COURT FILE NO.: FS8383/22
DATE: 2022/09/13
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Iris Nouri, Applicant
AND:
Jacob Lyle Israel Watters, Respondent
BEFORE: T. PRICE J.
COUNSEL: Jessica Bonnema - Counsel for the Applicant
Joel J.W.G. Szaefer - Counsel for the Respondent
HEARD: July 14, 2022
ENDORSEMENT
Overview
[1] There are two issues to be decided on the motions before me. They are, in no specific order:
a. what, if any, interim order pertaining to decision-making responsibility and parenting time should be made with respect to the parties’ daughter, A.K.W. (hereinafter, A.), who is 5 years of age; and
b. whether the Applicant, Iris Nouri (hereinafter, Ms. Nouri), having been denied permission by Justice Desotti[^1] in April 2022 to relocate with A. to Oakville for employment purposes because:
i. “there were some serious deficiencies in the material provided” to the court;
ii. the Respondent, Jacob Lyle Israel Watters (hereinafter, Mr. Watters) had been given limited notice of the proposed move; and
iii. Ms. Nouri had not filed a Form 35.1 affidavit by the time the motion was heard,
having addressed those identified deficiencies, should now be granted permission to relocate with A. to Aurora for employment purposes,.
[2] Mr. Watters seeks an order prohibiting Ms. Nouri from removing A. from Sarnia, where the parties reside, and for him and Ms. Nouri to have joint decision-making responsibility. Alternatively, he seeks an order for sole decision-making responsibility in the event that Ms. Nouri, if denied permission to relocate to Aurora with A., elects to do so without her. In that circumstance, he also requests that I define Ms. Nouri’s parenting time.
[3] For the reasons that follow, I have decided that, on an interim basis:
a. Ms. Nouri is permitted, subject to the other provisions of the order set out more fully at the end of this endorsement, to relocate with A. to Aurora, Ontario, or elsewhere in the greater Toronto area, provided that the relocation is in relation to Ms. Nouri having secured employment there;
b. Mr. Watters shall have parenting time with A. as set out more fully in the order at the end of this endorsement;
c. Ms. Nouri shall have decision-making responsibility with respect to A.’s education and extracurricular activities, subject to the terms set out more fully in the order at the end of this endorsement;
d. the parties shall share responsibility for making significant decisions about A.’s well-being, including with respect to her health and her culture, language, religion and spirituality; and
e. the trial of the issues of decision-making responsibility, parenting time, relocation of A., and child support, shall be expedited and shall proceed as a priority matter, peremptory on the parties, during the trial sittings commencing on October 24, 2022 in Sarnia.
Background
[4] Ms. Nouri emigrated to Canada from Iran, where she owned an interior design business, in 2013. She settled in Toronto, where she secured employment as an interior designer.
[5] The parties met in Toronto in 2016 and commenced cohabitation in July of that year. They moved to Sarnia, which is Mr. Watters’ hometown, in 2017. Ms. Nouri was pregnant at the time.
[6] The parties moved into a residence in Sarnia (hereinafter, the family residence) which had been purchased by Mr. Watters with proceeds from the sale of his condominium in which the parties had been residing in Toronto.
[7] Following the birth of their child, Ms. Nouri suffered from what she describes as postpartum depression. She was off of work until approximately June 2018, when she was able to secure full-time employment. That job ended in August, 2018, after only 2½ months. The parties differ on whether Ms. Nouri quit her job to care for A. or whether she did so to avoid being fired.
[8] Following A.’s birth, Mr. Watters took one year of parental leave from his job. He lost his job, however, in approximately March 2018. Mr. Watters was unemployed until March 2019, when he started a new job with Lambton Public Health.
[9] A. began to attend daycare in the autumn of 2018. It appears from the evidence that she was placed in private daycare part-time in September 2018 and began full-time attendance at a registered daycare in November 2018.
[10] The parties disagree on why A. was placed in daycare, given that neither was working at the time. Ms. Nouri claims that Mr. Watters placed A. in daycare “because he was at home and wanted more free time” and because “it would also give me time to work on my business”, while Mr. Watters claims that Ms. Nouri “demanded that we put A. in daycare,” without explaining why she made such a demand.
[11] By August 2019, Ms. Nouri had begun to work part-time at another position.
[12] After arriving in Sarnia, Ms. Nouri had struggled in her efforts to establish an interior design business there. During the Covid pandemic, she obtained a loan of $40,000 from the federal government. It was intended to assist her in setting up her business. She used part of the money to purchase carpentry tools, because she has those skills and was hoping to expand her job opportunities to include carpentry. Sometime in 2021, she also briefly rented an office in the hope that she could pursue her interior design business. Her effort was unsuccessful.
[13] Eventually, Ms. Nouri abandoned her goal of establishing an interior design business. She applied for a number of jobs, in both interior design and related fields, but her applications were mainly met with silence. She did have some interviews, but nothing resulted from them.
[14] She is now working part-time delivering pizza for a business said to be owned by friends.
[15] Ultimately, the parties separated in December 2021, although they do not agree on the date. Their relationship had been rocky, and things were not made better with the onset of the Covid-19 pandemic. They suffered financial and other difficulties both prior to and during the pandemic.
[16] Since they separated in December 2021, A. has been residing most often with Ms. Nouri. That situation arose because Mr. Watters left the parties’ residence in December 2021 at the time of separation, either at the request or suggestion of police, who had been called by Ms. Nouri. The police took no steps beyond attending the residence to assess the situation between the parties.
[17] At the time the motions were argued, Ms. Nouri continued to reside in the family residence, although Mr. Watters had told her that she must vacate by the end of summer 2022. Mr. Watters has, apparently, been paying all of the costs of maintaining the residence.
[18] There was no litigation between the parties until March 2022, when Ms. Nouri commenced an application and brought a motion seeking permission to relocate with A. to Oakville, where she had secured employment related to her field of interior design.
[19] Mr. Watters responded with a motion of his own, seeking to keep A. in Sarnia, and an order setting a parenting schedule.
[20] As noted, Ms. Nouri’s motion was denied by Justice Desotti. In doing so, however, he did suggest a parenting time regime for Ms. Nouri in the event that she moved to Oakville without A., which did not come to pass.
[21] Justice Desotti’s endorsement did not address a parenting schedule in the event that Ms. Nouri remained in Sarnia. Mr. Watters’ motion has, therefore, remained before the court since March 2022.
[22] Mr. Watters asserted that he has consistently requested that Ms. Nouri agree to equal parenting time with respect to A. To that end, he claims to have also repeatedly attempted to negotiate expansions of his parenting time, only to have his efforts resisted by Ms. Nouri.
[23] Ms. Nouri, on the other hand, asserts that Mr. Waters has consistently been less involved than her in A.’s care, other than during the first year of A.’s life, and that, in the early months following the parties’ separation, he only exercised parenting time when he felt like it.
[24] In their materials, each party pointed to events, both before and after their separation, that each claims supported their position about the involvement of the other in A.’s care.
[25] There are many discrepancies in their evidence, both with respect to the quality of the other’s parenting abilities and the amount of time the other spent caring for A. both before and after their separation.
[26] Despite these discrepancies, in his endorsement, Justice Desotti wrote, at paragraph 11, “Both parties I conclude can properly parent their child and I do not consider any shortcomings in their parenting even though both attempted to tarnish the abilities of the other.”
[27] I have concluded that Justice Desotti was commenting on the relative parenting abilities of each of the parties. However, in his affidavit sworn June 21, 2022, Mr. Watters deposed that “[i]t is clear” from Justice Desotti’s endorsement “that he approved of my plan of care and that he did not find fault in my parenting or the applicant’s parenting.” I agree with the latter part of Mr. Watters’ assertion, and with the former only in the event that Ms. Nouri elected to move without A.
[28] I do not sit in appeal of Justice Desotti’s decision. Notwithstanding the fact that additional affidavits have been filed in connection with Ms. Nouri’s present request to relocate with A., the basic facts about which the parties disagreed when the matter was before Justice Desotti in March 2022 remain the same. In fact, each party relied on the affidavits which were before Justice Desotti in support of their current positions. They supplemented those facts with information which arose after April 1, 2022.
[29] Whether or not I may have reached a different conclusion than Justice Desotti on the relative parenting abilities of the parties, I do not disagree with his finding that one cannot conclude that one party is a better parent than the other for the purposes of deciding these interim motions.
[30] Justice Desotti did not, however, decide how decision-making responsibility with respect to A. should be apportioned or by whom it should be exercised, nor did he determine how the parties’ parenting time with A. should be divided, other than in the circumstance that Ms. Nouri decided to relocate without the child to Oakville, which did not occur.
[31] Furthermore, while Justice Desotti decided that Ms. Nouri could not relocate to Oakville with A., he also wrote at paragraph 22, that “[s]ince this is only an interim, interim, order, there is nothing preventing the applicant from renewing her change of residence with her daughter upon better and more complete information.”
[32] It is that statement that has led Ms. Nouri to bring her new motion.
Issue: Must decision-making responsibility and parenting time be adjudicated before relocation?
[33] In their submissions, both counsel addressed whether decision-making responsibility and parenting time needed to be addressed before relocation. Each supported their submissions by referring to cases on this issue decided before the 2021 amendments to the Children’s Law Reform Act (CLRA) which deal with requests for permission to relocate with a child.
[34] Counsel for Mr. Watters asserted that, before determining whether a parent can relocate with a child, the court must determine who has decision-making responsibility for the child and what the parenting arrangements are to be for that child. In making that submission he relied upon the Ontario Court of Appeal decision in Bjornson v. Creighton, 2002 CanLII 45125 (ON CA), [2002] O.J. No. 4364.
[35] Counsel for Ms. Nouri asserted that such a requirement does not exist.
Analysis
[36] For reasons which I will explain later, I am of the view that, to some extent, this question has been rendered moot by the 2021 amendments found in ss. 39.1 through 39.4 of the CLRA. Before I do so, however, I will address the submissions of counsel on this issue.
[37] While the position taken by counsel for Mr. Watters has been articulated in a number of cases, the Ontario Court of Appeal made clear in Moreton v. Inthavixay, [2021] O.J. No. 3793 that what counsel for Mr. Watters is claiming was decided in Bjornson about the sequence of decisions was not the case. The Court of Appeal wrote:
9 First, we do not read this court's decision in Bjornson as establishing an absolute rule or requirement that the issue of custody must be determined before the issue of relocation. Rather, the sequence depends on the circumstances of the case and, specifically, on the best interests of the children. Bjornson arose out of the particular circumstances of that case: the sequence in which the trial judge dealt with relocation and custody was criticized because it caused him to err - he did not make the depth of enquiry required in the circumstances and failed to give the evidence of the custodial parent the great respect or most serious consideration to which it was entitled.
[38] The Court of Appeal agreed with the trial judge’s decision in Moreton v. Inthavixay to first address the issue of relocation because, on its facts, “it was in the best interests of the children to have the relocation issue determined as quickly as possible to provide stability in their living arrangements, finality and closure.” (at para. 10)
[39] More recent cases have also determined that the issue of relocation can be determined prior to decision-making responsibility, both at trial[^2] and on an interim motion[^3], depending upon the circumstances of the case.
[40] Given those decisions, particularly that of the Court of Appeal in Moreton v. Inthavixay, I do not agree with counsel for Mr. Watters that decision-making responsibility must be decided before relocation.
[41] However, as I have noted, I am of the view that there is another reason that such a sequence of issue resolution need not be followed, and it is rooted in the 2021 amendments to the CLRA dealing with relocation.
[42] As I read the 2021 amendments to the CLRA pertaining to relocation, I am driven to the conclusion that they provide a nearly stand-alone framework[^4] for addressing relocation requests apart from any claims for decision-making responsibility, although claims relating to both heads of relief are likely to be brought together. If they are, there is nothing in the CLRA which says that one issue must be decided before the other.
[43] I find support for my view in the decision of Justice P.J. Monahan in Credland v. Cymbalisty, [2022] O.J. No. 572. Although that was a trial decision, Justice Monahan approached the issues in the sequence permitted by the Ontario Court of Appeal in Moreton v. Inthavixay but, in doing so, he had regard to the recently enacted sections of the CLRA writing, at paragraph 23:
23 Recent amendments to the Children's Law Reform Act, described in detail below, now provide a comprehensive statutory framework governing relocation cases, one which significantly amends the principles set out in Gordon v. Goertz. The new framework also specifically defines the circumstances in which one parent or the other will bear the burden of proof on relocation issues. The views of the primary caregiver to the child are certainly a relevant and important consideration in that analysis. But the CLRA mandates a holistic analysis of the relocation issue based on the best interests of the child, guided by the primary consideration of the child's safety, security and well-being. In my view, it would be inconsistent with this statutory framework to embark on a preliminary inquiry into which parent is or has been the primary caregiver to the child, prior to or separate from the holistic analysis contemplated by the Act. Moreover, in determining what parenting orders would be in PC's best interests, the logically prior issue is where she should primarily reside. Only after that matter is settled will it be practical to consider what other parenting orders might be appropriate in the circumstances of this case.
Children’s Law Reform Act – Relocation Procedural Considerations
[44] “Relocation” is defined in s. 18(1) of the CLRA as meaning “a change in residence of a child, or of a person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child, that is likely to have a significant impact on the child’s relationship with,
(a) another person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child…
[45] At this point, each party seeks some form of order for decision-making responsibility. A discussion about their current entitlement to decision-making responsibility will follow my examination of Ms. Nouri’s request for relocation.
[46] Without deciding that issue, however, it is clear that both Ms. Nouri and Mr. Watters have parenting time with, and each has applied for, a parenting order in respect of A.
[47] It is equally clear and undisputed that a change in A.’s residence, whether it be to another city with Ms. Nouri or to the residence of Mr. Watters in Sarnia with him as the child’s primary caregiver, is likely to have a significant impact on her relationship with the other parent. Thus, I am satisfied that the prerequisites to making this a relocation case under the CLRA are in place.
[48] Given the litigation history of this case, between the initial notice given by Ms. Nouri’s counsel about her client’s intention to relocate with A., Justice Desotti’s endorsement, and the second Notice of Motion, I am satisfied that the 60-day notice period provided for in s. 39.3(1) of the CLRA has been satisfied by Ms. Nouri. In any event, it was not raised by Mr. Watters as an issue on these motions, unlike the motion heard by Justice Desotti.
[49] Although not directly before me, it is clear to me that Ms. Nouri’s initial notice of her intention to relocate to Oakville also did not comply with the requirements of s. 39.3(2) of the CLRA. However, the details pertaining to the intended relocation mandated by that section were provided in Ms. Nouri’s subsequently filed affidavits, and it is clear that, by the time these motions were argued, Mr. Watters was aware of Ms. Nouri’s plan, although he did not agree with it. Consequently, I am satisfied that Ms. Nouri has now substantially complied with the obligations imposed upon her pursuant to s. 39.3(2) of the CLRA. Again, Mr. Watters did not make that an issue on these motions.
[50] As the person receiving the notice of intended relocation, Mr. Watters had the option of providing written notice of his objection to the proposed relocation. It is clear that, from the time of Ms. Nouri’s initial request in March to relocate to Oakville, Mr. Watters has objected to her relocating anywhere with A. His materials set out the reasons for his objection and his views about Ms. Nouri’s proposals. I am satisfied that, on the totality of the materials filed, Mr. Watters also substantially complied with the provisions of s. 39.3(5) and (6) of the CLRA.
[51] Having given the notice required by s. 39.3(2), and having received Mr. Watters’ objection, Ms. Nouri is only permitted to relocate with A. if, pursuant to s. 39.4(2), her relocation is authorized by the court.
Burden of Proof
[52] Sections 39.4(5), (6), and (7) set out various scenarios for the determination of who bears the burden of proving either that the proposed relocation of the child would be in the child’s best interests or that it would not.
[53] Section 39.4(5) does not apply because there does not exist an order, family arbitration award or agreement which provides that A. is to spend substantially equal time in the care of each party. If that circumstance existed, the burden of proof would have been upon Ms. Nouri.
[54] Section 39.4(6) provides that if there exists an order, family arbitration award or agreement that provides that A. “spend the vast majority of time in the care of the party who intends to relocate the child” meaning, in this case, Ms. Nouri, the burden of proving that the relocation would not be in the best interests of A. would be upon Mr. Watters, as the person opposing the relocation.
[55] The interpretation to be applied to the words “vast majority of the time” was discussed by Justice P. J. Monahan in Credland v. Cymbalisty. He wrote that s. 39.4(6),
178 …does not define the threshold above which a child could be said to be spending the "vast majority of time" with one parent. However, given that s. 9 of the Federal Child Support Guidelines describes a 60/40 split in parenting time as one of "shared custody", in my view a child would need to be spending significantly more than 60% of their time with one parent in order to cross the "vast majority of time" threshold in s. 39.4(6) of the CLRA.
179 Furthermore, the relatively few cases interpreting this provision have held that a parent has crossed the "vast majority" of time threshold only when they have a child in their care for more than 80% of the time. For example, in KDH v. BTH[^5], Lema J. held that where an order provided that the mother had the children in her care for 12 out of every 14 nights, or about 85% of the time, "the order indeed provided that the children spend the 'vast majority of their time' with her [the mother]." Similarly, Professor Rollie Thompson, a respected authority on these issues, has opined that "a range of 75 to 87 per cent is a reasonable representation of "vast majority", but I would personally peg it at 80 per cent", noting that this is consistent with the opinions he obtained through a canvass of family law professionals.[^6]
180 In my view, interpreting the "vast majority of time" threshold in s. 39.4(6) in this manner gives meaningful effect to the burden of proof that it contemplates, without giving undue effect to the burden and thereby skewing the "best interests" assessment in a particular direction.
[56] At present, it is clear that A. “spends the vast majority of time in the care of the party who intends to relocate the child.” By my estimate, she spends approximately 84% of the time in the care of Ms. Nouri on a biweekly basis. According to Credland v. Cymbalisty and the cases cited therein, this would constitute “the vast majority of time” in a biweekly period.
Evidence Regarding Burden of Proof
[57] Mr. Watters has asserted that he has neither consented nor acquiesced to A. living with Ms. Nouri since the separation. That appears to be only partially correct.
[58] As has been noted, when the parties separated in December 2021, Mr. Watters vacated the family residence and moved in with his grandfather. Ms. Nouri and A. continued to reside in the family residence. I was provided with no evidence that Mr. Watters complained at the outset that such an arrangement was imposed on him or that he objected to it.
[59] In his affidavit sworn March 28, 2022, however, Mr. Watters provided three emails, only one of which bore a date. The second, undated email was said by Mr. Watters to have been sent to Ms. Nouri on January 15, 2022. In it, he suggested that A. be in the care of the parties for equal periods of time. He also asked Ms. Nouri to respond if she did not agree. Clearly the second email, although undated, does demonstrate that Mr. Watters was, at that point, asking for a shared parenting schedule. Ms. Nouri did not deny that the email was sent on January 15, 2022, as Mr. Watters deposed that it was.
[60] Mr. Watters also appended to his affidavit sworn July 8, 2022 a letter from his counsel to counsel for Ms. Nouri dated February 25, 2022. In the letter, his counsel requested the implementation of a 2-2-3 parenting schedule. As to this, Mr. Watters deposed that he has “been seeking greatly expanded time with A. on a formal basis as early as February 25, 2022.”
[61] It was only after counsel for Ms. Nouri wrote to counsel for Mr. Watters on March 11, 2022 to advise of Ms. Nouri’s desire to relocate to Oakville that Mr. Watters took action and brought his cross-motion returnable March 22, 2022, which was the same date as Ms. Nouri’s motion seeking permission to relocate to Oakville with A. By that date, it was clear that Mr. Watters was no longer prepared to leave unchallenged the arrangement which had A. residing with Ms. Nouri.
[62] Unfortunately, as a result of some difficulty securing a date for his motion to be argued, Mr. Watters’ motion was finally scheduled for June 9, 2022. On that date, Ms. Nouri had brought her motion seeking permission to relocate to Aurora, so both motions were again adjourned to be heard on July 14, 2022. In his endorsement of June 9, 2022, Justice Dube wrote that the adjournment was “explicitly without prejudice to the Respondent’s motion, which has been outstanding since March, 2022. This adjournment is done with hesitancy on my part and is not indicative of the existence of the status quo one way or the other.”
Is there an “agreement” that A. spends the vast majority of her time in the care of Ms. Nouri?
[63] Based upon the evidence, I am satisfied that it is not by agreement of the parties that A. is spending the vast majority of her time in the care of Ms. Nouri. If there ever was such an agreement, it only existed for a period of less than one month following the parties’ separation. Consequently, I find that the burden of proof provision set out in s. 39.4(6) of the CLRA does not apply.
Conclusion Concerning Burden of Proof
[64] As a result, I find the applicable burden of proof to be that set out in s. 39.4(7) of the CLRA, which provides that, “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.”
[65] This means that Ms. Nouri has the burden of establishing on a balance of probabilities that it is in A.’s best interests that she be permitted to relocate with the child while Mr. Watters has the burden of establishing on a balance of probabilities that such a relocation is not in the best interests of A.
Relocation - Factors to Consider
[66] Section 39.4(3) sets out factors that I must take into account in determining whether to authorize A.’s relocation with her mother. These include the factors set out in s. 24 of the CLRA, together with seven additional factors enumerated in s. 39.4(3). I am also directed, in s. 39.4(4), not to 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.”
[67] While I am to consider all of the factors relating to A.’s best interests set out in ss.24(3) and 39.4(3) of the CLRA, I am mandated by s. 24(2) of the CLRA to give “primary consideration to [her] physical, emotional and psychological safety, security and well-being.”
[68] As Justice Monahan observed in Credland v. Cymbalisty at para. 174, while “[i]t is evident that there are a significant number of factors relevant to the determination of the best interests of a child, particularly in cases involving the relocation of the child,” Justice M. Kurz had earlier noted in Phillips v. Phillips, 2021 ONSC 2027, at para.47 that “[t]he list of best interests factors is not a checklist to be tabulated with the highest score winning. Rather it calls for the court to take a holistic look at the child, her needs and the people around her.”
Interim Relocation Requests
[69] This motion involves an interim relocation request. Cases go both ways on whether such orders should be made on an interim basis.
[70] Justice Mitrow wrote in Markowski v. Krochak that the decision of Justice Marshman in Plumley v. Plumley, 1999 CanLII 13990 (ON SC), 1999 CarswellOnt 3503 (Ont. S.C.J.), which he called “[a] leading and often-quoted case on interim relocation,” provided the following factors for the court’s consideration when deciding “the mobility issue on an interim basis”:
7
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 which might dictate that a justice 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.
[71] Kelly v. Yantha, 2013 ONSC 6030, a case relied upon by Mr. Watters, involved a motion seeking permission for an interim relocation of the children. The motion was denied by Justice McNamara because there was a triable issue regarding the effect of the mother’s alleged mental health issues on her ability to parent the children, and there were “no pressing reasons to make the orders sought.” Justice McNamara appeared to accept the applicability of Plumley v. Plumley. He also wrote, at paragraph 30, 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.”
[72] 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 C. 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.
[73] Because this motion involves an interim relocation request, I also take into account the fact that the evidence is not of the quality that would emerge at a trial. This point was articulated by Justice Mitrow at paragraph 72 of Markowski v. Krochak as follows: “Interim relocation decisions of necessity are based often, as in this case, on untested and conflicting affidavit material. The court does not have the benefit of a fulsome evidentiary record as at trial.”
[74] In Seng v. Dowling, [2021] O.J. No. 1003, 2021 ONSC 1491, Justice I.F. Leach addressed how a judge should approach the making of a decision when asked to make an interim order based on conflicting evidence, writing:
11c.i It is, of course, always less than desirable for the court to decide important issues of child residence, schooling and parenting time - even on an interim basis - based on conflicting affidavit evidence that has not been tested by cross-examination, or any meaningful opportunity for the court to hear such evidence presented by the parties themselves through viva voce testimony. However, such are the inherent limitations surrounding necessary urgent interim court decisions in family law litigation. At best, courts are required to make such determinations based on reasonable inferences to be drawn from undisputed facts and the competing affidavit evidence.
[75] With these cautionary principles in mind, I turn now to a consideration of the factors relating to A.’s best interests set out in sections 24 and 39.4(3) of the CLRA.
Best Interests - CLRA s. 24 Factors
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
[76] As I wrote about this factor as it pertained to the parties’ four-year-old daughter in Wu v. Yu, 2022 ONSC 3661 at para. 128: “Like all children, she requires stability. Like all children of separated parents, instability has been introduced into her life by the separation of her parents. However, she has now had approximately one year with her parents being apart and that state of affairs has become somewhat normalized for her.”
[77] Should A. be relocated from Sarnia to Aurora with Ms. Nouri, it stands to reason that she will experience some instability in that she will no longer be residing in the home where she has lived since her birth. Moderating that instability, however, will be the fact that she will be with her mother and, for some period, persons who are known to her through her travels with her mother to the Toronto region over the past few years.
[78] A. also needs time with her father. A reduction in that time is likely to be destabilizing for her. At present, she has the opportunity to spend time with Mr. Watters on a regular schedule that Mr. Watters regards as insufficient. While the sufficiency of his parenting time is in issue, the schedule does allow for Mr. Watters and A. to develop their relationship. A. must continue to spend time with her father.
[79] There is also evidence that A. has been exposed to some of her parents’ disagreements and that she has found them distressing. This is destabilizing for her.
[80] Mr. Watters proposes to diminish such instability by introducing the prospect of exchanges of A. at her school. Ms. Nouri’s proposal would, of necessity, have the parents still come into contact with each other as A. is exchanged at community locations.
[81] Whatever I decide in respect of these motions, both parties must behave as responsible adults and not further expose their daughter to their disagreements.
(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;
[82] The parties’ evidence conflicts about the nature and strength of A.’s relationship with the other parent. They agree that, during the first year of A.’s life, Mr. Watters took parental leave and participated actively in A.’s care. Such active parental involvement in the first year of a child’s life contributes to the development and strengthening of the parent/child bond.
[83] The parties disagree, however, about the role played by Ms. Nouri in the first year of A.s life and the degree to which she participated in her care. According to Ms. Nouri, she was equally, if not more, involved in caring for A. during her first year of life, after which she became A.’s primary caregiver, while Mr. Watters returned to work. Mr. Watters, on the other hand, deposed that Ms. Nouri had so little to do with A. during the first year of her life that she did not bathe A. until she was nearly one year old.
[84] The parties’ disagreement about both the nature and strength of their relationship with A. extends beyond the first year. According to Ms. Nouri, Mr. Watters would spend hours in his room when not at work, not interacting with either her or A. She blamed vaguely defined health issues. She attributes the vagueness to Mr. Watters’ unwillingness to fully inform her about his health issues. Mr. Watters, on the other hand, asserts that he was always involved in caring for A. after his return to work and that he was her primary caregiver. He minimizes the effect of any health issues.
[85] Who did what for A. and when they did it cannot be decided at this point. What I can discern from the evidence is that each of the parties contributed to some degree to A.’s care while they cohabited and that the care that each provided to her contributed to the development of a parent/child relationship of sufficient strength that, subsequent to their separation, A. transitions without negative effect between their homes and their care. I can infer from this that, whatever the allocation and undertaking of parental tasks prior to separation, sufficient time was dedicated to A. by each of the parties that she has a reasonably strong relationship with each of them.
[86] As to extended family, I am satisfied that A. has a good relationship with her paternal great-grandfather as well as her paternal grandparents, although the relationship with them may be not as strong since they do not reside in Sarnia. She does see them regularly, however.
[87] Ms. Nouri has no relatives in Ontario. Her sister resides in Vancouver. While she is said to have visited with A. a few times, the strength of any relationship between the two cannot be assessed at this point. It appears that the majority of Ms. Nouri’s family continues to reside in Iran.
[88] Ms. Nouri deposed that she had several friends in the Toronto region and they and their children are known to A. What cannot be determined at this point is the degree to which those persons play a role in A.’s life, although the couple with whom Ms. Nouri proposes that she and A. reside in Aurora are said to be regarded by A. as akin to an aunt and uncle.
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
[89] Ms. Nouri asserted throughout her evidence that she wanted Mr. Watters to have a strong and continuing relationship with A., and that any deficiencies that might exist in the development of that relationship arise as a result of his failure to have consistently participated in parenting, both prior to and after the separation.
[90] The evidence is clear, though, that Ms. Nouri has not agreed to a shared parenting schedule with Mr. Watters. The evidence also suggests that a request may have been made by Mr. Watters for such a schedule before he first knew that Ms. Nouri would be looking to leave Sarnia with their child.
[91] It seems that the primary reason for Ms. Nouri disagreeing with the development of a shared parenting schedule is that she holds the view that Mr. Watters is not fully capable of parenting A. for more than short periods of time. While this evidence needs to be examined at a trial, I do not find that Ms. Nouri is seeking to prevent Mr. Watters from having a relationship with A. Instead, I find that Ms. Nouri has evidenced a willingness to support the development and maintenance of A.’s relationship with Mr. Watters. She is, however, seeking to control how much time he gets to parent her.
[92] Mr. Watters’ evidence, however, leaves me with a lower degree of confidence about the extent of his willingness to support the development and maintenance of A.’s relationship with Ms. Nouri. While he does seek a shared parenting order, his affidavits are full of negative comments about Ms. Nouri, her parenting capabilities, her mental health, and the degree to which she financially contributed to the family unit. Their tone bespeaks an absolute lack of respect for Ms. Nouri.
[93] He claimed that she threatened to kill him, a claim she denied. He claimed that she threatened to kill herself, which she also denied. He claimed that Ms. Nouri suffers from serious mental health issues, a claim to which she provided a detailed response about the three times that she has sought therapeutic assistance, all related to significant events in her life. He claimed, without supporting evidence, that she ceased taking prescribed medications contrary to medical advice, a claim denied by Ms. Nouri.
[94] He further claimed that Ms. Nouri would “vacillate wildly between threatening me with respect to A. and then saying that she wished she never had a child as what she did for a living was more important to her.” Ms. Nouri denied these allegations.
[95] He produced photographs of the inside of the residence occupied by Ms. Nouri and A., asserting in graphic terms that they demonstrated Ms. Nouri’s inability to maintain a safe, clean, living environment for A., a conclusion which is not necessarily drawn from the photos.
[96] He accused Ms. Nouri of mismanaging a government loan which she received during the pandemic to assist her business but did not deny Ms. Nouri’s response that much of the money was used by her in an effort to keep the family financially afloat when Mr. Watters was also struggling financially.
[97] He accused Ms. Nouri of not obtaining work after giving birth to A. until June 2018, without specifically tying that date to her having given birth to A. in July 2017. I infer that Ms. Nouri was on parental leave for that period, as was Mr. Watters. He did not explain why he would have expected her to return to work before he did when each was legally entitled to be off work following A.’s birth.
[98] He used language which seemed intended to cast in a negative light actions taken by Ms. Nouri in efforts to develop information to present to the court in support of this relocation request. According to Ms. Nouri, she did this to answer the concern expressed by Justice Desotti about the lack of specifics in the plan she presented on her first motion seeking to relocate to Oakville. For example, when deposing to his view of Ms. Nouri’s actions, which included having taken A. to Aurora in search of potential medical and dental care providers should her relocation request be permitted, Mr. Watters accused her of “secretly transfer[ing] [A.] to service providers in the greater Toronto area, in furtherance of her request to relocate” and labelled her action a “unilateral change” of “A.’s doctor and dentist to ones in the greater Toronto area.” He also referred to Ms. Nouri having removed A. from school “surreptitiously” to take her to the service provider appointments in Toronto despite there being evidence that she had informed him that she would be doing so.
[99] Such inflammatory language is found throughout Mr. Watters’ affidavits. There was an overall tone of negativity and condescension to Mr. Watters’ evidence about Ms. Nouri, both as a person and as a parent. This causes me to be concerned that he would be less willing to support the development and maintenance of A.’s relationship with Ms. Nouri than she would with respect to Mr. Watters.
[100] Ms. Nouri’s other evidence about Mr. Watters’ alleged lack of willingness to support the development and maintenance of A.’s relationship with her is, however, not without its own difficulties. She accused Mr. Watters of removing A. from her care and spiriting her away to his parents’ residence, without her consent, at the beginning of the pandemic. Mr. Waters produced an affidavit from his mother which seriously undercut Ms. Nouri’s claim.
[101] These claims clearly need to be examined at a trial.
(d) the history of care of the child;
[102] I have already noted that the parties provided conflicting evidence on this topic.
[103] I have also referred to and accepted Justice Desotti’s conclusion that “both parties… can properly parent their child” despite the conflicts in their evidence.
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
[104] I have no evidence about this factor, which is not surprising, given A.’s age.
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
[105] The only evidence I have on this factor is that Ms. Nouri views it as important for A. to know of her Iranian background and culture and for her to learn Farsi. She also noted the existence of an Iranian community in the greater Toronto area and the absence of such a community in Sarnia.
[106] Mr. Watters indicated that he has “never taken issue with A. learning about her heritage” and that he has “fostered A.s’ learning about her Iranian heritage.” He also indicated that he is able to speak several words in Farsi which he uses with A. when she is in his care.
(g) any plans for the child’s care;
Mr. Watters
[107] Mr. Watters made clear that he does not oppose Ms. Nouri leaving Sarnia for the greater Toronto area. His objection is to A. going with her.
[108] According to Mr. Watters, his plan would simply continue the routine and lifestyle that A. had been experiencing since her birth.
[109] His plan, assuming that Ms. Nouri does not obtain an order allowing her and A. to relocate to Aurora, resulting in Ms. Nouri remaining in Sarnia, is for A. to be in their shared care on a 2-2-3 schedule and for A. to reside with him, when in his care, in the family residence.
[110] That residence is located a short distance from the home of his grandfather, and A. would continue to visit with him. The school that she would attend is located in the neighbourhood and, should Mr. Watters not be able to retrieve A. at the end of the school day his grandfather, who is in his mid-eighties, would be able to assist him by retrieving her. The parties differ on the state of his health.
[111] Mr. Watters would be actively involved with A.’s medical, dental and other appointments. She would continue to be seen by the family doctor, pediatrician and dentist who have attended to her care since her birth. He would take A. to her dance classes when in his care. She would continue to maintain the friendships that she had developed since her birth.
[112] According to Mr. Watters, his new employment, which he commenced between the time the motions were heard in March 2022 and the time they were heard in July 2022, allows for flexibility in an otherwise reasonably fixed work schedule. He indicated that the flexibility allows him to bank additional time which he can use as necessary to take A. to appointments.
[113] Ms. Nouri challenged Mr. Watters’ assertions about the flexibility of his new job, producing some evidence that Mr. Watters’ new employment interfered with his ability to spend some parenting time with A. on two occasions in the first few months that he held the position. While Mr. Watters sought to counter address that happening in future, a letter appended to an affidavit is not evidence. (Li Santi v. LiSanti, 1990 CanLII 4229 (ON CJ), [1990] O.J. No. 3092; Chrisjohn v. Hillier, [2021] O.J. No. 1415)
[114] Should Ms. Nouri elect to move to Aurora without A., Mr. Watters proposed to implement the parenting schedule suggested by Justice Desotti in his endorsement.
Ms. Nouri
[115] Ms. Nouri’s plan begins with her and A. residing in a four-bedroom townhouse in Aurora which is owned by a couple with whom she is friends. She has known the female member of the couple for nine years and considers her to be part of her family. That person is employed as a nurse. The male member of the couple is retired. According to Ms. Nouri’s plan, she and A. will reside with this couple while she saves money to pay a deposit on an apartment. Ms. Nouri hopes that she and A. can get into an apartment after about a year.
[116] She will contribute $500 per month to the cost of groceries and other funds for bills presumably generated by her and A. residing with the couple.
[117] She has identified the school where A. would be in Senior Kindergarten. The school is said to be located approximately 1.1 km, estimated by Ms. Nouri to be a two-minute drive or a ten-minute walk, from the residence where she and A. would be residing.
[118] She proposes to drop A. off at school for 8:30 AM on the way to work, with her female friend retrieving A. from school at 3:15 PM while en route home from her shift at the hospital. The school also has a before and after school childcare program in which A. can be registered if necessary.
[119] Ms. Nouri has made contact with her former family physician in Toronto, who has agreed to accept both Ms. Nouri and A. as patients at his office in Thornhill, which is approximately 25 minutes from the residence where she would be staying in Aurora. Similarly, she has introduced A. to a pediatric dentistry practice located three minutes from the residence in Aurora. A. has met both the physician and a dentist who would be providing care for her should she relocate.
[120] The nearest hospital is located approximately 12 minutes by automobile from the residence where Ms. Nouri and the child will be residing. It is the hospital at which her friend works.
[121] Ms. Nouri plans to enroll A. in dance classes in Aurora similar to the classes in which she was enrolled in Sarnia. She believes that A. would make friends in dance in Aurora just as she did in Sarnia.
[122] If permitted to relocate, she proposes that Mr. Watters would have parenting time with A. on alternating weekends, with the exchanges to occur in London. She also agrees to video and phone calls between A. and Mr. Watters during the week.
Discussion
[123] Both parties have reasonably well-thought-out plans of care for A. It would appear that her educational and medical needs would be attended to, and that she would be enrolled in similar recreational activities, in both locations.
[124] The major difference in the two plans is that the plan proposed by Ms. Nouri would eliminate Mr. Watters’ midweek parenting time with A. The plan proposed by Mr. Watters would have both him and Ms. Nouri each having A. in their care for roughly equal amounts of time.
[125] While Mr. Watters submits that Ms. Nouri’s plan would, in effect, minimize his parenting time, thereby violating the principle now embodied in s.24(6) of the CLRA, the principle’s predecessor, then known as the “maximum contact” principle, was held by the Supreme Court of Canada in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 24, to be “mandatory but not absolute.” The Supreme Court continued, noting that the statutory obligation that courts “give effect” to the principle “only obliges the judge to respect it to the extent that such contact is consistent with the child's best interests; if other factors show that it would not be in the child's best interests, the court can and should restrict contact.” Similar language is included in s. 24(6) of the CLRA.
[126] At first glance, it would appear that the plan proposed by Mr. Watters would more easily allow the court “to give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child,” as required by s. 24(6).
[127] In responding to that, Ms. Nouri’s proposal that some of the reduction in Mr. Watters’ parenting time be made up by allocating additional parenting time to him at other times during the year, including over summer and during holidays, does attempt to make up for the loss of Mr. Watters’ current mid-week parenting time. An expansive use of extended make-up time during the year would also allow the court to address its obligation under s. 24(6).
(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;
[128] As I have already noted, Justice Desotti previously concluded “both parties… can properly parent their child” despite the conflicts in their evidence.
(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;
[129] Under my consideration of the factor which requires that I consider “each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent”, I commented on the tone of Mr. Watters’ evidence about Ms. Nouri, and how that might impact his willingness to support the development and maintenance of A.’s relationship with her mother.
[130] Mr. Watters proposes that the parties would equally share parenting time with A. and exercise joint decision-making responsibility. As to the former, he has been seeking it since not long after the parties’ separation. As to the latter, he asserts that the parties have traditionally made decisions about A. jointly.
[131] Ms. Nouri opposes joint decision-making responsibility, as she also opposes equally shared parenting time.
[132] As to the former, Ms. Nouri claimed that joint decision-making caused unnecessary conflict between her and Mr. Watters, who she described as “combative”, disagreeing with her on almost all decisions with respect to their daughter. She claims that he is confrontational at parenting exchanges and becomes angry when she does not agree with him. According to Ms. Nouri, there are “serious communication issues” between her and Mr. Watters.
[133] As to the latter, Ms. Nouri claims that A. has issues sleeping through the night and that her sleep pattern is disrupted when her daily routine is disrupted, something that she envisions occurring should a shared parenting schedule be put in place. This rationale was substantially undercut by answers given by Ms. Nouri when she was cross-examined by Mr. Watters’ solicitor. She also cited what she identified as her history of providing care for A. as a reason to not implement shared parenting.
[134] A review of the many affidavits filed in this proceeding, some of which exceeded the page limits in place provincially for family cases, does reveal glimpses of evidence which could lend support to Ms. Nouri’s assertion that Mr. Watters sometimes did communicate with her in language which suggested that he expected to be involved in all decisions concerning A., however seemingly insignificant, and that he saw himself as having some consent-granting authority with respect to decisions made by Ms. Nouri.
[135] An example of the former relates to an incident in May 2022 in which Ms. Nouri had A.’s hair trimmed. According to Ms. Nouri, A. requested the haircut. The trim occurred when Ms. Nouri had her own hair cut, and the trim was nearly identical to one which had been given to A. last year. The trim occurred without advance notice to Mr. Watters. The parties disagree on whether the trim involved the removal of 3 inches or 6 inches of A.’s hair. In any event, upon learning that the child’s hair being cut, Mr. Watters sent a text message to Ms. Nouri, informing her, “You don’t get to make decisions for A. on your own. This includes cutting her hair.”
[136] Mr. Watters responded to that evidence, deposing that he has no issues with A. attending for routine haircuts, but that he “had always been involved in this process prior to separation and would have liked the opportunity to be involved once again.” He did not explain why such an event was so important to him.
[137] Ms. Nouri points to this incident as an example of the problems she and Mr. Watters are likely to encounter if they have to communicate and co-operate with one another on matters affecting A.
(j) any family violence
[138] Family violence is defined in s. 18(1) of the CLRA as:
“any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct.”
[139] The definition is expanded in s. 18(2) to include various types of described behaviours or actions.
[140] In their affidavits, each of the parties deposes to allegations of conduct by the other that could fall, if established on a balance of probabilities, within the definition of family violence. Mr. Watters alleges that Ms. Nouri threatened to kill him. She denied doing so. Ms. Nouri alleged that Mr. Watters was “very controlling” during their relationship. Whether or not such control existed and, if so, whether it was ‘coercive”, remains to be determined. Mr. Watters has denied the allegation.
[141] Ms. Nouri also accused Mr. Watters of having an “unpredictable temper” and of “yelling and hitting the walls in front of” A., causing her to be fearful. Mr. Watters denied all of that.
[142] I am unable to draw any conclusions with respect to the existence of family violence at this point. The evidence would need to be developed at a trial if either party was inclined to do so.
Best Interests - CLRA s. 39.4(3) Factors
(a) the reasons for the relocation
[143] Ms. Nouri makes clear that the main reason that she is seeking to relocate from Sarnia is because of the difficulty she has had since moving there in 2017, both prior to and during the pandemic, to establish her interior design business or advance her career in that or any related field.
[144] In his earlier endorsement, Justice Desotti “acknowledge[d] that [Ms. Nouri] has actively looked for work in her field and outside of her field in Sarnia without success.”
[145] In her affidavit sworn June 29, 2022 in support of her renewed motion to relocate, Ms. Nouri updated her job search efforts, providing evidence that she had continued to apply for employment in Sarnia without success. She did so in response to Mr. Watters’ allegation that she appeared “to have given up on trying to find employment locally” because “she has made up her mind that she intends to relocate with A.”
[146] I am satisfied that Sarnia does not present Ms. Nouri with the same opportunities to advance her career in interior design as would the greater Toronto area. I am also satisfied that there is no requirement on Ms. Nouri to perform work such as delivering pizza in order to support herself when she is capable of working in a specialized field.
[147] The job which was offered to Ms. Nouri in Aurora will, according to her evidence, provide her with a salary of $65,000.00 per annum. While I do not know her current income it is, undoubtedly, far less than $65,000.00.
[148] The position of Mr. Watters appears to be that Ms. Nouri’s request to relocate is driven by other factors. He has repeatedly referred to her as being mentally unstable and, to that point, in his affidavit sworn March 21, 2022 he expressed concern that Ms. Nouri’s decision to move “is part of her ongoing pattern of instability.”
[149] The parties do agree that Ms. Nouri is residing in the family residence with A. It is also not denied by Ms. Nouri that Mr. Watters has been carrying the costs of her and A.’s residence in the home. It is equally agreed that Mr. Watters has given notice to Ms. Nouri that she must vacate the residence. Neither party, however, addressed the issue of child support payable once Ms. Nouri vacates.
[150] If Ms. Nouri is to remain in Sarnia, as requested by Mr. Watters, even with a shared parenting arrangement, Mr. Watters will undoubtedly owe child support to Ms. Nouri under section 9 of the Child Support Guidelines. I was not provided with information about Mr. Watters’ current income. Whatever it may be, it seems reasonable to assume that, between working part-time delivering pizza and receiving offset child support based on Mr. Watters having a moderate income, Ms. Nouri’s monthly income would be unlikely to allow her to meet all of A.’s needs while in her care. According to Ms. Nouri, she cannot even afford to rent an apartment in Sarnia, the cost of which she estimates at $1,300.00 per month, without a better paying job. While a combination of earnings delivering pizza and offset child support may allow her to secure an apartment in Sarnia, it is not likely to allow her to meet A.’s other essential needs.
[151] Neither party touched the subject of spousal support, whether it might be payable and, if so, by whom and in what amount.
[152] The benefit to a child arising from the improved financial circumstances available to a relocating parent were discussed and accepted by the Ontario Court of Appeal in Bjornson v. Creighton, supra:
21 …In my view, however, the trial judge erred in reducing the issue of the child's best interests to one that deals only with employment. In doing so, the trial judge overlooked or disregarded the social, psychological and emotional aspects of the mother's desire to return to Alberta with the child. Bjornson wishes to return to Alberta to regain the general stability, control and independence that she enjoyed in her emotional, professional, psychological and social life there.
22 Serious regard must be paid to the views of Bjornson…
23 …The differentials between her work in Alberta and in Ontario are not marginal. They are quite substantial.
24 … Because of the level of her earnings in Ontario she has remained financially dependent upon Creighton, to a greater or lesser degree. Money was, and is, an issue between them. Moving to Calgary and regaining employment at the hospital there would change this. According to Bjornson's evidence, a return to her work in Calgary would enable her not only to support herself and her son, but also to contribute something towards enabling Creighton to exercise his right of access.
25 Freeing Bjornson of her dependence on Creighton would create the possibility of a new and positive relationship between herself and Creighton. It would also almost certainly create a new and more positive relationship between Bjornson and her son. Freeing Bjornson from financial dependence on Creighton would give her an independence she has never had during her son's life.
28 Moving to Alberta, where she plans to resume a well-adjusted and independent life - a life that she worked hard for and had achieved there previously -- will, in all the circumstances of this case, enhance the best interests of the child. This is particularly true when contrasted with the potential negative effects of prohibiting Bjornson from relocating… She also does not have the support of her friends and family which is beneficial, if not crucial, to raising a child as a single parent. In this case, the child's best interests are better served and better achieved by a well-functioning and happy custodial parent, operating at her full potential.
29 In Gordon, the Supreme Court of Canada reiterated that the best interests of the child test governs relocation disputes. Ultimately, the only issue is what is in the best interests of the child. In determining this, careful attention should be paid to the potential negative effects on the child should the custodial parent be restricted from relocating. Likewise, careful attention should be paid to the potential positive effects on the child should the parent be permitted to relocate (Woodhouse v. Woodhouse (1996), 1996 CanLII 902 (ON CA), 136 D.L.R. (4th) 577 per Weiler J.A. at 597.)
30 With the greatest respect to the learned trial judge, he did not contemplate what improvement, if any, would result to the interests of the child if the custodial parent were permitted to move to Alberta. I agree with the statement of counsel for the mother, as expressed in her factum, that the trial judge failed to "give due regard to the relationship between the quality of the custodial parent's emotional, psychological, social and economic well-being and the quality of the child's primary care-giving environment." The learned trial judge failed to appreciate the multi-faceted nature of the mother's desire to return to Alberta with the child and the concomitant positive effects on the child's best interests in being cared for by a well-functioning and happy custodial parent.
38 … While it is true that the defendant has no assurance of gainful employment in Alberta it is also true, and supported by actual evidence, that Bjornson's professional life, earning potential and self-fulfillment will continue to be significantly compromised if she remains in Ontario.
[153] Ms. Nouri had “the assurance of gainful employment” when these motions were argued that the mother did not have in Bjornson v. Creighton.
[154] In his submissions, counsel for Mr. Watters relied upon the decision of Justice Kraft in Leira-Lopez v. Montanari, 2020 ONSC 4725 to support his position that Ms. Nouri’s request for an interim relocation be denied. That case is, however, distinguishable. There, the mother claimed that if she was not allowed to relocate she would lose an employment opportunity in Italy. While “custody” was found to be a genuine issue for trial, as decision-making responsibility is in this case, Justice Kraft also found that the mother had been earning roughly the same income in Canada as she would earn were she permitted to move to Italy. Furthermore, Justice Kraft found that the mother still had an opportunity to advance her career with the company for which she worked in Canada, resulting in the finding that the mother’s “family unit’s” financial security was not at risk. The same cannot be said of the facts in this case.
[155] Furthermore, the mother had resided for 14 years in Toronto, where the motion was heard and where, presumably, the father wished the child to remain. The mother’s graduate education took place in Toronto and her entire employment history was in Canada. In this case, Ms. Nouri has resided in Sarnia since 2017, while she has only been in Canada since 2013, having previously worked as an interior designer in Tehran.
(b) the impact of the relocation on the child
[156] Beyond the obvious reduction in the time that A. would spend in the care of her father, which is not an insignificant impact, and the change of schools and dance classes, with an attendant loss of contact with children with whom she has become friendly, I cannot determine what other impact relocation will have on A. If relocated, A. will have a new doctor and dentist, but no one can predict that such an eventuality would not occur if she remained in Sarnia. Professionals retire or close their practices for other reasons. A. is young, and in kindergarten. Making new friends will, hopefully, not be difficult. At her age, a “lifelong” friend is someone who she has known for, perhaps, three years.
[157] A. is young, only five years of age. The Court of Appeal considered the age of the child who was the subject of a relocation request when assessing the impact of a potential move in Reeves v. Brand, [2018] O.J. No. 1425, writing:
30 Children's adaptability to change, especially at Ray's age, bolsters the trial judge's conclusion. As Furey J. sensibly noted in his recent decision in Sexton v. Tipping, 2017 CanLII 56984 (N.L.S.C.T.D.), at paras. 81-82:
It is a reality of the times in which we live that many couples with children come together through partnership or marriage, separate or divorce after a period of time and then move on with their lives. ... The crux of these scenarios is change -- for the parents and for children.
Change is a constant in all our lives. As a general principle, children are adaptable in their lives. They change communities. They change schools. They change friends. Many change families, not because of their actions but because of the actions of their parents. That has happened in this matter.
31 Ray is young. The disruption to the life of a six-year-old is likely to be less significant than the disruption to the life of, say, a fifteen-year-old.
[158] Justice Desotti adverted to this issue when, at paragraph 13 of the initial endorsement, he wrote, “I agree that a younger child probably has an easier time with the change of surroundings and schools.
[159] I find that, apart from the reduction in her parenting time with Mr. Watters, there is not likely to be a significant or otherwise negative impact on A. if permitted to relocate with her mother.
(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;
[160] I have already considered this issue. It is clear that, regardless of the amount of parenting time that Mr. Watters spent with A. in the initial period following the parties’ separation, he has been spending time with her more regularly for the past several months, and he has been seeking an expansion of that time.
[161] As I have also noted, the parties have very different positions about the degree to which the other was involved in A.’s life, both prior to and following separation. This is a triable issue.
[162] Mr. Watters submits that Ms. Nouri has unilaterally reduced his parenting time in furtherance of her goal of being able to relocate. There is no doubt that she has not agreed to expand his parenting time, but it is not a foregone conclusion, based upon her other evidence, that the reason that she has failed to reach such an agreement has been driven by her desire to relocate. That, too, is an issue for trial.
[163] Conversely, the evidence also establishes that, since the date of separation, A. has spent more of her time in the care of Ms. Nouri. However, I have already found that that did not arise by agreement of the parties.
[164] The significance of this finding was reviewed by Justice Chappel in Batsinda v. Batsinda, 2013 ONSC 7899, [2013] O.J. No. 6120:
25 … I rely on the principles which the Ontario Court of Appeal set out in Papp v. Papp, 1969 CanLII 219 (ON CA), [1970] 1 O.R. 331 (C.A.) respecting the weight to be accorded to de facto custodial and access arrangements in the context of motions for temporary custody and access. In that case, the court recognized that the existing arrangements, and how well they are working for the child, are relevant factors in deciding such motions. It stated that as a working rule, a disturbance of the status quo at the interim stage requires more cogent evidence than may be required to disrupt the status quo after trial.
28 …In my view, for the purposes of applying the principles set out in Papp v. Papp regarding the strength of the evidence required to disrupt the status quo arrangement, the status quo that is relevant is that which existed just prior to the parties' separation, except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation. A status quo created by one party unilaterally taking matters into their own hands, without any consent from the other party, does not fall within the principles established in Papp v. Papp.
(d) whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement
[165] As I have already noted, while the original notice provided by Ms. Nouri prior to her proposed move to Oakville may have been defective, any defect, in my view, has been mitigated by the subsequent proceedings, including two fully argued motions.
(e) the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside
[166] None exists.
(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 expenses
[167] Ms. Nouri is prepared to adjust parenting time for Mr. Watters if she is allowed to relocate with A., so as to minimize any loss of parenting time suffered by him due to the relocation. She is also prepared to move the exchange location to reduce his travel time to effect an exchange of A. Both proposals are reasonable. The court retains the authority to determine the extent to which, and when, any lost parenting time is to be made up.
(g) whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance
[168] Apart from the question of the payment of child support, upon which I have commented, and its relation to Ms. Nouri having been able to continue residing with A. in the family residence, I have no evidence to suggest that this factor applies.
Discussion
[169] The parties have each made allegations against the other, particularly, with respect to, in the case of Ms. Nouri, whether she suffers from mental health issues, and if she does, whether they compromise her ability to parent A. and, in the case of Mr. Watters, whether his physical or mental health, or both, and his employment, compromise his ability to parent A. The parties also hold widely divergent views about the extent to which each was involved in the care and upbringing of A. before their separation.
[170] These issues will require a trial, with viva voce and, likely, documentary evidence, particularly where allegations are made with respect to the mental or physical health of the other, as well as cross-examination to test any such evidence.
[171] That noted, however, it is clear, based on the evidence, and as previously found by Justice Desotti, that Ms. Nouri, who previously had employment in Toronto as an interior designer, has suffered professionally and financially as a result of the parties’ move to Sarnia. She is delivering pizza despite making reasonable efforts to secure suitable employment, including in fields beyond that for which she is primarily educated and trained.
[172] Her desire to relocate to the greater Toronto region, in my view, is driven not by a desire to eliminate Mr. Watters from the life of their daughter, as he suggested repeatedly in his materials, but to seize an opportunity to improve on the lifestyle that she and A. are experiencing in Sarnia.
[173] The job which she has accepted, if still available, clearly provides her with far greater financial stability than she has at present. It is unclear what, if any, financial support Mr. Watters is prepared to extend to her when she leaves the family residence. The only evidence he gave in that respect was that he offered to contribute to the cost of her return to the Toronto region, but that offer was made on the assumption that A. would not be relocating with her. She, understandably, rejected the offer.
[174] In my view, the reason for Ms. Nouri’s proposed relocation is a compelling circumstance which will, more likely than not, result in a “financial benefit to the family unit.”
[175] I adopt the views of the Court of Appeal in Bjornson v. Creighton about the benefit to a child of having a well-functioning and happy parent. Ms. Nouri stands a far better chance of being such a parent if she is meaningfully employed and not living in isolation, apart from her support systems.
[176] When I take into account the various factors that I am mandated to consider in relation to A.’s best interests and filter out those upon which I cannot make any findings due to significant conflicts in the parties’ evidence on the motion, I also have concern about what I perceive appears to be Mr. Watters’ lesser willingness than Ms. Nouri to support the development and maintenance of A.’s relationship with the other parent.
[177] I also find, based on my review of the evidence overall that it is more likely than not that the parties have difficulty communicating about A. because of Mr. Watters’ attitude toward Ms. Nouri, which makes his assertion that the parties communicate without difficulty about A. less believable.
[178] That noted, I am also cognizant that the Ontario Court of Appeal noted in Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 at para. 11, that “[t]he fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered.” The Court of Appeal set out factors for a court’s consideration when it is faced with a request for joint decision-making responsibility in Kaplanis. Those factors were encapsulated in paragraph 94 of Justice S.B. Sherr’s decision in L.B. v. P.E. as follows:
- There must be evidence of historical communication between the parents and appropriate communication between them.
- It can’t be ordered in the hope that it will improve their communication.
- Just because both parents are fit does not mean that joint custody should be ordered.
- The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
- No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise, they must be able to be addressed on an ongoing basis.
- The younger the child, the more important communication is.
[179] This issue was also considered by Justice M. Kraft at paragraph 85 in Brown v. Brown, 2021 ONSC 1753, where she wrote:
Joint custody allows each parent authority to make decisions concerning his or her children. Absent a demonstrated ability by parents to cooperate in making those decisions an order for joint custody has the potential to increase conflict between parents. That potential must be carefully weighed and considered in relation to the specific circumstances of each case. Parental conflict is a significant risk factor for children, particularly when the conflict is long standing and progressive: Antemia v. Divitor, 2019 ONSC 678, at para. 91.
[180] Clearly, this is all tied to the parties’ conflicting claims with respect to decision-making responsibility, discussed below.
[181] The evidence also establishes that A. has more contact with members of Mr. Watters’ family than she does with members of Ms. Nouri’s family. It may also be correct that, having been born in Sarnia and having spent her life there, A. has more friends of her own age there than she does elsewhere. However, Ms. Nouri did identify the children of friends of hers with whom A. is familiar, and with whom she proposes that A. would get together while Ms. Nouri is visiting with their parents. While Mr. Watters is dismissive of those relationships, in Bjornson v. Crieghton, at paragraph 28, supra, the Court of Appeal recognized the significance of the support of the friends of a parent who proposes to relocate, calling such support, along with that of family, “beneficial, if not crucial, to raising a child as a single parent.” Thus, I conclude, that if the support of Ms. Nouri’s friends would be of assistance to her in raising A. as a separated parent, permitting the development of friendships with the children of such friends would equally help A. as she transitions away from the friendships that she may have developed in Sarnia.
[182] I also consider the fact that there is some evidence that Mr. Watters’ new employment might not be as flexible with respect to his working hours as he suggests. His plan to parent A. relies upon the assistance of his elderly grandfather. Mr. Watters does not appear to have a backup to his grandfather to help him meet the daily obligations of parenting. Ms. Nouri’s plan includes the support of the two people with whom she and A. will be residing for a period of up to one year, and she backstops that plan with the before and after school program at the school where A. will be enrolled if the relocation is permitted.
[183] Furthermore, while I applaud Mr. Watters for his willingness and efforts thus far to support and foster A.’s Iranian heritage, I cannot help but conclude that she would more likely be exposed to Iranian culture if she were to be in the care of her mother, living in a city where there is more opportunity for such exposure.
Conclusion Concerning Relocation
[184] These motions have been difficult, and they have not lent themselves to an easy resolution. That point was echoed by Justice Tobin at the outset of his decision in Zorab v. Zourob, 2021 ONSC 6552, where he quoted Justice Laskin in Reeves v. Brand, 2018 ONCA at para. 17, that relocation or mobility cases “are among the most difficult cases in family law.”
[185] Bearing in mind that the factors to be considered when assessing A.’s best interests in the context of her mother’s request to relocate with her are not to be considered as a mere checklist and that I am, instead, to take a holistic approach to all of the information in my making my assessment about what order to make in A.’s best interests, I have concluded that:
a. Ms. Nouri has met her onus of establishing that the proposed relocation on an interim basis is in A.’s best interests ;
b. Mr. Watters has not met the onus of establishing that the proposed relocation on an interim basis is not in A.’s best interests; and
c. A.’s need for physical, emotional and psychological safety, security and well-being are more likely to be met on an interim basis, through continued residence with Ms. Nouri.
[186] Consequently, subject to the conditions noted in my order, below, Ms. Nouri will be permitted to relocate on an interim basis, with A.
Decision-Making Responsibility
[187] I have already noted above, that, when determining whether to make an order for joint decision-making responsibility, a court must consider, amongst other factors, the ability of the parties to communicate.
[188] Section 20(1) of the CLRA provides that:
20 (1) Except as otherwise provided in this Part, a child’s parents are equally entitled to decision-making responsibility with respect to the child.
[189] Amongst the exceptions provided for in s. 20 are alterations to the equal entitlement contained in a separation agreement or a court order. These parties do not have a separation agreement.
[190] A further exception is set out in s. 20(4), which provides:
(4) If the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other, the right of the other to exercise the entitlement to decision-making responsibility with respect to the child, but not the entitlement to parenting time, is suspended until a separation agreement or order provides otherwise.
[191] As I interpret this subsection, should the entitlement of a parent to decision-making responsibility be suspended because that parent has consented, either expressly or impliedly, or acquiesced to their child or children living with the other parent, the only way to revive the first parent’s entitlement to decision-making responsibility, whether equally or on an alternate basis, is by means of a separation agreement or court order.
[192] I do not doubt that Mr. Watters takes the view that A. has been living with Ms. Nouri without his consent or acquiescence. In my view, whether A. has been living with Ms. Nouri since the date of separation with the consent, implied consent, or acquiescence of Mr. Watters is a triable issue. Also needing to be resolved is how long A. would need to live with Ms. Nouri with Mr. Watters’ consent, implied consent or acquiescence before Mr. Watters’ right to exercise decision-making responsibility becomes suspended, because the answer to that question is not apparent from the wording of s. 20(4).
[193] However that issue might be resolved after a trial, I am satisfied that it needs to be addressed on a temporary basis given that I have authorized Ms. Nouri to relocate with A.
[194] In resolving the issue on a temporary basis, I intend to be pragmatic. Decision-making responsibility relates to “significant decisions about a child’s well-being,” with the listed matters about which decisions might be made being noted in s. 18(1) of the CLRA as inclusive rather than exhaustive.
[195] Since A. will be residing in a different municipality than Mr. Watters, in my view Ms. Nouri should have the right to sole decision-making responsibility with respect to A.’s significant extra-curricular activities, with some parameters relating to cost constraints on Ms. Nouri’s right to make such decisions. She should also have interim sole decision-making responsibility with respect to A.’s education since that is governed by provincial legislation. Where A. will attend school will be a function of where Ms. Nouri resides with her, since attendance boundaries lie within the jurisdiction of local school boards.
[196] In each instance, however, Ms. Nouri’s right to sole decision-making responsibility on an interim basis will be subject to her obligation to consult meaningfully with Mr. Watters before a decision is made, and to advise him of a decision that she makes.
[197] As for other significant decisions about A.’s well-being, my interim order will provide that the parties shall make such decisions jointly. They will simply have to overcome their communication difficulties pending a final resolution of these issues.
The Need for an Expedited Trial
[198] There are important issues between the parties relating to A.’s best interests that need to be resolved, either by settlement or trial. Given the mixture that this case presents of matters more readily lending themselves to interim determinations and those that do not, I have also concluded that the parties will be required to take the issues of decision-making responsibility, parenting time and child support to trial in short order.
[199] I have conferred with the Trial Coordinator at Sarnia. This matter has been before the court for several months, and the parties have been separated for almost one year. In fashioning my order, I have taken guidance from the decision of Justice Mitrow in Markowski v. Krochak.
[200] Accordingly, I make the following order:
Provided that employment is still available to the Applicant, Iris Nouri, at HN Woodworking in North York, and subject to the provisions of Paragraphs 2 through 10 hereof, she is hereby permitted, on an interim basis, to relocate to Aurora, Ontario with the child A.K.W. born, 2017.
Should employment at HN Woodworking in North York no longer be available to the Applicant, once she is able to demonstrate that she has secured other employment in her field or a related field in the greater Toronto area (being area codes 416 and similar, and 905 and similar), the Applicant is permitted to relocate, on an interim basis, to the greater Toronto area with the child A.K.W, subject to the provisions of Paragraphs 3 through 10 hereof, and provided that, before she does so, she provides the Respondent, Jacob Lyle Israel Watters, with details about her intended relocation including, but not limited to: a. the date of her intended relocation with the child; b. the address where she and the child shall be residing; c. the phone number at which the child can be contacted and spoken to by the Respondent; d. the name and address of her place of employment, her position, her rate of pay and her start date; e. the name, address and phone number of the school that the child shall be attending; f. confirmation that she and A. will not be residing with any adult male who is not related to her, other than Michael Shiravand, the male partner of Parvaneh Saboor, with whom she proposes to reside in Aurora; and g. a detailed description of the plan she will be following to ensure that the child gets to and from school on a daily basis under supervision, and whether she will be cared for after school by anyone other than the Applicant and, if so, by whom.
The trial of the issues of decision-making responsibility, parenting time, relocation of the child and child support shall be expedited for trial. The trial of those issues is added to the trial list in Sarnia commencing October 24, 2022, to proceed as a priority matter, peremptory on both parties.
Counsel for the parties shall immediately contact the Trial Coordinator at Sarnia to schedule a joint Settlement Conference/Trial Management Conference. Counsel shall jointly prepare a draft Trial Scheduling Endorsement Form for the Trial Management Conference, as well as Settlement Conference Briefs.
Upon the relocation of the child A.K.W, on an interim basis, to the Applicant’s place of residence in Aurora or the greater Toronto area, as the case may be, and pending release of the trial judgment, the Respondent shall have interim parenting time with the child: i. the first three weekends of each month from Friday at 5:30 p.m. to Sunday at 6:30 p.m., extending to 6:30 p.m. on any holiday Monday falling within the first three weekends of each month; ii. three times weekly (excluding exchange days), on the same days each week, to be selected by the Respondent, at 6:30 p.m. for up to 30 minutes, by such electronic means as the Respondent determines. The Applicant shall ensure that such communication, which is to be initiated by the Respondent, takes place on each occasion; and iii. at such other times as the parties may agree, in writing
In the event the trial does not commence during the sittings of October 24, 2022, in addition to the interim parenting time granted to the Respondent pursuant to Paragraph 5 hereof pending release of the trial judgment, he shall also have parenting time, as applicable, depending on when the trial judgment is released, for: i. one-half of the Christmas holiday period each year; ii. one half of the March school break each year; and iii. four weeks of his choice during the summer months of July and August, annually, provided that he notifies the Applicant in writing by May 1.
Exchanges of the child before and after the Respondent’s parenting time shall occur at the parking lot of Tim Horton’s, 4530 Colonel Talbot Rd, London, accessed via the Colonel Talbot Road exit of Highway 402 at Lambeth/London.
The times that the child shall be exchanged between the parties and the location of any exchanges of the child may be changed by written agreement of the parties.
Pending a final order of the court with respect to the issues to be tried during the October 24, 2022 trial sittings: a. The Applicant shall consult meaningfully with and seek input from the Respondent about the child’s: i. education; and ii. significant extracurricular activities. b. In the event of a disagreement about the child’s education, the Applicant shall have the right to make the final decision, which she shall communicate to the Respondent, in writing. c. In the event of a disagreement about any of the child’s significant extracurricular activities, the Applicant shall have the right to make the final decision, provided that the total cost does not exceed $100.00. d. The Applicant shall not make the final decision with respect to any significant extracurricular activity for the child which has a total cost of more than $100.00 unless she pays the full cost herself. e. In the event that the Applicant does not want to pay the full cost of any one or more of the child’s significant extracurricular activities which has a total cost of more than $100.00, the parties shall share responsibility for making the decision about any such significant extracurricular activity and the division of its cost. f. In no case shall the Applicant schedule any of the child’s extracurricular activities, significant or otherwise, at any time or times that will conflict or interfere with the Respondent’s parenting time. Should any such conflict arise, whether advertently or inadvertently, the Respondent’s right to parenting time shall take priority. g. The parties shall otherwise share responsibility for making significant decisions about the child’s well-being, including with respect to her health and culture, language, religion and spirituality. h. The party who is exercising parenting time with the child shall make the ordinary day-to-day decisions pertaining to the child.
At no time shall either party discuss with the child, or with another party in the presence of the child, past or present legal proceedings or issues between the parties, or regarding phone conference between the parties related to parenting issues. Each party may respond briefly, in a reasonable manner, to any questions with respect to such matters initiated by the child, but they are not required to do so.
The parties shall attempt to resolve the issue of costs. If they are unable to do so, they may, within 21 days of the date of this endorsement, each serve and file, through the Superior Court Trial Coordinator at Sarnia, written submissions on the issue of costs, not to exceed three pages, in Times New Roman 12-point font, with line spacing of 1.5, plus a bill of costs and any offers to settle made prior to the motion. Each counsel shall also disclose the full amount, inclusive of fees, disbursements and HST, that they charged their own client for this motion.
If no submissions are received by the Superior Court Trial Coordinator at Sarnia within 21 days of the date of this endorsement, costs shall be deemed to have been settled and no order shall be made as to the costs of this motion.
Justice T. Price
Date: September 13, 2022
[^1]: Nouri v. Watters, 2022 ONSC 8383 [^2]: Zorab v. Zourob, 2021 ONSC 6552 [^3]: Markowski v. Krochak, 2022 ONSC 2497 [^4]: One must always consider a child’s best interests under s. 24 of the CLRA, infra, Paragraph 66 [^5]: 2021 ABQB 548, at paras. 25-27; see also N.S. v. A.N.S., 2021 ONSC 5283, at paras 460-461; Al Kowatli v. Berrwin, 2021 ONSC 4999, at paras. 7, 26; Siddiqi v. Khan, 2021 ONSC 5326, at paras. 7, 8, and 25; and Zorab v. Zourob, …at paras. 93-95. [^6]: D.A. Rollie Thompson, "Legislating About Relocating: Bill C-78, N.S. and B.C." (2019), 38:2 C.F.L.Q. 219, at p. 242.