Court File and Parties
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: You Wu, Applicant
AND:
Jeffrey Yao Chiun Yu, Respondent
BEFORE: T. PRICE J.
COUNSEL: Michael Stangarone - Counsel for the Applicant
Matt Gianotti - Counsel for the Respondent
HEARD: June 7, 2022
ENDORSEMENT
Introduction
1The parties married in 2015. Their daughter, C., was born in 2018. They separated in July, 2021.
2On this motion, the Applicant, You (Maria) Wu (herein referred to as Maria), requests an interim order that she have primary care of C., and an order permitting her to move to Burnaby, British Columbia with C. as of July 1, 2022.
3The Respondent, Jeffrey Yu (herein referred to as Jeffrey), opposes the motion. He simply asks that it be dismissed. In his materials, including the transcript of his evidence during cross-examination on his affidavit, he takes the position that C. should be in the equal care of each of the parties on a 50/50 basis. He did not, however, bring a cross-motion requesting that, or any other, relief.
4For the reasons that follow, Maria is authorized to relocate with C. to Burnaby, subject to the terms of my order, which will be set out at the end of this endorsement. Both interim decision-making responsibility and Jeffrey’s parenting time are addressed in the order.
Background – Academic and Employment
5Maria is 35 years of age. She was born in China. In 1997, when she was 11 years of age, her family emigrated to Canada. They settled in Burnaby. Maria attended elementary and high school there. In 2008, when she was approximately 22 years of age, she moved to Calgary to attend medical school. In 2011, she moved to London, Ontario for a residency in obstetrics and gynecology, which she completed in 2016.
6Jeffrey is 36 years of age. His family emigrated to Canada in 1994, settling in London, Ontario, where he has resided since.
7In 2011, the parties met in London during the first year of Maria’s residency. At that time, Jeffrey was also at an advanced stage of his own medical training.
8After their marriage in 2015, the parties remained in London. C. was born in March 2018. In August 2018, the parties purchased the residence which is now the matrimonial home.
9Following the completion of her residency, Maria pursued a fellowship in urogynecology. According to her, she did so to broaden her surgical skills and open up a wider job market. Her career goal was to become a general OB/GYN “with pelvic floor surgery expertise.”
10The parties had initially determined that, ideally, both would secure employment at LHSC and become rooted in London.
11To that end, Jeffrey secured a temporary clinical faculty position at LHSC in 2016. In 2017, he accepted a full-time position as an academic general internist at London Health Sciences Centre (LHSC), a hospital located on the grounds of, and affiliated with, what was then known as the University of Western Ontario (now Western University). He remains in that position.
12In order to increase her chances of obtaining a position at LHSC, Maria pursued an MSc in clinical epidemiology at McMaster University in 2016-2017. During her clinical fellowship, she took a six-month maternity leave in 2019, which was completed in August of that year.
13Maria’s subsequent efforts to find employment as an OB/GYN in the London area were not successful. In an effort to maintain her skills, she took on a number of short-term positions, referred to as locums, in places such as Chatham, St. Thomas and British Columbia.
14Maria worked locums in B.C. between June 28 and August 5, 2019, September 18 and October 16, 2019, November 11 and December 11, 2019, January 12 and March 1, 2020, March 15 and April 26, 2020, and July 31 and September 9, 2020. Her locums in St. Thomas and Chatham appeared to be of shorter duration.
15The parties agree that locums can often be a first step to securing full-time employment in the hospital or other medical establishment where a locum occurs.
Maria’s Rejected Employment Opportunities
16According to Maria, Jeffrey had told her while she was trying to locate a full-time position as a surgical OB/GYN that, given the relative scarcity of positions available to someone with her specialties, he would be prepared to move anywhere in Canada that she might secure employment.
17While admitting that he had said so, Jeffrey’s evidence was that the offer had been made before the birth of their child in 2018, an event which, in his view, changed everything. According to Jeffrey, once C. was born, his suggestion that they could work anywhere in Canada was no longer on the table.
18He testified that he informed Maria in 2020, after she had worked some of her locums in British Columbia, that he would never agree to leave London. He could not recall exactly when in 2020 he told her, nor could he relate the timing of having told her of his change of mind to job offers which she rejected, first in Barrie and, later, Richmond, B.C.
19The job offer in Barrie was made to Maria in early 2020. She was prepared to accept it but, when she discussed it with Jeffrey, he informed her that he would not leave his position in London. As a result, she turned down the position offered. On that evidence, it would appear that Maria would have known at that point that Jeffrey was not open to relocating elsewhere to enable her to secure employment.
20Notwithstanding, during Maria’s July 31 to September 9, 2020 locum at Royal Columbian Hospital in British Columbia, she learned of a job posting in a hospital in Richmond. She applied for the position at some point in August 2020 and was offered a virtual interview in either late August or early September 2020. The interview occurred after she had returned to London and was back in the matrimonial home.
21As a result of the interview, in or about October 2020, Maria was offered the job in Richmond, to begin in February 2021. According to Maria, when Jeffrey was informed by her that she had received the job offer, he reiterated that he would not relocate to B.C. because he wished to remain at his position in London.
22Despite that, Maria accepted the position in Richmond. Her evidence was that, at the time she accepted the position, she remained of the belief that Jeffrey was still prepared to move, even to B.C., in order that she could secure a full-time position.
23That belief, according to Maria, was predicated in part on her knowing that, despite his stated position that he would not leave London after the birth of their daughter, Jeffrey had applied for and been offered a position in Vancouver in 2019. She believed that this meant that he was still open to moving to British Columbia, even after the birth of their child, and despite his refusal to move to Barrie.
24Jeffrey’s evidence on this point was that Maria had compelled him to apply for the position in B.C., if only to see what type of work would be available to him there. He did, however, participate in an interview for the position, which he was eventually offered and, ultimately, rejected. He also agreed that he had looked at other positions, such as in Victoria.
25In any event, Maria travelled to B.C. in November 2020 to meet some of the people with whom she would be working at the hospital in Richmond as of February 2021.
26Later that month, Maria resigned from the Richmond position, informing the appropriate personnel at the Richmond hospital that she would be unable to take the position that she had accepted. According to her evidence, Maria resigned because Jeffrey had made it clear that he would neither move to B.C. with her, nor would he agree to her taking C. with her.
27Jeffrey’s evidence about the events surrounding the position in Richmond was that Maria had neither informed him that she would be applying for the job, nor that she had an interview.
28He testified that it was his understanding that Maria’s trip to B.C. in early November 2020 was for a locum. He deposed that it was only after she returned home in November 2020 that Maria informed him that she had accepted the job in Richmond in October.
29From Jeffrey’s perspective, Maria had deceived him about the purpose of her trip to B.C. in November 2020. He deposed that he was “stunned” at her suggestions that the matrimonial home should be sold, he should leave his position at LHSC, and the family should move to British Columbia. He labelled her suggestions in this regard “brazen”.
30If it was not clear to Maria when she turned down the job in Barrie, it had to be very clear to her when she had to resign her position in Richmond, in February 2021, that Jeffrey did not agree with her moving anywhere to secure full-time employment in her chosen specialty anywhere other than in London.
31According to Jeffrey, his view, his refusal to move to B.C. to enable Maria to start her position in Richmond, “became a deeply seated source of resentment for Maria that culminated into some of her drastic actions surrounding our separation.”
32Whether that allegation is true or not, the parties were, in fact, already on a path to separation by this point.
Maria’s Position at LHSC
33In December 2020, with no other positions on the horizon, and knowing that Jeffrey would not move, Maria accepted a position as an OB/GYN at LHSC.
34The position, however, was not to begin until March 2021 because of space and personnel constraints at LHSC. Additionally, the resources allocated to Maria at LHSC were less than ideal for a recently qualified specialist in obstetrics and gynecology. She was allocated fewer clinics per month during which she would have seen patients, only one six-hour operating room session per month, and no on-call obstetrical work.
35According to Maria, the limitations at LHSC had other negative effects which she had to address. She had to seek out last-minute openings in the operating room in order to cope with her growing list of patients requiring surgery. Her limited operating room time also meant that she was unable to accept all surgical consults. She volunteered to assist colleagues in the operating room whenever possible in order to maintain her surgical skills. She also undertook locum work in St. Thomas once per month in order to maintain her obstetrical skills. Financially, while working at LHSC, she was earning approximately one half of what an OB/GYN with her level of training could earn.
The Parties’ Relationship to and including the Date of Separation
36The evidence discloses that there was tension and discord in the parties’ relationship predating the events surrounding Maria’s rejection of the job in Richmond in February 2021.
37According to Maria, Jeffrey was “quick to anger” during their relationship. Following the birth of C., he was said to have become increasingly agitated with both Maria and her mother, who had come from B.C. to reside with the parties following C.’s birth. According to the evidence, Maria’s mother stayed with the parties from February through April 2018, December 2018 to January 2019, and February 26 to March 16, 2019.
38For his part, Jeffrey describes there being tension in the home because of the presence of Maria’s mother. As he put it, despite his mother-in-law’s “well-meaning beliefs on what was best for C. and Maria, differences of opinion along with sleep deprivation resulted in deterioration of (his mother-in-law’s) relationship with Maria and me.” He described a specific incident where he acknowledges having spoken “curtly” with Maria over some minor incident involving dirty dishes for which he was “angrily confronted” by his mother-in-law, as well as “numerous occasions” when Maria and her mother had confrontations over her mother’s criticisms of Maria as a mother.
39On his cross-examination, Jeffrey acknowledged that he had raised his voice when speaking with his mother-in-law during her stay in the matrimonial home and that he had argued with her. He claimed that both he and Maria wanted her to leave the residence. Notwithstanding, he says that he has reconciled his differences with her.
40Maria described Jeffrey slapping her in the face during an argument in July 2018 and again on March 12, 2020, incidents which he denied during his cross-examination. He further denied that he had a quick temper or that he ever abused Maria.
41Maria also claimed that Jeffrey was controlling. She cited an incident where he was said to have looked through her cell phone without her permission and became upset after reading text messages exchanged between Maria and her mother. According to Jeffrey, however, the phone was lying within his sight when he observed a text message arrive from his mother-in-law which was derogatory of him. He deposed that he “bluntly asked Maria about it,” after which she “sheepishly unlocked her phone to show me the message thread” which, he deposed, contained “derogatory name-calling” about him and “also my parents and my recently deceased grandmother.” He denied that he searched Maria’s phone without permission.
42Maria further asserted that Jeffrey was verbally aggressive towards her, calling her a “bad mother” and threatening to take her to court many times, referring to recordings which had been made in the home and to which she intended to refer in any court proceedings between them. According to Maria, “these recordings formed part of a pattern of coercive control, whereby Jeffrey would create recordings of me in selected areas of the house, while engaging in abusive and inappropriate conduct in the areas known not to be under surveillance.”
43Jeffrey denied that he had ever called Maria a “bad mother”. He did, however, acknowledge that discussions about court and the gaining of C.’s “custody” had occurred, but only in the context of Maria’s desire to take C. with her to B.C. As for the video recordings, it was his evidence that they were taken from a surveillance system located in the family home and to which Maria had access through an application on her cell phone. He deposed that there was nothing surreptitious about the recording system.
44According to Maria, the parties argued about such topics as childcare, her locums, her job, the possibility of relocation outside of London, and the role of Jeffrey’s parents in C.’s care. Jeffrey agreed with many of those points of argument, but took the position that, where Maria described behaviours by him, she was actually describing her own behaviours towards him.
45He described Maria as being the person who was “quick to anger and physical abuse.” He cited an example in which Maria had bitten him on the hand during an argument. For her part, Maria claimed not to recall biting Jeffrey’s hand but never denied doing so, ultimately resorting to a claim that, if she did, it was in self-defence. In her cross-examination, Maria did admit to using her arm to block Jeffrey but denied that she had struck him “hard”. She also admitted that she had laid hands upon him during some of their disputes.
46Jeffrey further deposed that Maria became increasingly resentful of him over the years, often instigating and reviving past arguments. According to him, Maria’s behaviours became “exceedingly spiteful, emotionally abusive, verbally violent and occasionally physically violent.” He claimed that he lived “in constant fear of her next tirade, which occurred on average every 2 to 4 weeks.”
47The tension, arguments and physical contacts between the parties are said to have culminated in an incident which is alleged to have occurred on July 8, 2021.
48According to Maria, Jeffrey insulted her and disparaged her that morning in the presence of C. Maria, in an effort to reduce C.’s exposure to the conflict, placed her on the toilet and returned to speak with Jeffrey who, allegedly, was “enraged” with Maria about a leak in the roof. During their encounter, Jeffrey is said to have sworn at Maria, placed his hands around her neck in an effort to silence her and reportedly said “something to the effect of that he was ‘f*cking sick of this’” and that he would make her “suffer.” According to Maria, Jeffrey also threatened to take her to court and said he would ensure that she would never get “custody” of their daughter. Having difficulty breathing, Maria asked Jeffrey to stop. He released her neck, grabbed her once by the wrists and then departed in anger. Maria retrieved C., who she described as being “under considerable distress.”
49As a result of this incident, Maria called the police. Jeffrey was arrested and charged with “assault by suffocation”. His original terms of release prevented him from attending at the matrimonial home and from communicating, directly or indirectly, with Maria except through a third-party in regard to childcare. The undertaking has subsequently been varied such that communication with Maria can now be “through a third party in regards to child-rearing or otherwise through or in the presence of legal counsel.”
50Jeffrey denies Maria’s allegations. He has pleaded not guilty. His criminal trial is set for September 28, 2022.
The Video Evidence
51Jeffrey produced a copy of three videos said to be evidence of Maria’s abusive behaviour towards him. However, the link provided had expired in advance of the motion date and I was unable to view the videos. I ruled that, even if the link had not expired, I would not have viewed the videos because I was satisfied with the descriptions of events provided to me by the parties.
52Furthermore, this being a motion, I did not see it as appropriate for me to try to decipher video evidence which was said by Maria’s counsel to have been selectively edited, with translations to English having been done by Jeffrey, in an effort to determine issues of credibility, which I should not do on a motion, especially when those issues are to be before the criminal court at Jeffrey’s trial.
Effect of Marital Strife on C.
53While the parties differ on the issue of who, between them, was an aggressor, and on how events actually occurred, they agreed that C. had been exposed too frequently to the discord in the matrimonial home.
54During her cross-examination, Maria acknowledged that C. “was present during some of our arguments, yes.”
55Maria also acknowledged that there were times when she did elevate her voice at Jeffrey and speak loudly in the presence of C., which would lead her to later speak with C. and apologize for her behaviour, particularly if C. had been scared by what she had observed. Maria further acknowledged times when she had “expressed frustrations about Jeff or his parents in front of” C., and admitted that “there were times when I lost my temper in front of” C.
56Similarly, Jeffrey deposed to at an incident of strife between him and Maria overheard by C., which prompted her to yell, “stop”, at her parents.
57Based upon the evidence of both parties, there can be no doubt that their separation can only have had the beneficial effect for C. of removing her from the negative atmosphere created by the many arguments between her parents, some of which appear to have escalated to physical contact of some degree.
Events Following the Separation
58With his arrest, charges and undertaking, Jeffrey was prevented from attending at the matrimonial home. Consequently, he moved in with his parents, who also reside in London.
59In August 2021, Maria’s counsel sent a letter requesting a discussion about an interim parenting plan. Jeffrey retained counsel and had him send a response.
60Jeffrey complains that many of his suggestions for a parenting plan were either met with silence or “rejected without reason.” He further alleges that Maria made many demands of him about his work schedule and photos of his living environment, information which was provided through counsel. These demands were said to relate to when, or if, he was able to have parenting time with C.
61In his counsel’s initial letter of response, Jeffrey sought primary care of C. That proposal was rejected. The parties then negotiated, on what appears to be a week-by-week basis, when Jeffrey would have parenting time with C. Correspondence from Jeffrey’s counsel demonstrates that he and his client were not satisfied with how, or the speed at which, matters were proceeding.
62In October 2021, Maria applied for a full-time position in obstetrics and gynecology at Burnaby Hospital. She was offered the position and accepted it in December 2021 but required that her start date not be before July 1, 2022.
63Hospital administration agreed with her proposed start date, but made it clear, according to the affidavit of Dr. Cornell Smith, who is the Head of the Obstetrics and Gynecology Department at Burnaby Hospital, that she must start in the position by July 1, 2022, failing which it will be offered to someone else.
64Maria has resigned her position at LHSC and at Western University. She has begun to send notices of practice closure to her patients, in accordance with timelines set by the College of Physicians and Surgeons of Ontario.
65Jeffrey was notified through counsel of the accepted position on December 17, 2021. Enclosed with the letter was a formal notice of Maria’s proposed relocation in accordance with “the amended legislation.” Although Maria offered mediation, it was not accepted in a timely manner by Jeffrey. Jeffrey did, however, serve an Objection to Notice of Relocation upon counsel for Maria in a timely manner.
66When her offer of mediation went unanswered, on January 6, 2022 Maria commenced the proceeding in which this motion has been brought. She has claimed a divorce and corollary relief under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), together with similar relief pursuant to the Family Law Act, R.S.O. 1990, c. F.3 and Children's Law Reform Act, R.S.O. 1990, c. C.12. She also makes a number of claims relating to property, including sale of the matrimonial home.
67After counsel had communicated for months, C. began to spend time overnight with Jeffrey at the home of his parents. Once that began, his counsel proposed that over the period between December 2021 and February 2022, the parties develop a 50/50 parenting plan for C. That proposal did not come to fruition.
68While there is a dispute about what parenting time Jeffrey was having in that period, the parties eventually settled on Jeffrey having overnight parenting time, weekly on Wednesdays, and on alternating Saturdays and Sundays, at the home of his parents. This arrangement only began in May 2022 and was in place when this motion was argued.
Maria’s Plan if Permitted to Relocate to B.C. with C.
69According to Maria, the position she has accepted is “lucrative, maximizes my full potential as both a urogynecologist and general OB/GYN and offers [a] great work-life balance…”
70She deposed that she will be able to determine how many patients she sees while in the clinic and the types of consults she takes on. She indicated that she will also have the option of running virtual clinics from her home. If she does so, she plans to run them during daytime hours, which would free her to drop off and pick up C. from school. Her home calls will allow her to be home with C. if no patients are in labour, and she will have the flexibility to tailor her schedule around C.’s needs and routine.
71The position is said to offer two to three operating room days per month, with those days typically finishing by 3:45 PM. Her office work schedule and hospital schedule will both be known approximate three to four months in advance.
72According to Dr. Cornell, Maria will earn between $400,000.00 and $500,000.00 per annum. This contrasts with the $302,611.38 gross income that she earned in 2020, approximately $205,700 of which was earned from her locums in B.C. and approximately $87,675 of which was earned in Ontario. According to Maria, “the income and flexibility provided by this position will lead to C.’s improved quality bonding time with me.”
73Amongst the benefits touted by Maria for C. from the move to Burnaby is the reduction in her exposure to conflict between her parents. From Maria’s perspective, the move will free her from what she claimed is Jeffrey’s “ability to exert control over me.”
74According to Maria, C. is quite comfortable in Burnaby, being familiar with her grandmother’s residence in Burnaby, as well as the area around it since she has spent so much time there since 2019.
75Maria deposed that she has been preapproved for a unit in a luxury building located in Burnaby, located seven-minutes by car from the Burnaby Hospital, and approximately four minutes by car or a fifteen-minute walk from her mother’s residence. In the unit, C. will have her own bedroom and bathroom. Maria plans to purchase a home within one to two years of relocating to Burnaby.
76According to Maria, there will be numerous extracurricular activities available to C. in Burnaby including, in particular, soccer and dance. C. is said by Maria to have indicated “a strong interest in ballet lessons.”
77Maria has taken steps to register C. in a Montessori preschool, to begin in September 2022. School is preceded by a summer camp connected with the preschool. Multiple Chinese schools are said to be available in the area, which will allow C. to preserve her ability to gain a command of the Chinese language, which is also said to be consistent with a desire previously expressed by Jeffrey.
Jeffrey’s Plan and His Response to Maria’s Plan
78Jeffrey’s position is that a relocation to Burnaby is not in C.’s best interests.
Jeffrey’s Plan
79His plan focuses almost entirely on what he sees as the benefits to C. arising from a 50/50 parenting arrangement between him and Maria. At the heart of this plan is Jeffrey’s assertion that he has been an active and full participant in the care and raising of C. since her birth.
80He claimed that, if C. were to remain in London, his parents would not be providing primary care to her because he would be doing most of it himself. In contrasting Maria’s plan with his, Jeffrey claimed that Maria’s plan would have C. being cared for primarily by her maternal grandmother. He did not provide specifics of his assertion.
81Jeffrey proposed that Maria parent C. half of the time, in a shared care arrangement “as there is no question C. also needs Maria in her life.” He further allowed that “[m]aternal grandmother involvement is also important.”
82Jeffrey pointed out that his position at LHSC is structured in such a way as to allow him to maintain “an excellent work-life balance to focus on family life, not often experienced by most physicians.” He is on-call for telephone advice for approximately 12 weeks per year, during which he is physically at the hospital almost exclusively during daytime hours. He is able to be home in the evenings, although he also does work there. When not on-call, he has in-person clinical duties four to six weeks per year, Monday to Friday, between the hours of 9 AM and 4 PM. Otherwise, he is required to work two half-day outpatient clinics per week, one on Monday and one on Tuesday. He works the two, one-half-day clinics per week during approximately 34 weeks of the year.
83According to Jeffrey, he will always be physically present in the residence with C. during the evening prior to and after her bedtime, overnight, and in the morning when she rises.
84He reported that the flexibility accorded to him by his position allows him to tailor his work schedule to C.’s needs, which will ensure “a consistent parental presence that does not rely on third-party caregivers outside of daycare or schooling hours.”
85He noted that in the matrimonial home, which comes with a large yard, C. already has her own bedroom in which she has resided since she was five or six months of age. He describes the neighbourhood in which the home is located as “wonderful.” It is said to be within walking distance of a number of amenities familiar to C.
86He proposed that C. be enrolled in junior kindergarten at the school where Maria has already enrolled her but did concede that if the matrimonial home is sold and he remains living with his parents, C. would have to attend a different school which, contrary to a submission by Maria’s counsel, he was able to identify.
87Jeffrey argued that, by staying in London, C. would continue to have a relationship with her paternal grandparents, and she would continue to foster the relationship she has developed with her classmates at daycare as they progress to elementary school.
88He asserted that he can “essentially act as a stay-at-home father on most days of the week” although he also noted that C. would be in daycare or school during the weekdays. Should he need to call on third-party caregivers, he has his parents available. They are said to live nearby.
89He noted that, in anticipation of C. being able to reside with him in the matrimonial home, he will apply for a variation in his criminal release terms to allow him to be there since Maria will no longer be residing there. (Given that Maria has requested the sale of the matrimonial home, one can only presume that Jeffrey would propose buying out her interest, although he did not state that in his materials.)
Jeffrey’s Response to Maria’s Plan
90From the time Jeffrey was notified of Maria’s wish to relocate to B.C. with C., he has been adamant that Maria is intent on cutting him out of C.’s life.
91In his Objection dated January 7, 2022, Jeffrey took the position that relocating C. to Burnaby, said to be approximately 4,200 km from London, will “virtually eliminate” him from C.’s life. Pointing to the limited parenting time that he claims to have been receiving since the separation, he is of the view that “the prospects that Ms. Wu would facilitate a strong relationship between C. and I while in B.C. are grim.”
92Jeffrey further argued that Maria does not have a support system in B.C. other than her mother, who continues to reside in London and has since the parties separated. (While acknowledging her mother’s continued residence in London to be a fact, Maria indicated that her mother does not intend to remain in London as she has a residence in Burnaby and intends on returning there.)
93Jeffrey also expressed concern about how C. might settle in at a new residence in Burnaby when, in his view, Maria expressed multiple concerns over the months since the parties’ separation about C.’s inability to settle in at the residence of his parents.
94Jeffrey also took the position that Maria’s new employment in B.C. brings with it the higher cost of living there and ignores the reality of her “very lucrative employment in London.”
95Jeffrey criticized Maria’s motion to relocate with C. to B.C. as being “simply a personal preference” for Maria, based primarily on her desires, with planning for C. coming second. As he phrased it, Maria “chose to leave a job as a physician in London that afforded her ample time to spend at home in a marriage that partnered in building a stable home life for C.”
96He viewed Maria’s plan as mainly consisting of tentative proposals. He noted, for instance, that Maria’s proposed parenting times for him, as set out in her affidavit, are predicated on assumptions, with no input by him.
97He also commented that some of Maria’s other proposals, such as having him parent C. in the matrimonial home until July 13, 2022, fly in the face of his release conditions, one of which prevents him from attending the matrimonial home. He commented that the proposed daily communications between him and C. would have to be arranged by Maria, potentially leading to direct contact between him and Maria which, at least until the completion of his trial, would be a direct violation of another of his release terms.
98He did note that much about his plan hinges on the outcome of his criminal proceedings. He claimed, however, that he continues to believe in his marriage vows and would be willing to engage in reconciliation efforts if Maria wanted, so long as such reconciliation efforts did not breach his release conditions.
Law and Analysis
Background
99The Supreme Court of Canada recently wrote in Barendregt v. Grebliunas, 2022 SCC 22, [2021] S.C.J. No. 101, that its decision in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 has, for over 25 years, “been the governing authority for mobility applications.”
100In Gordon, the Supreme Court “set out a two-stage inquiry for determining whether to vary a parenting order under the Divorce Act and permit a custodial parent to relocate with the child: first, the party seeking a variation must show a material change in the child’s circumstances; second, the judge must determine what order reflects the child’s best interests in the new circumstances.” (Barendregt, para. 106)
101The Supreme Court further wrote in Barendregt that when mobility issues are raised at first instance, as in this case, “[w]ithout a pre-existing judicial determination, a parent's desire to relocate is simply part of the factual matrix in the assessment of what parenting arrangement is in the best interests of the child.”
102As the Supreme Court also noted in Barendregt, since the decision in Gordon, both the Divorce Act and relevant legislation in several provinces had been amended to provide a statutory regime governing relocation applications.
103That is the case in Ontario, where the statutory provisions concerning relocation contained in the Children’s Law Reform Act are, for all intents and purposes, identical to those set out in the Divorce Act, with the exception being that the Children’s Law Reform Act contains a provision allowing the service of a notice objecting to a proposed relocation.
104Maria’s application seeks relief under both the Divorce Act and the Children’s Law Reform Act.
105Neither the requirement to give notice of an intent to relocate nor the ability to object to the proposed relocation are in issue in this case. Accordingly, the provisions that are in the Divorce Act shall be those to which I refer in the balance of this endorsement.
Legislation
106Section 16.9 of the Divorce Act provides:
Relocation
16.9 (1) A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to undertake a relocation shall notify, at least 60 days before the expected date of the proposed relocation and in the form prescribed by the regulations, any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention.
16.91 (1) A person who has given notice under section 16.9 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
16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,
(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 a pending application for a parenting order 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 complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;
(e) the existence of an order, arbitral 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 parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.
(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.
107Section 16 of the Divorce Act provides:
Best interests of child
16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(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 spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(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 cooperate, 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 cooperate 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.
(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
(h) any other relevant factor.
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.
108The effect of s. 16.92(1) is that, in deciding whether to authorize C.’s relocation with Maria, I must consider both the relevant statutory factors pertaining to C.’s best interests, as set out in ss. 16(3), (4) and (6) of the Divorce Act, as well as the factors related to the proposed relocation set out in s. 16.92(1) thereof.
Onus
109Before doing so, however, I must consider the issue of onus in this case, as it is specifically addressed in s.16.93 of the Divorce Act, which provides:
16.93 (1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage 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.
(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their 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.
(3) 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.
110The parties disagree on the issue of onus.
111It is clear that there is no order or arbitral award in place at this time. So, the question becomes, is there an agreement to which one can look for guidance on which subsection of s.16.93 applies.
112It is Maria’s position that the parties are governed by s.16.93(2) because they are substantially complying with an agreement which provides that C. spends the vast majority of her time in her care. She is the party who intends to relocate. Accordingly, Maria submits that under s.16.93(2), Jeffrey, as the party opposing the relocation, has the burden of proving that it would not be in the best interests of C.
113Maria’s counsel submits that there is an agreement that has C. substantially in her care because the parties have incrementally increased Jeffrey’s parenting time with C. since the separation, which left C. primarily in Maria’s care. In Maria’s submission, each incremental increase in Jeffrey’s parenting time is the result of an agreement, the underlying core of which has C. in Maria’s primary care.
114Jeffrey takes the position that s. 16.93(1) applies. He submits that Maria bears the onus of establishing that the relocation would be in the best interests of C. since Maria is the proponent of the relocation.
115Jeffrey’s position is that he has been trying to secure a 50/50 parenting agreement since virtually the moment of the parties’ separation, only to be met by either express or passive resistance by Maria to his proposals. As he sees it, he has been compelled, reluctantly, to accept the incremental increases which have been doled out to him.
116Jeffrey’s submission in favour of relying on s. 16.93(1), if one is to find an “agreement” in existence, is that the agreement to be relied upon is that which underlay the status quo which existed before the parties separated. That status quo had C. residing with both parents, with each having a hand in her care. As parents each having equal parenting rights with respect to their child, it is Jeffrey’s position that any tacit agreement arising from that status quo contemplated C. spending “substantially equal time in the care of each” of him and Maria, as he has also claimed in his evidence.
117Counsel cited, in support of this submission, the decision in Balke v. O’Connor, [2017] O.J. No. 2500 where Justice W.D. Newton wrote, at para. 14, quoting the decision in Batsinda v. Batsinda, 2013 ONSC 7869:
[28]… In my view…the status quo that is relevant is that which existed just prior to the parties’ separation, except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation. A status quo created by one party unilaterally taking matters into their own hands, without any consent from the other party, does not fall within the principles established in Papp v. Papp.
118Were the debate to end there, there is authority for recognizing that the situation which exists at the time that the court is faced with the question of whether there is an agreement in place for the purposes of s. 16.93 and, if so, in whose favour does it operate, is that which applies when answering both questions and that which governs with respect to onus.
119Justice L. Ricchetti addressed this issue in Tariq v. Khan, 2022 ONSC 1167, [2022] O.J. No. 827, writing:
71 The Father submits that the onus in s. 16.93(2) does not apply in this case. The Father submits that the section only applies where there is a court order, arbitral award or a written agreement.
72 I disagree.
73 Had the legislators wanted to limit the application of the subsection to situations where there existed "written agreements" on the primary care (or vast majority) of C.'s care, they could have easily done so. There is no limitation or constraints as to what type of "agreements" are caught by this subsection.
74 It makes no sense that, where there has been a de facto agreement that a child spends the vast majority of their parenting time in the care of one parent, even if existing for years, that parent would not benefit from the reverse onus in this subsection.
75 In this case, there clearly was an "agreement" for the current "care time" by the parents. It is also clear that the Mother has to date had de facto decision making for Zahida. More importantly, there is no agreement on where Zahida was to reside.
76 In my view, the onus provision in the Divorce Act applies.
120While I cannot disagree with what Justice Richetti has written, I must note that there is one significant difference between the facts in this case and those which existed in Tariq v. Khan. In Tariq, although the police did become involved at one point, neither party had been arrested and neither was subject to a court-imposed obligation to stay away from the matrimonial home and, in effect, the child, who remained in the care of the parent who had not been arrested.
121In this case, even if Jeffrey had decided immediately following his release that he wished to implement a 50/50 parenting regime by returning to the matrimonial home, or had he returned to the matrimonial home to retrieve C. for the purposes of trying to implement some form of shared parenting, he would have, in either instance, violated his release order and been subject to arrest.
122The simple fact is that Jeffrey was arrested by the police. Following his arrest, he was prevented from returning to the matrimonial home where C. was residing with Maria. That is not to say that Maria called the police for a strategic reason. In fact, during her cross-examination, she made clear that she had no idea that the result of her making a complaint to the police about Jeffrey’s alleged assault of her would lead to him being charged, removed, and prohibited from returning to the matrimonial home. That noted, however, she did gain a caregiving advantage over Jeffrey with him being banned from the place where she was caring for C.
123In my view, a legitimate question is raised about whether any agreement reached between parties in circumstances where one of them is, by operation of the criminal law, placed at a legal disadvantage, can be considered a true “agreement” for the purposes of determining who bears an onus under s. 16.93.
124Therefore, while I do not disagree with Justice Richetti’s conclusion in a case where criminal charges are not involved, I find on the facts of this case that the appropriate section with respect to onus is that set out in 16.93(3), since there is no freely negotiated agreement between the parties that C. was to spend the vast majority of her time in the care of her mother. That situation was imposed on Jeffrey by the criminal justice system. Jeffrey had no say in its creation. If he is convicted, that may result in a different conclusion but, as of this moment, he is presumed innocent of the charge against him.
125Accordingly, having found that none of an order, arbitral award, or agreement between the parties exists for the purposes of s. 16.93, I find that each party bears the onus of establishing that their position in this case is the one that should carry the day. Maria bears the onus of establishing that it is in the best interests of C. to relocate with her to British Columbia, and Jeffrey bears the onus of establishing that such a relocation is not in C.’s best interests.
126I also remind myself that it is the civil onus with which I am dealing. In other words, each party must make out their case on a balance of probabilities, based on the facts as I find them.
127Justice Richetti adverted in Tariq v. Khan to the significance of facts when assessing onus, writing, at paragraph 77, “In any event, I am satisfied that, even if there was no onus on the Father, the Mother has established a compelling case that temporary relocation should be permitted for the reasons that follow.”
Best Interests Factors
The child’s needs, given her age and stage of development, such as her need for stability
128C., at four years of age, is a young child who needs the care of loving parents who are prepared to provide her with all that she needs to grow and thrive. On the evidence, she is a bright child, an attribute with which both parents agree. Like all children, she requires stability. Like all children of separated parents, instability has been introduced into her life by the separation of her parents. However, she has now had approximately one year with her parents being apart and that state of affairs has become somewhat normalized for her.
The nature and strength of the child’s relationship with each spouse, each of the child’s… grandparents and any other person who plays an important role in the child’s life
129The evidence satisfies me that C. has a good relationship with both parties. Given the frequency with which she has visited her maternal grandmother, I am equally satisfied that she more likely has a closer relationship with her maternal grandmother than she does with her paternal grandparents. However, the evidence is equally clear that she also has an affectionate relationship with them.
Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse
130Maria’s evidence about this factor is more defined.
131Maria deposed that she kept Jeffrey apprised of C.’s progress while they were in B.C. and facilitated video calls between them on an almost daily basis. She also indicated that she returned to London with C. between locums so that C. could spend time with Jeffrey.
132Maria further deposed that Jeffrey travelled to B.C. a total of four times during her locums to visit with her and C. All of the visits preceded the separation. The three of them participated in many family events while Jeffrey was in B.C.
133She deposed that she will continue to foster Jeffrey’s relationship with C. from British Columbia. Recognizing that a move will eliminate the midweek parenting time that Jeffrey currently has with C., Maria proposes to make up for that loss by giving Jeffrey extended parenting time over C.’s school year holidays and during the summer. She further listed a series of periods during the year when Jeffrey would be able to parent C. either in B.C. or Ontario, depending upon the time proposed. She also agreed to contribute to the cost of any travel to be incurred by Jeffrey.
134She is also open to Jeffrey attending in Burnaby as often as his own schedule permits. Should Jeffrey travel to B.C. for parenting time with C., according to Maria, he can stay at the residence of her mother, although I do note that her mother, who provided an affidavit for the motion, did not make a similar offer.
135Maria also indicated that Jeffrey’s parents would be welcome to visit with C. in Burnaby.
136Maria proposes to continue facilitating daily video calls between Jeffrey and C., following C.’s return home from school, contingent on Jeffrey’s schedule.
137Despite their differences, the parties do agree that, during some of the periods when Maria was doing locums in nearby cities, particularly Chatham, where family quarters were available, Jeffrey transported C. there so that the three of them could be together while Maria worked.
138Jeffrey, however, has not even addressed a plan to maintain a relationship between Maria and C. if C. were to be placed in his care and Maria were to be in British Columbia. This, despite the fact that he acknowledged that the maintenance of the mother/child relationship is important for C. and that she should not go for extended periods of time not seeing her mother.
139I am left with the very distinct impression that Jeffrey has not considered what he would do to ensure the maintenance of the mother/child relationship if Maria were to relocate to British Columbia. Worse, I am concerned that he may view obtaining primary, or even shared, care of C. as a lever to compel Maria to remain in Ontario, although he provided no evidence of such an intention.
140Otherwise, Jeffrey’s plan for a 50/50 parenting arrangement, to occur in London, would clearly allow for the maintenance and development of the relationship between Maria and C., but only if Maria were to stay in London.
The history of care of the child
141Not surprisingly, the parties do not agree on who provided primary care to C. while they were cohabiting.
142While they also disagree on whether Jeffrey agreed at the time that it should be occurring, the parties do agree that, during her locums in British Columbia, Maria was accompanied by C. and the two of them stayed at the residence of Maria’s mother. During that time, C. was cared for by either Maria, when she was not working, or her mother, when Maria was working.
Maria’s Evidence
143According to Maria, between June 28, 2019 and September 9, 2020, “C. spent the majority of her life in B.C.” Maria detailed a period of 226 days out of 439 – 51.5% - when C. was in B.C. over that period. C. is also said by Maria to have spent short periods in B.C. in late July 2018, late January 2019 and mid-August 2021.
144It was Maria’s evidence that she “took on the majority of the responsibilities relating to C. during the marriage.” She then listed, as examples, management of C.’s morning and bedtime routines, coordination with professionals involved in her care, including doctors, dentists, daycare teachers, soccer and swimming instructors, and a sleep consultant who was retained to assist with some sleep difficulties C. was having in the initial years of her life.
145According to Maria, she toilet trained C. and sleep trained her at seven to eight weeks of age to establish a “wake-eat-play-sleep routine.”
146C. was breast-fed for the first 13 months of her life and, according to Maria, she transitioned C. to solid foods.
147She further deposed that she arranged for C.’s first three immunization appointments. She claims that she purchases the majority of C.’s clothing, books, toys and toiletries, and that she has been the person responsible for registering her for various activities.
148In contrast, according to Maria, Jeffrey’s role in parenting C. was “limited by comparison.”
Jeffrey’s Evidence
149Jeffrey disagrees. He took approximately six to seven weeks parental leave when C. was born to spend time with her at home.
150According to him, he assisted Maria with her breast pumping activities each time pumping was necessary. During his cross-examination, however, he did back away somewhat from the frequency at which he assisted Maria with breast pumping that he had asserted in his affidavit. He also claimed to assist Maria with breast-feeding by positioning C. on her body during most breast-feeding sessions.
151Acknowledging the role played by Maria’s mother in providing assistance when C. was an infant, Jeffrey, notwithstanding, indicated that he bottle-fed C., changed her diapers, put her down to sleep and participated in other routines when she was an infant.
152He also deposed that he “fully participated” in C.’s initial sleep training and discussed bath and bedtime strategies with Maria.
153He claimed to have arranged two or three play dates for C. when she was one or two years of age.
154He further asserted that, when C. went into daycare around 17 or 18 months of age, he continued to provide childcare and undertake household tasks such as laundry, cleaning and sterilizing breast pump equipment, cooking meals for the family, cleaning, and bathing C. daily during this period. He also asserted that he and Maria shared several other activities related to C.’s personal care, as well as daycare pickups and drop-offs, reading, outdoor play and other activities.
155During his cross-examination, when questioned about some of the assertions in his affidavit, Jeffrey estimated that he participated in approximately 60% of C.’s care tasks. He later clarified that to mean that he undertook 60% of those tasks himself. He estimated that he and Maria jointly shared approximately 50% of childcare tasks.
156When questioned about his assertion that he was “always available” in the evenings to care for C., he conceded that there might have been one or two times that he had not fully participated in C.’s bedtime routine, not including times when she was in British Columbia.
157Jeffrey acknowledged that Maria prepared C.’s solid meals at the end of her maternity leave. He asserted that he scheduled C.’s medical appointments but merely attended her vaccination appointments, other than her four-year-old booster dose.
158He acknowledged that Maria selected C.’s second dentist (the first being a family friend who saw C. once) and enrolled her in daycare. He also agreed that Maria signed C. up for swimming lessons and that she enrolled C. in junior kindergarten in London.
The child’s views and preferences
159Given her age, there is no reliable evidence about the views and preferences of C. The evidence, does, however satisfy me that she does not wish to be in the middle of parental battles.
The child’s cultural, linguistic, religious and spiritual upbringing and heritage
160C. is a child of Chinese heritage. Both parents, according to Maria, want their daughter to learn their first language and to become more familiar with their ethnic culture. Only Maria, however, addressed this issue in her evidence.
Plans for the child’s care
161The parents, both physicians, assert that their schedules will be such that, if C. is placed in their care, they will be readily available for substantial periods of time to care to her.
162Each, however, also has a backup plan consisting of, in Maria’s case, her mother, and in Jeffrey’s case, his parents. Given her age, C. will also be registered in school, whether it be Montessori in Burnaby or junior kindergarten in London. I am satisfied on the evidence that both parents have developed appropriate plans for the care of C.
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
163I am satisfied that each parent has both the ability and the willingness to care for and meet C.’s needs. The issue is which of the two is better able and more willing to take on those tasks.
164As with other points between the parties relating to their role in the care of C., there are substantial differences in their evidence. Taking into account some of the answers Jeffrey provided during oral questioning, I find, however, that more of the parenting tasks primarily fell to Maria. I do not wish to detract from the fact that Jeffrey participated in providing primary care to C. as a young child. What cannot be denied, however, is that while she was on locums in British Columbia, Maria was C.’s primary caregiver, aided by her own mother. During those times, of necessity, Jeffrey could be nothing more than a supportive parent from a distance.
165Similarly, over the past year, Maria has again taken on the primary parenting responsibilities. The fact that she wishes to take C. with her to Burnaby suggests that she has a willingness to care for and meet C.’s needs. She has demonstrated her ability to do so. Circumstances have conspired somewhat to prevent Jeffrey from having as much time with C. That is unfortunate, but it can only stand to reason that his caregiving abilities, as well has his experience, are not likely to match those of Maria at this time, and I so find.
166I also find, however, that Jeffrey remains willing to care for and meet his daughter’s needs, to the best of his abilities.
The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child
167As long as Jeffrey is subject to an interim release order in his criminal proceedings, which may be resolved within a few months, he is unable to freely communicate with Maria. Depending on the outcome of his trial, communication between the parties may be remain hampered.
168That potential impediment aside, I find that the parties are willing to communicate with each other.
169Whether they can cooperate on matters affecting their daughter remains to be seen.
170Unfortunately, in his answers on oral questioning, Jeffrey has made clear that, while he does not question Maria’s love for C., he:
a) does not trust Maria,
b) does not regard her as a good role model,
c) views her as occasionally irresponsible,
d) is of the view that she exercises questionable judgment from time to time; and
e) believes that she would be capable of inadvertently hurting their daughter.
Maria did not level such charges against Jeffrey.
171I find that Jeffrey’s views about Maria and her care of C. could impede the parties’ ability to cooperate on matters affecting C.
The Impact of Family Violence
172Given the broad definition of “family violence” set out in s. 2(1) of the Divorce Act, and the admission of each party to have engaged in behaviour that meets that definition, I find that each of these parties has, to some degree, engaged in family violence towards the other.
173Each of them has also acknowledged that they have engaged in inappropriate behaviour towards the other, including speaking disparagingly, within the hearing of their daughter.
174Apart from the allegation of choking for which Jeffrey will be on trial in September 2022, however, I find that the family violence in this case, while not excusable, was explicable. Both parents were facing challenges. For Jeffrey, they included having to live with his mother-in-law for extended periods of time, a situation he found to be frustrating. For Maria, they included Jeffrey’s apparent overbearing manner and somewhat condescending attitude towards her. Mixed in with this was, undoubtedly, the frustration that Maria must have felt at being unable to secure employment and, when she did, meeting resistance from Jeffrey to relocating to allow her to develop as a physician and surgeon. Tied to this would also have been whatever challenges were created by repeatedly travelling back and forth across the country to maintain her skills and training.
175I find, however, that the family violence that afflicted these parties, and in which each participated, does not reflect negatively on their individual abilities to care for their daughter, especially since they are unlikely to reconcile their marriage. I am satisfied that, apart, each is capable of caring for C. without family violence being a factor.
Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
176Jeffrey’s release conditions clearly constitute an order relevant to the safety security and well-being of C. since it was intended to keep Jeffrey away from Maria, who was and is caring for C.
177Jeffrey’s criminal trial in September 2022 will determine whether there is any future or ongoing such order. Since the parties do not intend to reconcile, it is highly unlikely that they are to be in a situation such as that which arose when the criminal charges against Jeffrey resulted.
Divorce Act, s. 16.92(1) Factors to Consider in Respect of Maria’s Request to Relocate
The reasons for the relocation
178The evidence leaves me with no doubt that Maria has good and valid reasons for relocating to British Columbia.
179Even Jeffrey’s evidence supports that conclusion in respect of Maria’s employment opportunities there.
180During his oral questioning, Jeffrey acknowledged that Maria went through a “very hard” time with her work interviews when he and Maria were still together in London. He further acknowledged that her specialty is “a difficult field to break into… in terms of the availability of jobs available.” (sic)
181Jeffrey also acknowledged being unaware of any alternative positions that would be available to Maria if her proposed move to B.C. was not permitted and agreed that if Maria were unable to take the job in Burnaby, it would be “devastating” to her career.
182When questioned about opportunities for career improvement in Ontario if Maria were to remain here, Jeffrey responded that he “believes” that “there will be opportunities that come up for increased surgical and clinical time at LHSC” but conceded that his belief “is certainly tentative.”
183He also denied a suggestion put to him by Maria’s counsel that he was of the opinion that Maria should have held out for increased operating room and clinical time at LHSC.
184When asked if he would have supported Maria keeping up her clinical and surgical skills by taking additional locums, Jeffrey replied that he would not have done so. He further noted, however, that the ability to gain those skills would have depended upon the type of locums which were available.
185The fact that employment was a driving force in the proposed relocation by a parent was addressed by Justice D.L. Corbett in Konkin v. Aguilera, 2010 ONSC 4808, at para. 23:
23 Counsel drew to my attention the interesting discussion of these issues in Hernandez v. Hernandez, [2009] O.J. No. 6167, a decision of Justice Harper's. The case is distinguishable. Clearly, Justice Harper concluded that Ms. Hernandez had acted precipitously and engaged in self-help. His Honour also concluded that there was no clear plan as to how Ms. Hernandez would live after the move -- although the move was characterised as for the purpose of advancing Ms. Hernandez's career, it was not clear that it would really do so. All of that said, the language used in the decision is very strong, and can be read to mean that a primary custodial parent may not move with children solely to further her career aspirations -- that to do so would be, in some sense, "selfish". If that is the ratio of the case then I feel it takes the point too far. There is a balancing of interests that must be done. That balance does not render the legitimate career aspirations of custodial parents "selfish" or illegitimate. A more moderate reading of the decision is that Ms. Hernandez was not striking the right balance in pursuing a move, given the very marginal apparent career advantage that the move appeared to present to her.
186It is clear on the evidence, and I find, that the position accepted by Maria confers upon her more than a “very marginal career advantage.”
187In Bjornson v. Creighton, (2002), 2002 CanLII 45125 (ON CA), 62 O.R. (3d) 236, the Court of Appeal wrote on this issue:
[37] The learned trial judge appears to have placed more importance on the father's career than he did on the mother's career. The effects of prohibiting Bjornson from relocating, professionally and otherwise, have already been discussed. At para. 49 of his reasons, the trial judge considered the respondent father's career and wrote,
All of the evidence in this case about the employment of the defendant with the Drayton Festival Organization indicates that the defendant had obtained a good job, that he was good at the job, and he was being reasonably well paid. He now earns $53,000 per annum managing a budget of some $3 million for this theatrical company and an additional $3,000 from other contract sources. There is no evidence that comparable employment was available to him in Alberta and even if it were found that the expressed intention of the defendant was to return to Alberta after one or two years in this job, it is foolish and unreasonable in the extreme for the plaintiff to have expected the defendant to give up this continuing opportunity in Ontario to return to Alberta without any assurance of gainful employment.
[38] One might reverse this scenario to state that it is "foolish and unreasonable in the extreme" to expect Bjornson -- a qualified nurse with an established position and the ability to earn approximately $53,000 per year -- to sacrifice the opportunities and advantages she earned as a nurse in Alberta, in order to remain in Ontario. This is particularly so when there is actual evidence, not speculation, that she is at a disadvantage professionally in Ontario as compared to Alberta. While it is true that the defendant has no assurance of gainful employment in Alberta it is also true, and supported by actual evidence, that Bjornson's professional life, earning potential and self-fulfillment will continue to be significantly compromised if she remains in Ontario. (bolding added)
188In her evidence, Maria deposed that “the opportunity in Burnaby will substantially increase my ability to support C. financially, and my flexibility and availability to continue my role as her primary caregiver.”
189She further deposed that the proposed relocation will provide her with “a better work – life balance and improve psychological development for” C. and claimed that the move will “reduce the opportunities for conflict” between her and Jeffrey and will reduce his “ability to exert control over me.”
190In Bjornson v. Creighton, the Court of Appeal, in allowing an appeal from an order which denied a mother the ability to relocate to Alberta, where she would have better, more remunerative and more secure employment, held, at para. 30, that a judge hearing a relocation request must "give due regard to the relationship between the quality of the custodial parent's emotional, psychological, social and economic well-being and the quality of C.'s primary care-giving environment."
191On that obligation, I also quote Justice S. Bale in Wood v. Wood, [2014] O.J. No. 3601, a case where the mother sought the court’s permission to relocate. The father opposed the request. In allowing the relocation, Justice Bale wrote:
28 Third, Ms. Wood, by training and experience, is a specialist in obstetrics. Although there was evidence that there are jobs available for registered nurses in the local area, those jobs are lower paying ones in doctors' offices and long-term care facilities. The job in Ottawa allows Ms. Wood to have more time off to be with the girls, pays substantially more and is in her area of specialty. If Ms. Wood is able to pursue a more fulfilling career in Ottawa than would be available to her in Bracebridge, the girls are likely to benefit. (bolding added)
192Maria also notes that she has long-standing ties to the Burnaby community, and that she continues to have friends, family and a church community there. She is, in essence, proposing to return to her home community.
193Based on this evidence, I can only conclude, and I find, that the atmosphere to which C. will be exposed with her mother in Burnaby, where her mother is challenged professionally, and happy in her environment, is bound to be better than the atmosphere to which C. would be exposed with her mother working in London in a position that does not provide her with the opportunity to develop her professional skills, distant from her mother and other supports.
194Jeffrey appears to want Maria to remain in Ontario, yet he refused to move with her to Barrie when she was offered a position in that city.
195It was clear to me from his responses to questions put to him during his oral examination the Jeffrey is comfortable in his position in London, and his preference would be for Maria to subordinate her career to his, a position which I find works to his detriment.
196During that oral questioning, Jeffrey said that Maria’s job at LHSC afforded her more time to care for C. and more time for family. This suggested to me that he was less concerned about her ability to improve as a physician than he was in her being a mother, as if the choices could not overlap.
The impact of the relocation on the child
197I do not share Jeffrey’s concern that relocation will be difficult for C. She is familiar with Burnaby, having been there several times. Her maternal grandmother lives there. Whatever difficulty she had with the transition in time zones in the past appears to have ended and, in any event, when she is established there, the time zone in which she is residing will be that which governs her daily routines. By all accounts, she is a resilient child. I can only echo the views of the Court of Appeal, which wrote in Reeves v. Brand, [2018] O.J. No. 1425 at paras. 30 and 31:
30 Children's adaptability to change, especially at Ray's age, bolsters the trial judge's conclusion. As Furey J. sensibly noted in his recent decision in Sexton v. Tipping, 2017 CanLII 56984 (N.L.S.C.T.D.), at paras. 81-82:
It is a reality of the times in which we live that many couples with children come together through partnership or marriage, separate or divorce after a period of time and then move on with their lives. ... The crux of these scenarios is change -- for the parents and for children.
Change is a constant in all our lives. As a general principle, children are adaptable in their lives. They change communities. They change schools. They change friends. Many change families, not because of their actions but because of the actions of their parents. That has happened in this matter.
31 Ray is young. The disruption to the life of a six-year-old is likely to be less significant than the disruption to the life of, say, a fifteen-year-old.
The amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons
198I addressed this factor earlier.
199The evidence satisfies me that, prior to their separation, each party spent as much time as they could with their daughter, whether caring for her or just being present with her. Notwithstanding, a pattern of C. accompanying her mother developed when Maria went to B.C. for her locums. As a result, she spent more time with C. by virtue of their joint absence from Ontario. Even if I were to accept Jeffrey’s assertion that each absence occurred over his objection, they still happened.
200I do find it odd, however, that Maria’s counsel would point to Jeffrey having driven Maria and C. to the airport as evidence that he acquiesced to Maria taking C. to B.C. when, undoubtedly, if Jeffrey had refused to drive Maria and C. to the airport in protest, he would have been criticized for being selfish. In my view, he did what he had to do as a dutiful husband and father.
201Regardless, C.’s absence during those locums meant that Jeffrey spent less time with her than did Maria.
202The same circumstance has existed over the past year. Jeffrey may be entirely innocent of the charge brought against him, but he has been somewhat constrained in his ability to spend time with their daughter. For reasons best known to him, he did not attempt to change the arrangement through the litigation process. I can only assess the facts as they are, rather than as they might have been had different actions been taken.
203While not the same, I find some similarities between the current case and that which was before Justice R.S. Jain in A.C. v. K.T., [2022] O.J. No. 2003, a case which dealt with a request to relocate which was opposed by the father:
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 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.
204McDonald v. McDonald, [2006] O.J. No. 1143, was a case where there was, in effect, a parenting time schedule, not dissimilar from that which has emerged in this case, in respect of a 5-year-old child. The parties had separated when the child was 3 years old. He had spent the majority of his time in the care of his mother since the separation. Justice P.C. Hennessy wrote, at para. 36,
“…To a great extent, the life of a pre-school child is defined by his or her parents and family. The more significant disruption to Todd's life would be a change of primary residence away from his mother. Mrs. McDonald has had primary responsibility for Todd's welfare and care. The termination of daily or weekly contact between Todd and his mother would be an enormous loss for Todd.”
205I am of the view that the same comments can be made about the relationship between C. and her mother in the circumstances of this case.
206During his oral questioning, Jeffrey conceded that, prior to separation, the longest period that C. had been out of the care of her mother was eight days, which was when Maria travelled to B.C. between November 1 and November 9, 2020 in connection with the job in Richmond. He also agreed that C.’s longest period apart from her mother since the separation has been three days.
Whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement
207Maria did so.
The existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside
208No such order, arbitral award, or agreement exists.
The reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses
209While Jeffrey takes issue with the suggestions made by Maria as to when during the year he would be able to have in-person parenting time with their daughter, on the basis that she did not consult with him or take into account his availability, Maria has sworn to a willingness to extend as much parenting time as possible to him, in both Ontario and B.C., together with video communications between him and their daughter, should she be permitted to relocate with C.
210She has also expressed a willingness to contribute to Jeffrey’s travel expenses if he comes to B.C. She will be required to bear the costs of C. travelling to Ontario.
211Her financial circumstances will be enhanced in B.C. I am satisfied that she will have the financial ability to bear these extra costs.
212I am also satisfied that the evidence establishes, and I find, that Maria is not relocating to B.C.to deprive Jeffrey of a relationship with their daughter, a reason for relocating the absence of which is significant, according to Justice D.L. Corbett in Konkin v. Aguilera, 2010 ONSC 4808 at paragraph 21.
Whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.
213Section 7.3 of the Divorce Act requires that, “[t]o the extent that it is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process.”
214Jeffrey did not accept Maria’s pre-litigation offer to mediate “a comprehensive parenting plan that cross borders” after she advised of her planned relocation to B.C.
215He does, however, point to the words “[t]o the extent that it is appropriate to do so” to excuse his failure to mediate an issue that would, from his perspective, see him losing his relationship with his daughter.
216While I accept his explanation for not having responded promptly, it is also clear that he was unwilling to mediate any arrangement which might include Maria relocating with C. to British Columbia. In that sense, he appears to have adopted a take-it-or-leave-it attitude.
Additional Consideration – Will Other Parent Relocate?
217When considering whether to allow a parent to relocate, I must also consider whether the parent who would be left behind could, as an alternative, also relocate.
218While I cannot order Jeffrey to relocate to B.C., I can take into account his unwillingness to consider moving there when assessing which plan is in C.’s best interests, one aspect of which is whether it affords the child the ability to have as much time as is possible with each parent.
219This point was made in Reeves v. Brand, [2017] O.J. No. 2045, at paras. 65 and 66, where Justice J.F. Diamond wrote:
65 I also cannot ignore Irene's admission during cross-examination that she would consider leaving her employment with Toronto Police Service and moving to Nova Scotia if Terri was permitted to relocate with Ray to New Ross. When presented with the employment opportunity at the New Brunswick winery in 2014, Irene had little difficulty uprooting her life from Toronto and moving with Terri and Ray to New Brunswick. In support of her argument, Terri relies upon the decision of the B. C. Court of Appeal in S.S.L. v. J.W.W., 2010 BCCA 55. In overturning a trial decision, the Court addressed a mother's position that her request to move from B.C. to Ontario "would not happen without the children":
"In my view, the court's task in these joint parenting cases is to analyze the evidence in four possible scenarios, in this case, (i) primary residence with mother (London, Ontario); (ii) primary residence with father (Victoria, B.C.); (iii) shared parenting in Victoria; and (iv) shared parenting in London, but to do so knowing the court's first task will be to determine which parent is to have primary residence. When the question of primary residence is evenly balanced and the court finds the best interests of the children require both parents to be in the same locale, then the court will need to choose between the shared parenting options offered by the parents, without presuming the current care-giving and residential arrangement is to be the preferred one.
Proximity of parental homes will usually be in the best interests of children with two good parents. But proximity may be achieved in either proposed location. The choice of the existing location cannot be the default position." (bolding added)
66 The proposal, or at least admitted possibility, of Irene relocating to Nova Scotia is something which I am mandated to consider. While I do not have any evidence one way or the other as to Irene's potential employment prospects (either as a police officer or in some other field), given the historical mobility of the parties, I do not find Irene's potential move to Nova Scotia to be an impractical one.
220Additionally, at para. 176 in its decision in S.S.L. v. J.W.W., the B. C. Court of Appeal wrote approvingly of the following comment made by Justice J. Hayne in the High Court of Australia in the case U. v. U, [2002] H.C.A. 36:
[176] It is now recognised as self-evidently true that, apart from some cases of abusive relationships, children benefit from the development of good relationships with both their parents. The right to know and be cared for by both parents and the right of contact on a regular basis with both parents are said to be principles underlying the objects of Pt VII of the Act. If effect is to be given to those principles, it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of C., but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of C. which are paramount, not the interests or needs of the parents, let alone the interests of one of them. [Italic emphasis in original; underlining emphasis added (by High Court of Australia)]
221When asked on cross-examination why he would not consider moving to B.C. when there are, apparently, positions in his field of expertise available, Jeffrey responded that, while he could find a job in B.C., any job available would not have “the same degree of prominence or academic satisfaction” that he has in London. He noted that, while there are many general internists, he is an academic internist. Focusing on the one job for which he did apply in B.C, which he later turned down, he noted that his educational contributions would not have been valued in that position.
222When challenged about not having made other inquiries about the possibility of employment for him in British Columbia, Jeffrey responded that he has taken the position “that staying in London is in the best interests of C. in terms of my job description as… we discussed previously, her home situation and a couple of other things in my affidavit.”
223The evidence is clear, in my view, and I find, that there are more employment opportunities for Jeffrey in B.C. than there are for Maria in Ontario.
Additional Considerations Arising from Request Being for an Interim Relocation Order
224Because this motion concerns a proposed interim relocation of the parties’ child, other considerations must also be taken into account. They were set out as follows by Justice Coats in Arabi v. Al Sahnawi, 2021 ONSC 6124 (removing points that are repetitious of principles already referred to herein):
[18] The legal principles applicable to temporary motions on mobility (now called relocation) are set out at paras. 31 to 33 of Abbas v. Ayoade, 2020 ONSC 5821, as follows:
[31] The legal principles applicable to interim motions on mobility are well settled and are outlined in Plumley v. Plumley, 1999 CanLII 13990 (ON SC) where the court stated at para. 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 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.
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.
[32] In Geoffrion v. Bélanger, 2017 ONSC 5349, the court referred to Datars v. Graham, 2007 CanLII 34430, 41 RFL (651), where the court stated at para. 16:
The problem that this court faces on this motion, however, as McSorley J. observed in Kennedy, is that it is difficult if not impossible in most cases to complete the extensive child-focused inquiry required under Gordon v. Goertz on the typically conflicting and incomplete affidavit evidence that is often available to the court on interim motions. Consequently, the general reluctance of the court to effect fundamental changes in a child's lifestyle on interim motions has resulted in a slightly more restrictive approach to interim mobility cases, one that recognizes the short-term nature of interim orders and the summary nature of interim motions. As well, since the decision on an interim motion in a mobility case will often strongly influence the final outcome, particularly where relocation is permitted, caution is called for, especially since even more disruption may be caused in a child's life if an interim order permitting the move is later reversed after trial: Downey v. Sterling, [2006] O.N.C.J. 490; Goodship v. McMaster, 2003 CanLII 53670 (ON CJ), [2003]O.J. No. 4255 (Ont. C.J.).
[19] At para. 26 of Boudreault v. Charles, 2014 ONCJ 273, Justice Sherr set out additional principles to be applied regarding temporary relocation cases:
[26] The following are additional principles regarding temporary relocation cases:
a) 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 CanLII 53670 (ON CJ), [2003] O.J. No. 4255 (OCJ).
b) 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.
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 (OCJ) and Costa v. Funes [2012] O.J. No. 3317 (OCJ).
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 (OCJ)), 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).
[20] Where an interim move will not materially interfere with the ability of a party to exercise access, then a court will be more likely to accept an interim move. (Schlegal v. Schlegal, 2016 ONSC 4590, at para. 25 and M.K. v. J.K., 2020 ONCJ 387 at para. 44.
[21] In Konkin v. Aguilera, 2010 ONSC 4808, at para. 27, Justice Corbett addressed the concerns courts have in allowing temporary relocations:
[27] Finally, I acknowledge some of the cases consider that it is unwise to make interim orders on mobility issues, when the matter may remain contested at trial. That is a fine ideal, but the court process does not follow the same rhythm as real life. The goal of an interim order here, as in other contexts, is to preserve a reasonable state of affairs that accords with the best interests of C. pending trial. As I indicated to the parties orally, I would have preferred to have heard this issue as a trial, to have listened to the various family members testify, and to have more time to reflect on the matter. But a decision must be made now, rather than months or years from now, and a legitimate and timely request to move should not be thwarted by the inevitable effluxion of time inherent in the litigation process.
[22] Konkin was relied upon in Ricketts-Shastry v. Shastry, 2020 ONSC 4862.
225Jeffrey’s counsel submits that the principles enunciated in previous decisions regarding interim relocations all favour his position – that C. remain with him in London, ideally in the matrimonial home.
226He cites the following:
a) the order requested will be temporary, and the court should avoid making an order that could influence the final outcome;
b) there are material facts in dispute between the parties – a dispute that it is not appropriate for me to resolve on a motion;
c) the move proposed is about as far from London as one can go in Canada – approximately 4,200 kms, according to counsel, and the final result in this case is far from certain;
d) there are genuine issues for trial.
227Counsel relies particularly on the decision of Justice Somji refusing the mother’s request to relocate with the parties’ one-year old child in Li. v. Wu, [2020] O.J. No. 5202. There were, however, factual differences in that case. The mother had attempted to remove the child by calling upon police and Children’s Aid assistance a few months before the trial, not having given the father any advance notice of her intention to move with the child on that date. (It is unclear from the decision whether the father had specifically known before that day that the mother wished to relocate). Justice Somji found that there was a genuine issue for trial about which parent had taken on a greater role in parenting C. during his one year of life. Justice Somji also found that the child had developed a strong bond with each of the parents.
228In this case, there is a longer history of childcare to consider, as C. is four years of age. I do acknowledge, however, that each parent is asserting that they took on the greater role in parenting while both Maria and C. were in London prior to the separation, which is an issue for trial.
229In responding to the argument that I should avoid influencing the final outcome in the case, I note only that, no matter what order I make, there may be an influence on the final outcome. Nevertheless, I am still required to consider what order to make at this time in C.’s best interests.
230As for Jeffrey’s concern that, if I were to allow the relocation, C. would be moving 4,200 kms from London, I note that other courts have allowed interim relocations of substantial distance. (see, for example, Konkin v. Aguilera, supra)
231The reality of a case like this, as was noted by Justice S.T. Bale in Wood v. Wood, supra, at para. 8, is that, as a result of my decision, the time that one or other of the parents will be able to spend with C. will decrease, an outcome which Justice Bale called “undesirable”.
232Despite overlayered considerations enunciated in other cases, in my view the decision of Justice Marshman in Plumley v. Plumley remains the principal authority on interim requests to relocate.
233Two of the three cautionary concerns about orders allowing interim relocations that were expressed in that case by Justice Marshman did allow for exceptions. They consist of “compelling circumstances” such as a “financial benefit” to the family unit which may be lost awaiting trial, and a strong probability that the custodial parent’s position will prevail at trial.
234I have already concluded that the “financial benefit” accruing to Maria from a relocation is compelling. When one adds to that the fact that, for almost 50% of C.’s life, given the circumstances of this case, C. has been cared for primarily by Maria, I am satisfied that, notwithstanding that this is a request for an order permitting an interim relocation of C., the order sought by Maria is appropriate.
235I am also satisfied that Maria has met her onus under s. 16.93(3) of establishing, on a balance of probabilities, that the interim relocation of C. is in C.’s best interests.
Conclusion on C.’s Best Interests
236I find, based upon my review and consideration of the evidence in relation to the statutory factors pertaining to best interests that it is in C.’s best interests that she be placed in Maria’s primary care on an interim basis and that she be permitted to relocate on an interim basis to Burnaby with Maria.
Primary Care – What Will it Include?
237Section 16.3 of the Divorce Act authorizes a court to allocate decision-making responsibility in respect of a child, or any aspect of that responsibility, to either spouse or to both spouses. The allocation can be made on an interim basis (Divorce Act, ss. 2(1), 16(7) and 16.1(1)).
238Section 2(1) of the Divorce Act defines decision-making responsibility as “responsibility for making significant decisions about a child’s well-being, including in respect of
(a) health;
(b) education;
(c) culture, language, religion and spirituality; and
(d) significant extracurricular activities.”
239Given that C. will be in school as mandated by the government of British Columbia, and that her extracurricular activities will be focused on where she resides, I am prepared, on an interim basis, to allocate decision-making responsibility for them to Maria, with provisos that she notify Jeffrey of her decisions and that Jeffrey’s parenting time will always take priority to any extracurricular activity with which C. is involved.
240Decision-making responsibility will be shared between the parties with respect to C.’s health, culture, language, religion and spirituality. A mechanism will be defined for any period that Jeffrey is prohibited by criminal court order from communicating directly with Maria.
241The order shall define some of the periods when Jeffrey will have parenting time with C. and set parameters for other times, since few people likely know their schedules as much as a year in advance. A review clause will be included to address Jeffrey’s future parenting time after a defined period, and should he elect to relocate to B.C.
242Having regard to these considerations also, I therefore make the following interim order.
Order
Subject to the provisions pertaining to the Respondent’s parenting time prior to July 13, 2022, the Applicant shall be entitled to relocate, on an interim basis, to Burnaby, British Columbia with the parties’ child, C.J.Y., as of June 27, 2022.
The Applicant shall have interim sole decision-making responsibility for C. in respect of C.’s education and significant extracurricular activities. She shall at all times keep the Respondent informed, in writing, of her decisions in regard to those matters.
At no time will the Applicant permit, allow or plan for C.’s involvement with an extracurricular activity, including any event, scheduled or unscheduled, to take priority over, or interfere with, the Respondent’s interim parenting time with C.
Absent an emergency requiring an immediate decision, and subject to the provisions of subparagraphs 4(a) and 4(b), the Applicant and the Respondent shall jointly share interim decision-making responsibility for C. in respect of C.’s health, culture, language, religion and spirituality.
a. While the Respondent is subject to the terms of any order of the criminal court, including, but not limited to, an order for interim release pending trial, a probation order or a peace bond, which limits the ability of the Respondent to communicate directly with the Applicant, all communications with respect to matters about which the parties share joint decision-making responsibility shall be effected through the Respondent’s parents or either of them. In the event that they are not able or willing to facilitate such communications, such communications shall occur through counsel.
b. Should the Respondent be found guilty or convicted of the criminal charge he currently faces, or any lesser included offence, he shall:
i. inform the sentencing judge of the terms of this order; and
ii. request that, in any post-sentence order which may affect his ability to communicate directly to the Applicant, an exception be made allowing for direct communication between the parties with respect to any significant decision about C.’s well-being, including those enumerated in s. 2(1) of the Divorce Act.
- The Respondent shall have interim parenting time with C. as follows:
a. from June 27 to July 13, 2022, inclusive, in London;
b. for any 14 consecutive days in the period beginning August 1, 2022 and ending August 19, 2022, in either Burnaby or London, as the Respondent shall determine;
c. for the entirety of C.’s 2022 school winter/Christmas holiday break period, exclusive of the last 3 days, in London. Should there not be a defined 2022 school winter/Christmas holiday break period for C.’s place of education, the period referred to in this subclause shall be from December 18, 2022 to January 3, 2023;
d. from March 11 to March 18, 2023, inclusive, in London;
e. in London, for two periods of three consecutive weeks, separated by at least two weeks, when C. shall be in the care of the Applicant in British Columbia, during C’s 2023 school summer vacation period;
f. any time that the Respondent shall be in Burnaby, for such period or periods as the parties agree;
g. at such other times and in such location as the parties shall agree.
The periods for and locations of the Respondent’s interim parenting time set out in this order may be varied only by written agreement of the parties.
The Applicant shall pay the full costs of all transportation for C. to and from London for those periods when she is to be in London for the Respondent’s interim parenting time.
For any period when the Respondent is in B.C. solely for the purpose of exercising interim parenting time with C., the Applicant shall attempt to arrange for the Respondent to stay at the home of the Applicant’s mother. Should the Applicant’s mother refuse to allow the Respondent to stay there, or should the Respondent decline to do so, the parties shall evenly divide the cost of the Respondent staying in a hotel for the duration of his interim parenting time attendance in B.C. on each such occasion.
C. shall not stay overnight in the hotel during any such time as the Respondent may be exercising interim parenting time in accordance with paragraph 8 of this order and staying in a hotel.
The Applicant shall facilitate daily telecommunication contact, preferably via a video call platform, between C. and the Respondent for no more than 30 minutes, at a time consistent with C.’s schedule, but generally to occur between the hours of 6:00 p.m. and 7:30 p.m. B.C time (whether standard or daylight time). The calls shall be initiated by the Applicant, who shall not communicate directly with the Respondent while he is subject to the terms of his current release order. Each such telecommunication shall end after 30 minutes, or whenever C. indicates that she wants it to end, without the parties communicating directly while the Respondent is subject to the terms of his current release order.
Day-to-day decisions with respect to C. will be made by the party who has care of her at the time.
Either party shall be entitled to request a review of the terms of this order in the event that the Respondent relocates to British Columbia for employment purposes prior to trial.
In the event that the parties cannot agree on a framework for, or specifics of, the Respondent’s interim parenting time for the period between September 1, 2023 and trial, either may apply to the court for a further order addressing the Respondent’s parenting time for that period, or such earlier end date as the court may determine.
If, following the completion of the Respondent’s criminal trial, the outcome results in significant difficulty applying the terms of this order, the parties may secure an appointment with me, through the Superior Court (Family Court) Trial Coordinator at London, to address only the change or changes required in the terms of the order as a result of such outcome.
The parties shall attempt to resolve the issue of costs by discussion. If they are unable to do so, they may, within 21 days of the date of this endorsement, each serve and file, through the Superior Court (Family Court) Trial Coordinator at London, written submissions on the issue of costs, not to exceed three pages, in Times New Roman 12-point font, with line spacing of 1.5, plus a bill of costs and any offer to settle made prior to the motion. Each counsel shall also disclose the full amount, inclusive of fees, disbursements and HST, that they charged their own client for this motion. If no submissions are received by the Superior Court (Family Court) Trial Coordinator at London within 21 days of the date of this endorsement, costs shall be deemed to have been settled and no order shall be made as to the costs of this motion.
“Justice T. Price”
Justice T. Price
Date: June 22, 2022