Court File and Parties

Court File No.: FC-22-43-00 Date: 2022-04-28 Superior Court of Justice – Ontario

Re: A.C., Applicant And: K.T., Respondent

Before: Madam Justice R. S. Jain

Counsel: Barry Dryland, Counsel for the Applicant Respondent, Self Represented

Heard: April 21, 2022

Endorsement

Introduction and Background

[1] This matter came before me as a result of the Applicant Mother’s motion requesting a court order permitting her to relocate the primary residence of the children ST, born May 14, 2013 (8 years old), BT born June 22, 2014 (7 years old), and AT, born September 5, 2017 (4 years old) to North Bay, Ontario. She further asks for an order that the parties shall share the transportation for the Respondent Father’s parenting time on alternate weekends with the Respondent Father doing the drive and pick up on Fridays and the Applicant doing the drive and pick up on Sundays.

[2] The Respondent opposes the motion. He says the Applicant did not give him thirty (30) days notice of her intention to move as required by their final court Order dated August 15, 2019. He further says that the Applicant is unstable and that this move is not in the children’s best interests.

[3] This matter was originally brought to court on an urgent basis. On January 27, 2022, the Applicant moved with the children to Powassan (just south of North Bay) to reside temporarily with the Applicant’s grandfather. An urgent settlement conference was held by Douglas J. on January 28, 2022. There was no resolution, so he set it down for argument on February 24, 2022. On February 24, 2022, the Respondent appeared but had not served or filed any responding materials. On February 24, 2022, Breithaupt-Smith J. made a temporary (without prejudice) Order for the following: the children shall remain in the Applicant’s primary care in Powassan until further order of the court; the Respondent’s parenting time shall continue on alternate weekends; setting up the exchange location; setting service and filing deadlines for the motion; and adjourning the motion to April 21, 2022.

[4] The parties were involved in an “off and on” common law relationship from approximately 2013 until they separated in 2019. The above-named children, ST, BT, and AT (hereinafter referred to by their initials or as “the children”) are all the biological children of the Applicant and the Respondent. The Applicant also has a fourth child from another relationship, namely MC born October 12, 2020. She has primary residence of this fourth child.

[5] The current operative final Order was achieved on consent and is dated August 15, 2019 (“the Order”). According to the Order, the Applicant has sole custody (now referred to as “sole decision-making responsibility”) and primary residence of all three children. The children have access (now referred to as “parenting time”) with the Respondent on alternate weekends. The Respondent was to do all the driving (at the time of the Order, the Respondent was residing in Severn and the Applicant and children were residing in Muskoka). At paragraph 16 of the Order, there is a term that requires both parties to provide the other party with at least 30 days advance written notice of a planned change of residence outside of Muskoka or Orillia. The Respondent was further ordered to pay the Applicant child support in the amount of $866 per month. The Respondent is currently in significant arrears and has not paid this support for the children since July 2021.

Applicant and Respondent’s Positions

[6] On January 27, 2022, the Applicant moved with the children to Powassan to reside with her grandfather. Her intention is to reside in North Bay, close to her family and supports. The Applicant acknowledges that she has not complied with the notice requirement in paragraph 16 of the Order. She is apologetic for this; however, she says that the circumstances that forced her to move with the children were out of her control.

[7] In November of 2021 the Applicant’s home was sold and she was evicted. She provided the court with detailed evidence of the crisis situation and instability of her housing options from the date of eviction until January 27, 2022. The Applicant tried to share accommodations with other people, but these were short term solutions. She even tried to enter a Shelter but did not fit their criteria. By January 27, 2022, the Applicant had no other options available to her.

[8] The Respondent does not believe the Applicant’s version of the events surrounding how she was evicted. He is concerned about the stability of the Applicant and about the number of schools that the children have been enrolled in and their attendance.

[9] The Applicant provided the court with evidence of her search for affordable accommodations for her and the children in Orillia. Unfortunately, the Applicant discovered that rents in Orillia have risen dramatically and are now in the range of $2,500-$3,000 per month. Although the Applicant is of very modest means and is dependent upon government benefits and child support, she is not eligible for low-income housing. Even if she was, the waitlist is several years long. She simply cannot afford to remain in Orillia.

[10] According to the Applicant, the Respondent last paid child support on July 30, 2021. The Applicant says that the lack of consistent ongoing child support has substantially decreased her ability to find and rent affordable accommodations in Orillia.

[11] The Respondent acknowledges that he has not paid child support since July 2021. The Respondent says he has not paid child support because his income has gone down. However, he provided no evidence of his income or efforts to earn income.

[12] All three children reside with the Applicant along with their sibling MC. According to the Applicant, on numerous occasions in the past the Respondent has refused to take the children because he didn’t have money for groceries. Further, there has been an ongoing child protection file open with Dnaagdewenmag Biinoojiiyag Child and Family Services (DBCFS) primarily because of allegations of protection concerns about the Respondent and the Respondent’s partner—including allegations of physical discipline and sexual touching.

[13] The Respondent acknowledges involvement with DBCFS. He says that he does not agree with the Voluntary Service Agreement (VSA) it proposed and did not sign it. He denies there are any protection concerns for the children in his care. He alleges that it is the Applicant who has exposed the children to risk of harm and instability.

[14] According to the Applicant, the child ST has several special needs and behavioural diagnoses. The Applicant has always been the primary caregiver and the parent to take the children to their doctors and specialists. The Applicant says that there have been challenges in the past getting the children to school. Some of the absences in the past couple years are explained by the COVID protocols. Some of the absences were as a result of ST’s behaviours and the younger children being unable to go to school alone. However, the Applicant says the children are attending their new school regularly and are excelling. The children have received attendance awards and kindness awards at their new school. The Applicant says the children are thriving.

[15] The Applicant has tried her best to facilitate the Respondent’s parenting time since the move. The children have not missed any of their alternate weekend parenting time with the Respondent. The Applicant has been providing all the transportation.

[16] The Applicant says this relocation will not interrupt the Respondent’s regular parenting time. The only change is with respect to transportation. If the transportation is shared the way she proposes, the Applicant says there will be little change to the status quo. She says that the move to North Bay is in the best interests of the children as she has found affordable accommodations and will be close to her family and supports.

[17] Regarding transportation, the Respondent says that if the court grants the relief sought by the Applicant and she is allowed to move, then twice a month he is losing two (2) hours with his children driving to North Bay, and then he has to drive another two (2) hours back to Severn with the children. He says he does not have a reliable vehicle.

[18] The Respondent says that if he had primary residence of the children, they would be able to live in the home they have always known when they are with him during his parenting time. He says that he has the support of his family and that he can provide the children with stability, and they could attend a school close by.

The Law

[19] This motion engages the new provisions in the Children’s Law Reform Act (CLRA), governing relocation and allocation of parenting time, specifically ss. 29(2), 39.4(3) and 39.4(6). The relocation of a child is a material change in circumstances.

[20] Under s. 39.4(3), in considering whether to permit relocation, the court shall take into account the best interests of the child, as well as the following:

(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.

[21] Under s. 39.4(6) if the parties are in substantial compliance with an order that provides that the child spends the vast majority of time in the care of the party who intends to relocate, the party opposing the relocation has the burden of proving the relocation would not be in the best interests of the child.

Discussion and Analysis

[22] Since 2019, the children have resided primarily with the Applicant, and she has sole decision-making responsibility. In the circumstances of this case, s. 39(6) places the burden on the Respondent to show the court that the relocation is not in the best interests of the children. The Respondent says that the Applicant did not comply with the notice requirement. He says that he has long-standing concerns about the Applicant’s stability and her parenting and decisions regarding the children’s attendance at school and medications. Despite his stated concerns, the Respondent did not bring a motion to change.

[23] Further, despite the fact that both the Respondent and Applicant have made allegations of child protection concerns against each other, DBCFS has only asked the Respondent to sign a VSA. On February 9, 2022, DBCFS proposed that the Respondent enter a VSA regarding protection concerns about the Respondent’s use of physical discipline on the children and its effect on them. As of the date of this motion, the Respondent has still not signed the VSA. He acknowledged that he has refused to do so.

[24] The Applicant acknowledges that she did not comply with s. 39.4(3)(d), in that she did not comply with paragraph 16 of the Order and provide the Respondent with 30 days written notice of a “planned change of residence outside of the cities/towns of Muskoka or Orillia.” The Order does not discuss the geographical limit or area for the potential relocation.

[25] Although the Applicant did not comply with the notice provision of the Order or the notice provisions in the CLRA, this is not fatal to her claim. Under s. 39.4(3) the statute clearly states that in considering whether to allow the relocation, the court must consider the best interests of the children, as well as the other factors listed in s. 39.4(3).

[26] In this case, the reasons for the proposed relocation and the reasons the Applicant was unable to comply with the notice requirement are connected. The Applicant could not comply with the notice requirement in the Order or s. 39.3(1) due to the crisis of lack of affordable accommodations. In my view, the Applicant’s move was forced, and this is a very difficult situation because she has four young children in her primary care. Unfortunately, the rental market for affordable housing is in a state of crisis. This is not the Applicant’s doing. The Applicant is of limited means, and this has not been improved by the Respondent not paying any child support since July 2021. In my view, the lack of child support paid by the Respondent has exacerbated the problem and the instability, and further limited the Applicant’s options to find accommodations in Orillia.

[27] The Applicant has chosen to relocate to North Bay because it is close to her family and supports. It is also much more affordable than Orillia. The Applicant says she has secured a three-bedroom apartment that is appropriate and affordable for her and all four of the children. The Applicant says that North Bay has the best opportunity for the Applicant and the children to have safe, stable, and affordable housing and receive the support of her family (with the least amount of interruption to the Respondent’s parenting time). The move will not affect the long-standing status quo for decision-making responsibility. Except for transportation, the move does not alter the long-standing status quo for the decision-making responsibility or parenting time arrangement.

[28] Despite the Respondent’s criticisms of the Applicant’s parenting, the children’s needs have been met while in the Applicant’s care. Even with the challenges she has faced, the Applicant has had ongoing and uninterrupted primary care and decision-making responsibility for all the children. The court notes that the school absences were concerning. However, the Applicant says that the children’s attendance has already improved and that the children are doing well in school. The court expects that the children’s attendance at school will continue to improve and remain consistent.

[29] The Applicant proposes to support the Respondent’s parenting time by sharing the transportation. This would mean that the Respondent’s parenting time will remain very close to the status quo. In my view, these are all reasonable requests and proposals that are in the best interests of the children. Further, it seems to me that the best way to give the children stability and security in their accommodations and school is for the Applicant to be able to sign a lease for housing she can afford.

[30] As confirmed by the recent Ontario Court of Appeal decision in O’Brien v. Chuluunbaatar, 2021 ONCA 555, the reasons for the relocation are a valid consideration. I am satisfied with the evidence provided by the Applicant regarding the reasons for the relocation. Additionally, as set out in Plumley v. Plumley, [1999] O.J. No. 3234 (Ont. S.C.), at para. 7, in deciding whether to permit relocation on an interim basis, the court shall consider:

1. A court will be more reluctant to upset the status quo on an interim basis and permit the move where there is a genuine issue for trial.
2. There can be compelling circumstances that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family unit which will be lost if the matter awaits a trial, or the best interests of the children might dictate that they commence school at a new location.
3. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at trial.

[31] It is important to note that there was no cross-motion to change the children’s residence and the Respondent did not bring a Motion to Change. The Applicant is seeking an order to allow her to permanently relocate with the children. The court was not provided with a thoughtful parenting plan from the Respondent. He simply advised the court that the children should stay with him. He said the children are familiar with his home and the school close by. He said that the Applicant could “see the kids every weekend” if she wanted (so long as she did all the driving).

[32] The Applicant advised the court that it would not be in the children’s best interests to reside primarily with the Respondent. The Respondent buys and sells used cars and he builds Derby cars as a hobby. The Applicant described his home as a car “graveyard.” One of the cars on his property recently burst into flames. The Applicant says it is not safe for the children to live there long term. The Respondent did not give any evidence to the contrary. In my view, the impact of changing the children’s primary residence to the Respondent would be very significant. The Respondent’s evidence does not satisfy me that a change as significant as he is requesting is in the best interests of the children. I find that the Respondent has not met the burden of proving the relocation would not be in the best interests of the children.

[33] One issue that arose during the argument of the motion that the court found noteworthy was the fact that the child AT needed some serious dental work. The specialist appointment was taking place on the weekend during the Respondent’s parenting time. The Applicant asked the Respondent to take AT to the appointment. The Respondent agreed that the dental work was necessary, however he would not agree to take AT to this appointment. Instead, he chose not to exercise parenting time with AT and let her remain in the Applicant’s care so that the Applicant would take AT to the appointment. In my view, this speaks volumes. It shows that it is the Applicant who has been and remains to be the primary caregiver and decision-maker for the children.

[34] In my view, the Respondent’s criticisms and concerns about the Applicant’s parenting are a form of gaslighting and carry little to no weight. They have certainly not raised any protection concerns at this time. The court finds it telling that when opportunities have arisen for the Respondent to take on greater responsibilities and to have increased parenting time with the children, he has not always risen to the challenge. The Applicant says that when the Respondent did take the children for a few extra days she had to give him extra groceries and the Respondent did not take the children to school. One would think that if he was so concerned about the Applicant’s parenting, the Respondent would have taken every opportunity for parenting time. Instead, the Respondent acknowledged that he has refused offers for extra parenting time, but at the same time, he blamed the Applicant for this. The Respondent says the Applicant was trying to “push” the children on him and he complained that she kept the Child Tax Benefits.

[35] In my view, the Respondent’s most significant complaint about the Applicant’s proposed relocation is really the issue of sharing and paying for transportation. He says it will take hours out of “his time” with the children. He says he doesn’t have a reliable vehicle. The Respondent further complains about the costs of transportation (price of gas). If the court were to grant the Respondent’s request to have the children stay with him, the Respondent did not make any proposal for sharing the transportation to support the Applicant’s relationship and parenting time with the children.

[36] This matter already has an existing Order that calls for the Respondent to do all the driving from Severn to Muskoka. The existing Order already contemplates the Respondent doing some or all of the driving for his parenting time. The Applicant’s motion seeks an order that the parties share the driving. The Respondent claims that he does not have a reliable vehicle. The Applicant disputes this submission. She says that the Respondent is a “car guy” and he knows how to fix cars and sell them. The Respondent did not dispute this characterization. In my view, the Applicant’s proposal to share the transportation is a fair resolution to this issue and shows that the Applicant will do what she can to support the Respondent’s parenting time with the children.

[37] Recently there was an incident that required police intervention at an exchange. Considering the high level of conflict the children have been and continue to be exposed to, it makes sense to make the Respondent responsible for the transportation at the beginning of his parenting time and the Applicant responsible for the transportation at the end of the Respondent’s parenting time.

Decision

[38] The 2019 Order was made on consent because it was in the best interests of the children. In my view, the Respondent’s proposal would upset the status quo for both parenting time and decision-making responsibility and this is not in the best interests of the children. My decision and order will not be changing the long-standing status quo except with respect to transportation. In my view, there are compelling circumstances that permit the Applicant’s move and relocation with the children. I find it is in the best interests of the children to permit the Applicant’s request to relocate with the children to North Bay and to order the parties to share the transportation.

Order

[39] For the reasons set out above, order to go:

1. Permitting the Applicant to permanently relocate the primary residence of the children, ST, born 14 May 2013, BT, born 22 June 2014 and AT, born 5 September 2017, to North Bay, Ontario;

2. The parties shall share transportation of the children for parenting time purposes, with the Respondent or his designate picking the children up in North Bay, Ontario at the commencement of his parenting time, being every other Friday at 6:00 p.m. and the Applicant or her designate picking up the children in Severn, Ontario every other Sunday at 6:00 p.m. The transfers shall occur in a public location agreed to in advance and in writing.

[40] Pursuant to r. 24 of the Family Law Rules, O. Reg. 114/99, the Applicant is the successful party and is presumed to be entitled to costs. If the parties cannot agree on costs, I will receive written submissions commencing with the Applicant serving and filing her submissions on or by May 6, 2022, followed by the Respondent serving and filing his submissions on or by May 13, 2022, then the Applicant’s reply submissions, if any, served and filed on or by May 20, 2022. Cost submissions shall be no more than 2 pages in length (12 pt. font size, regular 1-inch margins, 1.5 spacing), exclusive of any costs outline or offers to settle. All costs submission shall be delivered via email at: barriejudsec@ontario.ca. If no submissions are received by May 20, 2022, the issue of costs will be deemed to have been settled between the parties.

Madam Justice R. S. Jain Date: April 28, 2022

Footnotes

[1] Children’s Law Reform Act, R.S.O. 1990, c. C.12 [CLRA].

[2] CLRA, supra, at s. 29(2).