COURT FILE NO.: 5017/22
DATE: 2022-12-21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
REBECCA-JANE BANKS
Applicant
– and –
DANIEL JOSEPH ROLAND BEAUPRE
Respondent
Liz McMillan, for the Applicant
Jasmine Gassi Harnden, for the Respondent
HEARD: December 15, 2022
VARPIO J.
decision on Motion
FACTS
[1] The applicant mother seeks an order permitting her to take the children to Australia in January 2023 and to return with them to Sault Ste. Marie on August 1, 2023. She hopes this trip will permit the children to see their family, including their elderly relatives in failing health, and to enable the children to become acquainted with their Australian culture.
[2] According to the Notice of Application, the mother is 39 years old while the father is 51. They married on December 27, 2004, and mother deposes that the parties separated on August 15, 2017. The father deposes that the parties separated in 2009. They have two daughters, ages 17.5 years and 15 years. The mother is Australian while the father is from the Sault Ste. Marie area. The parties and their children have resided in the Sault Ste. Marie area at all material times. Both mother and father are of indigenous heritage. The father works at OLG while the mother has been on Employment Insurance sick benefits due to medical issues. She deposes that she just started a new online job.
[3] There is no court order currently in place regarding parenting time. The mother deposes that the children reside in alternating residences on a 5:3 split, with the mother parenting the daughters five nights, and the father getting three nights with his children. The father deposes that the split was a more traditional week-about arrangement until the mother changed the parenting arrangement.
[4] Although the evidence in this matter is relatively sparse, the mother deposes that the parties agreed that the couple had always intended the children to spend some meaningful period of time in Australia in order to allow the children to become closer to their Australian family and heritage. In fact, the mother deposes that she has considerable extended family in Australia. Many of her elderly family members are ill.
[5] The mother filed evidence that the children can attend high school with their cousins in Australia and, although the mother did not provide evidence that the school year begins in January in Australia, I can take judicial notice of the fact that Australian summer occurs in December and January and, as such, the inference that the school year commences sometime in January is not without some evidential basis.
[6] I was also provided affidavit evidence from the children indicating that they wished to go to Australia. The youngest child deposes that she wishes to go to Australia as it is her lifelong dream, while the eldest daughter deposes that she intends on attending post-secondary school in Australia in September 2023 when she is 18 years old and that relocating now will assist with that process. The person that commissioned the affidavits also provided an affidavit for the court. This latter person deposes that the children did not appear to be pushed, threatened or otherwise influenced into sharing their views. Given this person’s lack of training as regards child alienation, I take nothing from this opinion evidence.
[7] The father filed an affidavit in which he deposes that the 15-year-old’s mental health is not particularly strong and that she has a therapy dog. The mother and child have failed to take care of the dog and the dog now resides with the father. The mother and child depose that the dog was never a therapy dog and that the child’s mental health has been good for at least a year. The mother deposes that the father takes care of this dog because the dog does not get along with the mother’s other dog.
[8] The father deposes that the mother had previously asked the father to relocate to Australia with the children and her new partner, and that the six-month visit to Australia is actually an attempt by the mother to commence a permanent relocation. The father also deposes that the mother has fueled unrealistic expectations in the children by telling them that a move to Australia will be more beneficial than it likely will be.
ANALYSIS
Best Interests of the Child Generally
[9] Section 24 of the Children’s Law Reform Act sets out factors to be considered when dealing with the “best interests of the child”. Section 24(1) describes the primacy of the “best interests of the child”:
Best interests of the child
24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.
[10] In determining the best interests of the child, section 24(2) of the Children’s Law Reform Act describes those areas that must take paramountcy:
Primary consideration
(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.
[11] Sections 24(3) of the CLRA describes specific factors the court ought to consider when determining the “circumstances of the child” as prescribed by section 24(2) of the CLRA:
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child...
Relocation and the Best Interests of the Child
[12] Although this is not a “relocation” application in the strictest sense because the children will return on August 1st, 2023 pursuant to the mother’s plans, I ought to consider the legislation relevant to relocation because a six-month stay is an extended period of time.
[13] Section 39.4 of the Children’s Law Reform Act deals with relocation of children and the test to be applied when determining whether said relocation is in the child’s best interests:
Best interests of the child
(3) In determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with section 24, as well as,
(a) the 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 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;
(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;
(e) the existence of an order, family arbitration 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 decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses; and
(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. 2020, c. 25, Sched. 1, s. 15.
[14] Sections 39.4(5) to 39.4(7) discuss the burden of proof that is placed upon each party in relevant circumstances:
Burden of proof
(5) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child. 2020, c. 25, Sched. 1, s. 15.
(6) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend the vast majority of time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child. 2020, c. 25, Sched. 1, s. 15.
(7) 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. 2020, c. 25, Sched. 1, s. 15.
[15] While the legislative tests for relocating a child were changed in the recent past, it has long been held by the courts that, when dealing with the best interests of the child in relocation cases, the specific circumstances of a particular matter must be determined on a “case-by-case” basis: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52.
Application to the This Case
[16] In this case, I am satisfied that the parties have an agreement whereby the children split time with their parents on a 5:3 basis. I do not know whether that schedule has existed for a long time, or whether it is a new phenomenon. For the purposes of this motion, I need not resolve this issue because I am satisfied that the trip is not in the children’s best interests, irrespective of the burden of proof.
[17] The mother has, quite rightly, submitted that both children ought to be permitted to go to Australia, or both ought to be denied that opportunity. Given the ages of the children and given their apparent emotional bond allowing one child to go to Australia while denying the other that opportunity would not be in either of their best interests. I agree with that statement.
[18] As regards the eldest child, she is effectively an adult and her views and preferences are almost determinative of her situation. Further, she is ending her secondary school career and she is planning on leaving for Australia in September to study at the post-secondary level. I have no hesitation, therefore, in determining that the eldest child’s best interests are such that I would permit her to go to Australia in January 2023 for a six-month stay, but for other considerations.
[19] The youngest child, however, must be considered in a different light. First, she is approximately 16 years old and is not a “virtual adult”, unlike her older sister. While her views are an important consideration in the matter, they are not determinative.
[20] Second, the younger sister is going to return to school in Sault Ste. Marie in September, which causes a further complication. Exchanges and lengthy study trips are undoubtedly excellent learning opportunities for some high school students, but it stands to reason that these programs are best-suited to those young people who are both academically and personally able to take advantage of the opportunity. The trip contemplated by the mother is not, of course, an exchange, but is rather a trip to be with family. Such a trip would undoubtedly be of greater benefit to the children than would a simple exchange as they integrate themselves into their family and learn about other parts of their culture.
[21] Nonetheless, and despite these salient features, one can readily imagine situations where students return from a positive experience and find themselves somewhat displaced in their usual environments. One can also readily imagine that this phenomenon can be exacerbated in situations where the student that leaves for several months is struggling in the normal environment and/or has a less than positive experience on the trip. It is beyond doubt that such a disjointed experience could ultimately hurt the child and stunt their long-term development.
[22] Many of the potential down sides associated with extended trips and/or exchanges are present in this case. The child deposes that her mental health has been good for at least 12 months which causes me to believe that there were periods of time in the not too distant past where her mental health was not robust. This finding leads me to believe that the younger child could suffer some difficulty leaving for a new school in January and then returning in September.
[23] Also, I have no evidence before me about the youngest daughter’s current academic performance. I have no report cards. I have no evidence from her health care provider regarding her current health status. Simply put, I have no idea about how the youngest child is performing other than subjective affidavits from the children and their parents. I do not know if she is the kind of person that could benefit from such a trip. Indeed, given the aforementioned concerns about mental health, there is every reason to believe that the youngest child might find reintegration difficult were she to spend six months in Australia. It would make no sense for the younger child to spend six months in Australia if the readjustment period in September 2023 would cause her to have meaningful difficulty in being reintegrated into school life, either socially, academically or from a mental health perspective. Such a result would not be in her best interests.
[24] Further, the trip would create a six-month period where the child would not see her father or her paternal family. This is a negative consequence of the trip to be afforded considerable weight.
[25] Therefore, a six-month stay in Australia is not in the youngest child’s best interests and, as such, the mother’s motion seeking to relocate both children to Australia on a temporary basis is denied as the negative effects of the trip on the youngest child outweigh the benefits to be incurred by both children.
[26] I wish to say two things to the parties in obiter dicta. First, having children swear an affidavit is to be avoided at all costs. Putting children in a situation where they have to give testimony in order to have their “voice heard” effectively causes children to testify against a parent. This is an inappropriate phenomenon, and the court will not sanction same.
[27] Secondly, and irrespective of the first point, if the children legitimately wish to visit Australia, they should be able to do so this summer for an extended time. The father should consider this wish. Further, the mother’s counsel indicated to the court that the children might well blame the father if they are not allowed to go to Australia for this six-month vacation and that the father-child relationship could be damaged as a result.
[28] I do not countenance any suggestion that the father has done anything wrong in opposing this application. He has not. His concerns are valid and, in the case of the youngest child, this travel is not in the child’s best interests. With that stated, however, the father may wish to consider whether the children’s affidavits accurately reflect the children’s voices. If he is satisfied that they do, he may wish to reconsider whether agreeing to the children’s request might ultimately help his long-term relationship with his daughters. This is for the father, and not me, to decide.
COSTS
[29] The parties may send me costs submissions within 15 days of today’s date.
Varpio J.
Released: December 21, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
REBECCA-JANE BANKS
- and –
DANIEL JOSEPH ROLAND BEAUPRE
decision on Motion
Varpio J.
Released: December 21, 2022