COURT FILE NO.: FC-21-2186
DATE: 2022/12/07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Whitney Elizabeth Young, Applicant
AND
Gregory John Peters, Respondent
BEFORE: Justice Marc R. Labrosse
COUNSEL: Vlad Floca-Maxim, Counsel, for the Applicant
Respondent is Self-Represented
HEARD: November 7, 2022
ENDORSEMENT
OVERVIEW
[1] The applicant brings this motion for an order seeking to relocate with the child of the marriage to Southwestern Ontario and to determine issues surrounding the respondent’s parenting time.
[2] The respondent also brings a motion seeking a declaration of contempt with respect to the applicant’s failure to obey a court order that the child not be removed from the Ottawa jurisdiction. He also seeks to expand his parenting time, an order that the applicant undergo a psychiatric assessment and other relief. The respondent was advised that the court would deal with the request for a declaration of contempt at this appearance and the issue of penalty would form part of a subsequent appearance.
[3] The mobility issues in this case have been ongoing for almost a year. On January 6, 2022, Associate Justice Kaufman made an order which included a prohibition against the child being removed from the National Capital Region (“NCR”). At the time of that initial request for an urgent motion based on financial issues, the applicant consented to the prohibition against removing the child from the NCR and did not raise the issue that requiring her to remain in the Ottawa area would aggravate her PTSD symptoms. At the time, she mostly associated her stress with the respondent’s behaviour.
[4] In the spring, the respondent brought an urgent motion on the basis that the applicant had left the NCR with the child and for the respondent to have an order for parenting time. The applicant responded that she wanted to move to Southwestern Ontario to be in proximity to her family supports.
[5] On April 7, 2022, Justice MacEachern heard a motion whereby the respondent was requesting a gradual increase to his parenting time to eventually attain a 50-50 time sharing. It became apparent that the applicant had removed the child from the Ottawa area.
[6] Justice MacEachern refused the relief requested by the respondent to quickly increase parenting time in favour of a more gradual approach to daytime access on Wednesdays and Saturdays, which would eventually amount to 8 hours per week. She also made a finding that the applicant was in breach of the January 6, 2022 Order, that she not remove the child from the NCR and that she was required to return within 72 hours.
[7] What has become apparent from the affidavits filed and the argument at this motion is that the applicant returned to Ottawa as ordered by Justice MacEachern and she remained for approximately 3 weeks. Since then, she has apparently returned with the child to St. Mary’s – west of Kitchener. She is residing in a cabin in an unknown location and apparently driving back to Ottawa for the respondent’s parenting time. The applicant promotes that the child loves her surroundings in Southwestern Ontario.
[8] The applicant has essentially admitted to being in breach of both Associate Justice Kaufman’s and Justice MacEachern’s orders. She maintains that her contempt is not willful because it is necessitated by her failing mental health.
[9] For the reasons set out herein, the elements of contempt are made out based on the record before the court. However, in all the circumstances, the court chooses to exercise its discretion and refuses to make a finding of contempt.
[10] On the mobility front, the applicant’s request to relocate to St. Mary’s is denied. The applicant has repeatedly ignored court orders to remain in the NCR area with the child. There are insufficient grounds to justify a relocation with the child to St. Mary’s. In fact, the court is of the view that the mother has not been forthcoming about the reasons for her move to St. Mary’s. She does not have sufficient supports in Southwestern Ontario to justify a move to St. Mary’s, and her previous affidavits suggest that many of her supports are in Eastern Ontario. In addition, the evidence filed about her worsening PTSD, when in the Ottawa area, has been inconsistent. The applicant has few, if any, supports in Southwestern Ontario and the evidence about how residing in the Ottawa area is the cause of her worsening condition raises many questions. The applicant’s plan to relocate with the child does not take into account the child’s need to maintain a positive relationship with both parents and it appears to be an attempt to distance the child from the respondent, amongst other possible unknown reasons. The child will remain in Eastern Ontario until the trial of this matter or until further order of the court.
THE EVIDENCE
[11] These motions are the culmination of numerous appearances before the court where requests have been made for urgency, various heads of temporary relief and contempt proceedings. Each party has filed multiple affidavits and they purport to rely on most, if not all, of them for this motion. They have also filed numerous supporting affidavits. Both parties have attempted to rely on their previous affidavits to further support their respective positions. The court has read all of the affidavits filed but it is impossible to make reference to all of the issues raised in this highly conflictual case. The following is a summary of the evidence that the court deems most relevant.
[12] The applicant was born in Mississauga and the respondent was born in the Kitchener area. They met in Petawawa, started living together in September 2017 in Ottawa, purchased the matrimonial home on December 9, 2020, married on April 5, 2021, and separated in the late summer or fall of 2021 – the exact date of separation being in dispute. The parties have one child, A. P.-Y., who is 3.5 years of age. The applicant claims that the separation date is August 8, 2021, and the respondent claims that it is October 21, 2021.
[13] A. P.-Y. is a healthy child with no special needs.
[14] Both parties were employed with the Canadian Armed Forces. The applicant had a 20-year career in mental health and the respondent was a sniper with the Joint Task Force 2. The applicant resigned from the forces in October 2021 and accepted a position as a senior grievance officer with the federal government. She has taken a leave without pay from that position until January 23, 2023. She states that her leave is renewable until October 14, 2023. Her employment is mainly virtual and does not require her to be in the Ottawa area.
[15] The respondent left Ottawa for a posting in Iraq, on August 8, 2021. He returned early in October 2021, apparently to support the applicant. He became aware that the applicant was then in a new relationship, and he suffered a mental breakdown. From November 21, 2021, to mid-January 2022, the respondent attended therapy sessions at the Greenstone Treatment Centre – a facility specializing in trauma and addiction.
[16] There is no dispute amongst the parties that the applicant suffers from PTSD as a result of numerous alleged sexual assaults and misconducts suffered by her during her years in the military. The respondent acknowledges that the applicant suffers from PTSD but states that the most traumatic assault occurred when the applicant was posted in Southwestern Ontario. She estimates there were 38 different occurrences of sexual misconduct towards her.
[17] The medical evidence filed in these proceedings is relevant to the mobility issue. I note the following:
a. Dr. Dionne, a general practitioner, provided a form dated January 12, 2022, confirming that the applicant would be off work until January 23, 2023, but with no details provided;
b. Medical Notes and Assessments prepared by National Defence dated June 14, 2021;
c. Medical Notes and Assessments prepared by National Defence dated September 24, 2021;
d. A letter dated March 24, 2022, from Dr. Dionne;
e. An affidavit dated April 27, 2022, from the applicant’s therapist, David Flynn; and
f. An affidavit dated July 15, 2022, from Dr. Dionne.
[18] The medical evidence supports the applicant’s position that she suffers from complex PTSD. The focus of her argument is that living in the Ottawa area will cause harm to her mental health. Dr. Dionne specifically notes that “I have seen her mental health deteriorate the more she is reminded of, or forced to go to, the National Capital Region.” This opinion was provided in July 2022.
[19] Taking note of the actual medical evidence filed is important as the applicant has consistently and repeatedly made her own assessments of her medical needs and self-diagnosed her condition. This goes far beyond the statements made by the medical practitioners. This is relevant to my analysis given that the opinion evidence provided by the applicant herself is in large part inadmissible. The examples of her self-diagnosis are apparent in her affidavits and particularly, in her affidavits dated May 4, 2022, and July 21, 2022, where she provides her own analysis under the Diagnostic and Statistical Manual of Mental Disorders IV, a medical diagnosis of herself and also relies on significant hearsay evidence.
[20] None of the medical evidence was the subject of cross-examination and it should be noted that the affidavits did not include an acknowledgement of the expert’s duty as required by Rule 20 of the Family Law Rules, O. Reg. 114/99.
[21] In terms of what the applicant is living regarding PTSD and related symptoms, these conditions appear to exist whether she is in Ottawa or not. This factor is difficult to assess as the applicant has not been forthcoming about her travels. She describes the mere thought of returning to Ottawa as a triggering event.
[22] The applicant’s evidence is that she requires a relocation to Southwestern Ontario to be close to her supports. However, she confirms that her parents reside in Mississauga and her twin sister resides in Toronto. At best, her parents are roughly 2 hours from St. Mary’s and her sister is further away. Specific to Southwestern Ontario, she has an aunt and uncle in St. Thomas, Ontario (close to 1 hour from St. Mary’s) and a cousin in London, Ontario (40 minutes from St. Mary’s). She says that she also relies on the respondent’s family who reside in the Kitchener-Waterloo area (roughly 1 hour from St. Mary’s) but is clearly estranged from them. She has demonstrated no example of utilizing any supports in Southwestern Ontario. This is relevant because since the spring of 2022, it is apparent that the applicant and the child have primarily resided in the St. Mary’s area but there is no evidence that those who reside in that area have assisted the applicant in any way. Furthermore, the evidence is that when the applicant has had panic attacks recently, the child was left with the maternal grandparents in Mississauga – two hours away.
[23] The best that the applicant can say is that St. Mary’s is closer to Mississauga than Ottawa is to Mississauga.
[24] When describing her network of friends, the applicant refers to the following individuals and where they reside:
a. Anna Crosby – moving to Nova Scotia;
b. Ellis Waugh – Ottawa;
c. Tracy Waugh – appears to be in Ottawa;
d. Sally Rowlands – Ottawa;
e. Liala Halawa – Trenton;
f. Cristina Gale – Nova Scotia;
g. Brian O’Neill – Ottawa;
h. Shay Tucker – possibly Petawawa;
i. Mary Pierce – Eastern Ontario and part-time in Mexico;
j. Aunt Linda and Uncle Dave – St. Thomas;
k. Rob Mathers / Wendy Smith – London, Ontario.
[25] In response to the motion for parenting time, the applicant’s evidence mentions her desire to relocate to Southwestern Ontario. When referring to her parenting abilities she references her supports at para. 41, of her March 31, 2022, affidavit but none of these supports reside in Southwestern Ontario. She references her mother who lives in Mississauga, her sister who lives in Toronto, and then friends and colleagues who appear to reside somewhere in eastern Ontario/Western Quebec, based on area codes provided.
[26] When these proceedings began, the focus of the applicant’s desire to relocate was due to financial constraints, to be closer to her supports given that she suffers from PTSD and that she needed to distance herself from the respondent’s conduct from the fall of 2021. In her December 14, 2021, affidavit she swore that the respondent had been charged with harassment and weapons-related charges. In reality, the respondent was only charged with criminal harassment.
[27] There was no mention in her earlier affidavits that the applicant’s PTSD is aggravated by her simple presence in the Ottawa area. Dr. Dionne has described this as a deterioration of her mental health the more she is reminded of, or forced to go to, the NCR. I am unable to find such a reference in the applicant’s earlier affidavits. The only brief mention of this is found in the affidavit of Margaret Young, dated March 29, 2022. Otherwise, this issue only gains significance in the May 4, 2022, affidavit and then becomes the main reason for the need to relocate.
[28] There is no mention of the re-traumatizing effect of Ottawa as a location in the various medical documents filed in this proceeding, until Dr. Dionne’s letter dated March 22, 2022.
[29] The respondent purchased the applicant’s interest in the matrimonial home in March 2022 and continues to reside in the home. He has equal parenting time with his 8-year-old daughter from a previous marriage. He states that both his daughters have a loving bond.
[30] In June 2021, while the parties were struggling in their relationship, the applicant produced a document to the respondent for signature which is titled “Interim Decision-Making Authority.” This document grants interim decision-making to the applicant and allows her to relocate with the child to “any location at her sole discretion”. There is no mention of the respondent’s upcoming posting in Iraq and there is no reference to the respondent having the benefit of independent legal advice. The document was signed on June 22, 2021. The applicant claims that the separation took place on August 8, 2021, however, the respondent claims that it was not until he returned from Iraq, in October 2021.
[31] The respondent claims that this document was signed at a time when the applicant was in hysterics and that he was coerced into signing it. He also claims that it was a temporary agreement, but no such reference is made in the document. There is also a contemporaneous e-mail where the respondent seems to accept that there will be a relocation.
[32] When considering the respondent’s role in the conflict, it has been significant. His behavior in the weeks following his return from Iraq was clearly inappropriate. He has been charged with criminal harassment and is subject to conditions which limit his contact with the applicant. He has not put himself in a position to re-establish his relationship with the child and much of it is as a result of his own fault. Justice MacEachern’s decision highlights that the court should approach the respondent’s requests to significantly increase his parenting time with caution.
[33] However, the respondent has denied the allegation that he threw a loaded pistol at the applicant and denies that he is guilty of criminal harassment. The applicant offered to drop all complaints against the respondent if he accepted her offer which included allowing her to move to Southwestern Ontario.
[34] Furthermore, the respondent has admitted that upon his return from Iraq, he suffered a mental breakdown for which he has sought treatment by way of a residential stay at a treatment centre. He has provided a letter from his therapist at the treatment centre, who expresses no concerns for his parenting abilities, no concerns for his safety, nor the safety of others. This letter is hearsay and has not been filed with an affidavit. Limited weight can be attributed to it.
[35] The respondent claims that he has been paying child support to the applicant in the amount of $1,092.00 since January 2022. In September 2022, the Family Responsibility Office (“FRO”) notified the respondent that he was in arrears of child support payments towards his other daughter. It is apparent that the respondent continued making direct payments to the applicant for child support after the applicant had registered the child support order with FRO. He therefore seeks a reimbursement from the applicant for overpayment.
APPLICABLE LAW
Contempt of Court
[36] The Ontario Court of Appeal outlined the primary object of contempt in family law matters, as follows:
The court's jurisdiction in respect of civil contempt is primarily remedial, the basic object being to coerce the offender into obeying the court judgment or order ... (Kopaniak v. MacLellan (2002), 2002 44919 (ON CA), 27 R.F.L. (5th) 97, (Ont. C.A.)).
[37] As explained in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at para. 36, contempt orders should not be so readily granted by motion judges:
The contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders. If contempt is found too easily, “a court’s outrage might be treated as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks to protect.” As this Court has affirmed, “contempt of court cannot be reduced to a mere means of enforcing judgments.” Rather, it should be used “cautiously and with great restraint”. It is an enforcement power of last rather than first resort”. [Citations omitted.]
[38] The Ontario Court of Appeal set out the following principles in Hefkey v. Hefkey, 2013 ONCA 44 (Ont. C.A.):
i. The civil contempt remedy is one of last resort;
ii. A contempt order should not be granted where other adequate remedies are available to the aggrieved party i.e. in relation to an alleged access denial, a variation or enforcement of the access order;
iii. Great caution should be exercised when considering contempt motions in family law cases;
iv. Contempt findings should be made sparingly and only where conferences to resolve problems or motions for enforcement have failed.
[39] The test for civil contempt was articulated by the Supreme Court in Carey v. Laiken, at paras. 33-35:
i. The order alleged to have been breached must state clearly and unequivocally what should and should not be done;
ii. The party alleged to have breached the order must have had actual knowledge of it; and
iii. The party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act the order compels.
[40] In Chong v. Donnelly, 2019 ONCA 799, the court added:
[12] In our view, the motion judge’s failure to consider these discretionary factors before making a finding of contempt was an error of law. It is especially important for courts to consider the discretion to impose a contempt finding in high-conflict matrimonial cases such as this one. We note, in fairness to the motion judge, that she refused to impose any penalty but that still left the appellant with the opprobrium of a contempt order. We are persuaded that while it was proper to find that the appellant had breached the order, it was not in the interests of justice in the context of this case to add a formal order of contempt.
Mobility
[41] The legal framework under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), which is applicable to requests for relocation was recently summarized by Fraser J. in Authier v. Noel, 2021 ONSC 4673 and by Williams J. in Siddiqi v. Khan, 2021 ONSC 5326.
[42] The relevant principles from Authier are applicable and are set out as follows:
[32] […] the mobility issue is governed by the new provisions of the Divorce Act, R.S.C. 1985 c.3 (2nd Supp.) (the “Act”) which came into force on March 1, 2021.
[33] Subsection 16(1) of the Act requires any parenting order to be determined by taking into consideration only the best interests of the child.
[34] I am required, in determining the child’s best interests, to “give primary consideration to the child’s physical, emotional and psychological safety, security and well-being”, while considering “all factors related to the circumstances of the child”: ss. 16(2)-16(3).
[35] A non-exhaustive list of factors to be considered in determining the child’s best interests are set out in subsection 16(3) of the Act as follows:
Factors to be considered
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
[36] The principle that a child should have as much contact as possible with each parent remains a part of the court’s best interests considerations. In essence, Lexi should enjoy as much contact with each of her parents as is consistent with her best interests. The present provision, subsection 16(6), states:
Parenting time consistent with best interests of child
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
[37] Under the Act’s interpretation provisions (subsection 2(1)), relocation is defined as:
a change in the place of residence of a child of the marriage or a person who has parenting time or decision-making responsibility — or who has a pending application for a parenting order — that is likely to have a significant impact on the child’s relationship with
(a) a person who has parenting time, decision-making responsibility or an application for a parenting order in respect of that child pending; or
(b) a person who has contact with the child under a contact order
[38] Prior to the recent amendments to the Act, the leading relocation case setting out the factors to be considered when determining whether it is in the best interests of a child to move was set out in Gordon v. Goertz (1996) S.C.R. 27. The recent amendments to the Act have formalized the relocation process.
[39] The Act’s new relocation provisions require, before any move with a child, specific advance notice by a person with decision-making responsibility regarding that child. If there is no agreement there is to be a court hearing.
[40] In this instance the Agreement provided that notice of an intended move be given (and it was given prior to the amendments to the Act coming into force). No dispute has been raised concerning the substantive notice given nor was it argued that it was not in accordance with the terms of the Agreement.
[41] Subsection [16.92(1)] of the Act sets out additional factors that are to be considered in determining the best interests of a child where relocation is requested:
Best interests of child — additional factors to be considered
16.92(1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,
(a) the reasons for the relocation;
(b) the impact of the relocation on the child;
(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;
(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.
Burden of proof — person who intends to relocate child
16.93(1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.
Burden of proof — person who objects to relocation
(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.
[42] Pursuant to subsection 16.1(2) of the Act, the court may, on application, make an interim parenting order pending the determination of an application.
[43] […]
[44] Interim motions requesting a move of the residence of children pending a trial on the issues of custody and mobility pose their own unique challenges and problems. Justice McSorley stated in Kennedy v. Hull, 2005 ONCJ 275 (Ont. C.J.) (), at para. 9:
The problem is that it is difficult, if not impossible, in many cases to complete the extensive child-focussed inquiry required … [based] on the conflicting and incomplete affidavit evidence that is often available on interim motions. The courts’ general reluctance to effect fundamental changes in a child’s lifestyle on interim motions has resulted in a slightly more restrictive approach to interim mobility cases that recognize the short-term nature of interim orders and the summary nature of interim motions.
[45] Marshman J. in Plumley v. Plumley, (1999), 1999 13990 (ON SC), 90 A.C.W.S. (3d) 740, [1999] O.J. No. 3234, at paragraph 7, set out the following considerations to apply when considering relocation requests on interim motions pending trial:
It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis:
A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.
There can be compelling circumstances that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.
Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at a trial.
[46] In Datars v. Graham, 2007 CarswellOnt 5257 (SCJ), the court noted a general reluctance to “effect fundamental changes in a child’s lifestyle on interim motions.” One reason given was the concern for even more disruption for the child if the temporary change was reversed at trial.
[47] In Cosentino v. Cosentino, 2016 ONSC 5621, Pazaratz J. observed that motion judges considering mobility issues on an interim or temporary basis need to be mindful of both short term and long term dynamics, to ensure that the maximum contact principle is not undermined by the unilateral actions of either party.
ANALYSIS
[43] In terms of civil contempt, the first two elements are clearly made out and are not disputed by the applicant.
[44] On the breach, there is no dispute that since January 6, 2022, the applicant has removed the child from the jurisdiction of the NCR on several occasions. In the face of the January 6, 2022 order, it is inferred that she has effectively changed the principal residence of the child from Ottawa to St. Mary’s, as evidenced by para. 41 of the applicant’s affidavit dated July 21, 2022.
[45] While the applicant returned to Ottawa following the decision of Justice MacEachern in July 2022, this was short lived, and she has returned to St. Mary’s and appears to refer to this location as the child’s residence although she has not been forthcoming on the amount of time the child is spending in St. Mary’s. The court infers that the child is now living in St. Mary’s and travelling back and forth to Ottawa for parenting time based on the evidence and the submissions made at the motion.
[46] As to knowledge the January 6, 2022, order was made with the consent of the parties and as such, there is no issue as to the applicant having actual knowledge of Associate Justice Kaufman’s order.
[47] Turning now to intent, the court must be satisfied beyond a reasonable doubt that the applicant has intentionally left the jurisdiction with the child. The mother relies on the medical evidence to support her position that her medical condition required her to leave the NCR. It appears that at this point, the mother truly believes that she cannot continue to reside in the NCR. However, that belief has not been consistently held. Furthermore, the record does not support her choice of relocating to St. Mary’s.
[48] The breach in question is to leave the NCR. This would have also applied had she chosen to relocate to a community which is more proximate to Ottawa. The fact that she has relocated to St. Mary’s may be an aggravating factor because she has chosen to go so far when the evidence does not justify it. However, the court must focus on the departure from the NCR. The apparent evolution in her motives to remove the child from the NCR prevent me from accepting her argument that she did not intentionally leave the NCR with the child. She now appears to believe that to remain in the NCR will worsen her PTSD symptoms and I accept that she believes that to move away from the NCR will alleviate her condition. Questions arise surrounding the source of her stress: the NCR, the respondent’s actions, or the ongoing matrimonial litigation.
[49] The medical evidence of Dr. Dionne speaks to the applicant’s need to be close to her family and social supports. She has not done this by moving to St. Mary’s. This makes the court question the applicant’s true intentions. The applicant’s claim that she has effectively been forced to leave the NCR because of her worsening PTSD is not accepted because she has not provided accurate information about the reason for her decision to go to St. Mary’s and the medical evidence cannot be relied upon given that it is based on false information. The decision to move was intentional and thus she has intentionally breached the order and left the NCR with the child. The three elements for civil contempt are made out.
[50] However, the analysis does not end there. The court must still consider if it should exercise its discretion and not make a finding of contempt. I am of the view that it is not in the interests of justice to make such a finding. This case falls squarely in the context of the guidance of the Court of Appeal for Ontario, in Chong v. Donnelly, referenced above, and there is no need for a formal finding of contempt. Also, there are other adequate remedies available to the respondent, including enforcement of any access order which makes a finding of contempt unnecessary. Furthermore, I find the medical evidence inconclusive, and this will need to be explored in a more fulsome way at trial. There are complex medical issues, pending criminal charges, and the process of seeing the father re-establish his relationship with his daughter that clearly militate against a finding of contempt. The goal here is for the court to assist the parties in finding an interim solution pending trial that will allow the trial judge to ultimately and properly assess the issues at trial.
[51] The motion for contempt is dismissed.
Mobility/Relocation
Burden of Proof
[52] There is a court order that provides that the child spend the vast majority of her time with the applicant. As such, pursuant to s. 16.93(2) of the Divorce Act, the respondent bears the burden of proving that the relocation would not be in the best interests of the child.
The Choice of Southwestern Ontario
[53] Turning now to the mother’s proposal (decision) to relocate to St. Mary’s. It inferred from the record that although the applicant should not have relocated until after being authorized to do so, she has already done so. The applicant’s evidence on her relocation to St. Mary’s merits some specific findings.
[54] There is no nexus between the relocation to St. Mary’s and the applicant’s need to be close to her supports. The applicant actually has no supports in the St. Mary’s area and no true supports in the more expanded area of Southwestern Ontario. Her aunt and uncle in St. Thomas, and her cousin in London, are not supports. While they are presently living in those locations, there is no evidence that they have ever provided any support to the applicant.
[55] The court can only conclude that the applicant has not been forthcoming in her decision to move to St. Mary’s because there would be no reason to do so given the distance between St. Mary’s and Mississauga, the location of the closest real supports – her parents. The real reason for her move to St. Mary’s does not seem to have been disclosed and having favorable accommodations in St. Mary’s is not enough.
[56] Furthermore, the applicant’s repeated evidence that her supports are in Southwestern Ontario is misleading and false. As I indicated above, her parents are in Mississauga and her sister is in Toronto. Her reliance on the respondent’s family being a support for her in the Kitchener-Waterloo area is also misleading as she has not been able to put aside her negative feelings towards them and rely on their proximity.
[57] The evidence is that when she has relied on supports, she has relied on her parents in Mississauga – two hours away. Conversely, she has identified numerous supports in Eastern Ontario. I conclude that the applicant has effectively mislead Dr. Dionne and her therapist, David Flynn. Their opinion evidence has relied on the fact that the applicant’s supports were in Southwestern Ontario and that she had no supports in Ottawa. These are factual findings at the base of those opinions which create a doubt surrounding the legitimacy of those opinions.
Interim Decision-Making Authority Agreement
[58] I have considered this document signed by the parties on June 22, 2021, and I attach very little weight to it. The evidence does not allow me to conclude on the circumstances surrounding its signature, but it clearly raises questions. The document was signed in June 2021 and was not signed at a time when the parties were separating.
[59] I also note that there is very little in this document which considers the best interests of the child. It is a one-sided document giving parenting rights to the applicant and there is nothing about the ongoing need to protect the relationship between the respondent and the child. The applicant describes it as a separation agreement, and this is ridiculous. She also supports the legitimacy of the document because “Both our families reside in the Kitchener-Waterloo area”. This is clearly false.
[60] Based on the record before me, I am persuaded by the respondent’s version of how this document was signed. It is clearly not a separation agreement. It was not signed at the time of separation and was not drafted to consider the best interests of the child but rather the interests of the applicant. Very little weight should be attributed to it.
Best Interests
[61] The respondent has the burden of demonstrating that a relocation to St. Mary’s is not in the child’s best interests.
[62] When considering the best interest of the child, the court is directed to give primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being together with the factors set out in ss. 16(3) and 16.92 of the Divorce Act. It is also clear that it is the best interests of the child and not the parent. However, the court acknowledges that it is in a child’s best interest to have a parent who is healthy, both physically and mentally.
[63] Turning to the factors specific to relocation under s. 16.92 of the Divorce Act, I make the following findings:
a. Reasons for relocation: The real reasons for the relocation specifically to St. Mary’s have yet to be provided by the applicant. The court finds that she has not been forthcoming in her selection of St. Mary’s as a destination. As previously stated, her justification of being closer to her supports is rejected by the court. She says that “my parents and family are in the general area”, but this is clearly false. At other times, she swore that both families resided in the Kitchener-Waterloo area – again false. If she was moving to Mississauga, the rationale for such a destination could at least be understood.
The court also has significant doubt about how the need to leave the NCR has been presented. What happened between January 2022 and March 2022, when the reasons for the applicant’s request to relocate changed and became focused on her worsening PTSD. Dr. Dionne’s opinion dated March 24, 2022, anticipates that the applicant’s healing will be impeded if she remains in Ottawa. It also suggests that she will be at risk of domestic violence although the record does not support such a conclusion after the criminal conditions were put in place.
These issues are also raised in Dr. Dionne’s affidavit but there are also other factors such as the respondent’s intimidating behavior in the fall of 2021 and the ongoing matrimonial conflict which are identified as factors that worsen the applicant’s PTSD. Getting through the litigation and limiting the contacts with the respondent to communications via Our Family Wizard could certainly help. This needs to be explored with the medical practitioners.
Finally, the applicant’s self-diagnosis of her PTSD is of significant concern. Paragraphs 13-16 of the applicant’s affidavit of July 21, 2022, are concerning to the court. The applicant analyzes her medical condition as only a medical practitioner could do. However, the affidavits of Dr. Dionne and David Flynn provide no such analysis. Their opinions are based almost exclusively on assessing the risks if the applicant remains in Ottawa, but they certainly do not describe anything close to the psychological deterioration that the applicant describes in these paragraphs. There is clearly a disconnect between that which the applicant describes and the opinions of Dr. Dionne and Mr. Flynn. The factual basis for these opinions is questionable at best.
The court has significant questions surrounding the reasons for the relocation and the applicant’s evidence in support of the relocation.
b. Impact of the Relocation on the Child: The circumstances of this case present a father who was part of his child’s life and capable of caring for the child alone for consecutive days in October 2021. He then spent considerable time without seeing the child and then has seen gradual and very limited increase in parenting time. This is in part due to his own inappropriate actions as acknowledged by Justice MacEachern. However, the focus is on the perspective of the child, who has been re-establishing her relationship with her father. Clearly, a relocation to St. Mary’s could not sustain the level of travel and frequency of visits that the court would want to see.
The applicant’s proposal actually reduces the respondent’s time with the child and proposes parenting time every three weeks. This will have a negative impact on the child who has been re-establishing the respondent in her life and developing a relationship with her stepsister. Furthermore, what is needed here is to have the respondent’s parenting time expand. He now has his other daughter on a shared parenting arrangement and this child would only benefit from additional parenting time and time with her stepsister. The move to St. Mary’s will adversely impact the child. Also, to continue to subject the child to frequent travelling from St. Mary’s to Ottawa, would also have a negative impact on the child. This is simply not sustainable.
c. Respondent’s time and involvement in the child’s life: The applicant’s proposal intends to reduce parenting time in the near future. The eventual move to overnight access and weekend access is proposed over an extended period of time and this will limit the respondent’s ability to develop a stronger bond with the child and play a more active role in her life. This conflict seems clearly headed to a trial and a decision allowing the relocation of the child to St. Mary’s, pending the trial, will all but cement the status quo in favor of the applicant. It will negatively impact the respondent’s ability to further develop his relationship with the child and significantly limit his chances to demonstrate an ability to have decision-making responsibility in the child’s life. A relocation to St. Mary’s will likely have a devastating effect on the respondent’s chances at trial.
d. Compliance with notice requirements: In terms of notice before an intended move, it is clear that the applicant has failed to do so. She has failed to meet this obligation under s. 16.9 of the Divorce Act because she has been trying to hide the fact that she has already effectively relocated. She has also been hiding the extent that she is travelling back and forth to St. Mary’s with the child. In the face of a consent order to remain in Ottawa, this is particularly egregious.
e. Compliance with the existing order: Although the applicant’s PTSD and medical information raises serious issues, there is no doubt that the court is left to question whether the applicant will have the ability to respect future court orders. The order to remain in the NCR was entered into on consent and the applicant’s failure to respect that order militates against the relocation. Will she respect future court orders? What if a future order still requires significant travelling back and forth between Ottawa and St. Mary’s? The court questions if the applicant will follow the terms of such an order over an extended period of time.
f. Reasonableness of the proposal: The applicant’s initial proposal to reduce the respondent’s parenting time and gradually lead into overnight visits is unreasonable. It is geared to limit the need for the applicant to travel to Ottawa because she is so far away. That is the problem with moving away from Eastern Ontario. There is no evidence that the applicant has even tried other locations. When asked at the motion if she would consider Mississauga to at least be close to real supports, she rejected that proposal by the court. It has been St. Mary’s or nothing. The record does not support the need to move so far away and particularly when the applicant has not even tried to live outside the NCR but in closer proximity to limit the impacts on the child.
g. Compliance with parenting time: The evidence is that neither parent has been perfect in terms of compliance with parenting time. Both blame the other as being the cause for missed parenting time. Considering specifically the respondent, he has in large part attended his visits and at times has been denied visits by the applicant, likely because of the travelling issue. When considering the child’s need to have parenting time with her father, I am of the view that if she remains in proximity to Ottawa, she will benefit from her time with her father and the respondent will continue to be present for parenting time.
[64] Turning to the child’s physical, emotional, and psychological safety, security, and well-being, I am satisfied that the respondent has demonstrated that the relocation to St. Mary’s is not in the child’s best interests. As previously stated, the child is in the process of expanding her parenting time with the respondent and this is what needs to happen. She should be spending more time with him rather than less. The court is unaware of negative impacts on the child’s safety, security, and well-being by remaining in proximity to the NCR. There is no doubt that the child will benefit from having a healthy mother, but I fail to see how moving to St. Mary’s, where the applicant is far more isolated from supports, could possibly be in the child’s best interests. As previously stated, the only advantage is that it is closer to Mississauga than Ottawa.
[65] The medical evidence is not sufficiently detailed to allow the court to come to any other conclusion. There is a disconnect between the medical opinions and the conditions described by the applicant in her May 4, 2022, and July 21, 2022, affidavits. While much of the applicant’s self-diagnosis is inadmissible opinion evidence, the applicant’s description of her present condition is something that she is already living with while she has already relocated. How will this change if relocation is permitted? Will the respondent be required to travel to St. Mary’s every time he wants to see the child in order to avoid having the applicant be reminded of the NCR area? This would clearly not be a just result and hamper the child’s ability to spend quality time with her father. Other options must be considered.
[66] As for the criteria under s. 16(3) of the best interests’ analysis, I make the following comments:
a. If the respondent’s parenting time increases, this will simplify parenting time and provide stability for the child. Reduced travelling would clearly be better for both the applicant and the child. There needs to be a schedule whereby the child can have increased parenting time with her father and the applicant can then take advantage of times when she may travel to Mississauga or Toronto and visit her family. Also, the applicant may travel without the child if/when the respondent’s parenting increases, and this could provide her with more down-time. Clearly, the need to explore more parenting time for the respondent will also facilitate the ability to evaluate the child’s best interests at an upcoming trial.
b. There is no doubt that the child’s relationship with her mother is the strongest bond. The relationship with the respondent has not been allowed to develop as a result of the conflict and the limited parenting time. The child needs to have an opportunity to see if the respondent can step up and play an active parenting role in her life and his ability to prove this would be significantly hampered if she were to relocate to St. Mary’s until the trial of this matter.
c. When considering the history of care of the child, the applicant has been the primary caregiver. That is clear. However, this was a military family and the impact that this has had on the respondent’s ability to be an active parent was a family decision. The respondent cannot be faulted for his absences as this was part of the reality of being a military family. It is in the child’s best interest to see if the respondent will now take advantage of increased parenting time and be a more involved parent.
d. In terms of ability, the applicant appears to be a good parent for the child and has met her needs. However, the court questions if she has put her own needs first by choosing to relocate so far from Ottawa. The medical evidence does not support a need to be 6-7 hours away and why a move outside the NCR but still in reasonable proximity to Ottawa could not be explored to limit the impact of travelling on the child. As previously stated, the applicant has not been forthcoming in her choice of St. Mary’s and the evidence does not support any justification for it. The applicant’s proposal to relocate to St. Mary’s is not putting the child’s best interests first and leads the court to question the mother’s decision-making.
e. The issue of family violence is real given the respondent’s charge for criminal harassment. However, the respondent has sought treatment following what he describes as a mental breakdown and has since made efforts to improve himself. There is a need for adjudication on the pending criminal charge and this justifies a need to limit the contact and interaction between the parties. However, it does not justify a move 6-7 hours away in a location where the applicant has no real family supports. Once again, this will be an issue that will remain outstanding, that cannot be minimized but that can more easily be dealt with at trial as more information is obtained and the respondent’s actions can be further assessed over a longer period.
[67] In the end, the medical evidence raises more questions than answers. David Flynn states that the applicant’s need for therapy has not been consistent. He states that he does not know if a move would inhibit or assist her mental health but opines that being more proximal to a supportive environment would be helpful. This is not St. Mary’s and Mr. Flynn appears to have been misled. Dr. Dionne’s opinion is based on the fact that the applicant’s supports are in Southwestern Ontario and that she has no supports in Ottawa. This is clearly false. Dr. Dionne also opines that the applicant is at risk of domestic violence from the respondent, but the record does not support this ongoing risk given the criminal conditions that have been respected. Based on the record before me, the risk of family violence originated from a series of actions that took place in the fall of 2021, when the respondent returned from his deployment and learned of the applicant’s new relationship. Since then, he has undergone treatment and no further allegations have been made against him. The court is not able to conclude that there is a present risk of domestic violence provided that the respondent continues to respect his no contact order and otherwise complies with limits on communication through Our Family Wizard.
[68] For all these reasons, the applicant’s request to relocate is denied and she will have seven days to relocate permanently to Eastern Ontario. She will remain there until trial or further order of the court.
[69] At this point, the court is not prepared to strictly define the term “Eastern Ontario” other than it shall be within 100km of the City of Ottawa. There is evidence before the court that warrants that the applicant should have some flexibility as to where she establishes her residence with the child, and it is not necessary that it be within the NCR. The goal here is for the respondent’s parenting time to be able to evolve without the complications and risks associated with significant travel time.
Decision-Making and Parenting Time
[70] Until further order of the court, the applicant will continue to have interim decision-making for the child. There is no issue that the applicant has been caring for the child and that the child is doing well. The criminal conditions are still in effect and the respondent is still in the process of re-establishing his relationship with the child through expanded parenting time. The parties are not in a position to co-parent.
[71] The applicant will keep the respondent apprised of all important events in the child’s life via Our Family Wizard (“OFW”). Both parties consented to using the OFW application at the hearing of the motion.
[72] In terms of the respondent’s parenting time, much needs to be determined. It needs to continue to increase gradually. The applicant will have 7 days to relocate to Ottawa. The respondent’s parenting time will then increase as follows:
a. Commencing December 17, 2022, until January 15, 2022, every Saturday from 10:00 a.m. to 6:00 p.m. and every Sunday from 10:00 a.m. to 6:00 p.m.;
b. During the Christmas break on December 25 at 3:00 p.m. until 8:00 p.m. and December 26, 2022, from 10:00 a.m. to 6:00 p.m.;
c. Commencing January 14, 2023, and thereafter, until further review of this court, every Saturday at 10:00 a.m. to Sunday at 3:00 p.m.; and
d. Commencing the week of January 2, 2023, one weekday visit to be agreed upon by the parties of a duration of a minimum of four hours.
[73] The child shall be exchanged as follows:
a. Commencing immediately, as proposed by the applicant, the applicant shall transport the child to the end of the respondent's driveway (where she will wait) and the respondent to receive the child on the front steps. The respondent shall not communicate with the applicant in any manner.
[74] For the first four overnight visits alone and as consented to by the respondent, commencing January 14, 2023, the respondent shall have a family member or other adult present throughout the visit and shall ensure that no alcohol or non-prescription drugs are consumed at any time. Otherwise, the respondent shall not consume any alcohol or non-prescription drugs while in a caregiving role or within eight hours of being in a caregiving role.
[75] The court acknowledges that the particular details of parenting time may need adjustment based on various issues such as work schedules, the child’s activities and other factors that may be agreed upon by the parties. Either party may request a continuation of these motions to return before this court and present alternate parenting time scenarios which either respect the spirit of this Endorsement or which form part of an agreement between the parties. Such a request shall be made through Trial Coordination.
[76] Otherwise, the other relief sought by the respondent, particularly the need for a psychiatric assessment, is denied. The evidentiary record does not warrant such an order.
Police Enforcement
[77] Both parties have requested police enforcement to ensure compliance with the court’s orders. Typically, the courts are hesitant to order police enforcement but with the level of non-compliance in this case and the challenging issues surrounding no contact between the parties, the court justifies that a police enforcement clause be put into effect.
[78] Principally, the police enforcement is necessary to ensure that the parent remains in Eastern Ontario (as defined herein) with the child, except where the parties have specifically agreed in writing, on Our Family Wizard, that the child may travel with one of the parties.
[79] It is also anticipated that once the applicant has properly established her residence with the child in Eastern Ontario and is complying with this Endorsement, the respondent will accommodate requests by the applicant to go spend time with her family and other supports, with or without the child.
[80] As such, there shall be an Order pursuant to section 36 of the Children's Law Reform Act, R.S.O. 1990, C. c.12, that the police service having jurisdiction in any area where it appears that the child, A. P.-Y., born XXX xx, 2019, may be, shall locate, apprehend, and deliver the child to the party who is to have the child with them at the relevant time according to the court order in effect at that time.
[81] Furthermore, that any member of a police service may enter and search any place where he or she has reasonable and probable grounds to believe that the child may be, with such assistance and such force as are reasonable in the circumstances and such entry may be made at any time. Such order shall remain in effect for a period of six months.
Overpayment to FRO
[82] As for the issue of the overpayment, the court makes no finding against the applicant. It is common when child support orders are registered while direct payments are being made by the payor that there will be an overlap.
[83] I am satisfied on the evidence before me, that from February 1, 2022, to September 1, 2022, the respondent made eight support payments directly to the applicant in the amount of $1,092.00 for a total amount of $8,736.00.
[84] Both parties are hereby directed to take the necessary steps with FRO to complete the necessary documentation to acknowledge that these payments were made and received and to request that FRO review the respondent’s payments and adjust for any overpayments. This shall be done within 14 days.
Costs
[85] The parties are encouraged to resolve the issue of costs. If they are unable to resolve this issue, the respondent will have 14 days, from the date of this Endorsement, to serve and file written costs submissions and the applicant will have 14 days thereafter to respond. Submissions shall not exceed 3 pages, excluding attachments and will comply with Rule 4 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
COURT FILE NO.: FC-21-2186
DATE: 2022/12/07
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Whitney Elizabeth Young, Applicant
AND
Gregory John Peters, Respondent
BEFORE: Justice Marc R. Labrosse
COUNSEL: Vlad Floca-Maxim, Counsel, for the Applicant
Respondent is Self-Represented
ENDORSEMENT
Justice Marc R. Labrosse
Released: December 7, 2022