.F.R. would reside with her in Nova Scotia and that D.F.R. would remain living with the father. They also discussed parenting time arrangements with the other parent during holiday times. According to the mother, at the conclusion of this conversation, the father verbally consented to the proposed relocation and she undertook to have her lawyer draft an amending agreement to reflect their apparent agreement so that the move could occur over the summer months.

[15] Over the next several weeks the mother and father continued to talk about the mother’s proposed relocation in positive terms. According to the mother, the father did not raise any concerns nor did he give any indication that he no longer consented to her relocation.

[16] The amending agreement was provided to the father on June 9, 2021. The mother deposes that the father told her he would be meeting with his lawyer later that month to sign the agreement. That same month, L.F.R. advised the father that he was transgender.

[17] The mother deposes that she and her spouse finally decided on Springhill as their new home community of choice, primarily due to the community’s inclusivity and the resources available for the LGBTQ+ community, including resources for transgender children.

[18] As a result of the father’s apparent consent to her relocation from London to Springhill with L.F.R., the mother and her spouse provided notice to their landlord in London, purchased a home in Springhill and registered L.F.R. for school in Springhill. The purchase of the home in Springhill was scheduled to close on July 29, 2021 and the mother, in mid-June 2021, advised the father that she planned on leaving London on July 28, 2021. Once again, the father gave no indication that he opposed the mother’s relocation, according to the mother.

[19] As she planned to relocate with L.F.R. at the end of July 2021, the mother suggested to L.F.R. and the father that L.F.R. spend the month of July 2021 with his father. Both agreed and L.F.R. resided with his father from July 3 to July 23, 2021. The mother deposes that the father “continued communicating with me on the basis that L.F.R. and I would be leaving [London to relocate to Springhill] on July 28, 2021”.

[20] On July 13, 2021, the mother’s lawyer received correspondence from the father’s lawyer about the amending agreement. This letter did not state that the father did not consent to the proposed relocation. On July 23, 2021, six days prior to the mother’s departure date, the mother once again spoke with the father about the amending agreement. According to the mother, the father told her that she would receive it that morning.

[21] Shortly thereafter, the mother was contacted by L.F.R. who told the mother that his father had changed his mind and was not going to allow him to move to Springhill with her. L.F.R. asked his mother to pick him up from the father’s house immediately, which she did. L.F.R. and the father have not communicated since this occurred in late July 2021.

[22] The mother’s home purchase in Springhill was scheduled to close on July 29, 2021 and she had given up her rental residence in London. The father was advised on July 27, 2021 that the mother and L.F.R. were leaving for Springhill on July 28, 2021 but would be returning to London on September 6, 2021, which they did.

[23] Upon the mother’s return to London with L.F.R. in early September 2021, she was forced to reside with her parents, who have never accepted her sexuality and with whom she does not have a good relationship. L.F.R. declined to tell his maternal grandparents that he was transgender because he felt they would not be supportive. As a result, the maternal grandparents referred to L.F.R. using she/her pronouns and his formerly-used, female name. L.F.R. also experienced bullying at high school in London that fall. The mother describes the overall situation as “toxic” for L.F.R. and eventually “unbearable”.

[24] The mother relocated to Springhill with L.F.R. on December 8, 2021. She deposes that L.F.R. has settled in very well in the community and his new school, both of which provide numerous supports for him as a transgender youth.

[25] The mother brought this application on November 9, 2021. In the application, the mother is requesting, among other things, an Order allowing her to move L.F.R. to Springhill and an Order that L.F.R. reside primarily with her. She also asks for an Order that D.F.R. reside primarily with the father.

[26] The father deposes that he was first informed of the mother having relocated to Springhill with L.F.R. in late January 2022. However, the father’s Answer opposing the relocation was issued on December 18, 2021. The father’s Notice of Motion was issued on February 23, 2022. The Mother’s Notice of Motion was issued on March 11, 2022. A Case Conference was held on March 16, 2018 and the matter was adjourned to the hearing of these motions on March 18, 2022.

The Position of the Father

[27] The father submits that the mother first expressed a desire to relocate from London to the east coast in early 2021. The father contends that the mother began her Application requesting an Order allowing the relocation after he and the mother were unable to reach a consensus.

[28] The father submits that the alleged attributes of Springhill over London, including more affordable housing, a slower-paced lifestyle, safety and a sense of community, which the mother cites as reasons for the relocation, are not unique to Springhill. The father suggests that many smaller communities in and around the London region have the same amenities.

[29] The father submits that neither the mother nor her current spouse have family in the Springhill area and that neither have suggested that the relocation improves their employment opportunities.

[30] The father further submits that his opposition to the mother’s proposed relocation has nothing whatsoever to do with the mother’s sexuality or L.F.R.’s gender identity. In regard to the latter, the father submits that the LGBTQ+ resources in Springhill are minimal in relation to those available in and around London and that many of the services cited by the mother as readily available in Springhill are in fact located in Halifax, two hours away. According to the father, none of the services noted by the mother are in any way unique to Springhill. He submits that London has a more robust LGBTQ+ community and access to world class children’s hospitals in London and Toronto.

[31] The father notes that L.F.R. was born in London and has lived in London his entire life and that his brother, grandparents and extended family all reside in London. The father submits that his relationship with L.F.R., and L.F.R.’s relationship with his brother and extended family, will be negatively impacted if L.F.R. remains in Springhill with his mother.

[32] The notice and relocation process undertaken by the mother is not consistent with the relevant provisions of the 2009 separation agreement, which is why the mother commenced this Application, according to the father.

[33] In any event, the father submits that there are several triable issues before the court in relation to the mother’s proposed relocation, including the views and preferences of L.F.R. as expressed to an independent, objective party such as the Office of the Children’s Lawyer. The father submits that the mother has not met the higher onus applicable to a relocation request on an interim motion and that her request to relocate with L.F.R. to Springhill should be denied on an interim basis pending trial.

The Position of the Mother

[34] The mother submits that she has complied with the relocation provisions agreed to in the parties’ 2009 separation agreement. She, as the primary custodial parent of L.F.R. since separation, gave the father notice of her intention to move to the east coast with L.F.R. in late April/early May 2021, and specifically to Springhill in June 2021. The father did not object and did not move to obtain a court order preventing her relocation. As a result, the mother permanently relocated to Springhill on December 8, 2021, a point in time past the 120-day notice requirement in the separation agreement. The mother submits that she was at liberty to do so, pursuant to the provisions of the separation agreement.

[35] In the alternative, the mother submits that it is in L.F.R.’s best interests that she be allowed to relocate to Springhill with him and that there are compelling reasons for granting her a temporary order allowing her to do so on an interim basis pending trial.

[36] The mother contends that there has been a breakdown in the relationship between the father and L.F.R. since September 2020 such that L.F.R. has resided exclusively with her, and not communicated with the father, but for a three-week period in July 2021. The mother suggests that the father’s conduct in July 2021 – namely, providing and then withdrawing his apparent consent to her relocation request – has further damaged his relationship with L.F.R.

[37] The mother concedes that there has been a breakdown in her relationship with D.F.R. since February 2021. The mother submits, contrary to the suggestion of the father, that L.F.R. and D.F.R. have never been close and that the separation of the siblings resulting from her relocation is simply not a relevant factor on these motions.

[38] L.F.R. is 14 years old and informed the mother in December 2020 that he was transgender. The mother submits that L.F.R.’s sexual identity, and his experiences as a transgender youth, are relevant factors for this court to consider when analyzing L.F.R.’s needs and best interests in the context of her proposed relocation.

[39] The mother submits that L.F.R. experienced rejection and bullying when he was in high school in London during the fall of 2021. Since relocating to Springhill in December 2021, L.F.R. has adjusted very well, made new friends, joined the Gender Sexuality Alliance at his school and has generally been accepted and supported in his new identity, both in his school and in the community, according to the mother. The mother further submits that L.F.R. has made it clear that he wants to continue to reside in Springhill with her and S.S.

[40] The mother submits that the reasons for her relocation include the relative affordability of housing in Springhill and the lifestyle, safety and sense of community in a smaller city. The mother contends that the inclusivity of Springhill and the abundance of resources for the LGBTQ+ community in and around Springhill have allowed, and will continue to allow, L.F.R. to flourish in his new identity in a new community.

[41] The mother also submits that there are compelling circumstances that suggest the move should be allowed on an interim basis and that there is a strong probability that her position will prevail at trial.

[42] The mother and S.S. have been able to purchase a home for them and L.F.R. in Springfield and have lost their previous rental accommodation in London as a result of having given notice to vacate when the mother believed the father had consented to her relocation proposal. Residing with the mother’s parents, if required to return to London, is simply not a realistic option for L.F.R., according to the mother.

[43] The mother submits that she has been L.F.R.’s primary caregiver since separation in 2009 and that it is likely that her position will prevail at trial for all of the reasons set out above.

Discussion

[44] The motions before the court are unusual in that there is not a large volume of contradictory affidavit evidence for the court to weigh and consider.

[45] The father’s motion, issued on February 23, 2022 and brought on an “urgent” basis, seeks a temporary order for the return of L.F.R. to London from Springhill. It is supported by a relatively brief affidavit, sworn by the father on February 23, 2022.

[46] The mother’s cross-motion, issued March 11, 2022, requests a dismissal of the father’s motion and, in the alternative, a temporary order allowing her to remain in Springhill with L.F.R. pending trial. The mother’s motion is supported by a single, detailed and comprehensive affidavit sworn on March 11, 2022.

[47] The father’s affidavit provides very little evidence about the discussions between him and the mother during the spring and early summer of 2021 concerning her proposed relocation. The extent of the father’s evidence on this issue is as follows:

The [mother] expressed [a] desire to relocate to Nova Scotia to me in early 2021. There was no consensus between the [mother] and I, and hence the [mother] commenced this proceeding, requesting permission to relocate with [L.F.R.], among other relief.

[48] As a result, the mother’s evidence relating to the parties’ interactions and discussions during the spring and early summer of 2021 is uncontradicted, but for the father’s assertion that “there was no consensus” about the mother’s proposed relocation.

[49] Since the parties separated in 2009, they have abided by the terms of their separation agreement. The two children have resided primarily with the mother and the father has enjoyed generous parenting time, including three out of four weekends. To their credit, the parties have been flexible in regard to parenting time.

[50] Recently, each of the parents has experienced a breakdown in their relationship with one of the children, both of whom are now teenagers. In September 2020, the father’s relationship with L.F.R. broke down. There was a limited period of reconciliation between the father and L.F.R. during July 2021. However, their relationship broke down once again at the end of July 2021 when the father told L.F.R. he would not consent to his relocation to Springhill with the mother. They have not spoken since. The mother’s relationship with D.F.R. broke down in February 2021. D.F.R. has remained in the father’s care since that time.

[51] I accept the mother’s evidence when she deposes that D.F.R. and L.F.R. do not enjoy a close relationship with each other and that L.F.R. did not and does not have a close or supportive relationship with grandparents or extended family.

[52] It is not in dispute that L.F.R. came out as transgender to the mother in December 2020. The mother deposes that L.F.R. did not come out as transgender to the father until June 2021. The father deposes that “[L.F.R.] came out as transgender in December 2020” without specifying if he was made aware of L.F.R.’s sexual identity at that time or not until June 2021 as the mother suggests.

[53] In January 2021, the mother and her spouse began to seriously consider relocating to the Maritimes for reasons which included more affordable housing, a slower-paced lifestyle, the ocean scenery and the enhanced safety, security and sense of community provided by a smaller city. There is no evidence on this motion as to any financial or employment benefits accruing to either the mother or S.S. as a result of their relocation. The mother deposes that L.F.R. reacted positively to the possible relocation from the outset.

[54] In late April/early May 2021, the mother spoke to the father about relocating with L.F.R. to the Maritimes. According to the mother, she and the father had a “fulsome discussion” about the issue, including that L.F.R. would reside with her, that D.F.R. would reside with the father and that during holiday periods, other parenting time arrangements would be made. The mother deposes that the father verbally consented to the proposed relocation and that, as a result, she thereafter instructed her lawyer to draft the required amendment to their 2009 separation agreement. As noted above, the father acknowledges that this discussion occurred but maintains that “there was no consensus reached”.

[55] Pursuant to the mother’s uncontradicted evidence as to the events which transpired in the period of time immediately following this discussion about relocation, I prefer the mother’s evidence over the father’s as to the conclusion of that initial discussion, namely that the father did not oppose the move and verbally consented to it.

[56] The mother requested financial disclosure from the father for the purposes of the amending agreement which he promptly provided to her. The amending agreement was drafted and given to the father on June 9, 2021. The mother and S.S. decided on Springhill as their location of choice in the Maritimes and put in an offer on a home in that community, which was accepted and had a closing date of July 29, 2021. The mother registered L.F.R. for school at Springhill High School for September 2021. Finally, the mother provided her landlord with the required notice that she was vacating her rental residence in London.

[57] The mother deposes that, throughout this period of time, she and the father continued to discuss her relocation and that the father never told her that he no longer consented nor did he express any concerns or opposition to her plans.

[58] Approximately mid-June 2021, the mother told the father that she and L.F.R. planned to leave London on July 28, 2021. Once again, the father was supportive. The mother facilitated L.F.R. residing with the father from July 3 to July 23, 2021, in consideration of the fact that they would be leaving on July 28, 2021.

[59] On July 13, 2021, the mother’s lawyer received correspondence from the father’s lawyer about the terms of the amending agreement. This correspondence did not indicate that the father was opposed to the mother’s relocation plan. With her departure date fast approaching, on July 23, 2021 the mother asked the father about the completion of the amending agreement. He told her that she would receive it that day.

[60] Approximately two hours later, L.F.R. texted the mother and told her that the father was not going to allow him to move to Springhill with her. L.F.R. asked the mother to pick him up immediately. She did so. L.F.R. and the father have not spoken since. Shortly thereafter, the mother’s lawyer received correspondence from the father’s lawyer stating that the father did not consent to L.F.R.’s relocation to Springhill with the mother.

[61] The mother, having lost her accommodation in London and having purchased a house in Springhill, travelled to Springhill on July 28, 2021. The mother advised the father that they would return to London on September 6, 2021, which they did.

[62] Between September 6, 2021 and December 8, 2021, the mother and L.F.R. resided with her parents. The uncontradicted evidence of the mother is that this was an “extremely toxic environment” for L.F.R. as a result of her parents’ inability to accept her sexuality and L.F.R.’s resultant reluctance to advise his grandparents that he was transgender. L.F.R., as a transgender youth, also experienced difficulties at his new high school in London during the fall of 2021. The mother initiated this application in November 2021 and she and L.F.R. moved back to Springhill on December 8, 2021.

[63] The mother relies, firstly, on clause 4.06 (b) of the separation agreement in support of her submission that the father’s motion for a temporary order requiring L.F.R. to return to London should be dismissed.

[64] Clause 4.06 (b) of the separation agreement requires the custodial parent to provide 120 days’ notice of their intention to change the residence of the children if the move would adversely affect the non-custodial parent’s time with the children. The separation agreement further provides that the custodial parent shall be at liberty to change the residence of the children upon the expiration of the 120-day notice period unless the access parent has obtained a court order preventing the change of residence. The separation agreement does not specify how such notice is to be given.

[65] It is not in dispute that the mother, as custodial parent, in late April/early May 2021, advised the father of her intention to relocate to the Maritimes with L.F.R. In June 2021, the mother advised the father specifically that she intended to relocate with L.F.R. to Springhill. The mother relocated to Springhill temporarily on July 28, 2021 and permanently on December 8, 2021, approximately six months or 180 days after notice had been provided to the father. The father did not, during the notice period, make any attempt to obtain a court order preventing the mother’s relocation to Springhill with L.F.R.

[66] I conclude that the mother, in her capacity as the custodial parent of L.F.R., has complied with the notice of relocation terms of the parties’ 2009 separation agreement. The father has not, during the lengthy notice period provided for in the separation agreement, moved to secure an order preventing the move. To the contrary, for a period of approximately 90 days after having received notice of the mother’s intention to relocate with L.F.R., the father led the mother to believe that he was not opposed to the move. This resulted in the mother undertaking certain irreversible actions in furtherance of her intentions.

[67] It would be contrary to the express terms of the separation agreement entered into by the parties in 2009 to grant the father’s request for a temporary order requiring that L.F.R. now be returned to London pending trial, over three months after having moved to Springhill. It would also be, in my opinion, contrary to L.F.R.’s best interests for reasons that follow. The father’s request for a Temporary Order for the return of L.F.R. to London is dismissed.

[68] In the event that I am incorrect in my conclusion that clause 4.06 (b) of the separation agreement supports that mother’s position on this motion, I will next consider the applicable legislative provisions as to relocation in the circumstances of this motion.

[69] Neither the mother in her Application nor the father in his Answer have requested a Divorce Judgment. The mother deposes that she has remarried. Although the record does not confirm that the parties are divorced, for obvious reasons I will assume this to be the case.

[70] As a result, the legislation applicable to the relocation issue is section 39.3 and 39.4 of the Children’s Law Reform Act, (R.S.O. 1990, c. C.12, as am.) (the “CLRA”). Section 39.3 and 39.4 of the CLRA states as follows:

39.3 RELOCATION—(1) A person who has decision making responsibility or parenting time with respect to a child and who intends a relocation shall, at least 60 days before the expected date of the proposed relocation, notify any other person who has decision-making responsibility, parenting time or contact under a contact order with respect to the child of the intention.

(2) NOTICE REQUIREMENTS—The notice shall be in the form prescribed by the regulations or, if no form is prescribed, shall be in writing and shall set out, (a) The expected date of the proposed relocation; (b) The address of the new residence and contact information of the person or child, as the case may be; (c) A proposal as to how decision-making responsibility, parenting time or contact, as the case may be, could be exercised; and (d) Any other information that may be prescribed by the regulations.

(3) EXCEPTION—On application, the court may in any circumstance provide that subsections (1) and (2) or anything prescribed by the regulations for the purposes of subsection (2) do not apply, or apply, with any changes the court specifies, if the court is of the opinion that it is appropriate to do so, including if there is a risk of family violence.

(4) SAME—An application under subsection (3) may be made without notice to any other party.

(5) OBJECTION—A person with decision-making responsibility or parenting time who receives notice of the proposed relocation under subsection (1) may, no later than 30 days after receiving the notice, object to the relocation by, (a) Notifying the person who gave the notice of proposed relocation of the objection to the relocation; or (b) Making an application under section 21.

(6) NOTICE REQUIREMENTS—A notice under clause (5) (a) shall be in writing and shall set out, (a) A statement that the person objects to the relocation; (b) The reasons for the objection (c) The person’s views on the proposal referred to in clause (2)(c); and (d) Any other information that may be prescribed by the regulations.

(7) REGULATIONS—The Attorney General may make regulations, (a) Prescribing anything in this section that may be prescribed by the regulations; (b) Requiring that a notice under this section be given in a manner specified by the regulations.

39.4 AUTHORIZATION OF RELOCATION—(1) In this section, “family arbitration award” has the same meaning as in the Arbitration Act, 1991.

(2) SAME—A person who has given notice of a proposed relocation in accordance with section 39.3 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 (b) No objection to the relocation is made in accordance with subsection 39.3(5) and there is no order prohibiting the relocation.

(3) BEST INTERESTS OF THE CHILD –In determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with section 24, as well as, (a) The reason for the relocation; (b) The impact of the relocation on the child; (c) The amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child’s life of each of those persons’; (d) Whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement; (e) The existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside; (f) The reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expense; and (g) Whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance.

(4) FACTOR NOT TO BE CONSIDERED—In determining whether to authorize a relocation of the child, the court shall not consider whether, if the child’s relocation were to be prohibited, the person who intends to relocate the child would relocate without the child or not relocate.

(5) BURDEN OF PROOF—If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child 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.

(6) SAME—If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend the vast majority of 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.

(7) SAME—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

(8) BURDEN OF PROOF, EXCEPTION—If an order referred to in subsection (5) or (6) is an interim order, the court may determine that the subsection does not apply.

(9) COSTS OF RELOCATION—If a court authorizes the relocation of a child, 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.

[71] As can be seen the mother has not complied with the relocation notice requirements of s. 39.3(2) of the CLRA and the father has not complied with notice requirements for objecting to relocation found in s. 39.3(6) of the CLRA.

[72] For the purposes of the motions before the court, and in the unique circumstances of this case, I conclude that it is appropriate to apply the provisions of s. 39.3(3) of the CLRA and waive the requirement that the mother provide written notice of the proposed relocation to the father. In my opinion, it is appropriate in the circumstances of this case to treat the mother’s late April/early May 2021 verbal notice of her intention to relocate to the Maritimes as proper notice to the father. In the alternative, the mother’s June 2021 verbal notice of her intention to relocate specifically to Springhill serves as proper notice to the father.

[73] I also conclude that the July 23, 2021 correspondence from the father’s lawyer objecting to the mother’s proposed relocation constitutes notice of the father’s objection to the relocation pursuant to s. 39.3(5)(a) of the CLRA.

[74] Section 39.4(3) of the CLRA requires me, in determining whether to authorize the mother’s relocation to Springhill with L.F.R., to take into account the best interests of L.F.R. in accordance with s. 24 of the CLRA as well as the specific factors set out in s. 39.4(3).

[75] Section 24 of the CLRA provides as follows:

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.

(2) PRIMARY CONSIDERATION—In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

(3) FACTORS—Factors related to the circumstances of a child include, (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 parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; (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 co-operate, 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 co-operate 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.

[76] Section 39.4(3) of the CLRA states as follows:

(3) BEST INTERESTS OF THE CHILD –In determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with section 24, as well as, (a) The reason for the relocation; (b) The impact of the relocation on the child; (c) The amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child’s life of each of those persons’; (d) Whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement; (e) The existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside; (f) The reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expense; and (g) Whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance.

[77] Consistent with the terms of the 2009 separation agreement, L.F.R. has resided primarily with the mother since the date of separation. L.F.R. has resided almost exclusively with the mother since the September 2020 incident with the father. As a result, pursuant to s. 39.4(6) of the CLRA, the father as the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of L.F.R.

[78] Pursuant to s. 24(2) of the CLRA, the primary consideration in determining the best interests of a child is the child’s physical, emotional and psychological safety, security and well-being. The mother’s reasons for relocating to Springhill are general. Her choice to do so can, in my view, be fairly characterized as a “change/quality of life” decision. There is nothing in the record to suggest that she and her spouse have relocated for employment or financial reasons, but for the suggestion that housing is more affordable. They have not relocated to Springhill to be closer to family. The record suggests exactly the opposite – it appears that the parties’ families are all located in and around London.

[79] I am, however, persuaded that the mother’s decision to relocate to Springhill was made at least in part, with a view to enhancing and securing the physical, emotional and psychological safety, security and well-being of L.F.R.

[80] L.F.R., at age 13, came out to the mother as transgender in December 2020. In my view, it is appropriate to take judicial notice of the fact that this would have been a difficult, momentous and life-changing decision for a 13-year-old child. It is apparent to me that the mother has provided L.F.R. with her unconditional love and support since that time.

[81] In January 2021, the mother and S.S. began to seriously consider relocating to the Maritimes, in part because of the relative affordability of housing and in part because of the lifestyle and sense of community provided by smaller urban centres. The mother involved L.F.R. in the discussion and he responded positively. The mother deposes that L.F.R. was “excited about the possibility of moving to a new place with his [new] identity”.

[82] In June 2021, the mother and S.S. decided that they wanted to make Springhill their new home. According to the mother, Springhill satisfied their general criteria as noted above. In addition, the mother’s research informed her that Springhill is a very inclusive community, with numerous supportive resources for the LGBTQ+ and transgender community. The mother’s experience in Springhill to date has confirmed this fact.

[83] I am satisfied that the mother’s choice to relocate to Springhill at this very important stage in L.F.R.’s life was consistent with L.F.R.’s physical, emotional and psychological safety, security and well-being and consistent with his best interests.

[84] Of the numerous factors related to the circumstances of the child set out in s. 24(3) of the CLRA, I find the following to be relevant to the circumstances of L.F.R. in the context of this motion:

[85] Section 24(3)(a) – L.F.R.’s needs, including the need for stability, given his age and stage of development. As discussed above, the relocation to Springhill specifically addresses L.F.R.’s unique needs at a crucial stage in his development. Requiring that L.F.R. be returned to London pending trial, while estranged from his father and with his mother not having housing readily available would result in significant and unnecessary instability, in my view.

[86] Section 24(3)(b) – the nature and strength of L.F.R.’s relationship with each parent, siblings and grandparents. The mother’s suggestion that L.F.R. has been estranged from his father since at least the end of July 2021, and for all intents and purposes since September of 2020, is not contradicted by the father. I accept the mother’s submission that L.F.R. does not have a close relationship with his sibling, D.F.R. and never has. The mother’s evidence is that she has a strained relationship with her parents as a result of her parents’ unwillingness to accept her sexuality. L.F.R. was unable to reveal his new sexual identity to his maternal grandparents while living with them during the fall of 2021. L.F.R. obviously does not and will have a close relationship with his maternal grandparents.

[87] The father deposes that L.F.R.’s sibling, grandparents, cousins, aunts and uncles reside in London. He does not, however, provide any evidence as to the nature of the relationship that L.F.R. has with these members of his extended family. There is no reason to believe that the strength of any of these relationships would be strengthened if L.F.R. is returned to London pending trial.

[88] I conclude that the nature of L.F.R.’s relationship with family members in and around London does not weigh against the mother’s decision to relocate to Springhill.

[89] Section 24(3)(c) – each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent. The mother has deposed that she addressed this issue with the father concurrently with advising him of her desire to relocate to the Maritimes in the spring of 2021 and continually until late July 2021, when the father first voiced his objection to the move. The mother continues to encourage and facilitate L.F.R.’s relationship with his father. The father’s affidavit is silent on this point.

[90] Section 24(3)(d) – the history of care of the child. The parties have joint custody of L.F.R. and he has been in the mother’s primary care since the parties separated in 2009.

[91] Section 24(3)(e) – the child’s views and preferences, giving due weight to the child’s age and maturity. The mother has deposed that L.F.R. has always been in favour of relocating, that he was upset when the father objected to the proposed relocation, that he was unhappy in London in the fall of 2021 and that he has adjusted well and is happy to now be residing in Springhill with her and S.S. While this is largely hearsay, it is obvious that the mother is well-positioned to comment on her observations of L.F.R. over the last 12 months. There is no evidence in the record before me indicating that L.F.R. is in any way opposed to living in Springhill or that he has not adjusted well to this new environment.

[92] Section 24(3)(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 have no hesitation in concluding that the mother is acutely aware of L.F.R.’s needs and that she is fully capable and willing to meet those needs.

[93] Section 39.4(3) of the CLRA requires the court, when determining whether to authorize the relocation of a child, to consider the following factors in addition to the factors set out above.

[94] Section 39.4(3)(a) – the reasons for the relocation. As noted above, the mother’s reasons for the relocation were largely lifestyle related – smaller, inclusive communities and the enhanced safety and security provided by these communities. The relative affordability of housing in Springhill was also a factor. I note that the mother and her spouse were able to purchase a home prior to arriving in Springhill. There is no evidence to support a suggestion that the mother and her spouse decided to move to Springhill to distance L.F.R. from his father.

[95] Section 39.4(3)(b) – the impact of the relocation on the child. The record on this motion clearly establishes that L.F.R.’s relocation to Springhill with the mother has had a positive impact on L.F.R. He and the mother have settled in very well. L.F.R. has adjusted well to his new community and high school, both of which are LGBTQ+ inclusive. L.F.R. has met new friends and joined the Gender Sexuality Alliance. There is no evidence to suggest that the relocation has had any negative repercussions on L.F.R.

[96] Section 39.4(3)(c) – the amount of time spent with the child by each parent who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child’s life of each of those persons. As noted above, the mother has been L.F.R.’s primary care parent since 2009 and has exclusively parented him since September 2020. The father and L.F.R., unfortunately, do not currently communicate with one another. Despite the mother’s encouragement, L.F.R. has refused to speak to his father since late July 2021.

[97] Section 39.4(3)(d) – whether the person who intends to relocate the child has complied with any applicable notice requirement under s. 39.3 and any applicable…agreement. As discussed above, I find that the mother complied with the relocation notice requirements of the both the separation agreement and the CLRA.

[98] Section 39.4(3)(e) – the existence of…an agreement that specifies the geographic area in which the child is to reside. The separation agreement, dated October 1, 2009, stipulates that the “the residence of the children will continue in London, Ontario”.

[99] Section 39.4(3)(f) – the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of…parenting time or contact, taking into consideration…the location of the new residence and the travel expense. The mother has been amenable, throughout this process, to varying the parenting time provisions of the separation agreement to provide the father with parenting time with L.R.F. during holiday periods. The mother’s Notice of Motion requests a detailed Order addressing future, shared holiday parenting time, taking into account the relocation.

[100] On this motion, I have concluded that the father bears the burden of proving that the mother’s relocation from London to Springhill would not be in the best interests of L.F.R. Having considered the evidence on these motions, together with all relevant factors pertaining to L.F.R.’s best interests, as set out in s. 24 and s. 39.4 of the CLRA and discussed above, I find that the father has failed to satisfy that burden.

[101] I further conclude that there are compelling circumstances present that support an order allowing this relocation on an interim basis before trial. The mother has given up her rental accommodation in London and purchased a home in Springhill with S.S. on the strength of the father’s apparent consent to her proposed relocation. She now has nowhere to reside if it is ordered that L.F.R. be returned to London as the father requests.

[102] L.F.R. has adjusted well to the community of Springhill and his new high school. It would be contrary to his best interests to disrupt this important stability and order that he be returned to London pending trial.

[103] Finally, the mother has been L.F.R.’s primary caregiver since separation in accordance with the separation agreement. I find that there is a strong possibility that her position will prevail at trial.

[104] A Temporary Order shall issue as follows:

1. The child L.F.R. shall reside primarily with the Applicant, S.F. and secondarily with the Respondent, D.R.;
2. The child D.F.R. shall reside primarily with the Respondent, D.R. and secondarily with the Applicant, S.F.;
3. The child, L.F.R., shall be permitted to remain in Springhill, Nova Scotia pending further order of the court.

[105] I decline to make a Temporary Order requesting the involvement of the Office of the Children’s Lawyer in this case. The evidence before me as to the views and preferences of L.F.R. on the relocation issue is contained within the mother’s affidavit evidence and is clearly stated. It is neither challenged nor contradicted in any way by the father. The mother further deposes that there has been no communication between L.F.R. and the father since late July 2021, despite her efforts to have L.F.R. speak with his father. In these circumstances, I see no purpose in requesting OCL involvement to ascertain the views and preferences of L.F.R.

[106] I also decline to make a temporary order establishing a parenting time regime for holiday periods going forward. I think it is premature to do so at this time. The father has not addressed this issue in his materials. I encourage the parties and counsel to work toward a negotiated resolution of that issue once they have had an opportunity to review and consider my decision about relocation. If the parties are unable to resolve that issue it can be the subject of a Settlement Conference.

[107] The mother has been successful on these motions and is presumptively entitled to her costs. If the parties cannot agree on costs, they shall file written submissions as to costs, not to exceed five pages, exclusive of their respective Bills of Costs. The mother’s Costs Submissions shall be filed within 14 days of the release of this decision; the father’s within seven days thereafter.

The Hon. Justice J. Fregeau Released: April 4, 2022

COURT FILE NO.: FC-1204/21 DATE: 2022-04-04

BETWEEN:

S.F. Applicant

- and -

D.R. Respondent

REASONS ON MOTIONS Fregeau J. Released: April 4, 2022 /sf