Court File and Parties

COURT FILE NO.: FS-22-00029634-0000 DATE: 20220818

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

LOGAN, Kathryn Elizabeth Applicant

– and –

LOGAN, Ryan James Respondent

Counsel: Farrah Hudani / Jessica Luscombe for the Applicant Michael Stangarone / Kira Beck for the Respondent

HEARD: August 15, 2022

BEFORE: Sharma J.

ENDORSEMENT

[1] The respondent father, Ryan Logan, bring a motion for an order dismissing the applicant mother’s Application because Ontario lacks jurisdiction to make parenting orders in this case. He seeks an order that the parties’ two children be returned to British Columbia, which he asserts is their habitual residence. The respondent has not filed an Answer because he does not wish to attorn to Ontario’s jurisdiction.

[2] The applicant mother, Kathryn Logan, brings her own motion. She seeks an order that Ontario has jurisdiction because it is the habitual residence of the children. She seeks an Order that she be permitted to relocate from Toronto to Ottawa and has proposed a parenting schedule to enable Mr. Logan to spend time with the children. She also seeks table child support from August 2022 onwards, and the respondent’s proportionate contribution to s. 7 expenses.

[3] For the reasons that follow, I find that the children are habitually resident in Ontario and that this court may exercise jurisdiction to make parenting orders. The respondent’s motion is dismissed. On an interim basis, I grant the applicant’s request to relocate with the children from Toronto to Ottawa. Also on an interim basis, I order a flexible parenting schedule so the children can spend time with their father and decline to order the respondent to pay child support or s. 7 expenses.

Overview

[4] To place these motions in context, I provide an overview of the facts.

[5] The parties met in 2008. At the time, they both served with the Canadian Armed Forces (CAF). Mr. Logan was posted in Petawawa, Ontario, and Ms. Logan was posted in Ottawa. Mr. Logan had two children from a previous marriage, who reside in Edmonton and for whom he pays child support in the amount of $1520 each month.

[6] The parties married in December 2012. They lived in Ottawa. However, in 2014, they were both posted to Canadian Forces Base (“CFB”) Esquimalt in Victoria, B.C. and they relocated there.

[7] In August 2016, when Ms. Logan was pregnant with their first child, M, Mr. Logan was again posted to Petawawa. M was born November 30, 2016. Mr. Logan remained in Ontario during most of Ms. Logan’s 12-month maternity leave, except when he returned to Victoria during vacation periods.

[8] In April of 2018, Mr. Logan was hired by the Victoria Police Department and was released from full-time duties with the military. He attended police training in New Westminster, B.C. (mainland B.C.) for several months but would return to Victoria on weekends and when he was able.

[9] The parties second child, P, was born on April 14, 2020, and Ms. Logan took a further 12-month maternity leave. Four months later, the parties had marital difficulties. On September 16, 2020, the parties separated, and Mr. Logan moved out of the matrimonial home in December 2020.

[10] M is now five years old. P is now two years old. For reasons I will explain, I am satisfied that Ms. Logan exercised the bulk of the childcare responsibilities since the children’s birth. However, there is evidence, which I accept, that Mr. Logan has most likely assumed childcare responsibilities when he was able and when the parties were all in Victoria, B.C. Since the parties’ separation and while the parties were in Victoria, it is clear that he has been spending time with the children as per the parties’ separation agreement.

[11] In April 2021, the parties signed a separation agreement, which is critical on this motion. There is context in which it was negotiated. In April 2021, Ms. Logan’s maternity leave came to an end. She was required to return to the CAF for at least one year of service because this was a condition of her receiving a top up to her salary while on maternity leave. She was informed by CAF that she would be posted to Toronto to complete a Masters degree in Defence Studies at the Canadian Forces College (Royal Military College), which would satisfy her one year of service.

[12] In the separation agreement, the parties agreed that Ms. Logan would relocate to Toronto with the children for one year from July 2021 to July 2022 to enable her to complete her Masters degree. There is language in the separation agreement which states that Ms. Logan would return to Victoria, B.C. after the 1-year period. There is a dispute, however, whether it was conditional on her finding a new position with CFB Esquimalt or another commensurate employment in Victoria, and whether Ms. Logan has exercised best efforts to find commensurate employment.

[13] Consistent with the separation agreement, on July 9, 2021, Ms. Logan and the children moved to Toronto. They have been living in Toronto since.

[14] By January 28, 2022, Ms. Logan had met with her Career Manager in the CAF. He advised her that she would not be posted back to CFB Esquimalt in Victoria. By February 2022, Ms. Logan was informed she would be posted to Ottawa. On February 24, 2022, she served Mr. Logan with a Notice of Relocation. Mr. Logan delivered a Notice of Objection, dated March 21, 2022.

[15] In March 2022, through a posting order from the Department of National Defence, it was confirmed that Ms. Logan was being posted to Ottawa commencing June 24, 2022. She states she must comply with this order or resign from the CAF, consistent with the Universality of Service administrative order and directive issued by the Department of National Defence. There was evidence that she has been permitted to assume her duties virtually for an interim period of some weeks while this litigation is resolved. However, the expectation is that she will assume her duties in person in Ottawa in September 2022.

[16] Mr. Logan argues that the language used in the separation agreement states that Ms. Logan will return to Victoria “when” she secures a military posting in CFB Esquimalt or other employment with commensurate salary and benefits, not “if”. If no posting in CFB Esquimalt was possible, Mr. Logan was not satisfied that she exercised best efforts to seek out comparable employment. He alleges Ms. Logan was acting in bad faith, and in a manner inconsistent with their agreement. He also alleges that her delivering a Notice of Relocation was an anticipatory wrongful retention of the children, and that she was required to return the children to Victoria.

[17] Both parties rely on the separation agreement and extrinsic evidence of communications they had around the time the separation agreement was negotiated, which they say reflects the parties’ understanding as to what would happen in July 2022.

[18] It is not disputed that Ms. Logan applied to two federal public service positions before she left for Toronto in July 2021. She also applied to the Saanich and Vancouver police departments, but that was over a year ago when the parties were executing the separation agreement in April 2021. There is little to no evidence of further job search efforts, other than Ms. Logan’s assertion that she has been keeping an eye on federal job postings. Mr. Logan alleges the applicant has not exercised best efforts to secure commensurate employment. However, Ms. Logan argues that there is no CFB position, and that there are no other federal public service positions. Even if she were hired by a police force, the salary would not be commensurate, and the job would not be in the best interests of the children because of the dangers inherent in police work and its schedule, as compared to her regular office hours working with the CAF in Ottawa. A newly recruited police officer’s salary is approximately $70,000 to $80,000. She expects to earn $140,000 in her position in Ottawa.

[19] Ms. Logan commenced this application in May 2022. At a case conference heard by Papageorgiou J. on June 23, 2022, this urgent motion was scheduled to deal with Mr. Logan’s challenge to Ontario’s jurisdiction, as well as Ms. Logan’s request to relocate to Ottawa.

Issues

[20] The issues to be decided are:

a. Does an Ontario court have jurisdiction to make a parenting order in this case

b. If so, should this Court grant Ms. Logan’s request to relocate the children to Ottawa?

c. If a relocation order is granted,

i. What parenting orders should be made in the circumstances that are in the children’s best interest?

ii. What orders around child support and s. 7 expenses should be made?

Issue #1: Does an Ontario court have jurisdiction to make a parenting order in this case?

[21] I find that this court does have jurisdiction under s. 22(1)(a) of the Children’s Law Reform Act, R.S.O., 1990, c. C.12, to make a parenting order or contact order with respect to the children because they are habitually resident in Ontario because the children are living with Ms. Logan in Ontario under a separation agreement (see definition of habitually resident in paragraph 2 of s. 22(2) CLRA).

[22] In making this finding, and for reasons I explain, this case is unlike other cases where one parent provides temporary consent for one parent to travel with a child to Ontario for a time-limited purpose, such as a vacation. Such a situation will generally not be sufficient for this court to find that Ontario is where a child is habitually resident. There are four factors that set this case apart from a mere time-limited consent to travel to Ontario.

[23] First, the language of the separation agreement left the door open to the possibility of Ms. Logan not returning to Victoria. Mr. Logan sees things differently. He relies heavily on the language in the Preamble to the separation agreement to underscore the point that the parties’ intention was that the children would return to Victoria. Relevant parts read:

K (3) Ryan is supportive of Kathryn completing her Career Training [in Toronto] and, given the Children’s young ages, bringing the Children to Toronto for that period. Kathryn acknowledges Ryan supports this plan based on her intention to return to Victoria following her training.

K (5) Kathryn is expected to complete her Career Training in or around July 2022 at which point she and the Children will return to Victoria, British Columbia when Kathryn is able to secure a military posting with CFB Esquimalt, or other employment with commensurate salary and benefits.

[24] However, even in K (5), there is a possibility that Ms. Logan would not be able to secure a military posting with CFB Esquimalt, or other employment with commensurate salary and benefits, and therefore, may not return to Victoria. In any event, this was in the Preamble to their separation agreement. The sections in which the parties agreed to the children’s move to Toronto read:

2.7 Once Kathryn leaves for her Career Training in Toronto:

(1) the Children will ordinarily reside with Kathryn;

(2) Ryan will have reasonable and generous parenting time with the Children as agreed between them; and

(3) The parties will arrange for, and share the cost of travel to ensure that Ryan and the Children are spending a reasonable amount of time together.

2.8 When Kathryn has completed her Career Training in Toronto in or around July 2022, and if she and the Children are able to return to Victoria, British Columbia pursuant to the conditions set out in subparagraph K(5) above, …the parties will engage in a review of parenting time with the overall goal being the Children’s best interests.

[25] These sections make clear that the children would ordinarily reside with Kathryn while she is in Toronto, and that their return to Victoria was conditional (by the use of the term “if”), if she were able to secure a military posting with CFB Esquimalt, or other employment with commensurate salary and benefits. The language of the separation agreement makes clear that her return to Victoria may not happen, and that it was conditional on her finding military or other commensurate work in Victoria. Therefore, I cannot conclude that this was merely a time-limited consent to travel to Ontario. The parties expressly agreed that the children would ordinarily reside with Ms. Logan in Ontario, and the return to Victoria was only if certain conditions were met that allowed her and the children to return to Victoria. Because the separation agreement allows for the children to reside with Ms. Logan in Ontario, the definition of “habitual residence” in s. 22(2) 2 of the CLRA has been met. In determining the habitual residence of a child, the test set out in the CLRA governs: Dovigi v Razi, 2012 ONCA 361 para 14.

[26] Second, Mr. Logan relies on Kong v Song, 2019 BCCA 84 at paras 72 to 75, from the B.C. Court of Appeal which stands for the proposition that this Court must look at the statutory definition when determining the habitual place of residence of children, and also the parties’ intention. He was not able to point to appellate authority from Ontario for the same proposition. He argues that the evidence shows that the parties’ intention was that the children would return to Victoria, and that British Columbia would remain their habitual place of residence.

[27] Ms. Logan’s counsel referred the Court to Korenic v DePotter, 2022 ONSC 3954 for the proposition that it is not necessary to examine the parties’ settled intention – all that is necessary is to meet the deeming provision for habitual residence as defined in s. 22(2) of the CLRA. In Korenic, Dubé J. stated at para 22:

The respondent argues that paragraph 1 of s. 22(2) requires a settled intention to reside for an appreciable period of time. I do not agree. The plain wording of paragraph 1 of s. 22(2) defines the term “habitually resident”: see Korutowska-Wooff v. Wooff, 2004 CanLII 5548 (ON CA), 2004 ONCA 5548, 188 O.A.C. 376, at paras. 8-9; Markowski v. Krochak, 2022 ONSC 2497, at paras. 62-66. That definition does not require a settled intention that the children reside with both parents in a certain place for an appreciable period of time or, as is specifically mentioned under paragraph 3 of s. 22(2), on a permanent basis for any significant period of time. Simply put, habitual residency is deemed under paragraph 1 of s. 22(2) when, as in this case, the last to occur was that the children resided with both parents at a certain place, even if on a temporary or test case basis.

[28] I agree with Dubé J.’s reasoning in Korenic. In this case, it is not necessary to examine the parties’ settled intention because paragraph 2 of s. 22(2) deems the children to be habitually resident in Ontario because they are residing in Ontario with Ms. Logan pursuant to a separation agreement that did not conclude, with certainty, that the children would return to Victoria in July 2022.

[29] In any event, even if I were to consider the parties’ settled intention, Ms. Logan has adduced evidence of text messages exchanged with Mr. Logan on March 29, 2021, a month before the separation agreement was finalized, which shows that Ms. Logan’s return to Ontario was conditional on her finding suitable employment. It reads:

Mr. Logan: As for the changes. They all make sense excerpt (sic) for removing the sub para that we are committed to equal parenting time once your course is completed. I feel like you are attempting to purge anything that implies that you are intending to return.

Ms. Logan: I don’t commit to that. Even if I come back for [P], because she won’t be old enough.

Mr. Logan: She’ll be two. How is she not old enough for equal parenting time?

Ms. Logan: I am happy to write that I intend to return, because I do. I don’t feel comfortable writing that I WILL return, because I won’t do that if I don’t have a job.

[30] Mr. Logan relies on an earlier text message exchange with Ms. Logan on January 30, 2021, previous to the above text message exchange, where Ms. Logan states that she is “committed to coming back.” I am not satisfied that this earlier text message, combined with the latter text message and the actual wording of the separation agreement gives rise to any inconsistency. Ms. Logan intended to return to Victoria with the children, provided she was able to find work in CFB Esquimalt or other employment with commensurate salary and benefits.

[31] A third reason why this case is unlike other cases where a parent overholds with a child in Ontario beyond the period of consent given by another parent is the nature of Ms. Logan’s work. As both parties served in the military, they would have been alive to the real possibility that Ms. Logan would be ordered to attend a posting outside British Columbia. She had little choice in the matter. This is not like other cases where one party goes to another jurisdiction, on their own accord, with the intention or hope of finding work. Ms. Logan had little choice in the matter.

[32] The evidence showed that she indicated a preference to be assigned duties at CFB Esquimalt. Ms. Logan attached as an exhibit to her affidavit a letter from Captain J.L. Watkins, Director of Naval Logistics for the Royal Canadian Navy, dated July 14, 2022. This letter confirms that there is no position in CFB Esquimalt to which Ms. Logan can be posted, and that she has been specifically selected to fill a senior staff position in Ottawa based on the operational requirements of the Royal Canadian Navy, despite her preference to be posted at CFB Esquimalt. I am also satisfied by her explanation that even if she sought a compassionate posting to CFB Esquimalt, it was dependent upon their being a posting available. The Career Manager to whom she reports would be required to make that call, and he indicated she must be posted in Ottawa. The letter from Captain Watkins also confirms there is not a posting available at CFB Esquimalt.

[33] Has Ms. Logan breached the separation agreement by not making reasonable efforts to find alternative employment outside of the CAF with commensurate salary and benefits such that she ought to have returned to Victoria? Ms. Logan admitted during questioning that she applied to two other federal departments in Victoria where her application was kept on file and she would be contacted if an opening was available. Mr. Logan did not adduce evidence of other federal positions to which should ought to have applied with commensurate salary and benefits.

[34] She also applied to two police forces around the time of the separation agreement. The parties agree that Ms. Logan would earn substantially less if she were employed as a police officer, but Mr. Logan argues that she could retire from the military and receive a partial pension, which would offset any difference in salary had she more actively sought out work in a police force. He says that the parties had previously discussed this possibility. Even if this had been discussed in the past, I disagree that this is what Ms. Logan ought to have done for three reasons.

[35] First, this is not what the parties agreed to in their separation agreement. It states that she must find employment with commensurate salary and benefits, without reference to using any pension income to top off any difference in salary.

[36] Second, as Ms. Logan was the principal caregiver for the children, it was reasonable for Ms. Logan to consider the best interests of the children when considering alternative employment. I am satisfied that the job of being a new police officer may entail personal risks and would likely require shift work that would not be conducive to being the principal caregiver of the children.

[37] Third, as Ms. Logan abandoned a claim for spousal support in the separation agreement, I can appreciate her desire for having continued job security with a full pension when she becomes eligible to receive it.

[38] For these reasons, I am satisfied that Ms. Logan exercised reasonable efforts to comply with her obligation under the separation agreement to find alternative suitable employment with commensurate salary and benefits. As such, there was not a requirement for her to return to Victoria with the children under the separation agreement.

[39] For these reasons, I am also not persuaded that there has been an anticipatory wrongful retention of the children in Ontario. She attempted to return to CFB Esquimalt through her employer, and she has made efforts to find employment with commensurate salary and benefits. Her return to Victoria was conditional on these requirements being met.

[40] Finally, during argument, Ms. Logan advised that she would consent to an order that required her to continue to seek postings with the CAF at CFB Esquimalt, should one come available. I so order.

Issue 2: Should Ms. Logan’s request for an interim relocation with the children to Ottawa be granted?

[41] After considering the factors in sections 24 and 39.4 of the CLRA which govern the factors to consider on a relocation, as well as the factors in Plumley v Plumley, 1999 CanLII 13990 (ON SC) regarding interim motions to relocate with children, I am satisfied an interim order should issue allowing Ms. Logan to relocate with the children to Ottawa.

[42] Before I review the factors, and as I explained to the parties at the hearing, relocation cases can be among the most difficult cases for a judge to determine. Our task is more challenging when orders are sought on an interim basis. A judge is very alive to the impact these orders have on the lives of children, their current and future well-being, and the parent-child relationship. For these reasons, I asked the parties during the lunch break to consider the most practical and sensible parenting orders that would minimally impair the children’s relationship with Mr. Logan. I have reached my decision on relocation, a parenting schedule, and child support with the best interests of the child being paramount in my consideration.

Plumley Factors

[43] The factors in Plumley used to assess whether an interim relocation order should be granted are:

a. Is there a genuine issue for trial such that the court should exercise some reluctance in upsetting the status quo on an interim basis?

b. Are there compelling circumstances that dictate a judge ought to allow the move? For example, would a financial benefit to the family unit that may be lost if the matter awaits trial, or do the best interests of the child dictate that they commence school at a new location?

c. Even if there is a genuine issue for trial, should the interim order be granted if there is a strong possibility the moving party’s position will prevail at trial?

[44] In this case, and largely due to the children’s age and the fact that they have resided exclusively with Ms. Logan this past year in Toronto (with the exception of 14 days of visits by Mr. Logan), the status quo is that Ms. Logan has been the principal caregiver for the children in Toronto.

[45] There are compelling circumstances to allow the move. Ms. Logan has been ordered to physically attend her posting in Ottawa. If she declines, she must resign from the military. She would receive a reduced pension. Since she has abandoned a claim for spousal support, the failure to report would result in a financial loss and impact this family’s ability to support the children. I am not entitled to consider whether Ms. Logan would report to work in Ottawa without the children, and no evidence was received on this issue: s. 39.4(4) CLRA. As she has been the principal caregiver, it is not in the children’s best interest, given their age and history of care, for Ms. Logan to no longer assume a significant role in their lives were the children to return to Victoria without her. A further compelling circumstance is that M, who is now aged 5, must attend school in a matter of weeks.

[46] Finally, should this matter proceed to trial, I am satisfied that there is a strong probability that a final order would be granted permitting the relocation. There were detailed affidavits provided on this motion. The parties attended questioning, and their answers were relied upon during argument and in the parties’ factum. The process engaged has been fair to the parties. After considering the factors that govern a relocation order, they weigh in favour of granting the relocation.

Factors on Relocation

[47] I now turn to the factors listed in s. 39.4(3) and 24 of the CLRA regarding whether the relocation ought to be granted.

[48] Unlike other relocations where a parent has some choice over where they will work, Ms. Logan’s only choice is to attend the post to which she was ordered or to resign. There is, therefore, a compelling reason for the relocation.

[49] The impact of the relocation on the children can be measured in many ways. On the one hand, they will continue to have regular contact with Ms. Logan and there will be continuity of care from their perspective. Ms. Logan says that she has a network of support in Ottawa, and she has investigated school and daycare options. On the other hand, the children will not have daily or even weekly face-to-face interactions with their father. The risk of a deteriorated relationship is real, with longer term consequences for the children. However, given the history of the parties’ respective care for the children, there would be a greater impact on the children if they were to reside in Victoria with Mr. Logan and not have regular contact with Ms. Logan.

[50] While I am satisfied that Mr. Logan has made efforts to be involved in the day-to-day care of the children before and after separation, the reality is that Ms. Logan has had a greater level of involvement in the children’s lives. This is due to a variety of factors: the children’s young age, Mr. Logan’s posting in Petawawa when M was born, his absence from the home while he underwent police training in B.C., the limited time he has spent with P given the parties’ separation shortly after she was born and that Mr. Logan has not had an overnight with P, followed by Ms. Logan moving to Toronto in July 2021 for the past year during which time Mr. Logan spent limited time with the children.

[51] Notices have been served with respect to the relocation. Ms. Logan has complied with the separation agreement.

[52] In terms of a parenting schedule, Ms. Logan has proposed that Mr. Logan would continue to have a liberal and generous parenting time. At my urging, I asked that the parties consider a schedule that reflects the reality of Mr. Logan’s work schedule because he typically works four days, followed by four days off, which would make travel to Ottawa difficult. Following the parties’ discussion, there seemed to be a possibility that Mr. Logan would be able to request (though not necessarily be granted), more than four days off at a time.

[53] Accordingly, Ms. Logan has proposed that Mr. Logan would have the option of exercising 12-day blocks of time with the children in Ottawa, with each 12-day block occurring in the months of September, October, November, December/January, February, April, May, June. She has proposed that until P is three years of age, that P have at least one mid-week overnight with her during these blocks of time. She also proposed daily video calls between the children and the non-resident parent.

[54] In addition, she proposed that Mr. Logan would spend time with the children outside of Ottawa every March Break, one week at Christmas and four consecutive weeks in the summer of 2023 and 2024. Her only condition was that if he did exercise four consecutive weeks in the summer of 2023, he would have had to have exercised at minimum three of the 12-day blocks beforehand so that the children were comfortable being in his sole care as P has not yet spent an overnight with Mr. Logan.

[55] Ms. Logan has offered to pay $800 per trip to Ottawa, which would be deducted from Mr. Logan’s child support obligation. She would also pay for three trips per year to bring the children to Victoria or to Edmonton, where Mr. Logan’s other children reside. Her evidence was that the cost of return airfare would be between approximately $320 to $620 for a return trip between Victoria and Ottawa, if booked early. While Mr. Logan is in Ottawa, her evidence is that there is short-term lodging made available by the CAF for separated family members of the military, at a cost of $50 per night. Although, according to the exhibit attached to Ms. Logan’s affidavit on short-term lodging offered by the military in Ottawa, I note that separated families rank in third priority. It may not be possible for Mr. Logan to stay there with the children.

[56] Mr. Logan estimates that the cost, including accommodations (not military accommodations) would result in a cost of approximately $2,400 per trip, which he is unable to afford. Mr. Logan’s after-tax pay is approximately $4,800 per month. From that, he pays $1,520 in child support for his first two children in Edmonton. His table child support obligations to Ms. Logan as of August 1, 2022 would be $1,639 per month. He would not be able to afford the monthly travel to Ottawa, plus his child support obligations for all four of his children, and have funds remaining for his own living expenses in Victoria.

[57] In terms of the amount of parenting time being made available to Mr. Logan, I am satisfied it is a reasonable parenting proposal. I recognize that it is subject to Mr. Logan being able to secure the necessary time away from work, and as a result, he may not be able to exercise the full 12-days or each block each month. I also recognize that travel time to and from Ottawa could take up to 10 hours if there is a stopover, which adds to the amount of time he needs to be away from work or it shortens the amount of parenting time available to him. Notwithstanding these obstacles, it appears feasible that Mr. Logan could exercise regular and frequent parenting time with the children, with Ms. Logan being flexible.

[58] I will return to the issue of the cost of travel in my determination of child support payable.

[59] There is no issue with either party breaching court orders or their separation agreement.

[60] In terms of the other best interest factors in s. 24 of the CLRA, the children are young and have spent greater time with Ms. Logan. There is a need for on-going primary involvement by Ms. Logan, given the children’s age and stage of development. As reflected in the parties’ separation agreement, both parties wish for the children to have a close and loving bond with both parties for the children’s well-being. Ms. Logan has made a parenting proposal that will maintain a close bond between the children and Mr. Logan, even if the parenting schedule is not fully exercised. Ms. Logan has considered options that are reasonable for the children’s education and care in Ottawa. Mr. Logan has not done so to the same extent if the children were to be with him in Victoria. However, I accept that it may have been difficult for him to precisely identify a care plan without knowing whether Ms. Logan would return to Victoria if her request to relocate was denied. I am satisfied that both parents are eager, capable and willing to care for the children, although the children’s relocation creates challenges in terms of Mr. Logan’s ability to exercise his parenting time, based on his work schedule and the affordability of travel to Ottawa each month. There is no evidence of family violence, or other civil or criminal proceeding that would impact on the ability of either party to parent.

[61] The parties exercise joint decision-making with respect to the children, based on the parties’ separation agreement. There was evidence of Mr. Logan not responding to communication from Ms. Logan around decisions to be made with respect to the children. The uncertainty and heated conflict between the parties because of the relocation motion may have contributed to this. Accordingly, it is necessary in the children’s best interest that I make orders respecting communication around decision-making.

[62] For the above reasons, I order on an interim basis that Ms. Logan may relocate with the children from Toronto to Ottawa.

Issue 3: What parenting orders should be made?

[63] I make the following further orders on an interim basis.

[64] I order that M and P shall ordinarily reside with Ms. Logan in Ottawa. Mr. Logan shall have regular parenting time with the children in Ottawa in blocks, with each block being up to 12 consecutive days, during each of the following months, provided Mr. Logan provides at least 30 days advance notice:

a. September

b. October;

c. November;

d. December or January (depending on when Christmas holiday time is taken);

e. February;

f. April;

g. May; and

h. June.

[65] Until P is the age of three, P shall spend at least one overnight with Ms. Logan mid-way through each block of regular parenting time exercised by Mr. Logan in Ottawa.

[66] In addition, Mr. Logan shall have holiday/vacation time with the children at a location of his choosing, on:

a. Each March Break, which shall begin on the Saturday of the weekend before March Break and conclude Saturday following March Break;

b. Eight days during the Christmas Break from school, on dates to be mutually agreed upon in either December or January.

c. Four consecutive weeks during the summer break (end of academic school year to Labour Day), provided Mr. Logan has exercised at least three blocks of regular or holiday/vacation parenting time with the children prior to the summer break.

[67] The parties’ consent is required for the children to travel outside Ontario, however, neither party shall unreasonably withhold consent. The expectation is that Ms. Logan will consent to Mr. Logan travelling with the children during his holiday/vacation time with the children.

[68] Both parties shall facilitate daily video calls between the non-resident parent and the children at 6:30 p.m. If either party cannot facilitate a call at that time, they shall arrange another mutually agreed upon time.

[69] Where one party communicates with the other by email with respect to non-urgent decision-making for the children, the other party shall respond within 72 hours. Where the other party fails to respond within 72 hours, or in the case of a medical emergency, the party seeking the non-responsive party’s input may make decisions unilaterally. In the case of any medical decisions, the parties shall always act in accordance with the advice of the treating physician.

[70] On consent, I order that Ms. Logan shall continue to seek a posting through her employer at CFB Esquimalt.

Issue 4: What orders should be made with respect to child support and s. 7 expenses?

[71] As noted, table child support for these two children that would be payable by Mr. Logan would be $1,639 per month. Mr. Logan’s after-tax monthly income is $4,800, from which he pays $1,520 in child support for his other two children residing in Edmonton, plus his own living expenses. At the hearing, Ms. Logan agreed to seek $800 less in child support for each trip Mr. Logan makes to Ottawa, to account for what she believes are the reasonable expenses of each trip. She originally offered $650.

[72] I am not satisfied that Ms. Logan’s estimated cost of $800 for each trip between Victoria and Ottawa is accurate or reasonable. It does not appear that the cost of return airfare that she has adduced into evidence includes taxes. There are other associated costs with travel to Ottawa, such as taxis to and from the airport or parking at the airport, meals at airports, car rental / transportation costs while in Ottawa, as well as expenses related to purchasing meals for the children (it is unreasonable to expect Mr. Logan to cook meals for the children immediately after arriving or just prior to departing Ottawa, assuming he will have access to kitchen facilities in Ottawa). It also assumes that the military housing will be available to Mr. Logan at $50 per night. As noted, the evidence is that separated families are not guaranteed short-term lodging in Ottawa – they rank third in priority. As such, Mr. Logan may need to secure short-term lodging at an expense greater than $50. These expenses can significantly drive up the cost of each trip by hundreds of dollars. Mr. Logan’s estimate of $2400 per trip may be more accurate.

[73] I am satisfied that undue hardship would result if Mr. Logan were required to pay any amount in child support or s. 7 expenses to Ms. Logan should Mr. Logan exercise his parenting time regularly. Pursuant to s. 10(2) of the Child Support Guidelines, O. Reg 391/97, he will have unusually high expenses in relation to exercising his parenting time in Ottawa, and he has an existing legal duty to support his two children in Edmonton. I am also satisfied that Ms. Logan will have a higher standard of living in Ottawa, given her annual income of $140,000.

[74] Accordingly, on an interim basis and subject to review, I order that no child support or s. 7 expenses shall be payable by Mr. Logan to Ms. Logan. A review of child support may only occur:

a. At trial;

b. If the children relocate to Victoria;

c. If Mr. Logan relocates to Ontario;

d. If Mr. Logan’s child support payments for his first two children in Edmonton cease or are reduced;

e. If Mr. Logan’s annual income increases by at least 20%;

f. If Ms. Logan incurs an involuntary reduction in her income; or

g. If Mr. Logan does not exercise his parenting time (regular or holiday/vacation) with its associated travel costs at least twice in the remainder of 2022, or at least seven times in each calendar year thereafter.

Costs

[75] Parties were directed to file their respective Bill of Costs at the conclusion of the hearing, which have been received but not yet reviewed. Parties are encouraged to agree on an appropriate cost award. If no agreement is reached, parties are directed to deliver cost submissions, not exceeding 3 pages double-spaced. The applicant shall deliver her cost submissions by September 9, 2022 and the respondent shall deliver his submissions by September 30, 2022.

Justice M. D. Sharma

Released: August 18, 2022

COURT FILE NO.: FS-22-00029634-0000

DATE: 20220818

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LOGAN, Kathryn Elizabeth

Applicant

– and –

LOGAN, Ryan James

Respondent

ENDORSEMENT

M. D. Sharma J.

Released: August 18, 2022