Court File and Parties

ORILLIA COURT FILE NO.: FC-16-188-0001 DATE: 20220718

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: S. C., Applicant AND: J. C., Respondent

BEFORE: Madam Justice R. S. Jain

COUNSEL: Applicant, Self Represented Respondent, Self Represented

HEARD: July 7, 2022

ENDORSEMENT

Introduction

[1] The essential question for the court to determine in this motion is the difference between a proposed “change of residence” and a “relocation.”

[2] The parties have two children together, namely “D.C.” who is 13 years old and “G.C.” who is 10 years old. The parties negotiated the parenting terms in a final consent Order of Justice T. Wood dated January 24, 2018 (“the Order”).

[3] The Respondent father, who resides in Barrie, Ontario, brought an urgent motion requesting an order preventing the Applicant mother from moving with the parties’ children from Orillia to Midland. He further asked the court to make an order that would change the children’s long standing status quo parenting arrangement as set out in the Order. Specifically, he asked for an order that the children commence residing with him from Monday to Friday and commence residing with the Applicant from Friday to Monday (flipping their current schedule).

[4] The Applicant mother, who resides in Orillia, Ontario, served and filed responding materials and a cross motion requesting that the children continue to reside together with both her and the Respondent in accordance with status quo and the Order. She asks for an order dismissing the Respondent’s motion and confirming that the current parenting arrangements remain the same (wherein the children reside with her from Monday to Friday, and with the Respondent from Friday to Monday). She asks for an order that the children be permitted to reside with her during her parenting time in the new house that she purchased in Midland, Ontario.

[5] The Respondent characterized this as an “urgent relocation” motion. By doing so, he submitted that the Applicant had not complied with the notice requirements set out in the Children’s Law Reform Act (“the CLRA”)[^1] and that she had the burden of proving that the “relocation” would be in the best interests of the children.

[6] The Applicant denied that this was a relocation. She characterized this as a “change of residence.” By doing so, she submitted that she had complied with the notice requirements under the CLRA, because the move did not have a significant impact on the children’s relationship with the Respondent.

[7] The questions this court must answer are as follows: Is the Applicant’s proposed move a change of residence or a relocation? Will the proposed move have a significant impact on the children’s relationship with the Respondent? If this is a change of residence, did the Applicant comply with the notice requirements of the CLRA? If this is a relocation, did the Applicant comply with the notice requirements of the CLRA and did the Applicant prove that the relocation is in the best interests of the children?

Decision

[8] For the reasons set out below, I find that the Applicant’s proposed move with the children to Midland is not a “relocation,” it is a “change of residence.” I find that the change of residence proposed by the Applicant will not have a significant impact on the children’s relationship with the Respondent. As this is a “change of residence,” I find that the Applicant did comply with the notice requirements as set out in s. 39.1 of the CLRA. I further find that the balance of the notice requirements, objection and burden of proof set out in ss. 39.3 and 39.4 of the CLRA do not apply.

The Law

[9] The Order does not contain any terms limiting or restricting the mobility of the parties. It does contain a term that says, “The parties shall keep each other informed as to their residential address and telephone number and notify the other whenever this information changes.”

[10] The applicable sections of the CLRA that pertain to this motion and residence and relocation are as follows:

Part III

DECISION-MAKING RESPONSIBILITY, PARENTING TIME, CONTACT AND GUARDIANSHIP

18. DEFINITIONS AND INTERPRETATION, PART III – In this Part,

“relocation” means a change in residence of a child, or of a person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child, that is likely to have a significant impact on the child’s relationship with,

(a) another person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child, or

(b) a person who has contact with respect to the child under a contact order;

39.1 CHANGE IN RESIDENCE, PERSON WITH DECISION-MAKING RESPONSIBILITY OR PARENTING TIME – (1) A person who has decision-making responsibility or parenting time with respect to a child and who intends to make a change in residence, or in the child’s residence, shall notify any other person who has decision-making responsibility, parenting time or contact under a contact order with respect to the child of the intention.

(2) NOTICE REQUIREMENTS – The notice shall be in writing and shall set out,

(a) the date on which the change is expected to occur; and

(b) the address of the new residence and contact information of the person or child, as the case may be.

(5) NON-APPLICATION – This section does not apply with respect to relocations.

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

(2) NOTICE REQUIREMENTS – The notice shall be in the form prescribed by the regulations or, if no form is prescribed, shall be in writing and shall set out,

(a) the expected date of the proposed relocation;

(b) the address of the new residence and contact information of the person or child, as the case may be;

(c) a proposal as to how decision-making responsibility, parenting time or contact, as the case may be, could be exercised; and

(d) any other information that may be prescribed by the regulations.

(5) OBJECTION – A person with decision-making responsibility or parenting time who receives notice of the proposed relocation under subsection (1) may, no later than 30 days after receiving the notice, object to the relocation by,

(a) notifying the person who gave the notice of proposed relocation of the objection to the relocation; or

(b) making an application under section 21.

39.4 AUTHORIZATION OF RELOCATION – In this section,

(5) BURDEN OF PROOF – If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend substantially equal time in the care of each party, the party who intends to relate the child has the burden of proving that the relocation would be in the best interests of the child.

Analysis

[11] The Order of Justice T. Wood dated January 24, 2018, was made on consent, and gives both parents joint custody and shared parenting time. At the time of the Order, the Applicant was residing in Orillia and the Respondent was residing in Barrie. For over three and a half years since the Order was made, the children have followed a parenting schedule wherein they reside with the Applicant from Monday to Friday, and they attend school while in her care. The children reside with the Respondent from Friday after school until Monday morning return to school. The parties share all holidays and arrange the holidays and any other parenting time arrangements in advance. In accordance with the Order, the parties are supposed to consult with each other prior to making major decisions relating to the children’s health, education, and general welfare; and the parties are required to keep each other informed as to their residential address and telephone number and notify the other whenever this information changes. The Order has never been changed.

The Respondent’s position:

[12] The Respondent says that Applicant has breached the Order by unilaterally deciding to move with the children from Orillia to Midland. He says this move is a “relocation” and that the Applicant is doing this without giving him proper notice as required by the CLRA, and without properly consulting with him about the school change as required by the Order. He objects to the move from Orillia to Midland and he objects to the change of school for the children.

[13] The Respondent does not reside in Orillia. He says that if he is successful on this motion, he will move to Orillia, so that the children can reside with him and remain in Orillia. He believes that it is in the best interests of the children to remain in Orillia and to flip the long-standing parenting time schedule so that the children reside with him from Monday to Friday and with the Applicant from Friday to Monday.

[14] The Respondent said this motion is not really about “contesting mobility.” He acknowledged that if the children moved to Midland, he could still continue to exercise his parenting time from Friday to Monday. He said he works from home and his work is flexible. He said that he could still pick the children up from school on Fridays and drop them off at school on Mondays. He said that this motion was “more of an issue about the best interests of the children.” He said that the Applicant is “not moving to benefit the children, it is to own a house.” He said that the Applicant is “only concerned with the children’s well being when it has a positive effect on her finances.” Along with these and other criticisms about the Applicant’s parenting, the Respondent said the move was not in the children’s best interests because:

(a) The drive is longer from Barrie to Midland;

(b) The child D.C. did not want to change schools;

(c) The child D.C. does not want to move away from his friends and hockey;

(d) The children should not move away from their extended family that reside in Orillia.

The Applicant’s position:

[15] The Applicant says that she does not think this matter should even be considered a “relocation” as it really is a “change in residence.” She says that even though she is proposing to move the children’s residence from Orillia to Midland, the change makes very little difference to the Respondent’s parenting time because the Respondent Father resides in Barrie. The Applicant says that the proposed change of residence will not significantly impact the children’s relationship with the Respondent or his parenting time.

[16] The Applicant provided affidavit evidence that the difference for the Respondent to drive to Midland instead of Orillia is negligible. Under the current Order, the Respondent picks up and drops off the children at their school. The Applicant says that with her proposed move, this long-standing routine does not need to change. In her affidavit, the Applicant showed that the drive time and distance from the Respondent’s residence in Barrie to the children’s current school is thirty-two (32) minutes and 43.7 km; and the drive time and distance from the Respondent’s residence in Barrie to the children’s proposed new school is forty-four (44) minutes and 52.1 km. This adds 8.4 km and 12 minutes to the drive on Fridays and Mondays.

[17] The Applicant says that when she was trying to discuss the proposed move with the Respondent, he expressed his opposition to them leaving Orillia and moving to some northern communities (Sudbury, North Bay and Bracebridge). However, at one point in their messaging, he suggested that they move “between Orillia and Midland.” She submits that the choice to move to Midland was in part, made to “accommodate” the Respondent.

[18] The Applicant says the move will benefit the children and the entire family. She has two other young children (two boys the ages of one and two years old) with her common law partner. Currently, they are all residing in a three-bedroom home that they share with her parents in Orillia. The Applicant and her partner have purchased a home in Midland. The purchase closes July 11, 2022, and they are moving at the end of July 2022. The Applicant says that the move will benefit the entire family and make it possible for the family to live in a house they own. She says the new house is four bedrooms and is big enough to accommodate all of the children comfortably. The Applicant denies the Respondent’s criticisms of her parenting and says that the Respondent does not acknowledge that her two youngest children are an important part of D.C. and G.C.’s family. She says that there is a long history of domestic violence, manipulation, controlling and harassing behaviour between her and the Respondent and that she has to block him from messaging her by text and email.

[19] The Applicant acknowledges that D.C. is thirteen and that he doesn’t like change. She says it is natural that he has concerns about a different school. The Applicant says that G.C. is very close with the Applicant and that she is more flexible and “go with the flow.” She says that D.C. and G.C. are very close to their young siblings and that they should not be separated.

[20] The Applicant submits that children move with their parents and change their residence and schools all the time. Although D.C. and G.C. will have some adjustment, they will meet new children at the new school. The Applicant says she will always ensure the children remain in contact with their friends and family in Orillia. The Applicant’s parents still reside in Orillia. The Applicant says that the move is in the best interests of the children because:

(a) The children D.C. and G.C. have resided with the parties and followed the same parenting schedule for many years;

(b) The Respondent’s parenting time will remain the same and will not be changed significantly by the move;

(c) The children D.C. and G.C. love their little brothers and they do not want to live away from them;

(d) The children D.C. and G.C. should remain together;

(e) The child D.C. had a tutor, and he has an IEP that will follow him through every school he attends;

(f) The child D.C. can play hockey in Midland;

(g) The new house is right behind the public school she proposes that the children D.C. and G.C. will attend;

(h) The Applicant has a new job driving a bus, but she will primarily be home for the children with her two younger children;

(i) The child G.C. is very close to the Applicant and doesn’t wish to live with the Respondent;

(j) Although the child D.C. has expressed that he doesn’t want to move, he has not expressed that he wants to live with the Respondent or away from his siblings.

Re: Relocation vs. Change in Residence

[21] A “relocation”, as defined in s. 18(1) of the CLRA, means a change in residence of a child, or of a person who has decision-making responsibility or parenting time with respect to a child, that is likely to have a significant impact on the child’s relationship with the other parent or relevant party. The CLRA requires that any parent or party who has decision-making responsibility or parenting time with a child must communicate, in advance, an intended change in residence to any other person who has decision-making responsibility, parenting time, or contact rights with that child. A notice of a relocation must be provided in writing, at least sixty (60) days in advance of the expected relocation. The notice must set out the expected date of the proposed relocation, the new address and any new contact information and must set out a full proposal as to what the new parenting plan may be in light of the relocation.

[22] A “change in residence” refers to a move that is not significant to the other parent or party within the meaning of s. 18(1) of the CLRA. Whether the move is “significant” has no specific parameters or radius, which means that “significance” is assessed on a case-by-case basis. As set out in the CLRA, whether a move is deemed “significant” will depend on whether the change in address will “significantly impact” the child’s relationship with the other (non-moving) parent or party. The CLRA requires that any parent or party who has decision-making responsibility or parenting time with a child must communicate, in advance, an intended change in residence to any other person who has decision-making responsibility, parenting time, or contact rights with that child. Notice must be provided in writing, setting out the date on which the change is expected to occur, and setting out the new address and any new contact information. There is no prescribed timeline on how far in advance this notice needs to be provided, for a change in residence.

[23] Simply put, if a move is not a “relocation” within the meaning of s. 18(1) of the CLRA, it must be a “change of residence.” Therefore, every “relocation” is a “change of residence”, but not every “change of residence” is a “relocation” as defined by the CLRA.

[24] In this case, the Order is silent on the issue of relocation or mobility. There are no additional mobility limits or residence terms set out in the Order. As a result, the court must determine whether the Applicant’s proposed move is a “change of residence” or a “relocation” as set out in the CLRA. Specifically, will the Applicant’s proposed move “significantly impact” the children’s relationship with the Respondent? As stated above, the question of whether a move will “significantly impact” a child’s relationship with a parent will change depending on the circumstances and facts in each case. In this case, the following facts are undisputed:

1. The Respondent currently resides in Barrie and has resided in Barrie for many years.

2. The Applicant currently resides in Orillia and has resided in Orillia for many years.

3. On June 1, 2022 the Applicant notified the Respondent of her intention to move to Midland.

4. On June 8, 2022 the Applicant notified the Respondent of the exact address of the new residence and advised that the move will not be taking place until the end of July.

5. The long-standing status quo is that the children have attended school while in the care of the Applicant.

6. The long-standing status quo is that the Respondent has picked up and dropped off the children from their school and the beginning and end of his parenting time on the weekends.

7. The proposed move will require the children to change schools.

8. The proposed move will change the city that the children reside in.

9. The proposed move will add approximately 8.4 kms distance and 12 minutes to the Respondent’s driving time to exercise his parenting time (if the children attend the new school proposed by the Applicant).

10. The Respondent has acknowledged that the Applicant’s proposed move to Midland will not significantly affect the children’s relationship with him or his parenting time.

[25] The Respondent’s acknowledgment that the Applicant’s move will not significantly affect the children’s relationship with him or his parenting time, is strong evidence that the move is a “change of residence” and not a “relocation” as defined by the CLRA. If the proposed move has no significant affect on a child’s relationship with the other parent, there is no need to review and change the entire parenting schedule. The long-standing status quo can be maintained (with very minor adjustment). These parties already agreed this arrangement was in the children’s best interests many years ago, and neither party has ever tried to change this until now.

[26] The change to the children’s school and community do not necessarily make the proposed move qualify as a “relocation” either. There are many situations where a proposed move is within the same city or community, but it would still require a change to the children’s school. There are many situations where a proposed move is within the same city or community, but it would add more distance than 8 km and more than 12 minutes drive to transport the children for parenting time.

[27] The Respondent provided the court with no evidence on how the change to the children’s school or transportation would affect their relationship with him. In my view, this is because there was no effect, (significant or otherwise). The children will still reside with the Applicant from Monday to Friday and attend school during her parenting time. The Respondent will have parenting time on the weekends and will still be able to pick up and drop off the children at their new school on Fridays and Mondays. I find that in these circumstances, the change to the children’s school and community will not significantly affect the Respondent’s relationship or parenting time with the children.

[28] For the reasons set out above, I find that the Applicant’s proposed move is a “change of residence.” Since she has provided the Respondent with the date of the expected change and the address of the new residence, I find she has complied with the notice requirements set out in s. 39.1 of the CLRA. The Respondent’s motion to prevent the Applicant from moving with the children to Midland is dismissed.

[29] As this is not a “relocation” motion, there is no need for the Court to delve into all the extraneous allegations and issues raised by the Respondent. Further, there is no need for the Court go through the analysis required by s. 39.3 or s. 39.4 of the CLRA because they do not apply to these circumstances. Despite this, the court is obligated to comment on some of the serious issues the Respondent raised and how he raised them.

Re: The notice provided by the Applicant and involvement of the children in adult issues

[30] Earlier in the year 2022, there was some very unfortunate confusion about where the Applicant was actually proposing to move with the children. The Applicant gave “notice” to the Respondent on March 8, 2022 and the parties exchanged messages regarding a proposed move to either Sudbury, North Bay or Bracebridge. The Applicant acknowledged in the notice that the Respondent’s weekend parenting time would have to change. She suggested that with some flexibility, the Respondent’s parenting time could be made up with added time on school holidays. The notice did not include a specific location, date, or plan. In my view, if one of those proposed moves was determined to be a “relocation” the notice provided by the Applicant did not comply with s. 39.3 of the CLRA. The notice did not give the Respondent sufficient information, and only served to stir up his anxiety about the children and the effect the move would have on his parenting time.

[31] There is evidence that the Applicant was speaking to the children about the possible move and change in school before she spoke to the Respondent. This is not appropriate because the parties are required by the Order to make joint decisions with respect to the children’s health, education, and well being. Parents can include the children in their discussions if they are capable of having a respectful discussion and they wish to hear the children’s views and preferences. However, they are not to be downloading an adult decision to the children first and then just telling the other parent what the child wants. The parties should discuss the possibility of a move and the choice of attending Catholic or public school with each other first, (before discussing with the children). If, because of the strained communication and conflict between the parties a joint decision is not possible, the Applicant should have brought a motion before the court regarding the proposed change in school.

[32] The Applicant’s proposal to change the children’s school from Catholic to public was not made in consultation with the Respondent as required by the Order. In my view, it would not be in the best interests of the children to be exposed to further conflict and uncertainty between the parents on this issue. The children will need both parents support to make the adjustment to a new school in September as positive as possible. For this reason, since the parties do not agree on the change yet, I will be making an order regarding how the children’s school in September will be decided.

Re: the Respondent’s proposal to change the parenting schedule

[33] The Respondent acknowledged that this motion was not a “relocation” motion, and that he was asking for a change to the parenting schedule because it was in the best interests of the children. Therefore, the Respondent’s motion really could be viewed as a motion for an interim parenting order. The test for motions for interim parenting time orders focuses on the best interests of the children and what is the living arrangement/parenting plan that is “least disruptive and most supportive and protective for the child.” The status quo or most familiar arrangement is to be maintained if possible and if in the best interests of the child. The court is very cautious and hesitant to change a status quo unless there are compelling circumstances.

[34] As I have already stated earlier, the Applicant’s proposed change in residence will not have a significant effect on the children’s relationship with the Respondent. The parenting plan that the Respondent proposed would completely change the long-standing parenting schedule. The children have always resided with the Applicant from Monday to Friday and attended school from her residence. The parties agreed this was in the children’s best interests many years ago and neither party has ever tried to change this until now. Despite the Respondent’s negative criticisms of the Applicant’s parenting, he never brought a Motion to Change and/or he never moved to Orillia so he could expand his parenting time during the school week. He just made allegations that she is not acting in the best interests of the children. In my view, it was the proposal that was made by the Respondent that would have been a significant change to the status quo and have a significant effect on the children’s relationship with the Applicant.

[35] The status quo and final consent Order were negotiated based on the best interests of the children, and it has never been reviewed or changed. In order to make the changes he requested on an interim basis, the Respondent would have needed to bring a Motion to Change and show the court that there was a material change circumstances and there were compelling circumstances to disrupt the status quo in the best interests of the children. In my view, if the Respondent had real concerns about the Applicant’s parenting and wanted to truly test the issue of what is in the best interests of the children, (and include the views and preferences of the children) the Respondent should have brought a “Motion to Change” the Final Order. I am not satisfied based on the evidence provided by the Respondent to make the significant changes that he requested on an interim basis and without a Motion to Change having been commenced.

Re: Urgency

[36] During argument of the motion, the Respondent blamed the Applicant for the “urgency” in him having to bring this motion. However, by the time of him filing this motion, he knew that she was not planning to move to any of the northern communities mentioned in the first notice. The Respondent acknowledged that he received notice of the Applicant’s planned move to Midland on June 1, 2022. He knew the move would not interfere significantly with his parenting time. He has acknowledged this fact and yet he chose to bring this motion on an urgent basis. If he knew this was not truly a “mobility” or “relocation” issue, why did he bring this as an urgent motion? In my view, the answer is likely in litigation strategy.

[37] By asking for such significant changes to the final Order and requesting a brand-new parenting schedule through an “urgent relocation motion,” the Respondent was bypassing all the process and procedures required by the Rules for a Motion to Change. The court would not have the opportunity to truly review all the factors that go into a decision about the best interests of the children to change the parenting terms of the Order and a long-standing status quo.

[38] In my view, the strategy and approach taken by the Respondent was absolutely inappropriate and it was not in accordance with the Family Law Rules[^2] or the best interests of the children. In my view, this was not a truly urgent motion as the children’s health and well-being were not at risk. The strategy taken by the Respondent caused a great deal of upset and uncertainty for the family and the children. It further used up a great deal of the courts resources to hear and determine this motion at a time when the courts are already strained dealing with many other truly urgent issues.

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

1. The Respondent’s motion is dismissed.

2. The Applicant’s motion is granted. The Applicant is permitted to move with the children D.C., born June 30, 2009, and G.C., born May 9, 2012, to Midland, Ontario.

3. The Applicant and Respondent shall discuss changing the children’s school from the Catholic system to the Public system and jointly decide which school the children shall be registered and enrolled in for September 2022. They shall exchange written proposals on or by July 29, 2022. If there is no agreement between the parties by August 12^th, 2022, the Applicant shall be authorized to make the final decision and shall register the children in a school of her choice. The Applicant shall notify the Respondent of her choice and give the Respondent her reasons for same in writing.

Justice R. S. Jain

Date: July 18, 2022

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

[^2]: Family Law Rules, O. Reg. 114/99.