Court File and Parties
COURT FILE NO.: FC-21-126-0000 DATE: 20220608 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jordon Hales, Applicant/Responding Party AND: Kristy Lightfoot, Respondent/Moving Party
BEFORE: MacNeil J.
COUNSEL: E. Brown – Lawyer for the Applicant/Responding Party S. Grewal – Lawyer for the Respondent/Moving Party
HEARD: March 8, 2022 (via Zoom videoconference)
RULING ON INTERIM MOTION
Overview
[1] The Applicant-Father has filed a motion seeking that the parties’ child born in early 2012 (“the Child”) shall continue to primarily reside in Norfolk County and attend his current elementary school in Simcoe, among related relief.
[2] The Respondent-Mother has filed a motion seeking an order permitting her to relocate with the Child to Vaughan, York Region, to register the Child at a school in the Vaughan/Woodbridge area, and for specified parenting time to the Applicant-Father.
[3] Pending the determination of these motions, the Respondent-Mother brought this motion seeking an interim order that she be permitted to relocate to Vaughan, Ontario with the Child. The Applicant-Father objects to the requested relief.
[4] Both parties filed extensive supporting affidavits. No cross-examinations were held on those affidavits.
Background
[5] The parties began their relationship in or around 2004. They began cohabiting shortly before the birth of the Child and separated in January 2015. They executed a separation agreement on August 2, 2018 which provides for joint custody (now decision-making responsibility) and a parenting regime where the Respondent-Mother has primary care of the Child and the Applicant-Father has regular parenting time on alternate weekends and a mid-week visit (“the Separation Agreement”).
Position of the Applicant-Father
[6] It is the position of the Applicant-Father that the status quo should be preserved pending trial. He contends that his parenting time has been consistently in excess of that which is specified in the Separation Agreement and that the Child has resided with him for extended periods of time since the parties’ separation.
[7] The Applicant-Father submits that the Child has ties to the Norfolk and Simcoe communities given that he has resided in the area for more than four years, he has attended school in Simcoe since grade 1, his family doctor is in Oxford County, he plays sports in Delhi and Simcoe, and all of his friends are there. The Applicant-Father submits that he and his partner are involved in the Child’s care, school and activities. The requested relocation will uproot the Child and result in him moving approximately four hours (round-trip by car) away.
[8] The Applicant-Father submits that the Respondent-Mother has a history of unilaterally relocating with the Child without his consent. He notes that she has moved seven times in five years.
[9] The Applicant-Father disputes the Respondent-Mother’s contention that the move to Vaughan is necessary for her career. He submits that she was working in a permanent full-time position in Tillsonburg and that, if she wished to find a new position, there is no evidence she could not have found employment closer to Norfolk County. He asserts that the primary reason for relocating is the Respondent-Mother’s desire to live with her new partner in the Vaughan area and that she undertook a plan, commencing in early 2021, to move to the Vaughan area without telling him. This plan included quitting her full-time employment with Tillsonburg Hospital and obtaining a part-time contract position at a Vaughan hospital, enrolling the Child in therapy in Vaughan, changing the Child’s dentist, and attempting to deregister him from hockey. He contends that the Respondent-Mother did not properly notify him of her intention to relocate as required by the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“the CLRA” or “the Act”). As a result of her actions, the Applicant-Father commenced this litigation.
[10] The Applicant-Father expresses concern about the Child’s absences from school, of which he says a number were approved by the Respondent-Mother. He submits that the Respondent-Mother’s change in her employment resulted in a significant burden on the Child since he now has to commute between Paris, where the Respondent-Mother and the Child moved in July 2021 to reside with her parents, and his school in Simcoe. He argues that there is no evidence that she made any effort to secure alternate accommodations in Norfolk County, which demonstrates that she is prioritizing her own interests over the Child’s. He also believes that the Child’s maternal grandparents are caring for the Child during the week while the Respondent-Mother stays with her new partner in Vaughan.
[11] The Applicant-Father submits that there are genuine issues for trial in this case. In particular, there is a major factual dispute between the parties with respect to their caregiving roles for the Child and the parenting schedule since the execution of the Separation Agreement. There is joint “custody” pursuant to the Separation Agreement. The Applicant-Father also submits that there is dispute as to the Child’s exposure to adult conflict and issues which may affect the weight to be given by the court to his wishes and preferences as explained by the Office of the Children’s Lawyer (“the OCL”). He contends that the Children’s Aid Society has expressed what they understood to be the Child’s wishes and these differ from the OCL’s views although they pre-date the OCL’s by only four months. He submits that a shifting of the Child’s views and preferences with relative frequency could bear on the court’s final determination at trial.
[12] The Applicant-Father seeks an interim order that the Child shall continue to primarily reside in Norfolk County and continue to attend his school in Simcoe.
Position of the Respondent-Mother
[13] It is the position of the Respondent-Mother that she has been the Child’s primary caregiver since birth. She has always made decisions relating to the Child’s well-being which the Applicant-Father has not challenged over the past 8 years. The Child has always primarily resided with her and this is reflected in the Separation Agreement. She submits that the Child’s residence has changed as the Respondent-Mother’s employment has changed.
[14] The Respondent-Mother disputes that there has been a shared parenting arrangement. She asserts that the Applicant-Father has complied with the terms of the Separation Agreement as it benefited him. She further contends that she has always been responsible for the Child’s education and healthcare.
[15] It is the Respondent-Mother’s position that the Child does not have any connection to the Norfolk or Simcoe communities.
[16] The Respondent-Mother states that her primary motivation to relocate to the Vaughan area is her employment. She is currently employed at a hospital in Vaughan. She commenced this employment on August 9, 2021. Her employment contract shows that it is for “temporary full-time employment”, for approximately 18 months’ duration. Upon conclusion of this temporary position, she will transfer to a permanent part-time position. The Respondent-Mother submits that this new employment provides a more regular work schedule, and her work hours provide her with flexibility and stability to be available for the Child. Her evidence is that she commutes to Vaughan from Paris and she denies that she is living in Vaughan during the week. Since September 2021, her father drives the Child to school which reduces his commuting time. The Respondent-Mother disputes that the Child’s absences from school are unexplained or excessive.
[17] The Respondent-Mother asks that she be permitted to relocate to Vaughan with the Child and that the Applicant-Father’s parenting time occur on alternate weekends with extra time to make up for the missed mid-week parenting time. In the alternative, she requests that the Child be enrolled in a new school closer to where her parents live in Paris, Ontario, until the end of this school year.
The Office of the Children’s Lawyer
[18] The OCL became involved in the proceedings and a clinician was appointed. A summary of the recommendations made by the OCL as discussed at a disclosure meeting held on January 11, 2022 were set out in a letter, dated March 4, 2022, that was submitted to the court. However, the OCL’s final report was still outstanding at the time of the hearing of this interim motion.
Factors to be Considered
[19] Section 39.4(3) of the CLRA addresses authorization of relocation and applies to interim motions such as the present one. It provides that, 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 of the Act, as well as the following factors:
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.
[20] Section 24(1) of the CLRA requires a parenting order to be made by taking into consideration only the best interests of the child in accordance with that section.
[21] In determining the child’s best interests, the court is to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being, while considering all factors related to the circumstances of the child: s. 24(2), CLRA.
[22] A non-exhaustive list of factors to be considered in determining the child’s best interests are set out in s. 24(3) of the Act as follows:
(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.
Analysis
[23] The issue to be determined is whether it is in the Child’s best interests to make an interim order pending the trial of this matter and, if so, what terms would be consistent with the Child’s best interests.
Best Interests of the Child
[24] Interim “mobility rights” motions are inherently very difficult due to the fact that the court does not have a full record of evidence before it upon which to base the decision. This court has not had the benefit of viva voce evidence. There were many affidavits filed by the parties, however, these contained conflicting evidence and no cross-examinations were held. And while a two-page letter from the OCL was submitted summarizing recommendations made at the disclosure meeting, this court does not have the benefit of the full OCL report.
[25] The purpose of an interim order is to provide a solution to a problem that is reasonably acceptable in the circumstances to get the parties through to trial where the issues will be canvassed more thoroughly based on a full evidentiary record.
[26] Interim motions seeking a move of a child’s residence pending a trial on decision-making responsibility and parenting time pose unique challenges and problems. As McSorley J. explained in Kennedy v. Hull, 2005 ONCJ 275, at para. 9:
The problem is that it is difficult, if not impossible, in many cases to complete the extensive child-focused inquiry required … [based] on the conflicting and incomplete affidavit evidence that is often available on interim motions. The courts’ general reluctance to effect fundamental changes in a child’s lifestyle on interim motions has resulted in a slightly more restrictive approach to interim mobility cases that recognize the short-term nature of interim orders and the summary nature of interim motions.
[27] The leading case for determining relocation requests on a temporary motion is Plumley v. Plumley, 1999 CanLII 13990 (ON SC), [1999] O.J. No. 3234, 90 A.C.W.S. (3d) 740 (Ont. S.C.J.). In that case, Marshman J. identified the following factors to be important in deciding the mobility issue on an interim basis, at para. 7:
(i) 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.
(ii) 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.
(iii) 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.
[28] Courts have also expressed concern that an interim order permitting a move will make the trial “meaningless” because restoration of the status quo will be difficult or impossible by trial: Bell v. Palma, 2019 ONCJ 582, at para. 25.
[29] 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, and even more cautious where the proposed move involves a long distance: Hayman v. Maticiw, 2017 ONSC 5725, at para. 26.
[30] The burden is on the parent seeking the change to prove compelling circumstances exist that are sufficient to justify the move: Hayman v. Maticiw, at para. 26.
[31] In this case, the court is faced with joint “custodial” parents who disagree on whether the Child should move. The parties also do not agree on important facts that are material to a decision on the issue of mobility, for instance, there is conflicting evidence regarding the true state of the parties’ parenting time with the Child. I also have some concern about the Respondent-Mother’s failure to provide the proper notice of her intention to relocate, as required by the CLRA. Finally, I am not persuaded that a compelling reason has been provided by the Respondent-Mother that justifies making the requested interim order.
[32] I find the comments of McSorley J. in Kennedy v. Hull regarding the court’s reluctance to effect fundamental changes to a child’s life on motions for temporary orders, and the difficulty of completing an extensive child-focused inquiry on conflicting and incomplete affidavit evidence, to be applicable in these circumstances.
[33] I am also of the view that the court would benefit from consideration of the full OCL report before making a determination on the issue of relocation. Interim mobility decisions often strongly influence the final outcome, particularly where relocation is permitted, and so I believe that caution is called for.
[34] Considering the Child’s physical, emotional and psychological safety, security and well-being, and in all the circumstances, I find that it is in the best interests of the Child that this court not make an interim order permitting the Respondent-Mother to relocate the Child to Vaughan at this juncture. I am of the view that the Child’s best interests will be better supported by maintaining the status quo with the Child remaining in the Norfolk County area and continuing to attend his school in Simcoe pending trial.
COVID-19 Vaccination
[35] The Respondent-Mother seeks an order that she be at liberty to have the Child vaccinated against COVID-19.
[36] Since the Separation Agreement gives the Respondent-Mother authority as it relates to making medical decisions for the Child in the event of disagreement between the parties, I query whether she requires a court order to have the Child vaccinated.
[37] However, if she desires a court order approving such vaccination, I find that I do not have sufficient evidence and argument before me in order to make that determination. Accordingly, I decline to grant this relief.
Therapy for the Child
[38] The Respondent-Mother seeks an order that she be at liberty to enrol the Child in therapy with H. Yack, a Registered Social Worker whose practice is located in Vaughan. The Applicant-Father states that he consents to the Child attending counselling in the Oxford/Norfolk County area but he objects to enrolment with a Vaughan therapist.
[39] Based on the record before me and given my decision to not grant an interim order permitting relocation to the Vaughan area, I decline to order that the Child be enrolled in therapy with Ms. Yack in Vaughan as I am not persuaded that there is no equivalent professional available in or about the Oxford/Norfolk County area who could see the Child.
Alternative Relief
[40] The Respondent-Mother sought alternative relief in the form of an order that the Child’s residence shall continue to be her parents’ house in Paris, Ontario and that she be permitted to enrol the Child in school in Paris. However, at the hearing, her counsel indicated that they did not want this alternative relief to be made “pending trial”.
[41] Given my ruling above, and since I do not wish to make any order that upsets the status quo pending trial, I decline to make any order granting the alternative relief set out in the Respondent-Mother’s Notice of Motion dated February 15, 2022.
Disposition
[42] Accordingly, the Respondent-Mother’s motion for an interim order permitting relocation of the Child to Vaughan, COVID-19 vaccination, and Vaughan therapy enrolment is dismissed.
Costs
[43] I would urge the parties to agree on costs. If they are unable to do so, however, then costs submissions may be made as follows:
a. By June 30th, 2022, the Applicant-Father shall serve and file his written costs submissions, not to exceed three pages, double-spaced, together with a draft bill of costs and copies of any pertinent offers; and
b. The Respondent-Mother shall serve and file her responding costs submissions of no more than three pages, double-spaced, together with a draft bill of costs and copies of any pertinent offers, by July 14th, 2022; and
c. The Applicant-Father’s reply submissions, if any, are to be served and filed by July 21st, 2022 and are not to exceed two pages.
d. If no submissions are received by July 21st, 2022, the parties will be deemed to have resolved the issue of the costs and costs will not be determined by me.
B. MacNeil J.
MacNEIL J.
Released: June 8, 2022