Court File and Parties

Court File No.: FC-22-084 Date: 2023/03/06 Superior Court of Justice - Ontario

Re: Jennifer Foster, Applicant And: Gurpreet Singh, Respondent

Before: Justice M. Fraser

Counsel: Lauren Blanchet, counsel for the Applicant Dilshad (Dilly) Mohamed, counsel for the Respondent

Heard: February 28, 2023

Endorsement

[1] The Respondent father, Gurpreet Singh (“Singh”) brings a motion for an Order requiring the Applicant mother, Jennifer Foster (“Foster”) to return the residence of the child, Zackary, born in May 2021 (“Zackary”) to the Greater Toronto Area (“GTA”). He additionally asks for a temporary order that the parties share parenting time of Zackary equally and for an order that there be joint decision-making for Zackary.

[2] Foster opposes the Singh’s request and brings a cross-motion. She asks that Zackary remain with her in Westmeath, Ontario (“Westmeath”) and that Singh’s motion be dismissed. She also asks for sole decision-making for Zackary.

[3] The issues in this motion are governed by the Divorce Act R.S.C. 1985 c. 3 (2nd supp.) as amended (the “Divorce Act”).

[4] For the reasons that follow, I decline to order that Zackary’s residence be returned to the GTA. However, I order that Singh’s parenting time be expanded to provide for extended time with Zackary in an effort to preserve Zackary’s relationship with Singh pending further order or trial. That expanded parenting time will be more particularly set out below. Finally, I am not prepared to order that Foster have sole decision-making at this time.

Background

[5] The parties began to cohabit in December 2017. They married on October 5, 2019. They resided in Maple, Ontario (“Maple”). The parties resided in a basement suite of the paternal grandparents’ home.

[6] The parties’ child, Zackery, is almost two years old.

[7] The parties separated on February 23, 2022. At that time, Foster went with the child to Westmeath where the maternal grandparents reside. She did not advise Singh of her intention to go to Westmeath except by text that day. The text read as follows:

Gurp, I never wanted things to happen this way, but I feel like you’ve left me with no choice. As I said, you terrified me yesterday when you demanded to know why I turned off the cameras. I feel as though you try to hurt me with your words and actions when your mad, I’ve explained how this had huge impacts on me and how I feel about you as a result. I need to take some time and clear my head. I’m going to my parents for a little bit, the way you responded yesterday makes me feel like I have no choice. I do love you but I can’t be afraid of you and unfortunately that’s where we are right now. I hope you also take this time apart to reflect and grow. My intention is not to keep Zack from you. We will set up visits and I will be as accommodating as so [sic.] possibly can. I need you to do the work if we have any chance on fixing this, but I can’t stay in a situation where I am threatened with ultimatums and consequences for not responding in ways that you want. This does not feel like a partnership, I’ve been saying this to you for so long. Ive [sic.] told you so many times what I need, now it’s up to you to fix it.

[8] Zackary has remained in the primary care of Foster in Westmeath from February 2022 to date.

[9] It is clear from the initial text communications between them that when the parties separated in February 2022 with the understanding that they intended to work on the relationship. Regardless of what Foster’s intention were when she first left, her view subsequently changed and her decision to separate from Singh was communicated to him when, on March 29, 2022, she served Singh with the Application which commenced this proceeding.

[10] Singh maintains, and I have no reason to doubt his evidence, that notwithstanding the fact that Foster commenced this court proceeding, he continued to hold out hope for the parties’ reconciliation. Singh felt that their interactions subsequent to receiving the court documents supported his belief that the parties were continuing to work on their relationship.

[11] Singh served his Answer in this proceeding on May 13, 2022.

[12] Foster attended a birthday party for Singh on May 27, 2022. Singh has included in his motion materials a short video which would suggest that the parties were on good terms at that time. That could be. However, that moment does not negate the possibility that this simply showed Foster’s preparedness to maintain a friendly relationship with Singh while continuing in her desire a separation and divorce.

[13] Indeed, on June 23, 2023, Foster sent an email to Singh. It stated the following:

Gurpreet,

I would like to address some things from the conversation we had when you were here this past weekend. I am getting the impression that you are not clear on where we’re at in our relationship at this point. I am unsure as to how you continue to feel that we are working on our marriage despite my repeated actions and words to indicate the opposite, but, I want to be extremely clear, there is no further work to be done between us in terms of salvaging out marriage.

I understand that you are not prepared to accept this, but I have asked for a divorce because I have no further interest in pursuing reconciliation.

Going forward, I will not be available in your visits with Zackary in any way, unless there is no possible alternative. I would prefer that contact between us be limited strictly to discussions about Zackary. You will continue to receive your video calls through my mom, and I will continue to send videos of Zack through Watsapp as I have been. Otherwise, I would respectfully ask that other communications cease.

While I want, more than anything, to maintain civility in our interactions for Zackay’s sake, I am no longer willing to engage in conversations with you about the state of our relationship or any future reconciliation and would like to proceed from here on out as though our relationship as we knew it is dissolved.

Jen

[14] A case conference was held in this matter on September 8, 2022.

[15] In January, 2023 Foster asserts that she discovered that Singh had posted a nude picture of her on a social media site.

[16] As a result, on February 16, 2023, Singh was charged with “Publication of an intimate image without consent CC 162.1(1)” The terms of his Undertaking prohibit communication with Foster except through email on issues solely concerning Zackary.

[17] No further steps were taken in this proceeding from the date of the Case Conference until the hearing of this motion, returnable February 28, 2023.

The Law

[18] The Divorce Act sets out a complete guide for the court to follow when faced with these very challenging applications. Relocation or mobility cases, where one parent wants to take a child and move some distance away from the other parent, are among the most difficult cases in family law. If a parent is permitted to move with the child, inevitably the relationship between the other parent and the child will be affected and may suffer. Typically, the court attempts to balance the custodial parent’s legitimate interest in relocating with the non-custodial parent’s legitimate interest in maintaining a relationship with the child.

[19] The legislation provides that a parent who intends to relocate the residence of a child must first provide notice to the other parent. The relevant section provides as follows:

Notice

16.9 (1) A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to undertake a relocation shall notify, at least 60 days before the expected date of the proposed relocation and in the form prescribed by the regulations, any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention.

Content of notice

(2) The notice must set out

(a) the expected date of the relocation;

(b) the address of the new place of residence and contact information of the person or child, as the case may be;

(c) a proposal as to how parenting time, decision-making responsibility or contact, as the case may be, could be exercised; and

(d) any other information prescribed by the regulations.

Exception

(3) Despite subsections (1) and (2), the court may, on application, provide that the requirements in those subsections, or in the regulations made for the purposes of those subsections, do not apply or may modify them, including where there is a risk of family violence.

Application without notice

(4) An application referred to in subsection (3) may be made without notice to any other party.

[20] The Divorce Act then sets out a non-exhaustive list of factors to be considered when determining whether it would be in the best interests of a child to permit a parent to relocate with that child. These provisions are to be considered in conjunction with the additional factors to be considered when making a parenting order. This framework of analysis, as codified, replaces the common law test set out by the Supreme Court of Canada in Gordon v. Goertz, [1996] S.C.J. No. 52.

[21] Section 16.92 reads as follows:

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.

Factor not to be considered

(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.

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.

Burden of proof — other cases

(3) 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.

[22] In determining the best interests of the child where relocation of a child’s residence is in issue, section 16.92 requires the court to also take into consideration the factors referred to in section 16 which states as follows:

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

(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.

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

(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.

Motion for interim relief

[23] The relatively small scope of information and evidence available on an interim motion, and the very nature of temporary orders, means that such orders are meant to be “Band-Aids” for the parties. They are not meant to be long term solutions, nor are they intended to resolve all of the issues that will be addressed at trial. They are meant to decide the issues of custody and access in the short term, so that the parties can move expeditiously towards a final resolution.

[24] The temporary nature of interim orders and their function as a “patch” on the problem, and to guide the court’s analysis.

[25] If a child has lived exclusively and successfully with one of the parties for a lengthy period prior to an interim application, particularly if the child is young, the courts have been inclined not to disturb this status quo in the absence of strong evidence to show that the proposed alternative more closely accords with the best interests of the child.

[26] The status quo implies a broad consideration of the relationships and the way of life at the location, school, extended family, friends, etc.

[27] Unless an obviously superior plan is evident, there is little point in exchanging an arrangement known to be workable for one which is unknown and the functioning of which is unpredictable.

[28] That said, in Gordon v. Goertz, [1996] 2 S.C.R. 27, the Supreme Court of Canada dispelled the notion that there was any presumption in law in favour of the custody status quo. The court is ultimately to be concerned only with the best interests of the child. The rights and interests of the parents, except as they impact on the best interests of the child, are irrelevant.

[29] The leading case for determining if a relocation should be permitted on a temporary motion is Plumley v. Plumley, [1999] O.J. No. 3234 (S.C.J.), where the court set out the following principles apply when considering relocation requests on interim motions pending trial:

1. 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.
2. 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.
3. 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.

Analysis

Notice

[30] Singh takes the position that Foster failed to provide him with the notice of her intention to relocate the residence of Zackary as required by the Divorce Act and that this ought to result in an order compelling Foster to return Zackary to Maple. He argues that he did not consent to the relocation and that he can not be seen to have, by implication or acquiescence, to have consented to Zackary’s relocation as he was under the impression that this was a temporary move only for the purpose of each party taking the time to address their personal “issues.” He maintains that he believed that there was continued hope of reconciliation and that his failure to act was so as not to “rock the boat” when he hoped to salvage the marriage.

[31] Foster admits that she did not give Singh notice of her intention to relocate with Zackary as required by the Divorce Act. She asserts that she did not do so because Singh was manipulative, controlling and abusive in his conduct toward her. She maintains that she was “forced to leave the home with the child after an incident on February 22, 2022, that caused her to fear for her immediate safety due to the Respondent’s conduct.”

[32] Foster’s evidence that Singh was controlling and manipulative, if true, would support a conclusion that Singh has acted in a controlling and manipulative manner. However, in my view, her substantive evidence on this issue falls short of establishing that she had reason to believe there was a risk of family violence of the nature and seriousness which would have excused her from providing the required notice, or first bringing an application as contemplated by that section. Furthermore, she has willingly permitted overnight unsupervised parenting time between Singh and Zackary. She also allowed Singh to have parenting time at her parents’ home in her presence over the past year and she is open to expanding upon the parenting time with Singh. This ongoing contact and interaction seems inconsistent with her position that she believed there was a risk of family violence on the level sufficient to give her cause to believe she should “flee” for her safety.

[33] That said, I do not consider Foster’s failure to abide by the notice requirements in this instance as fatal to her position for the following reasons:

1. I do not believe Foster’s relocation with Zackary was intended at that time to be permanent. It is clear on the evidence that both parties believed it was a “time out” for the parties to both reflect on the dynamics of their relationship. Both expressed a desire that this would lead to reconciliation. Singh was prepared to agree to Foster and Zackary residing with her parents in Westmeath during this time on that basis; and
2. When Foster determined that she wished to separate, she communicated this fact to Singh by commencing and serving a court application upon him in late March 2022. Even if Singh believed that the parties might reconcile, the fact that this was not something Foster was continuing to entertain was clearly communicated to Singh in June 2022. Despite this fact, Singh did not bring this motion seeking an order requiring that Foster return Zackary’s residence to Maple until February 28, 2023. Throughout this time, Foster has had Zackary in her primary care. In these circumstances I find there to be a reasonable basis to conclude that Singh acquiesced to Foster relocating with Zackary’s residence, at least pending the determination of the parenting issues in this proceeding.

Zackary’s best interests

[34] On the evidence before me, I additionally find the following to be particularly relevant to my consideration of sections 16.9 and 16(1) of the Divorce Act and my determination of what interim arrangement is in the best interests of Zackary:

1. Zackary is still very young. He initially enjoyed close and frequent contact with both parties. However, for the past twelve months (he is currently twenty-one months old) he has resided in Westmeath in the primary care of Foster;
2. Both parties clearly have a loving relationship with Zackary;
3. Zackary has, since the parties’ separation, continued to have frequent contact with Singh, including an overnight visit every second week. Additionally Singh also has come to Westmeath to have parenting time with Zackary every other Sunday for a couple of hours and until the recent charges were laid against Singh, he had daily video calls with Zackary. I conclude from this that Zackary has remained familiar and connected with Singh and that Singh has an evident desire to remain an important part of Zackary’s life. I also conclude from this that Foster does not dispute that Singh has a positive contribution to make in Zackary’s life and is prepared to promote that relationship (albeit not to the extent Singh would wish);
4. Foster has found employment as a social worker in the Westmeath and is best able to provide financially for Zackary and provide him with a stable environment by continuing to reside with her parents in Westmeath. Returning to the Greater Toronto Area at this point in time would require that she return to an area where she has no place to live, no job, and where she would not have the ability to access the support of her parents;
5. Zackary is not yet school age. The normal concerns that a child has been removed from their school and community do not play a significant factor in this instance;
6. While Singh is concerned that the distance created by Foster relocating to Westmeath will negatively impact his ability to maintain a quality relationship with Zackary, the ability for Singh to maintain a good quality relationship with Zackary is possible on an interim basis because of Zackary not being school age. This allows for more flexible options to preserve Zackary’s relationship with both parties pending the determination of the issues on a final basis;
7. Neither party has claimed that the other is not capable of being a loving parent to Zackary. That said, Foster asserts that she has always been Zackary’s primary caregiver and that she can best care for Zackary in Westmeath. Singh disputes this. Singh maintains that he was actively engaged in Zackary’s care prior to Foster leaving their home with Zackary;
8. Foster has nonetheless been Zackary’s primary caregiver since February 2022; and
9. Both parties have close ties and support through their respective parents which, if possible, should be fostered.

Motion for a temporary order and Plumley considerations

[35] While courts are reluctant to disturb a status quo by allowing a relocation on an interim basis when there is a genuine issue for trial, the status quo which Singh seeks to preserve was destroyed almost a year ago. Indeed, in Zackary’s short life, he has lived in Westmeath for a longer period than he lived in Maple at this point. That new status quo was created in February 2022 and even if Singh did not consent to this, his failure to take action allowed this status quo to become the reality in Zackary’s young life. I do not see any benefit to Zackary if I were to impose on him the significant disruption which would be caused by requiring that he be returned to the GTA with the challenges this will create for Foster.

[36] I have had the benefit of a small portion of what evidence will likely be available to the trial judge. There are genuine issues for trial. In my opinion, Zackary’s interests are best served by causing the least disruption to Zackary’s accustomed routine pending trial and striving to maximize Zackary’s ability to maintain his relationship with Singh within that context.

Decision making

[37] I see no compelling reason to make an interim order for sole decision-making. Both parties will continue to make the day-to-day decisions for Zackary while he is in their care. The parties may communicate by via email or through counsel respecting any major decisions concerning Zackary’s medical / dental care, education or religion. Given Zackary’s young age, it does not appear that this issue is pressing. It should be left to be determined at trial.

Disposition

[38] For present purposes, I am of the view that it is consistent with Zackary’s physical, emotional and psychological safety, security and well-being, that, in all of the circumstances, to the extent they are presently known, a temporary order issue as follows:

1. Zackary shall continue to reside in Foster’s primary care in Westmeath pending further order;
2. Singh shall have parenting time with Zackary as follows: a. Every second week from Friday evening until the following Tuesday evening. The parties are to share the transportation to and from that parenting time by meeting at an agreed upon halfway point to exchange Zackary. The parties will have to get clarification respecting Singh’s agreement upon an individual to attend at the exchange with them unless contact is permitted by Singh’s criminal undertaking; b. Foster shall arrange for someone to assist so as to ensure that Singh continues to have the video calls with Zackary a minimum of three times per week and once on the weekend when Singh does not have parenting time with Zackary; c. The parties may, through counsel, agree in writing upon an alternate schedule that is equivalent in time to that which is provided above.
3. Both parties will continue to make the day-to-day decisions for Zackary while he is in their care. The parties shall communicate by via email or through counsel respecting any major decisions concerning Zackary’s medical / dental care, education or religion. Decision-making, on a temporary basis, shall be joint.

[39] If the parties are unable to agree on the issue of costs for this motion, the Applicant may file submissions concerning costs on or before March 13, 2023. The Respondent may file submissions concerning costs on or before March 20, 2023. The cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs. If there are no submissions received by March 20, 2023, then there shall be no order as to costs.

M. Fraser J. Date: March 6, 2023