Court File and Parties

COURT FILE NO.: FC-22-1474 MOTION HEARD: 2022-09-27 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nicholas Paul Mask, Applicant AND: Katherine Fuhrmann, Respondent

BEFORE: Associate Justice Kaufman

COUNSEL: Ian C. Vallance, Counsel for the Applicant Michael Chun, Counsel for the Respondent

HEARD: September 27, 2022

Reasons for Decision

[1] The applicant father brings this motion to determine urgency under Rule 14(4.2) of the Family Law Rules. The parties started dating in late 2019, cohabitated in the applicant's home in September 2021 and separated in May 2022. They were never married. They are the parents of Lincoln Frederik Mask, who is 20 months old.

[2] The respondent mother is enrolled in a two-year paralegal program at Humber college. Her classes were conducted virtually during the pandemic. In November 2021, the respondent learned that her classes would be resuming in person, and the parties discussed how they would co-parent Lincoln while living in different cities. The applicant says that it was always understood that Lincoln would remain in Ottawa where he has family support. The respondent says that in October 2021, the plan was that the entire family would move.

[3] The parties separated in late May 2022, and the respondent found an apartment in Brampton. In a text exchange dated May 21, 2022, the respondent confirmed that she agreed to an equal parenting schedule. Her text message reads in part: “And yes, we are doing 50/50 custody. We will each have him. I will never take him from you. You are his father”. Counsel for the respondent suggests that the reference to “custody” refers to decision-making but I do not accept this interpretation. I interpret the text message, which, refers to “50/50”, and each party “having him”, as an agreement to share parenting time equally.

[4] This interpretation is further confirmed by the fact that, after the respondent moved to Brampton, the parties implemented a week about parenting schedule. The parties met in Marmora - which is halfway between Ottawa and Brampton - for the exchanges. In August, however, the respondent stopped bringing Lincoln for exchanges and the applicant has not seen Lincoln since August 13, 2022. According to the applicant, the respondent advised that the equal time sharing was only for the summer. On September 12, 2022, the respondent advised the applicant that it was in Lincoln’s best interest that his parenting time with the applicant be limited to weekends.

[5] I grant leave to bring this motion prior to a case conference for the following reasons:

[6] It is not disputed that Lincoln was, until May of 2022, ordinarily resident in Ottawa.

[7] Pursuant to section 39.3 of the Children’s Law Reform Act[^1] (“CLRA”), the respondent was required to provide at least 60 days’ notice of her intention to relocate. It is not disputed that she did not give notice in accordance with that section. Pursuant to section 39.4, the respondent could only relocate with Lincoln if the applicant did not object (after receiving notice under s. 39.3), or with if the court authorized the relocation. The applicant objects to the respondent’s relocation with Lincoln and the respondent did not obtain prior court approval.

[8] This Court has often held, in the context of motions for determinations of urgency, that self-help must be discouraged and admonished. [^2]

[9] In Sandhu v. Kaur,[^3] this Court heard an urgent motion by a father for the return of a child from British Columbia. The mother in that case relocated with the child following allegations of family violence, which lead to criminal charges against the father. The father’s urgent motion was initially made ex parte and it was adjourned to be made on notice to the mother.

[10] Fowler Byrne J. allowed the father’s urgent motion and ordered that the child be brought back to his place of habitual residence. The Court cited Laskin J.A.’s comments in Ojeikere v. Ojeikere,[^4] at para 16, that the policy behind discouraging child abduction and requiring a summary return to habitual residence reflects the Legislature’s overriding concern with a child’s best interests. Child abductions ordinarily harm children, undermine the important goal of maximizing contact between a child and both parents, and often promote a parent’s interests over that of the child.

[11] In Martinez v. Stavenjord,[^5] the mother only provided the father with 20 days’ notice of her intended relocation to Nova Scotia. Justice Summers granted the father leave to bring an urgent motion to prevent the move, finding that the mother created a situation of urgency and that her short notice suggested a certain lack of regard for the father and his role in the child’s life.

[12] In Bhadauria v. Cote, the mother relocated with a child to France without providing the requisite notice to the father under s. 39.3 of the CLRA. Justice Shelston concluded that the mother was required to commence a court application and ought not to have availed herself of a self-help remedy, and asked for the Court’s permission to relocate with the child after the fact:

I do not find it was appropriate for the mother to fail to give the father any notice of her decision to take their child to France then moving the child to France. The mother appears to have determined that she will be the custodial parent of the child and that the father will have parenting time. That is not the mother’s decision. Either the parties will reach a consent or the Superior Court of Justice will make that decision.[^6]

[13] With respect to the timing of the motion, I am of the view that it should be heard in October or November 2022 so as to provide the parties with sufficient time to prepare their evidentiary records and make fulsome arguments. Until the motion is determined, pursuant to Rule 42(8) 6 of the Family Law Rules, I order that the parties continue the parenting schedule (week about schedule) which prevailed during the summer of 2022.

[14] This Court orders that:

1. The applicant is granted leave under Rule 14(4.2) to bring a motion before a case conference.
2. The motion shall be heard in October or November 2022, for a duration of 90 minutes.
3. The parties shall obtain a mutually convenient date from the trial coordinator and shall agree to a timetable for the delivery of their motion materials. If the parties cannot agree, I may be spoken to.
4. Until the motion is determined, the parties shall parent Lincoln Frederik Mask in accordance with the week about parenting schedule that prevailed until August 6, 2022.
5. Costs of this motion are reserved to the motions judge.

Alexandre Kaufman Associate Justice Kaufman

Date: September 28, 2022

[^1]: RSO 1990, c C.12. [^2]: See: Whittle v. Whittle, 2013 ONSC 769 (Ont. Sup. Ct.) at para 6; Skuce v. Skuce, 2020 ONSC 1881(Ont. Sup. Ct.) at para 36. [^3]: 2020 ONSC 7308 (Ont. Sup. Ct.). [^4]: 2018 ONCA 372 (Ont. C.A.). [^5]: Unreported, Ottawa Court File number FC-21-1090. [^6]: Bhadauria v. Cote, 2022 ONSC 3088, at para 67.