COURT FILE NO.: FS-21-00000079-0000
DATE: 2022-08-12
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Lisa Johanna Tass, Applicant
AND:
Andrew Carl Ronald Jackson, Respondent
BEFORE: Kurz J.
COUNSEL: Ryan W. Duval, for the Applicant
Sean Seaton, for the Respondent
HEARD: June 10, 2022
ENDORSEMENT
Introduction
[1] This is a motion by the Applicant mother (the “mother”) for an order allowing her, on an interim basis, to relocate with the parties’ two children, T (aged 10 ½) and R (aged 7 ½) (jointly the “children”) to Sarnia.
[2] The mother argues that she is the children’s primary caregiver, has better economic opportunities in Sarnia, where she now owns a home, than in Oakville, where she rents. Also, her family in Grand Bend, Ontario is only an hour away from Sarnia; whereas it is far more distant from her present Oakville home. This is important to her as she feels that she has little family support where she presently resides. She further claims that the father was abusive to both her and the children during their marriage.
[3] Looking to the children, the mother argues that her home in Sarnia will allow greater space for the children than her rented home. Further, she asserts that the facilities and opportunities available to the children in Sarnia are at least equivalent to those available in Oakville. She says that she will make up for the lost alternate weekend and mid-week contact time with the children through increased holiday time. She will also forebear in claiming any special and extraordinary expenses to make up for the increased contact costs for the father.
[4] The Respondent father (“the father”) strongly opposes the proposed move; arguing that this motion is premature. He asserts that there is a great deal of information about the children’s needs and best interests that is currently not available to the court, from both a CAS investigation and a request for the involvement of the Office of the Children’s Lawyer (“OCL”). Thus, there is a risk that the wrong decision will be made on an irreversible move, based on inadequate information. Furthermore, if the move were allowed this summer, the children’s relationship with the father and their half-sister, Reighan, would diminish. They would lose the opportunity to have regular contact with both him and Reighan, who resides with him and shares much of his parenting time with them.
[5] More importantly, the father points out that T suffers from a variety of recently diagnosed mental health maladies. They include Autism Spectrum Disorder (“ASD”), Attention Deficit Hyperactivity Disorder (“ADHD”) and Generalized Anxiety Disorder. With regard to ASD, he has, in the words of a consulting psychiatrist, Dr. Kenneth Handelman, “significant difficulties with the restricted repetitive behaviours which lead to significant behavioural challenges at home and school regularly”. T has had a number of hospital attendances and run-ins with the law because of his behavioural problems, including threats of self-harm, property damage and head banging.
[6] Very importantly for the father, T has great difficulties with transitions, which can lead to a loss of self-regulation. At the time that the motion was argued, T was not receiving all of the mental health care he requires. His ADHD medication had been paused because of fears that it may be affecting his physical health.
[7] The father also points out that on November 9, 2021, Mills J. requested the involvement of the OCL in this case. Yet the OCL had not decided upon whether it would accept this case as of the time that this motion had been argued. It appears that process errors by the court led to the appropriate order not being issued and forwarded to the OCL. It is to be hoped that the oversight has been corrected, but I am unaware of whether the OCL has accepted this case. As I set out below, I believe that the involvement of the OCL, particularly in regard to a clinical investigation, would be of great assistance to the court.
[8] One thing that both parties agree upon is that if any move were allowed, it should take place in the summer, between school years.
Applicable Law
Divorce Act Provisions
[9] The provisions regarding parenting, including relocation, that apply in this case because the parties were once married are set out in the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). That is the statute under which the original parenting order was made. Near-identical provisions are found in the Children’s Law Reform Act, R.S.O. 1990, c. C-12, for parents who never married.
[10] Section 16 of the Divorce Act mandates the requirement that courts only consider a child’s best interests when making a parenting decision that affects them. It also sets out criteria for the determination of a child’s best interests. It reads as follows:
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.
Primary consideration
(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.
Factors to be considered
(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.
Factors relating to family violence
(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.
Past conduct
(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.
Parenting time consistent with best interests of child
(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.
Parenting order and contact order
(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.
[11] Sections 16.9 – 16.95 of the Divorce Act govern the relocation of children. Section 16.9 governs notice, which must be given by the person with parenting time responsibility in a respect of a child who wishes to relocate with the child. It states that proper notice, as set out in the legislation, must be given “to any other person who has parenting time, decision making responsibility or contact under a contact order [formerly an access order”. Section 16.91 states that a person who has provided proper notice of the relocation may do so if authorized by the court or the person entitled to notice does not object to the relocation with the proper form within 30 days.
[12] Section 16.92 sets out an additional list of best interest factors that apply to relocation. It states:
Best interests of child — additional factors to be considered
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.
Factor not to be considered
(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.
[13] Section 16.93 sets out the burden of proof regarding a child’s best interests in relocations cases. In the case of equal parenting where all previous orders or arbitral awards are obeyed, the burden rests with the party who intends to relocate: s. 16.93(1). When the party with the “vast majority” of parenting time with a child intends to relocate, and all previous orders and awards are obeyed, the burden falls on the party opposing the relocation: s. 16.93(2). In all other cases, there is no greater burden on one party than the other: s. 16.93(1). However, the court has the discretion to refuse to apply the s. 16.93(1) and (2) burdens in an interim motion: s. 16.94.
[14] Under s. 16.95, a court authorizing the relocation of a child may also apportion the costs of exercising parenting time between the parents.
[15] In Arabi v. Al Sahnawi, 2021 ONSC 6124, at paras. 18-24, Coats J. adopted the principles applicable to interim relocation motions set out in a number of previous authorities, both before and after the amendments were made to the Divorce Act to bring into force the provisions set out above. In sum, the law has not appreciably changed in regard to interim relocation motions. Coats J. wrote:
[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 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 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 53670 (ON CJ), [2003]O.J. No. 4255 (Ont. C.J.) .
[33] Recently Akbarali J. reviewed the law on interim mobility motions in Yenovkian v. Gulian, 2018 ONSC 5331. Considering all the circumstances of that case, and in the best interests of the children, the mother was permitted to move with the children back to England on a temporary basis pending trial of the custody and access issues in Ontario. The court considered, inter alia, the following in permitting the move:
(a) the evidence of the mother had been the children’s primary caregiver;
(b) the father had exercised less access than he could have and that was available to him;
(c) the mother had an appropriate interim plan for the care of the children, whereas there was an absence of any workable plan put forward by the father for the children;
(d) the mother did not have permanent legal status in Canada, she had visitor’s status only which was about to expire;
(e) allowing the move would be less disruptive to the children.
[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) The burden is on the parent seeking the change to prove compelling circumstances exist that are sufficient to justify the move. See: Mackenzie v. Newby, [2013] O.J. No. 4613 (OCJ).
b) 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 53670 (ON CJ), [2003] O.J. No. 4255 (OCJ).
c) 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).
g) In assessing whether the three considerations in Plumley, the court must consider the best interest factors set out in subsection 24 (2) of the Children’s Law Reform Act (the Act) and any violence and abuse in assessing a parent’s ability to act as a parent as set out in subsections 24 (3) and (4) of the Act as well as the leading authority on mobility cases, Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.). The law is summarized in paragraphs 49 and 50 of that case as follows:
49 The law can be summarized as follows:
a) The inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
b) The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.
c) Each case turns on its own unique circumstances. The only issue is the best interests of the child in the particular circumstances of the case.
d) The focus is on the best interests of the child, not the interests and rights of the parents.
e) More particularly, the judge should consider, inter alia:
the existing custody arrangement and relationship between the child and the custodial parent;
the existing access arrangement and the relationship between the child and the access parent;
the desirability of maximizing contact between the child and both parents;
the views of the child;
the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;
disruption to the child of a change in custody;
disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new.
h) These principles apply with necessary modifications to an initial consideration of custody and access and not just to a variation of access. See: Bjornson v. Creighton (2002), 2002 45125 (ON CA), 31 R.F.L. (5th) 242 (Ont.C.A.).
i) The financial security of the moving parent is a relevant factor in mobility cases. See: Greenfield v. Garside, 2003 53668 (ON SC), 2003 CarswellOnt1189 (Ont. SCJ).
j) Several cases have recognized that requiring a parent to remain in a community isolated from his or her family and supports and in difficult financial circumstances will adversely impact a child. The economic and financial benefits of moving to a community where the parent will have supports, financial security and the ability to complete their education and establish a career are properly considered in assessing whether or not the move is in the child’s best interests. See: MacKenzie v. Newby, supra, paragraph 53, where in paragraph 54, Justice Roselyn Zisman also accepted the following passages from Lebrun v. Lebrun [1999] O.J No. 3393 (SCJ) where the court wrote at paragraphs 32-34 as follows:
32 The children's need for shelter, food and clothing which could be provided by adequate earnings by the mother must take priority over the disruption of a move, and reduced contact with the father and his family. The intellectual and emotional flowering of these children cannot occur until their basic physical needs are met.
33 The economic realities require that the mother be free to pursue employment which will permit her to escape the welfare rolls. I am confident she will manage the move in a way which promotes the children's best interests.
34 An order restricting the residence of the children would, as in Woods v. Woods reflex, (1996) 1996 18119 (MB CA), 110 Man. R. (2d) 290 C.A., condemn the mother and children "to a life of penury with a dissatisfied [mother] bereft of work and dignity. The alternative is to empower the [mother] to improve their lives from both a material and psychological standpoint." While the security of the positions offered to the mother cannot be assured, I am satisfied that the prospects of good, full-time employment are much better in southern Ontario. Leave is granted to the mother to move the residence of the children within Ontario.
k) There is case law that says that if a primary caregiver is happier, this will benefit the child. See: Del Net v. Benger, 2003 CarswellOnt 3898 (Ont. SCJ).
l) The level of co-operation that the moving parent will provide in facilitating access to the other parent is also a relevant consideration in a mobility application. See: Orrock v. Dinamarea, 2003 CarswellBC 2845 (B.C.S.C.).
[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 the child 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.
[23] In Bell v. Palma, 2019 ONCJ 582, the court permitted a temporary move from Toronto to Barrie where there was agreement on the most important facts material to the decision, there was no disagreement about the time the child had spent with each party or about the positive quality of the child’s relationship with each party. Further, if the trial judge does not make a final order approving the move, the residential status quo could easily be restored.
[24] In my view there is nothing in the amendments to the Divorce Act which would make this caselaw not applicable to the amended legislation. The same considerations and concerns identified in these cases continue to apply to temporary relocation motions.
[16] I add that in Barendregt v. Gebliunas, 2022 SCC 22. 71 R.F.L. (8th) 1, the majority of the Supreme Court of Canada found that the Divorce Act amendments “largely codified” the court’s earlier jurisprudence in Gordon v. Goertz, above. As Karakatsanis J. wrote at para 148-9:
[148] More than two decades ago, this Court set out a framework for relocation applications in Gordon: paras. 49-50. It applies to relocation issues that arise at first instance and in the context of applications to vary existing parenting orders.
[149] Since then, our jurisprudence has refined the Gordon framework, and, subject to two notable exceptions, the Divorce Act has largely codified it. Where the Divorce Act departs from Gordon, the changes reflect the collective judicial experience of applying the Gordon factors. While Gordon rejected a legal presumption in favour of either party, the Divorce Act now contains a burden of proof where there is a pre-existing parenting order, award or agreement: s. 16.93. And although Gordon restricted whether courts could consider a moving party’s reasons for relocating, this is now an express consideration in the best-interests-of-the-child analysis: s. 16.92(1)(a).
[150] The new Divorce Act amendments also respond to issues identified in the case law over the past few decades, which did not arise in Gordon. Section 16.92(2) now provides that trial judges shall not consider a parent’s testimony that they would move with or without the child. Furthermore, ss. 16(3)(j) and 16(4) of the Divorce Act now instruct courts to consider any form of family violence and its impact on the perpetrator’s ability to care for the child.
Analysis
[17] In argument, both parties agreed that in an interim decision, no onus applies, that the issue is simply the best interests of the children. While it is open to me to impose an onus, I agree with the position taken by both parties here. I must determine whether a relocation of the children prior to trial is in the children’s best interests, without relying on any onus or burden on either party, other than the onus of proving that their preferred result is in the best interests of the children.
[18] In short, I find that this motion is premature in light of the unresolved concerns set out above and the need for further and better information about the children’s needs and best interests. I set out my reasons for saying so below.
[19] Before turning to the present evidentiary gap in this case, I look to the mother’s arguments in favour of leave to relocate the children before trial. I do not find that such a remedy is necessary at this time, or in the children’s immediate best interests. The mother is able to conduct her employment on a remote basis, wherever she is residing. Thus, the move is not necessary for financial reasons. It is true that the mother has purchased a home for herself and the children in Sarnia. There appears to be no dispute that it is larger and has broader grounds than the home she rents in Oakville. However, she purchased it in 2021 without knowing whether the father or the court would agree to the move. It remained tenanted at the time this motion was argued. No evidence was offered that the tenant was planning to move out, or if they did, that it would be difficult to re-rent the house. Regarding the mother’s rental home in Oakville, she was not required to leave those premises.
[20] While I recognize that the mother’s family is in closer proximity to her Sarnia home than to Oakville, they are still about an hour away from that proposed new home. The extent to which this proximity would benefit the children is far from clear and may be better explored at trial.
[21] The mother’s arguments about equivalent services and schools being available in Sarnia is less an argument in favour of a move than a defence to an argument that the move would be contrary to the children’s best interests. Those arguments do not assist any claim that a decision must be made prior to trial, when more information will be available to the court. Further, the evidence of equivalence of schools, treatment providers and opportunities available to the children is scant at this time.
[22] On the other hand, the court is faced with a serious lack of information regarding the best interests of the children at this time. That lack of information clouds many issues for the children. In particular, the court has three unresolved concerns regarding the effect of a move on T.
[23] First, Mills J. found that the assistance of the OCL would be helpful in determining the parenting issues in this matter. However, for reasons that appear to be beyond the responsibility of the parties, no decision has been made. If the decision has been made in favour of OCL involvement, that process must play out. If not, I urge the OCL to accept the referral. The need for greater information regarding the best interests of these children is vital to the proper determination of the mother’s relocation claim. In this decision I set out some of the reasons that more information is required to allow the court to make the proper relocation decision.
[24] Second, the manner in which T’s treatment, both medical and psychological, would be affected by a move is a serious issue that must be explored. He is a special needs child with many vulnerabilities. His consulting psychiatrist, Dr. Handelman, offered the following summary of T’s conditions:
In summary, T came for assessment of possible ADHD. He has had very significant symptoms of difficulties at school, including outbursts and behavioural difficulties. He has required significant support. There have generally been comments from school around difficulties with focus, task completion, and self-regulation. He can be triggered very easily by many things and have significant outbursts. These often required extra strategies at school, and he has had to go to the emergency room many times, and the police have been called to his home multiple times due to threats of self-harm and getting physical toward property or banging his head against the wall. His handwriting is problematic, and it takes him longer to write. He is quite anxious – worrying about many things and having trouble managing them. This assessment would support a diagnosis of generalized anxiety disorder, borderline social anxiety disorder, and some separation anxiety symptoms. Furthermore, he has a history of chronic vocal tics. Most importantly, based on this assessment, I would diagnose T with Autism spectrum disorder. He is high functioning and I assess his restricted repetitive behaviours to be more of a concern than his social communication.
T has also experienced significant trauma – both within the family (his father is reported to have caused significant trauma for T), and he was choked by a daycare worker and had to testify in court for that individual, who was convicted. He is on the waiting list for trauma therapy.
[25] I note that the father has denied abusing T. Dr. Handelman spoke only to the mother rather than the father in regard to the report of significant trauma for T. I do not have any objective evidence before me to determine the veracity of the claim. In fact, the evidence of the CAS, in the form of its records, which was also ordered released by Mills J., has not been provided to the parents at the time of argument of this motion. That information could be important at trial. The father says that the CAS did not make any finding that the father had abused the child.
[26] T’s pharmacological treatment for his ADHD was on hold at the time of argument of the motion. His doctors had to explore the relationship, if any, between his medication, Concerta, and a fainting spell at school he had experienced.
[27] As Dr. Handelman noted in his report, he is a consulting, not a treating psychiatrist. He is not treating the child. The child’s medical treatment comes from his family doctor. He is on a waiting list to see a psychiatrist at Oakville-Trafalgar Memorial Hospital. He also receives one-on-one support at school.
[28] Third, the fact that T reacts badly to transitions, coupled with his difficulty in controlling his emotions and behaviour, is central to the court’s concerns. The move suggested by the mother will require a very significant transition for T, both at home and at school. So too will the monthly trips between Sarnia and the father’s home in Oakville. The trip will take between 2 ½ and 3 hours each way and will have to be taken twice for each contact weekend. How those trips will affect T and whether they pose a physical or emotional risk to him and others (for example in the car transporting him between his parents’ homes) warrants further investigation.
[29] The mother says that Dr. Handelman made no recommendations against the proposed move to Sarnia. But he does not appear to have been asked to opine on the issue either. He offers no comments about such a move in his twelve-page report.
[30] With regard to R, her best interests were not a primary issue for either party. However, the father claims that she has a close relationship with her half-sister Reighan, who attends many of her dance activities (as well as T’s soccer games). Since some of those activities take place on weekends, there is a risk that both children will miss out on some or all of them.
[31] In addition, both children have a number of paternal relatives in Halton Region. The father points to them as another reason to oppose the move However there is too little detail about the relationship between the children and those relatives, if any, to make them a factor in this decision.
Conclusion
[32] In sum, the court recognizes that the mother is the primary caregiver of the children. At trial, the onus will likely rest on the father to prove that relocation is not in the children’s best interests. Based on the questions and concerns raised above, the result at trial is not certain. But in any event, as set out above, that onus does not describe the test in this motion.
[33] At the present time, there are serious concerns about the proposed relocation to Sarnia. That is particularly the case regarding its effect on T, a multiple-special needs child, who appears to be particularly vulnerable at this time. More information is required regarding his best interests, including his present treatment and the potential risks and rewards to him of relocation to Sarnia. The same is true, but to a far lesser extent regarding R. The assistance of the OCL would be of immeasurable assistance to the court.
[34] Thus, I dismiss this motion. However, I do not wish to have the relocation issue remain in limbo indefinitely. This matter should go to trial before the summer of 2023. It presently appears preferable, giving the likely timing of any potential OCL involvement and the gathering of further necessary information, that the matter be placed on the spring 2023 blitz trial list. However, this case is scheduled for a joint settlement/trial management conference on September 16, 2022. I will leave it to the judge hearing that conference to decide the appropriate time for trial.
Costs
[25] The parties should attempt to resolve the issue of costs on their own. If they are unable to do so, the Respondent, as the successful party, may submit his costs submissions of up to three pages, double spaced, one-inch margins, plus a bill of costs/costs outline and offers to settle. He shall do so within 14 days of release of this endorsement. He need not include the authorities upon which he relies so long as they are found in the commonly referenced reporting services (i.e., LexisNexis Quicklaw, or WestlawNext) and the relevant paragraph references are included. The Applicant may respond in kind within a further 14 days. No reply submission will be accepted unless I request it. If I have not received any submissions within the time frames set out above, I will assume that the parties have resolved the issue and will make no costs order.
End Note
[26] I recognize that this motion was argued just over two months ago. I know that the parties have been awaiting my decision. I had intended to release my decision earlier than I have done. I apologize to the parties for my tardiness, which was due to the volume of my other work and a bout of Covid.
"Marvin Kurz J."
Electronic signature of Justice Marvin Kurz
Date: August 12, 2022