COURT FILE NO.: FS-22-56
DATE: 2022-08-24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
S.V.
Applicant
- and -
R.V.
Respondent
Counsel:
L. Conti, agent for K. Hansen, for the Applicant
D. Cox, for the Respondent
HEARD: Thunder Bay August 17, 2022
REASONS ON MOTION
Justice J. Fregeau
The Nature of the Motion
[1] S.V. (the "mother") has brought this motion requesting a temporary order granting her sole decision-making responsibility for the children L.V., born July 21, 2020, and R.V., born July 4, 2013, and permitting her to relocate with the children from Thunder Bay, Ontario to Ottawa, Ontario effective September 1, 2022.
[2] If a temporary order permitting the requested relocation is granted, the mother also requests a temporary order varying the schedule of parenting time of R.V. (the "father"), establishing the sharing of travel expenses incurred for the purpose of the father's parenting time and reducing R.V.'s child support obligation to account for increased costs incurred in exercising parenting time.
[3] The father, who has not brought a cross-motion, opposes the proposed relocation and seeks a temporary order that the children reside in his primary care with shared decision-making responsibility pending the hearing of the Application on a final basis.
Background
[4] The mother and father were married on July 25, 2009 and separated on December 10, 2017. The parties were divorced in June 2021. There are two children of the marriage. L.V., 12 years old, is entering Grade 7 in September 2022. R.V., 9 years old, is entering Grade 4 in September 2022.
[5] The parties resolved all issues arising from their separation in a Separation Agreement dated December 7, 2020 (the "Separation Agreement"). The provisions of the Separation Agreement relevant to this motion are as follows:
The children reside primarily with the mother and the mother has decision making responsibility for them, subject to a requirement that she notify the husband and receive his input with respect to major issues affecting the children;
The husband has "access" with the children on alternate weekends, from Thursday at 5:30 p.m. until Sunday at 5:00 p.m. and during Christmas, March Break and summer holidays; and
Neither party shall relocate the residence of the children more than 30 kilometres from Thunder Bay without the written consent of the other party or a court order obtained on notice to the other party.
[6] Both children are outgoing, active, involved in numerous activities and generally well-adjusted. R.V., however, has been diagnosed with ADHD and high-sensory disorder which caused him to struggle in school.
[7] On the advice of his pediatrician, the mother enrolled R.V. in the C.D. Howe Day Treatment Program where he learned strategies to cope with the issues he was experiencing in a regular classroom setting. R.V. has also attended counselling for the past two years at the Children's Centre in Thunder Bay. By the end of this past school year R.V. was able to successfully transition back to full school days at his usual school.
[8] The mother has been residing with her new domestic partner, J.R., for approximately two years. J.R. has been employed with CBC Canada for approximately four years. J.R. worked remotely in Thunder Bay a period of time in the winter of 2021. He has since been required to reside within driving distance of a full-service CBC station. At some point in the latter part of 2021, J.R. and the mother jointly chose Ottawa as their future home.
[9] The mother has been a graphic designer for approximately 20 years. In December 2021, she lost her Thunder Bay employment due to a lack of work. The mother deposes that she was unable to find employment in her field in Thunder Bay. The mother secured a full-time graphic design job in Ottawa and started this employment in July 2022. This employment provides the mother with regular, flexible hours, medical and dental benefits and a short drive to and from work.
[10] The mother deposes that J.R. became her main source of emotional and financial support and that she would not have been able to financially support herself and children in Thunder Bay without the assistance of her new partner. The mother further deposes that J.R. and the children have a loving and caring relationship and that he frequently assists her with most aspects of childcare.
[11] The father works two jobs. His primary employment is with the Ontario Ministry of Transportation as a warehouse clerk. He also works as a Salad Cook at a Thunder Bay restaurant. His 2020 income was approximately $60,500.00. The father deposes that his primary employer provides him "significant accommodation for parental responsibilities", such that he would be able to be home in the mornings to get the children ready for school and be available to take them to and from required appointments.
[12] The father does not strenuously dispute that the mother has been the primary caregiver for the children. The father deposes that this was the inevitable result of his having to work long hours and two jobs to financially support the family. The father parented the children when his employment schedule permitted and has enjoyed and continues to participate in numerous leisure activities with them, focused primarily on sports, both organized and neighbourhood "pick up" games.
[13] The father currently resides in Thunder Bay with his mother. The children have their own rooms at their paternal grandmother's residence and enjoy a positive relationship with her.
[14] On January 12, 2022, the mother served Notice of Relocation on the father. On March 3, 2022, the father responded, advising that he would not consent to the mother's proposed relocation to Ottawa and that he wanted the children to reside primarily with him in Thunder Bay.
Views and Preferences Report
[15] The mother and father jointly retained Ms. Darlene Niemi, MSW, RSW, Clinical Social Worker, to prepare a Views and Preferences Report to assist the family in understanding the children's wishes in regard to the possible relocation to Ottawa. Ms. Niemi interviewed the children specifically to attempt to determine whether they would "prefer to move to Ottawa with mom or live with dad in Thunder Bay".
[16] Ms. Niemi reports that both children seem to have accepted it as a fact that they will be moving to Ottawa with their mother. She further reported that:
Both children presented as firm and consistent in their views and preferences about the potential relocation. They are both clear that they want to relocate to Ottawa with their mom and her partner. Neither child presented with any worries or concerns about this potential relocation.
[17] However, Ms. Niemi also cautioned that it was her impression that the children may not have fully considered and thus may not fully understand the implications such a move may have on their relationships with their father, extended family and friends in Thunder Bay. Ms. Niemi felt it to be of the "utmost importance" that the children do not appear to have any concrete information about how they will maintain their connection with their father if they relocate to Ottawa.
[18] Ms. Niemi reported that neither child knew how often they would see their father, how often they will have phone contact with him or if there would be regular parenting time visits with their father in Thunder Bay if they relocated to Ottawa. Of note, however, Ms. Niemi further stated that "neither child expressed any concern about this" and that "no issues of concern were expressed by either child about the potential impact of their impending separation from their dad".
The Position of the Mother
[19] The mother submits that she and the father have abided by the terms of the separation agreement which provides that she is the children's primary caregiver and that the children reside the vast majority of the time in her care. The mother submits that, pursuant to s. 39.4(6) of the Children's Law Reform Act (R.S.O. 1990, c. C.12) (the "CLRA"), the father, being the party opposing the relocation, bears the onus of proving that the relocation of the children to Ottawa would not be in their best interests.
[20] The mother submits that her reasons for requesting the relocation of the children from Thunder Bay to Ottawa are reasonable and justifiable. The mother, who has always been the children's primary caregiver, is now in a new, seemingly permanent relationship with an individual who has recently moved to Ottawa for employment purposes. The mother lost her Thunder Bay employment in December 2021, unsuccessfully looked for new employment in Thunder Bay and secured favourable employment in Ottawa commencing in July 2022. The mother relocated to Ottawa in July 2022 to maintain her relationship with her new partner and to commence her new employment. The mother now wants the children to join her and J.R. in Ottawa so that she can remain their primary caregiver.
[21] The mother submits that a consideration of the impact of the proposed relocation on the children supports the suggestion that the relocation is in their best interests. The mother acknowledges that the children will see their father less frequently. However, the mother has always been and will continue to be the children's primary caregiver. Therefore, the proposed relocation will not impact this aspect of the children's lives.
[22] The mother acknowledges that the nature of the father's parenting time will change if the children move to Ottawa. The father now has parenting time on alternate weekends, splintered parenting time at Christmas, March Break access if he chooses and 14 days non-consecutive days of additional parenting time over the summer holidays. The mother contends that the father has not utilized all parenting time available to him and has not taken advantage of any additional parenting time which could be available to him if requested.
[23] The mother suggests that the father's parenting time, if the children resided in Ottawa, would include longer blocks of uninterrupted time with the children, thus improving the quality of his time with the children. The mother's proposed schedule for the father's parenting time if relocation is permitted on a temporary basis includes:
Seven consecutive days each Christmas;
Three consecutive weeks over the summer holidays, as a "baseline";
March Break every second year, beginning in 2023;
Additional parenting time in Thunder Bay if the children are in Thunder Bay for other reasons;
Additional parenting time in Ottawa if the father were to travel to Ottawa; and
Other additional parenting in-person or electronic parenting time as agreed upon.
[24] The mother acknowledges that considerable expenses will necessarily be incurred if the above parenting time proposal was to be ordered together with the proposed relocation of the children to Ottawa. However, the mother submits that her proposal to directly share in these expenses and to also reduce the father's monthly child support obligation mitigates the impact of this on the father.
[25] The mother is amenable to a reducing the father's monthly child support obligation by $150.00/month and to equally sharing the costs of return flights for the children between Thunder Bay and Ottawa, together with being responsible for transporting the children between Ottawa and Toronto.
[26] The mother submits that the Views and Preferences Report prepared by Ms. Niemi clearly supports her position as to relocation. The children both told Ms. Niemi that they "live with" their mother and "spend time" with their father. This is corroborative of the mother's submission that she is and always has been the children's primary parent, according to the mother.
[27] The mother submits that both children clearly and consistently advised Ms. Niemi that they wanted to move to Ottawa to reside with their mother and J.R., with whom they have a positive and supportive relationship.
[28] The mother submits that she has also met the test for a relocation order on a temporary basis pending trial. The material facts for and against the requested order are not in dispute, the clearly expressed and consistent views and preferences of the children are before the court on this motion and would not change at trial, the onus is and would remain on the father to establish that the proposed relocation is not in the children's best interests and the evidence is overwhelming that the mother is the children's primary caregiver and that they are closely bonded to her, all according to the mother.
[29] The mother contends, given the above, that there really is no genuine issue for trial. However, should there be a genuine issue for trial, the mother submits that there is a strong probability that she would prevail at trial.
The Position of the Father
[30] The father does not agree that he, as the party opposing the relocation, bears the burden of proving that the relocation would not be in the best interests of the children. The father submits that he has, since separation, consistently exercised his alternate weekend access, such that the children are in his care a minimum of approximately 20-25% of the time. This, according to the father, does not equate with the children spending the "vast majority" of time in the care of the mother.
[31] In the circumstances of this case, the father submits that, pursuant to s. 39.4(7) of the CLRA, each of the parties have the burden of proving whether the relocation is in the best interests of the children.
[32] The father concedes that the mother is the children's primary caregiver and that J.R. appears to be a loving and supportive partner and stepfather to the children. However, the father contends that he continues to play an important and significant role in the children's lives and that this, and the children's relationships with friends and extended family in Thunder Bay, will inevitably be compromised if the proposed relocation is authorized by this court on an interim basis.
[33] The father submits that a careful review of the affidavit evidence of the mother leads to the conclusion that her loss of employment and financial situation were not the true reasons for her having relocated to Ottawa. The father contends that the mother's desire to maintain her relationship with J.R. in Ottawa was the substantive reason for her move.
[34] The father submits that there is scant evidence in the record as to the mother's efforts to secure employment in Thunder Bay after being laid off in December 2021. The father contends that the mother's skills as a graphic artist/designer are conducive to virtual employment. There is no evidence presented by the mother as to whether her new job duties in Ottawa could be conducted virtually and no evidence as to other employment opportunities within the mother's skill set and experience that could be done virtually from Thunder Bay, according to the father.
[35] The father suggests that the proposed relocation to Ottawa has been "sold" to the children since approximately December of 2021, a suggestion which the father submits is endorsed by Ms. Niemi in her report. This, according to the father, significantly discounts the value and weight of the report as it relates to the impact of the relocation on the children. The father points to the following passages from Ms. Niemi's report:
Overall, it is this clinician's opinion that [the children's] views and preferences about relocating to Ottawa are genuine, although they may not be entirely independent. It cannot be known by this clinician with any certainty whether there were intentional or unintentional influences at play. However, it is this clinician's distinct impression that the children's views and preferences are based on all of the positive aspects of moving to Ottawa. They did not present with a balanced view of such a monumental change in their life.
[36] The father submits that Ms. Niemi's report, as it speaks to the potential impact of the relocation on the children, is therefore neutral, at best.
[37] The father contends that the mother's request for an order authorizing relocation on a temporary basis should be denied because there are genuine issues for trial and permitting relocation on a temporary basis, on the facts of this case, may well create an irreversible status quo.
[38] The father suggests that there is conflicting affidavit evidence as to his personality and temperament, as it relates to his parenting ability. Conflicting evidence is better addressed at trial where credibility can best be assessed, according to the father. The father further submits that a temporary relocation at the start of the school year is unlikely to be varied during the school year and that a year-long status quo will have been established if a trial does not occur until after the end of the school year. A more cautious approach is consistent with the children's best interests, according to the father.
Discussion
[39] The legislation applicable to the relocation issue is section 39.3 and 39.4 of the Children's Law Reform Act, (R.S.O. 1990, c. C.12, as am.) (the "CLRA"). Section 39.3 and 39.4 of the CLRA states as follows:
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.
(3) EXCEPTION—On application, the court may in any circumstance provide that subsections (1) and (2) or anything prescribed by the regulations for the purposes of subsection (2) do not apply, or apply, with any changes the court specifies, if the court is of the opinion that it is appropriate to do so, including if there is a risk of family violence.
(4) SAME—An application under subsection (3) may be made without notice to any other party.
(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.
(6) NOTICE REQUIREMENTS—A notice under clause (5) (a) shall be in writing and shall set out,
(a) A statement that the person objects to the relocation;
(b) The reasons for the objection
(c) The person's views on the proposal referred to in clause (2)(c); and
(d) Any other information that may be prescribed by the regulations.
(7) REGULATIONS—The Attorney General may make regulations,
(a) Prescribing anything in this section that may be prescribed by the regulations;
(b) Requiring that a notice under this section be given in a manner specified by the regulations.
39.4 AUTHORIZATION OF RELOCATION—(1) In this section, "family arbitration award" has the same meaning as in the Arbitration Act, 1991.
(2) SAME—A person who has given notice of a proposed relocation in accordance with section 39.3 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
(b) No objection to the relocation is made in accordance with subsection 39.3(5) and there is no order prohibiting the relocation.
(3) BEST INTERESTS OF THE CHILD –In determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with section 24, as well as,
(a) The reason for the relocation;
(b) The impact of the relocation on the child;
(c) The amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child's life of each of those persons';
(f) The reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expense; and
- FACTOR NOT TO BE CONSIDERED—In determining whether to authorize a relocation of the child, the court shall not consider whether, if the child's relocation were to be prohibited, the person who intends to relocate the child would relocate without the child or not relocate.
(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 relocate the child has the burden of proving that the relocation would be in the best interests of the child.
(6) SAME—If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend the vast majority of 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.
(7) SAME—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
(8) BURDEN OF PROOF, EXCEPTION—If an order referred to in subsection (5) or (6) is an interim order, the court may determine that the subsection does not apply.
(9) COSTS OF RELOCATION—If a court authorizes the relocation of a child, it may provide for the apportionment of costs relating to the exercise of parenting time by a person who is not relocating between that person and the person who is relocating the child.
[40] Section 39.4(3) of the CLRA requires me, in determining whether to authorize the mother's relocation to Ottawa with the children, to take into account the best interests of the children in accordance with s. 24 of the CLRA as well as the specific factors set out in s. 39.4(3).
[41] Section 24 of the CLRA provides as follows:
24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.
(2) PRIMARY CONSIDERATION—In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child's physical, emotional and psychological safety, security and well-being.
(3) FACTORS—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 co-operate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
[42] The mother and father separated almost five years ago after approximately eight years of marriage. Their two children, now 12 and nine years old, were seven and four years old at the time of separation. I find that the children have resided primarily with the mother since separation and that she has been their primary caregiver, both before and after separation. The father has exercised regular access/parenting time with the children since separation, primarily on alternate long weekends, Christmas holidays and summer vacations.
[43] The family resided in Thunder Bay, where they both have extended family and friends and where they both enjoyed long term employment. In approximately mid-2020, the mother began her present relationship with J.R. The mother lost her employment in December 2021.
[44] At some time in 2021, J.R. was required to locate from Thunder Bay to Ottawa for employment purposes. The mother unsuccessfully searched for new employment in her field in Thunder Bay. At some point in the spring of 2022, the mother secured a full-time graphic design position in Ottawa, commencing in July 2022. The mother moved to Ottawa to reside with J.R. on July 3, 2022.
[45] On November 26, 2021, the mother's lawyer provided informal notice to the father of her intention to relocate to Ottawa with the children as of July 1, 2022. Formal Notice of Relocation was served on the father on January 12, 2022.
[46] I do not accept the mother's submission that the children have spent the "vast majority" of time since separation in her care such that the father, as the party opposing the relocation, has the burden of proving that the relocation would not be in the best interests of the children pursuant to s. 39.4(6) of the CLRA. However, it is obvious that the children have not spent "substantially equal time in the care of each party" such that the mother, the party who intends to relocate the children would bear the burden of proof on this motion, pursuant to s. 39.4(5) of the CLRA.
[47] In the circumstances of this case, I find that s. 39.4(7) of the CLRA applies and that each of the parties have the burden of proving whether the relocation is or is not in the best interests of the children.
[48] Pursuant to s. 24(2) of the CLRA, the primary consideration in determining the best interests of a child is the child's physical, emotional and psychological safety, security and well-being.
[49] Further, specific factors to be considered by the court in determining the best interests of a child are set out s. 24(3) of the CLRA. The factors relevant to this analysis on this motion 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…and grandparents;
(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…;
(f) Any plans for the child's care;
(g) 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;
(h) The ability and willingness of each person in respect of whom the order would apply to communicate and co-operate with one another on matters affecting the child.
[50] The mother was the primary caregiver to L.V. and R.V., 12 and 9 years old, prior to separation. She has remained the children's primary caregiver since separation almost five years ago. The five-year period since separation represents a very significant portion in the lives of these young children. The evidence on this motion establishes that the mother has fulfilled the children's physical, emotional, psychological and security needs since separation. The children's needs, including the children's need for stability, are consistent with the mother remaining the children's primary caregiver.
[51] This finding does not mitigate the important role that the father continues to play in the children's life. It is simply a recognition that the mother is the parent whom the parties agreed would assume the role of primary parent after separation and a further recognition that she has done so to the benefit of the children. The children are doing well in all aspects of their life. When issues have arisen, such as R.V.'s ADHD and high-sensory disorder diagnosis, the mother responded promptly, appropriately and to the child's benefit.
[52] Both children are closely bonded with the mother. In the children's own words, they "live with" their mother and "spend time" with their father. The nature of the children's bond with the father is different than their bond with the mother. Denying the mother's relocation request, which would result in the father becoming the primary care parent on a temporary basis, would abruptly alter this successful parenting arrangement. The evidence does not support the conclusion that the father is, at this stage in the children's lives, as able as the mother to meet the children's physical, emotional and psychological needs.
[53] I accept the submission of the mother that the children have expressed a clear preference to move with the mother to Ottawa. In my opinion, this is an implicit acknowledgement by the children that she is their primary care parent and that "they go where mom goes".
[54] The mother's has made appropriate plans for the children should they be allowed to relocate to Ottawa, including school and extra-curricular activities. It is obvious that the mother is able and willing to care for and meet the needs of the children in Ottawa, with the assistance of her new partner, J.R. As noted above, the ability of the father to do so does not equate with that of the mother, largely due to his employment circumstances.
[55] It appears to me that each of the parties has, to a large extent, appropriately communicated and co-operated with the other on matters affecting the children since separation. There is no evidence to suggest that this would materially change if the children resided with their mother in Ottawa.
[56] Turning to the additional factors the court is required to consider in determining the best interests of a child in a relocation context, as set out in s. 39.4(3) of the CLRA, I accept the submission of the father that the primary reason for the mother's relocation appears to be her relationship with J.R. as opposed to a need to relocate to secure employment.
[57] However, the two reasons are closely related in this case. The mother provided informal notice of her desire to relocate the children to Ottawa prior to losing her Thunder Bay employment and prior to securing employment in Ottawa. The mother and J.R. jointly chose Ottawa as their new home primarily due the J.R.'s employment circumstances and the mother thereafter looked for and found employment in her field in Ottawa.
[58] I would be more concerned about this factor were it not for the undisputed strength and nature of the relationship between the children and J.R. J.R. has appropriately assumed the role of step-parent to the children and developed a bond with them without any negative implications to the children's relationship with their natural father.
[59] The impact of the children's relocation to Ottawa is, in my opinion, significantly minimized by the fact that they are relocating with their primary care parent, with whom they are very closely bonded. The father, who has specific parenting time with the children pursuant to the separation agreement, does not spend significant amounts of time with the children. It appears that he has been content to exercise the allotted alternate weekend parenting time without requesting any more significant time with the children.
[60] I wish to make it clear that this is not in any way a criticism of the father and that it does not mitigate the important role the father continues to play in the children's lives. It is simply how this particular family separation has "played out". I note that both parties and the children appeared perfectly content with this arrangement for years following separation.
[61] I also find that the mother, as the party requesting relocation, has made a reasonable proposal to vary the father's parenting time if relocation is authorized, taking into account distance and expenses. The suggestion of blocks of parenting time for the father at Christmas, during summer vacation and on March Breaks is a change from the status quo and conducive to maintaining the father-son bonds as the children grow older. The mother's proposal to equally share the costs of air transportation between Ottawa and Toronto and to reduce the father's child support obligation by $150.00/mth or $1,800.00/year will allow the father to exercise available parenting time with the children.
[62] The facts and circumstances in support of and in opposition to the mother's application are not complex and not seriously in dispute. The views and preferences of the children are before the court by way of a written report of an experienced and well-respected clinician jointly retained by the parties. In my opinion, there is a strong probability that the mother's position will prevail at trial.
[63] For the foregoing reasons, I am persuaded that the relocation of the children from Thunder Bay to Ottawa, pursuant to a temporary order pending trial, is in the children's best interests. This serves to maintain, rather than upset the status quo. It also allows the children to begin school in Ottawa in September 2022.
[64] The mother's request for a temporary order permitting the relocation of the children to Ottawa is granted. However, I see no reason to alter the provisions of the separation agreement as it relates to decision-making responsibility and I decline to do so at this time. The father remains an important figure in the children's lives and it is in their best interests that he remain involved in decision-making as the parties agreed in the separation agreement.
[65] A temporary order shall issue as follows:
The mother shall be permitted to relocate the children, L.V., born July 24, 2010 and R.V., born July 4, 2013, to Ottawa, Ontario effective September 1, 2022;
The father shall have parenting time with the children:
a) 7 consecutive days each Christmas holiday;
b) 4 consecutive weeks over the children's summer vacation;
c) March Break every second year, beginning in 2023;
d) Additional parenting time in Thunder Bay while the children are in the community to visit other family and friends, as agreed upon by the mother and father;
e) Additional parenting time in Ottawa on reasonable notice to the mother; and
f) Other additional parenting time as agreed upon in writing by the mother and father at least 21 days in advance.
- The children's travel expenses for the purposes of parenting time as set out herein shall be shared as follows;
a) The mother shall be responsible for transporting the children between Toronto and Ottawa for flights to and from Thunder Bay; and
b) The mother and father shall equally share the costs of the children's flights between Toronto and Thunder Bay.
- The father's monthly child support obligation shall be reduced by $150.00/mth to account for the increased costs incurred by him in exercising parenting time.
[66] The mother has been successful on this motion and is presumptively entitled to her reasonable costs of the motion. The parties are strongly encouraged to agree on costs. If they are unable to do so, they shall file written submissions as to costs, not to exceed five pages, exclusive of their respective Bills of Costs. The mother's Costs Submissions shall be filed within 14 days of the release of this decision; the father's within 7 days thereafter.
The Hon. Justice J. Fregeau
Released: August 24, 2022
COURT FILE NO.: FS-22-56
DATE: 2022-08-24
BETWEEN:
S.V.
Applicant
- and -
R.V.
Respondent
REASONS ON MOTION
Fregeau J.
Released: August 24, 2022
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