COURT FILE NO.: FC224/22 DATE: April 27, 2022
SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT
RE: Darryl Stephen Markowski, applicant AND: Tamara Jade Krochak, respondent
BEFORE: MITROW J.
COUNSEL: Daniel S. Macdonald for the applicant Nadine Russell for the respondent
HEARD: March 30, 2022
amended ENDORSEMENT
Introduction
[1] These reasons pertain to the applicant’s urgent motion and the respondent’s cross-motion heard March 30, 2022.
[2] The relief sought in the motions pertains to parenting orders regarding the parties’ child, S., age four (sometimes referred to as “the child”). The applicant is the child’s father and the respondent is the child’s mother. For convenience, in these reasons, the parties will be referred to as “the father” and “the mother.”
[3] The primary relief sought on the father’s urgent motion is to require that the child be returned to his primary care in London, Ontario and that, once the mother obtains housing in London, that the parties have care of the child on a week-about schedule. The father’s position is that the mother has wrongfully moved to Alberta with the child and wrongfully changed the child’s habitual residence from London to Alberta.
[4] In her motion, the mother denies any wrongdoing and raises the issue of jurisdiction, taking the position that Alberta is the proper jurisdiction to decide parenting issues.
[5] Alternatively, if the court finds that Ontario has jurisdiction, the mother’s position is that the child should continue to reside in the mother’s primary care in Alberta on an interim basis, with the father to have parenting time during the summer break, school holidays and long weekends pending the final determination of this proceeding.
[6] Although the order of Sah J. dated March 9, 2022 stipulated that the narrow issue of jurisdiction was to be heard on March 30, 2022, the parties both filed fulsome affidavit material that included facts relevant to the issue of “interim mobility.” In order to avoid the potential of a delay in hearing the interim mobility issue, should it be found that Ontario is the proper jurisdiction, both parties consented to arguing both issues of jurisdiction and interim mobility.
[7] For reasons that follow, an order is made that Ontario has jurisdiction, an expedited trial is ordered for October 2022, the child shall reside in two locations with each parent, the child will start school in Alberta in September 2022, and the order below further provides for the process to deal with each party’s parenting time and the issue of interim decision-making responsibility pending trial.
Background
[8] The parties met in 2013 while traveling abroad. The mother was born and raised in Alberta. The father is from London, Ontario.
[9] After engaging in a long distance relationship, the parties agree that the mother moved to London in 2015. The parties began to cohabit and did so for about a year, according to the mother. The mother deposes that, in June 2016, she moved back to Calgary as she was unhappy being away from family and friends and she had a better career in Alberta, with better wages. The father, in his reply affidavit, does not appear to acknowledge the mother's evidence that she returned to Alberta.
[10] However, both parties agree that they went on an overseas trip together in late 2016 and early 2017. The evidence indicates that this was a six week trip to southeast Asia.
[11] Following the trip, the parties agree that the mother returned to Alberta. Their evidence differs in the sense that the father states the mother went to Alberta to visit her family, while the mother's position is that she was returning to Alberta where she was living at the time.
[12] When the mother learned that she was pregnant – in February 2017, according to the mother – it is not disputed that the parties agreed that the mother would continue working in Alberta. At that time, the mother was living and working in Calgary at Alberta Health Sciences.
[13] The parties also agree that the mother returned to London to live with the father in or about August 2017. S. was born in October 2017.
[14] While the father maintains that the parties continued to live in London until their eventual separation in early 2022, the mother has a different narrative. She asserts that she has been the child's primary caregiver throughout and that she and the child have spent “about half” of their time, over the years, in each of Alberta and London.
[15] Those details, including the parties’ separation, are discussed later in these reasons.
Jurisdiction
A. Habitual Residence – Statutory Provision
[16] The issue of jurisdiction is tied to the child's habitual residence. Section 22(2) of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (“the Act”) contains a definition as to when a child is “habitually resident” in Ontario. Section 22(2) states:
Habitual residence 22(2) A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:
- With both parents.
- If the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order.
- With a person other than a parent on a permanent basis for a significant period of time.
[17] For the court to exercise jurisdiction to make a parenting order or a contact order, the child must be habitually resident in Ontario at the time of the application for the order as set out in s. 22(1)(a):
Jurisdiction 22(1) A court shall only exercise its jurisdiction to make a parenting order or contact order with respect to a child if,
(a) the child is habitually resident in Ontario at the commencement of the application for the order …
[18] Section 22(1)(b) contains a number of criteria, all of which must be satisfied, for a court in Ontario to exercise jurisdiction where a child is not habitually resident in Ontario at the commencement of the application. However, s. 22(1)(b) can have no application in the present case as the condition in s. 22(1)(b)(i) - that the child must be physically present in Ontario at the commencement of the application - is not met, as is apparent from the discussion below.
[19] The Act warns that unilateral conduct cannot change the child’s habitual residence. Section 22(3) provides:
Abduction 22(3) The removal or withholding of a child without the consent of all persons having decision-making responsibility with respect to the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld.
B. Discussion
[20] I conclude, for the reasons discussed below, that the child's habitual place of residence was London, Ontario when the father's application was commenced on March 1, 2022. I reject, for reasons discussed below, the mother's characterization of the circumstances leading to separation and her position that the child was habitually resident in Alberta.
[21] Further, I concur, for reasons discussed below, with the father's submission that the mother resorted to self-help in keeping the child in Alberta.
[22] The mother’s position, I find, is that she is unable to extricate herself from falling within the ambit of s. 22(3).
[23] While the evidence of the parties conflicts as to the narrative of how the separation unfolded, there are some facts that are not in dispute.
[24] In late August 2021, the mother and the child went to Alberta. The father is clear that the purpose of this trip was for the mother to attend a family wedding. In her description of events for 2021, the mother deposes that she attended her cousin’s wedding in September 2021.
[25] While the mother portrays August 28, 2021 as the date of the parties’ initial separation, I find, much more believable, the father's evidence that he was told by the mother that she was going to Alberta with the child for a wedding. The father deposes that it was only on September 1, 2021, while in Alberta with the child, that the mother told him that she was not returning. The father had been expecting the mother to return to London with the child after the wedding.
[26] I do not view the text messages from September 3, 2021, appended to the mother’s affidavit, as demonstrating either the father's acquiescence or consent to the child remaining in Alberta, as argued by the mother, just because there was some discussion of a potential parenting schedule for the father to see the child if the child was resident in Alberta.
[27] A consideration of the entire evidentiary record leaves no doubt that the father was opposed to the child remaining in Alberta, that he never consented or acquiesced to the child moving to Alberta and that the father acted swiftly by retaining his current lawyer to put the mother on notice as to the father’s position in a letter dated September 15, 2021.
[28] In early October 2021, there is agreement that the mother returned with the child to London for the child to attend a previously scheduled dental appointment.
[29] At this point, the parties’ narratives diverge. The father claims that the parties were pursuing reconciliation discussions, while the mother denies attempts at reconciliation. However, the parties do agree that the mother had started a court case in Alberta and that the mother agreed to instruct her Alberta counsel to cancel the upcoming court appearance in Alberta scheduled for November 22, 2021. Confirmation of same from the mother’s Alberta counsel, via email dated October 25, 2021, is included in the father's material.
[30] While there remains a dispute, or at least no apparent consensus, as to how much time the mother and the child spent in London between early October 2021 and the end of 2021, both parties acknowledge that the maternal grandmother (the mother’s mother) suffered some serious health issues in November 2021. The father's evidence is that, as a result, the mother and child went to Alberta from November 13 to December 6, 2021 to allow the mother to assist the maternal grandmother.
[31] The parties also agree that they took a vacation with the child in Mexico in December 2021 - the father's evidence that the vacation was from December 9 to December 16, 2021 is not disputed by the mother. The parties also agree that the mother then went to Alberta to assist the maternal grandmother, while the child remained in London. There is agreement that subsequently the mother returned to London.
[32] Both parties agree that the mother and the child returned to Alberta on January 11, 2022.
[33] However, at this point, the narratives again diverge. The father deposes that the mother’s trip with the child to Alberta was, again, for the mother to assist in caring for the maternal grandmother. He deposes that the trip was to be for a week but that the mother extended this trip, consistent with her past practice, including a trip to Florida with her father in early February 2022.
[34] The mother deposes that when she returned with the child to Alberta on January 11, 2022, that she “did not know what would be happening next.” She deposes that the trip to Mexico had not gone well, from her perspective, and that various issues between the parties had not been resolved.
[35] The mother's explanation, that she did not know what would be happening next, is called into question by the text messages on January 11, 2022, contained in the father's reply affidavit. In those text messages between the parties, the mother confirms that she is returning in one week. That evidence supports the father's narrative that the trip was planned to be for one week.
[36] The father deposes that it was not until February 19, 2022 that he was informed by the mother that she would be staying permanently in Alberta with the child. The father then filed his application in this court on February 28, 2022 which, as indicated earlier, was issued on March 1, 2022.
[37] In relation to the issue of jurisdiction, the mother also raises an argument centred on what is a somewhat unusual aspect of the parties’ relationship. The evidence that is not in dispute discloses that, since the child's birth, the mother and child have travelled to Alberta on a frequent and regular basis. The father consented to those trips but did indicate that the mother, on a regular basis, would contact the father to extend the trip.
[38] The parties do differ as to how much time the mother and child did spend in Alberta. They each provide a list of dates when the mother was away with the child. There was conflict in that evidence.
[39] The conflicting evidentiary record does not support a finding that the mother spent close to half of the time with the child in Alberta, as she alleges.
[40] However, based on the father's evidence, he concedes that, in 2020, the mother was in Alberta with the child for approximately 30 percent of the time and that, for 2021 up to September 1, 2021, that the mother was in Alberta with the child for about 29 percent of the time. That latter percentage appears somewhat suspect, as the father includes in his evidence the dates when the mother was in Alberta prior to September 1, 2021 and it would appear that this exceeds 30 percent. Nevertheless, for the purpose of the motions before the court, using the father's figures would suggest that the mother's time spent in Alberta with the child for the last two years is material and not insignificant.
[41] Also, the father includes dates from 2019 when he states the mother was in Alberta with the child. Those dates suggest that the mother spent in excess of 35 percent of her time in Alberta.
[42] The father did not provide specific dates for 2018, but the mother did. Her figures, without doing any exact calculations, suggest that the time spent in Alberta with the child exceeded five months.
[43] On the evidentiary record, I decline to find the child at any time had her habitual residence in Alberta or, alternatively, in both Ontario and Alberta. As to the latter, a child can be found to have two concurrent habitual residences, but such a finding would be dependent on the specific facts: see Ascani v. Robert, 2013 ONSC 273, at paras. 25 and 26, and the cases cited therein. The evidentiary record in the present case does not support a finding of two habitual residences.
[44] The pathway to determining a child's habitual residence when applying s. 22(2) is set out in Dovigi v. Razi, 2012 ONCA 361 [1], at paras. 16-19:
16 Section 22(1) limits when the court has jurisdiction to make an order for custody or of access to a child on the basis that the child is either habitually resident in Ontario at the commencement of the application for the order or, if not habitually resident, the child is physically present in Ontario and meets a number of other criteria. Since the child here was not physically present in Ontario, the focus becomes the child's place of habitual residence.
17 To be "habitually resident" in Ontario is defined by s. 22(2) of the Act as follows:
(2) A child is habitually resident in the place where he or she resided,
(a) with both parents; (b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or I [sic] with a person other than a parent on a permanent basis for a significant period of time,
whichever last occurred.
18 As can be seen, the definition contemplates three possible situations: where the child is living with both parents, with one parent, or with neither parent. Where the child is living with one parent, the key provision is s. 22(2)(b), which specifies that the statutory meaning of "habitually resident" differs from the common-law meaning. Even a child with a stable and settled life in Ontario residing with one parent is not "habitually resident" here under the statute unless the child's residence is in accordance with a separation agreement, consent, or a court order.
19 The possibility that the child is living with one parent outside Ontario as a result of abduction is specifically addressed by s. 23(3) of the CLRA, which provides that abduction does not change the "habitual residence" of a child.
[45] It must be determined whether the child was habitually resident in Ontario at the commencement up the father's application on March 1, 2022: s. 22(1)(a).
[46] Section 22(2) requires the court to determine where a child is habitually resident in accordance with one of three circumstances, whichever last occurred. The circumstance described in para. 3 of s. 22(2) is not applicable in the present case.
[47] Paragraph 1 requires the court to consider where the child resided with both parents. I find that location to be London, Ontario on the facts of this case. While the mother did spend time with the child in Alberta on a regular basis, those visits, on the conflicting evidence, do not change the fact that the child resided in London with both parents.
[48] Paragraph 2 addresses the situation where the parents are living separate and apart and where the child resides with one parent in the following circumstances: (a) under a separation agreement; or (b) with the consent, implied consent or acquiescence of the other; or (c) under a court order.
[49] Paragraph 2 could potentially come into play because the parties were living separate and apart at the date of the commencement of the application. As there was neither a court order nor a separation agreement, the applicability of para. 2 will depend on whether the child was living with the mother in Alberta with the consent, implied consent or acquiescence of the father.
[50] The factual matrix detailed above offers no basis, in my view, to conclude that the father consented or acquiesced at any time to the child residing with the mother in Alberta.
[51] The father at all times acted promptly, through legal counsel, to voice his opposition to the child permanently residing in Alberta. He did so in September 2021 and again in February 2022 by filing an application later that month when told by the mother that she was not returning with the child to London.
[52] The result is that para. 1 is the circumstance which last occurred. The child resided with both parents in London, Ontario and this leads to the conclusion that the child was habitually resident in London, Ontario.
[53] The mother has disputed that a relocation has occurred. Relocation is defined in s. 18(1) of the Act as follows:
“relocation” means a change in residence of a child, or of a person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child, that is likely to have a significant impact on the child’s relationship with,
(a) another person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child, or (b) a person who has contact with respect to the child under a contact order …
[54] The presumption of equal decision-making responsibility has not been displaced in the present case. Sections 20(1) and (4) of the Act provide:
Equal entitlement to decision-making responsibility 20(1) Except as otherwise provided in this Part, a child’s parents are equally entitled to decision-making responsibility with respect to the child.
If parents separate (4) If the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other, the right of the other to exercise the entitlement to decision-making responsibility with respect to the child, but not the entitlement to parenting time, is suspended until a separation agreement or order provides otherwise.
[55] On the facts, there is no doubt that the mother embarked on a plan to relocate the child. In doing so, she failed to comply with her obligation to provide at least 60 days written notice of her intended relocation, as required by s. 39.3 of the Act.
[56] The mother should have, but failed, to seek court approval for the child’s proposed relocation prior to relocating the child. It was not until the mother was in Alberta with the child, with the perceived tactical advantage of having the child with her, that she told the father she was not returning to Ontario with the child.
[57] The mother relies in her submissions on the hybrid approach to decide habitual residence, as determined in Office of the Children’s Lawyer v. Balev, 2018 SCC 16 (S.C.C.).
[58] While the mother acknowledges that Balev was a Hague Convention case, where there was no definition of habitual residence, the mother relies on two cases for the proposition that Balev applies to the Ontario definition of “habitual residence” and in extra-provincial cases pursuant to Part III of the Children's Law Reform Act.
[59] The first case relied on by the mother is Moussa v. Sundhu, 2018 ONCJ 284 (Ont. C.J.), at para. 32, which states:
32 While the Supreme Court of Canada case was decided pursuant to the Hague Convention, it applies to the case at bar as the definition of "habitual residence" has been held to be the same in Hague cases and in extra-provincial cases pursuant to Part III of the CLRA.
[60] No authorities are cited in Moussa in support of that statement. It is noted that Moussa was decided ten days after the decision in Balev was released.
[61] The second case cited by the mother is J.K. v. L.R., 2018 ONCJ 673 (Ont. C.J.), at para. 53:
53 In the case of Korutowska-Wooff v. Wooff Justice Feldman of the Ontario Court of Appeal outlined the often quoted principles to be considered when deciding "habitual residence". Although the term was explained in the context of a Hague Application, Ontario jurisprudence has held that the term has the same meaning as it has pursuant to the CLRA. The Court stated as follows:
- the question of habitual residence is a question of fact to be decided based on all of the circumstances;
- the habitual residence is the place where the person resides for an appreciable period of time with a "settled intention";
- a "settled intention" or "purpose" is an intent to stay in a place whether temporarily or permanently for a particular purpose, such as employment, family, etc.;
- a child's habitual residence is tied to that of the child's custodian(s).
(footnotes omitted)
[62] In Korutowska-Wooff v. Wooff, 2004 CarswellOnt 3203 (Ont. C.A.), referred to in the above passage from J.K., the Court of Appeal for Ontario was dealing with a Hague Convention case. It is instructive to note exactly what the Court of Appeal said, at paras. 8 and 9:
8 The term "habitually resident" is not defined in the Convention. However, the English courts have provided Canadian courts with guidance on the interpretation and application of this term in the cases of J. (A Minor) (Abduction: Custody Rights), Re, [1990] 2 A.C. 562 (U.K. H.L.), and R. v. Barnet London Borough Council (1982), [1983] 2 A.C. 309 (U.K. H.L.). See Chan v. Chow (2001), 2001 BCCA 276, 199 D.L.R. (4th) 478 (B.C. C.A.) at paras. 30-34; Kinnersley-Turner v. Kinnersley-Turner (1996), 94 O.A.C. 376 (Ont. C.A.) at paras. 19-20. The principles that emerge are:
- the question of habitual residence is a question of fact to be decided based on all of the circumstances;
- the habitual residence is the place where the person resides for an appreciable period of time with a "settled intention";
- a "settled intention" or "purpose" is an intent to stay in a place whether temporarily or permanently for a particular purpose, such as employment, family, etc.;
- a child's habitual residence is tied to that of the child's custodian(s).
9 I note that the application judge stated that there is also no definition of the term "habitually resident" in the Children's Law Reform Act. There is a definition of the term in s. 22(2), which defines the jurisdiction of the Ontario courts in custody cases. No argument was made in this case that the definition in that Act has any application.
[63] There is no statement in Korutowska-Wooff that “Ontario jurisprudence” has held that habitual residence, as determined in Hague Convention cases, has the same meaning as it has pursuant to the Children's Law Reform Act. Rather, in para. 9, the Court of Appeal refers to the definition of habitually resident in the Children's Law Reform Act, and notes that there was no argument in that case that the definition had any application.
[64] Also, in Balev, at para. 40, the Supreme Court of Canada noted that Korutowska-Wooff and other Canadian cases had considered the parental intention approach to be the primary consideration in determining the child’s habitual residence, which said approach was rejected by the Supreme Court of Canada in favour of the hybrid approach in Hague Convention cases.
[65] It cannot be overstated that the place where a child is habitually resident is defined in the Act. This is in marked contrast to cases under the Hague Convention where there is no definition of habitual residence. In Balev, the court states, at para. 1:
1 The Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 ("Hague Convention"), sets out the rules that apply to the parental abduction of children across international borders. The question before us concerns the application of the Hague Convention concept of habitual residence — a concept not defined in the treaty, but much considered by the courts of subscribing states around the world.
[66] I find that Moussa and J.K. do not assist the mother. The determination of the child’s habitual residence requires an examination of the facts, followed by an application of the statutory definition to the facts. In contrast, in Hague Convention cases, “[t]he hybrid approach best adheres to the text, structure, and purpose of the Hague Convention”: Balev, at para. 58.
[67] Finally, I would add that this is not a proper case for the court to decline jurisdiction under s. 25 of the Act.
Interim Relocation (Interim Mobility)
A. Preliminary Consideration
[68] The issue of interim relocation in this case presents the challenge as to where the child should live pending trial. The status quo created by an interim relocation order, practically, will take on increased significance the longer the parties have to wait for a trial date.
[69] It is not in the child’s best interests to wait an excessive period of time for a trial, irrespective of whether there has been a pandemic or a backlog of cases on the trial list as a result of the pandemic. Relocation cases, similar to Hague Convention cases, require expedited resolution, and must be accorded priority.
[70] Section 26(1) of the Act is a statutory directive that signals the importance of early resolution in all parenting cases:
Delay 26(1) If an application under this Part in relation to decision-making responsibility, parenting time or contact with respect to a child has not been heard within six months after the commencement of the proceedings, the clerk of the court shall list the application for the court and give notice to the parties of the date and time when and the place where the court will fix a date for the hearing of the application.
[71] Accordingly, the order below places this case on the trial list for October 2022 and requires the case to be tried on an expedited basis and peremptory on both parties.
B. The Law
[72] Interim relocation decisions of necessity are based often, as in this case, on untested and conflicting affidavit material. The court does not have the benefit of a fulsome evidentiary record as at trial.
[73] Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.) is a relocation case that involved an appeal of a final order made at trial. The summary of the law, at para. 49, included the following factors to be considered by the trial judge:
49 …
- More particularly the judge should consider, inter alia: (a) the existing custody arrangement and relationship between the child and the custodial parent; (b) the existing access arrangement and the relationship between the child and the access parent; (c) the desirability of maximizing contact between the child and both parents; (d) the views of the child; (e) 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; [emphasis in original] (f) disruption to the child of a change in custody; (g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
[74] A leading and often-quoted case on interim relocation is the decision of Marshman J. in Plumley v. Plumley, [1999] CarswellOnt 3503 (Ont. S.C.J.), where the following test was provided, at para. 7:
7 It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis:
- A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.
- There can be compelling circumstances which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.
- Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent's position will prevail at a trial.
[75] In Boudreault v. Charles, 2014 ONCJ 273 (Ont. C.J.), Sherr J. provides an additional list of factors to consider on interim relocation, at para. 26:
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 (Ont. C.J.). 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 (Ont. C.J.). 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 (Ont. C.J.). 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 (Ont. C.J.) and Costa v. Funes, [2012] O.J. No. 3317 (Ont. C.J.). 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 (Ont. C.J.)), 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:
[paras. 49 and 50 omitted]
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 CarswellOnt 1189 (Ont. S.C.J.). 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 (Ont. S.C.J.) where the court wrote at paragraphs 32-34 as follows:
[paras. 32-34 omitted]
k) There is case law that says that if a primary caregiver is happier, this will benefit the child. See: Net v. Benger, 2003 CarswellOnt 3898 (Ont. S.C.J.). 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. Dinamarca, 2003 CarswellBC 2845 (B.C. S.C.).
[76] Also, s. 39.4 of the Act has codified additional factors to consider on relocation, including reasons for the relocation, which reverse the narrow scope of when a parent’s reasons for moving can be considered as set out in Gordon. Section 39.4(3) provides:
Best interests of the child 39.4(3) In determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with section 24, as well as,
(a) the reasons for the relocation; (b) the impact of the relocation on the child; (c) the amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child’s life of each of those persons; (d) whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement; (e) the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside; (f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses; and (g) whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance.
[77] There is also the question as to whether relocation can be dealt with prior to deciding decision-making responsibility (formerly custody). This was answered in the affirmative by Tobin J. in Zorab v. Zourob, 2021 ONSC 6552 (Ont. S.C.J.), in his review of recent appellate jurisdiction, at paras. 11 and 12:
11 The mother, on oral motion, made at the beginning of trial, requested that the issue of relocation be dealt with first and, once decided, the parties then proceed to try the issue of decision-making responsibility.
12 In support of her request, counsel for the mother relied upon Moreton v. Inthavixay, 2021 ONCA 501. In this case, the appeal court was asked to decide if the trial judge erred by determining the issue of relocation before deciding the issue of custody. The appellant in that case relied upon the Ontario Court of Appeal decision in Bjornson v. Creighton (2002), 62 O.R. (3d) 236 (C.A.), leave to appeal refused [2003] S.C.C.A. No. 14. The appeal court rejected the submission that Bjornson established an absolute rule or requirement that the issue of custody must be determined before the issue of relocation. In Moreton, the court held that the sequence of issues to be decided "depends on the circumstances of each case and, specifically, the best interests of the children," (para. 9). In Moreton, it was in the children's best interests to have relocation decided first, so as to provide stability in their living arrangements, finality, and closure.
[78] The present case is an appropriate circumstance to deal with interim relocation prior to making an order for interim decision-making responsibility.
[79] Sections 39.4(5) to (8) deal with the burden of proof in relocation cases. It is not entirely clear whether the burden of proof established in ss. 39.4(5) and (6) has any application in the current circumstances.
[80] The issue of burden of proof was not addressed during the hearing of the motions. Accordingly, I apply s. 39.4(7), which provides as follows:
39.4(7) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.
[81] Alternatively, whether the father or the mother would have had the burden of proof in relation to the issue of interim relocation, the result, on the facts, would be the same.
C. Discussion
[82] Starting with the additional statutory factors in s. 39.4(3), that are relevant in the present case, the mother’s reasons for the relocation are reasonable. They are related to her employment and her desire to be with and have the support of her extended family.
[83] I consider factors (b) and (c) together. Although the mother’s frequent visits with the child to Alberta were not sufficient to affect the determination as to jurisdiction, the visits are relevant and must be considered when assessing overall the time spent by the mother with the child.
[84] Both parties conducted their lives, their relationships with each other and the child, by acquiescing to a lifestyle where the child frequently was with the mother in Alberta and absent from the father’s life. As discussed earlier, the father agreed that, for 2020 and 2021 until September 2021, that the child was away for 30 percent and 29 percent of the time, respectively. Also, as noted earlier, the evidence suggests that those percentages were higher in the years prior to 2020.
[85] Considering the time that the mother was in Alberta with the child, as admitted by the father, the mother has a cogent argument to present that, overall, she was the child’s primary caregiving parent, especially considering that for the first year of the child’s life the mother was on maternity leave and that the mother maintained only casual employment for approximately the next two years after her maternity leave, returning to fulltime employment in December 2020. The evidence demonstrates that there were minimal occasions when the mother was away and the child remained in the father’s sole care. The evidence also demonstrates that, throughout, the father had regular employment on a fulltime basis.
[86] The foregoing, however, does not detract from the father’s evidence as to his close and loving relationship with the child and his important role in the child’s life, including the child’s close relationship with the father’s extended family.
[87] Given the conflicting evidence, it is not appropriate to make findings as to whether the child had a stronger relationship with the mother’s extended family as compared to the father’s extended family. For the purpose of the motions, I find that the child enjoys a strong and loving relationship with the mother’s extended family in Alberta and also with the father’s extended family in Ontario.
[88] Considering the projected timeline until trial, I decline to make an order for “interim mobility,” on the terms as requested by the mother, and I also decline to order the child’s immediate return to London, as sought by the father.
[89] Even though the mother was found to have resorted to self-help in keeping the child in Alberta, this conduct, per se, does not mean that the child must be ordered back to Ontario immediately pending trial. While the mother’s conduct must be considered, ultimately, any order affecting the child must be made in the child’s best interests having regard to all the relevant facts and circumstances.
[90] I find it is in the child’s best interests to make an order that provides for each party’s parenting time pending trial. The order below encourages the parties to agree to the parenting time, with the expectation that the child will spend most of the coming summer months with the father. The order below also provides for a process to deal with parenting time pending trial if the parties are unable to agree to same.
[91] I do need to deal with the issue of where the child attends school in September 2022. While there remains a triable issue with respect to relocation, my earlier finding that the mother has a cogent argument to present that she is the child’s primary caregiver, leads me to consider the criteria in Plumley, and find that the mother is more likely, than not, to succeed at trial on the relocation issue. Consequently, the order below provides that the child shall be registered for school in September 2022 in Okotoks, Alberta where the mother currently resides. I add that the likelihood of the mother’s success at trial on the issue of relocation is based on the motion material, that a triable issue does remain and that a possibility exists that a different result may ensue after trial.
[92] The parties are warned they must ensure that they are ready for trial if called in October 2022. While it cannot be guaranteed that this case will be called for trial in October 2022, this should not be used to provide an excuse that the parties are not ready for trial.
[93] The parties must understand that an October 2022 trial will require necessarily that other pending cases on the trial list will not be called to trial in order to allow the trial in this case to proceed.
[94] Further, given the trial backlog and considering that all available trial time is at a premium, the parties are warned that that they will need to prepare their cases and marshal their evidence to accommodate a limited number of days of anticipated trial time. That issue will be discussed further with counsel when this matter is before the court.
Costs
[95] As there has been divided success, the parties are encouraged to resolve costs. If the parties are unable to resolve costs, the order below provides for written submissions to be made.
Order
[96] I make the following interim order:
- The proper jurisdiction for the hearing of all parenting issues regarding the child, S., is Ontario.
- Pending trial, the child shall reside in Okotoks, Alberta while with the mother and in London, Ontario while with the father according to a schedule to be determined.
- The issue of interim decision-making responsibility and interim parenting time shall be decided on motion before me to be scheduled as set out below.
- This application is adjourned for trial during the trial sittings commencing October 11, 2022 peremptory on both parties. The trial shall be heard on an expedited basis.
- The application is adjourned to the trial readiness court at 9:30 a.m. October 4, 2022.
- The parties are directed to make best efforts to agree to a schedule of parenting time pending trial and to decision-making responsibility pending trial.
- The application also is adjourned before me to 8:45 a.m. May 11, 2022 for the following purpose: (a) to the extent that there is no agreement between the parties, to set a motion date before me to deal with issues of interim decision-making responsibility and interim parenting time and to provide direction as to filing additional affidavit material; (b) to set dates for conferences; and (c) in the event there is no agreement between the parties, to make any necessary order for parenting time in favour of the father until the motion referred to in paragraph (a) is heard.
- For the school year commencing September 2022 and pending trial, the child shall start school in Okotoks, Alberta, unless otherwise ordered by this court.
- This order is made pursuant to the Children's Law Reform Act.
- If the parties are unable to settle costs of the motions, then the parties may file written submissions as to costs. All written costs submissions shall not exceed three typed pages (two pages for reply) and all costs submissions must be double-spaced, minimum font 12, together with copies of any offers, time dockets and bills of costs. Any references to cases shall be hyperlinked. These submissions shall be served and filed through the portal in the usual way. The father’s costs submissions shall be served and filed within two weeks, the mother’s costs submissions shall be served and filed within two weeks thereafter, and reply, if any, within one week thereafter. If the parties settle costs, then counsel shall advise the trial coordinator in writing.
“Justice Victor Mitrow” Justice Victor Mitrow Date: April 27, 2022
[1] Leave to appeal refused: Dovigi v. Razi, 2012 CarswellOnt 14546 (S.C.C.).
