Superior Court of Justice - Ontario

Court File No.: FC-21-160 Date: 2022/08/11

Re: Douglas David Tabbert, Applicant And: Robin Betty Walker, Respondent

Before: Justice M. Fraser

Counsel: M. Peter Sammon, Counsel for the Applicant Peter Hearty, Counsel for the Respondent

Heard: July 11 and 13, 2022

Endorsement

[1] The Respondent mother brings a motion to permit her to relocate the children, Logan, age 9 and Madison, age 7 to Kingston, Ontario.

[2] The Applicant father brings a cross-motion asking for an Order that the children’s residence remain in Chalk River, Ontario. He also asks that the present shared parenting arrangement continue pending further order. However, in the event, the Respondent should relocate to Kingston, notwithstanding any order requiring that the children remain resident in Chalk River, the Applicant asks that the children be in the full-time care of the Applicant pending further Order.

Background:

[3] The parties were never married. They cohabited for approximately two years. They have lived separately since 2007.

[4] The Respondent is a member of the Canadian Armed Forces and since the parties’ separation has been posted in Petawawa, On.

[5] The Applicant is formerly a member of the Canadian Armed Forces. He was medically released in 2019.

[6] The parties both reside in Chalk River, Ontario, and their residences have, for the past seven years, been located within 350 meters of one another.

[7] The Respondent asserts that Logan and Madison were primarily resident with her following the parties’ separation. The Applicant disputes this and states that because of the parties’ close residential arrangement, the division of parenting time was fluid and that the children, particularly Logan, spent large portions of time with him.

[8] There is no dispute that from June 2020 until February 2021, the children were in the sole, full-time care of the Applicant as the Respondent prepared for and then was on military tour in Kuwait.

[9] Since at least April 2021 the parties have been following a 2-2-5-5 shared parenting time schedule.

[10] Notwithstanding the parties’ parenting time arrangement, the Respondent maintains that she has always been the children’s primary parent in the sense that she was the one to make the day-to-day arrangements and decisions for the children. The Applicant disputes this.

[11] On March 15, 2022, the Respondent notified the Applicant that she was going to be posted to Kingston, On. and that she wished to move the residence of the children to Kingston with her.

[12] The Applicant objects to the proposed move. He points out that the children have enjoyed a stable, happy, well-rounded life in Chalk River with the benefit of close contact with both their parents. The children attend St. Anthony’s School and Logan just completed grade 3 and Madison, grade 1. The children have enjoyed a wide circle of friends in the area including the Applicant’s extended family.

[13] The Applicant maintains that the Respondent’s posting to Kingston On. was sought by her, not imposed.

[14] The Respondent does not dispute that she initiated the request for a posting but suggests that this was the only way she would be eligible to advance in her career. She does assert that this is a “done deal.”

[15] The Applicant commenced this Application in June 2022. The Applicant asks for a shared parenting arrangement and joint decision-making. The Respondent has, by way of her Answer, sought primary parenting time with the children and sole decision-making.

[16] The Applicant notes that the Respondent, in her Answer, has not formally requested an Order permitting her to move the residence of the children to Kingston, On.

[17] The parties privately retained Karen Douglas to prepare a Voice of the Child’s Report. The findings set out in this report, dated June 23, 2022, makes the following observations in particular:

(a) The children both presented as bright and engaging, and that the children were overall clear, and consistent, and they seemed to be able to express themselves freely.

(b) Ms. Douglas has some concern for both children, about exposure to underlying parental conflict and how this may be impacting them.

(c) Although Logan’s views and preferences are the strongest, both have expressed a degree of hesitancy about moving to Kingston. Their rationale for this hesitancy includes: missing their father, missing friends and family. Logan has an additional worry about starting a new school and not knowing anyone.

Analysis:

[18] The issues in this proceeding are governed by the Children’s Law Reform Act, RSO 1990, c. C.12 as amended (“CLRA”).

[19] In making a parenting order, and pursuant to subsection 24(1) of the CLRA, I am to be governed solely by the best interests of the children. In this respect, subsection 24(2) of the CLRA requires me to give primary consideration to the children’s physical, emotional and psychological safety, security and well-being in determining their best interests.

[20] Subsection 24(3) of the CLRA sets out a list of factors for the court to consider related to the circumstances of the child. It reads as follows:

Factors

(3) Factors related to the circumstances of a child include,

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to 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.

[21] The list of best interests considerations in the Act is not exhaustive (see: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736). It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child (see: Phillips v. Phillips, 2021 ONSC 2480).

[22] Further, subsection 39.4(3) of the CLRA sets out additional factors that are to be considered in determining the best interests of a child where relocation is requested:

(3) In determining whether to authorize a relocation of a child, the court shall take into account the best interests of the child with section 24 as well as,

(a) the reasons for the relocation;

(b) the impact of the relocation on the child;

(c) the amount of time spent with the child by each person who has parenting time or 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 39.3, and any applicable Act, regulation, order, family arbitration award and agreement;

(e) the existence of an order, family arbitration award, or agreement that specifies the geographic area in which the child is to reside;

(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new 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 any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance.

[23] Subsection 39.4(4) states that 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.

[24] Subsection 39.4(5), (6) and (7) of the CLRA pertains to which party must bear to burden when relocation is in issue. In this instance, the parties were exercising a shared parenting regime. However, the parties dispute whether this parenting time arrangement was in place by an informal agreement. It is not disputed that there was otherwise no order or family arbitration award or agreement which determined this arrangement.

[25] For the purposes of this motion, I conclude that neither subsection 39.4(5) or (6) apply and that section 39.4(7) is applicable and that the onus is placed on both parties to show whether the relocation is in the best interests of the children.

[26] In Rudichuk v. Higgins, 2021 ONCJ 471, the court found a move from Brampton to Toronto to Scarborough was a relocation as it substantially affected parenting time. The court in that instance did not apply the presumption on a temporary motion that the party with only 20% of the parenting time bore the onus of proof. The onus was placed on both parties as permitted on temporary motions.

[27] The leading case for determining if a relocation should be permitted on a temporary motion is Plumley v. Plumley, [1999] O.J. No. 3234 (S.C.J.), where the court set out the following principles apply when considering relocation requests on interim motions pending trial:

1. 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.

2. There can be compelling circumstances that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.

3. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent's position will prevail at a trial.

Best interests considerations:

[28] On the evidence before me, I note the following to be particularly relevant to my consideration of what is in the bast interests of the children:

A. The children have, in the most recent years in particular, enjoyed close and frequent contact with both parties. This has, no doubt, been enhanced by the fact the parties have resided within close proximity to each other in Chalk River.

B. While the Respondent asserts that she was the primary caregiver to the children, it is clear that most recently the Applicant has not played an insignificant role in parenting the children. He has been actively involved in their physical parenting for the past several years at a minimum and for a period of time while the Respondent was training for and in Kuwait, their principal caregiver.

C. The children have been living in a stable and safe environment to date.

D. The children have a close and loving relationship with both parents.

E. It is clear that the Respondent’s wish to relocate the children’s residence to Kingston is due to her posting there. What is unclear is whether this posting was sought by the Respondent or imposed on her, whether she had an option not to accept the posting, whether the posting entails a promotion, or at least, the promise of a promotion (and the likelihood this will happen), and whether any financial benefit will result from this posting.

F. A move to Kingston will result in decreasing the time the children spend with the Applicant. The children are school age. There is therefore limited flexibility available to them to maintain the shared parenting arrangement if they are not living in the same community and the shared parenting arrangement will no longer be able to continue if and when the Respondent moves to Kingston. The children will have to leave the community they have become familiar with as well as the school where they have friends if they move with the Respondent.

G. There is no dispute the Respondent gave notice to the Applicant of the proposed relocation.

H. The Respondent has alleged conduct by the Applicant which, if accepted, would constitute family violence. The Applicant disputes the allegations for the most part or asserts a version of events which provides a different perspective and would suggest a different conclusion ought to be drawn. The one occasion the Respondent claims to have contacted the police, it appears to have arisen as a complaint about the division of the parties’ parenting time with the children. It does not seem the Respondent made a complaint of violent conduct or that the police have ever been involved on that basis. I do not find that the Respondent’s evidence at this juncture is sufficient to support a conclusion that the Respondent’s past conduct is relevant or impacts his ability to parent the children.

[29] The Respondent suggests that she no longer has any choice but to accept this posting and that she must move notwithstanding the result of this motion. I note that it is not a factor to be considered (see: s. 39.4(4) CLRA).

Plumley factors to consider on a motion:

[30] In applying the Plumley principles, based on the evidence provided, I conclude that there is a genuine issue for trial. The parties have both, for the last several years, been actively involved in the parenting of the children. The Respondent’s proposed relocation of the children to Kingston will necessarily restrict the Applicant’s parenting time with the children.

[31] I am not satisfied that the Respondent has provided compelling circumstances which would support allowing the relocation of the children to Kingston pending trial.

[32] The Respondent’s position may prevail at trial. However, the evidentiary record for the purpose of this motion is insufficient to conclude this will be the case at this early stage. Fuller and better information pertaining to the voluntariness and potential benefit of the Respondent’s posting is necessary so that the court can properly weigh the merit of relocating the children’s residence to Kingston versus the reduction in the close and frequent contact the children are accustomed to with the Applicant.

[33] I echo the comments of McSorley J. in Kennedy v. Hull, 2005 ONCJ 275 para. 9 regarding the court’s reluctance to effect fundamental changes to a child’s life on motions for temporary orders given the difficulty posed by conflicting and incomplete affidavit evidence in attempting to make a child-focused inquiry.

Conclusion:

[34] Considering the children’s physical, emotional and psychological safety, security and well-being, and in all of the circumstances, to the extent they are known, I find that it is in the best interests of the children that this court not make an interim order permitting the Respondent to relocate their residence at this juncture. I am of the view that the children’s best interests will be better supported by maintaining the status quo with the children remaining in Chalk River pending trial or further order.

[35] The Applicant submitted that the Respondent’s request to move the children’s residence ought to have been specifically pleaded in her Answer. It is an issue which is in dispute and given the Applicant’s opposition to the proposed move, ought, in my view, to have been particularized as part of the relief sought by her in response.

[36] However, given my findings for the purpose of this motion, I do not need to consider whether this would be fatal to the Respondent’s motion. Both parties were very much aware that this is an issue in dispute between them.

[37] Moving forward, if the Applicant does not consent to the Respondent amending her Answer to specifically claim this relief, she may need to address this by way of a motion for leave to amend her Answer.

[38] Finally, I decline to grant the Applicant’s request for sole decision-making or to make any order respecting decision-making. Both parties have, to their credit, attended to the children’s needs to date without the need for a court order and I do not see the need to impose any change at this time by way of a temporary order.

Disposition:

[39] An order shall issue as follows:

1. The Respondent’s motion for a temporary order permitting relocation of the children to Kingston is dismissed.

2. The Applicant’s motion is granted in part. The children shall, pending further order, remain resident in Chalk River, On. and the status quo which has most recently existed, being a 2-2-5-5 shared parenting arrangement is to continue.

3. In the event the Respondent relocates her own residence to Kingston, On. then, pending further order and unless the parties agree to alternate terms, the children shall reside with the Applicant on a temporary basis. In that event, the Respondent shall have parenting time with the children every second weekend and the holiday time shall be shared. The parties shall share the transportation to facilitate the Respondent’s parenting time.

4. In the event the Respondent does move to Kingston so that the Applicant assumes the primary physical care of the children, child support would normally follow. However, I decline to make any order for support given the parties have not filed the required financial information as part of this motion and it is premature unless and until the Respondent moves. This issue should, in any event, be addressed at a case conference first in the event the parties need this issue addressed.

[40] If the parties are unable to agree on the issue of costs for this motion, the Applicant may file submissions concerning costs on or before August 19, 2022. The Respondent may file submissions concerning costs on or before August 26, 2022. The cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs. If there are no submissions received by August 26, 2022, then there shall be no order as to costs.

M. Fraser J.

Date: August 11, 2022