Court File and Parties

COURT FILE NO.: FC-23-50 DATE: 2023/03/27 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Alexandre Pret-Lescard, Applicant AND: Ashley Pret-Lescard, Respondent

BEFORE: Justice M. Fraser

COUNSEL: Lauren Blanchet, Counsel for the Applicant Holden Agnew-Pople, Counsel for the Respondent

HEARD: March 21, 2023

Endorsement

[1] The Applicant father, Alexandre Pret-Lescard (the “Applicant”) brings a motion for, among other things, an Order requiring the Respondent mother, Ashley Pret-Lescard (the “Respondent”) to return the residence of the child, D.P.-L. born in December 2019 (“D.P.-L.”) to Petawawa, Ontario (“Petawawa”). He additionally asks for a temporary order that D.P.-L. reside in his primary care or that alternatively, the parties share parenting time of D.P.-L. equally with the child’s residence remaining situate in Petawawa. He also asks for an order that there be disclosure of the records of the Family and Children’s Services of Renfrew County (“FCSRC”) as they pertain to their involvement with this family.

[2] The Respondent opposes the Applicant’s request. She asks that D.P.-L. remain with her in Grafton, Ontario (“Grafton”) and that the Applicant’s motion be dismissed.

[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 order that D.P.-L.’s residence be returned to Petawawa in the manner and subject to the terms more particularly set out below. Additionally, FCSRC is asked to provide disclosure of their records as they pertain to this family.

Background

[5] The parties married on May 7, 2016. They have resided in Petawawa since July 22, 2019.

[6] The Applicant is 38 years old and is employed with the Canadian Armed Forces at CFB Petawawa as a medical technician. He has been a member of the military since February 2009.

[7] Prior to February 16, 2023, the Respondent was employed at a local daycare centre, WiseOwl. The Respondent worked as a special needs daycare worker. She worked 9:00 am to 5:00 pm weekdays.

[8] The parties’ daughter, D.P.-L. turned three in December 2022. She is the parties’ only child. Until February 2023, she was attending “Lil’ Troopers” daycare through the Petawawa Military Family Resource Centre (“PMFRC”).

[9] Until February 16, 2023, the parties resided together in a home located at 15 Terrance Drive, Petawawa (the “matrimonial home”).

[10] The Applicant maintains that he was actively involved in the day-to-day care of D.P.-L.

[11] He would pick her up from daycare, make dinner, assist with her bathing and minding her in general, including doing activities with her on the weekends.

[12] The Respondent, on the other hand, maintains that she was the primary caregiver to D.P.-L. and that the Applicant’s involvement in her care was far less than he is maintaining was the case. The Respondent maintains that she was responsible for the daily caregiving of D.P.-L. including bathing her, feeding her, cleaning up after her, buying her necessities, putting her to bed, brushing her teeth, combing her hair, changing her diapers, reading to her and comforting her.

[13] The Respondent asserts that the Applicant would prepare the family dinner and then retire to his “man-cave”. There she claims the Applicant would be frequently “buzzed” or “flat-out drunk” during weekends, leaving her to care for D.P.-L. and take care of the chores around the home, including purchasing groceries and tending to the dogs. She suggests that the Applicant would not be capable of caring for D.P.-L. by himself.

[14] The Applicant agrees that he would watch sports or play videogames in his “man-cave” while the Respondent excessively cleaned the house as a result of her “Obsessive Compulsive Disorder.” He maintains that he would often have D.P.-L. with him when he was watching sports.

[15] The Applicant claims that on February 16, 2023, the Respondent left the matrimonial home with D.P.-L. without any advance notice to him and without his consent.

[16] The Applicant asserts that he and the Respondent had a disagreement on February 15, 2023 respecting grandparents coming to visit on Family Day weekend. The Applicant claims the Respondent reacted by advising that she wished to separate. The Applicant asserts that he did not believe that this was actually her intention and he felt this was more a “reaction” as they both then went to bed.

[17] On February 16, 2023, the Applicant received a text from the Respondent volunteering to pick D.P.-L. up from daycare so that the Applicant could get dinner ready in time to be finished and attend a meeting that evening.

[18] The Respondent did not return home with D.P.-L.

[19] The Applicant began calling and texting in an effort to communicate with the Respondent. He eventually learned that the Respondent had taken D.P.-L. and gone to her parents’ home in Grafton, Ontario (“Grafton”).

[20] The Applicant also subsequently learned through a PMFRC Notice of Withdrawal form dated February 20, 2023 that the Respondent gave notice on February 16, 2023 to the child’s daycare provider that she was withdrawing D.P.-L. from daycare.

[21] Initially the Respondent advised the Applicant that she was going to take a few days at her parents’ home and then return to their home in Petawawa. However, the Respondent ultimately told the Applicant on February 24, 2023 that she did not intend to return with D.P.-L. and that she intended to remain with their child in Grafton.

[22] At this time the Applicant learned that when the Respondent had picked D.P.-L. up from the daycare on February 16, 2023, the daycare had apparently told the Respondent that D.P.-L. had made a statement to them about “daddy hitting her”.

[23] The Respondent maintains that she decided to separate from the Applicant due to her concerns that the Applicant was hitting D.P.-L., and because she maintains the Applicant was abusive toward her.

[24] The Respondent claims she did not feel comfortable telling the Applicant of her intention to leave, given her safety concerns.

[25] The Respondent recounted, in her affidavit, that on January 9, 2023, the Applicant was not working and that he failed to take D.P.-L. to her daycare and that when the Respondent arrived home that day she found the Applicant “passed out in the bedroom, intoxicated.” She further stated that D.P.-L.’s clothes were saturated in urine, and there was nobody supervising her.

[26] The Applicant denies this occurred. He has produced confirmation that on that date he was working. He also denies that any such event occurred.

[27] The Respondent also points to another date, being July 2022, when the parties were visiting her family’s cottage. She states that the Applicant consumed twenty-three ounces of whiskey between 5 pm and 11 pm. She states that earlier that day, she was out for a walk with her mother and that her father came into the cottage to find the Applicant alone in the kitchen and that he had left D.P.-L. unsupervised in the bathtub.

[28] The Applicant denies that he created a situation of any danger for D.P.-L. and that the Respondent is contorting what occurred that day.

[29] The Respondent claims that the Applicant has an alcohol abuse problem and additionally consumes cannabinoid edibles each evening. The Applicant claims the Respondent would typically not get up until noon on Saturdays as a result of her having consumed cannabinoid edibles.

[30] She maintains that she believes the Applicant is capable of physical abuse because he has physically abused her in the past (ie. pushed her and knocked her to the ground). No specifics of when or where she maintains this happened is provided.

[31] The Respondent maintains she had nowhere else to go other than her parents’ home in Grafton which is an approximate three to three and one-half hours’ drive.

[32] On February 17, 2023, the Respondent contacted FCSRC and reported that D.P.-L. had told the daycare provider that the Applicant had hit her (D.P.-L.). She also reported her concerns that the Applicant had an alcohol issue.

[33] On February 28, 2023, the Respondent spoke with Highland Shores Children’s Aid Society who FCSRC had asked speak with her.

[34] On March 3, 2023, the Respondent arranged through the O.P.P. to attend at the matrimonial home to retrieve her belongings and most of D.P.-L.’s belongings.

[35] While the Respondent points out that the Applicant was supposed to be deployed to Kuwait from April to October 2023, the Applicant has produced written confirmation from his commanding officer that he is no longer scheduled to go on tour.

[36] Also, while the Respondent asserts that the parties had discussed a move to Trenton, the Applicant is not at this time posted and there is no posting presently in the works for him.

[37] The Respondent maintains her own mental health is fine, particularly now that she is living with her parents. She denies she suffers from Obsessive Compulsive Disorder.

[38] The Respondent wishes to remain living with her parents indefinitely and to have D.P.-L. live in Northumberland County over the long term.

[39] The Respondent has employment with Access Community Services, in Port Hope, as a residential counsellor. She advises that she will not need daycare as her parents will care for D.P.-L. in the daytime.

[40] The Respondent also suggests that as a result of the move to her parents that D.P.-L.’s problem with “stuttering” and “potty-training” have improved. She has apparently enrolled D.P.-L. at Grafton Public School for junior kindergarten in September 2023.

The Law

[41] 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.

[42] 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.

[43] 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] 2 S.C.R. 27.

[44] 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.

[45] 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

[46] 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 issues that will be addressed at trial. They are meant to decide the parenting issues in the short term, so that the parties can move expeditiously towards a final resolution.

[47] The temporary nature of interim orders as such function as a “patch” on the problem.

[48] 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. The status quo implies a broad consideration of the relationships and the way of life at the location, school, extended family, friends, etc. The rationale behind this is that 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.

[49] 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 parenting 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.

[50] 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

[51] It is not disputed that the Respondent failed to provide the Applicant with the notice of her intention to relocate the residence of D.P.-L. as required by the Divorce Act. It is also clear that the Applicant did not consent to the relocation nor, by implication or acquiescence, could it be concluded that he consented to D.P.-L.’s relocation.

[52] The Respondent asserts that she did not give notice to the Applicant because he was manipulative, controlling and abusive in his conduct toward her. The Applicant adamantly denies this was the case.

[53] There are issues of credibility which will ultimately need to be assessed in this proceeding and, ideally, this will be done when a full evidentiary record is available. That is not the case in this instance.

[54] However, at this juncture, the Respondent’s allegation that the Applicant was abusive, in my view, 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 alternatively from first bringing an application on a without notice basis as contemplated by that section.

[55] The Respondent’s allegations are simply that and they are not presently corroborated with a history of complaints to the police, independent witnesses, or the provision of specifics that are consistent with her position.

[56] For instance, if there was a credible concern raised by the daycare that the Applicant had hit the child, I would normally assume the daycare would have contacted FCSRC or the police as they are mandated to do. This did not occur.

[57] I find it curious that the Respondent has appended notes which the Lil’ Troopers daycare provided to her which substantiate D.P.-L.’s stuttering issue, potty-training issues, and other “emotional dysregulation” issues. Yet there is no mention of the statements which were purportedly made by D.P.-L. that the Applicant had hit her? Why would the daycare not have also provided some corroboration to support such concerns? This does not make sense to me.

[58] Absent corroboration, the Respondent’s actions would also seem to be consistent with a self-help intention to impose a new status quo which was beneficial to herself.

[59] 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 D.P.-L.:

a) D.P.-L. is very young. She has been accustomed to close and frequent contact with both parties; and

b) Both parties clearly have a loving relationship with D.P.-L. Both clearly wish to continue to play a substantive role in her life.

[60] The Respondent has found employment in Port Hope. However, she quit her position at WiseOwl daycare. There is no evidence to suggest that the new position offers a greater opportunity for the Respondent such that it would indirectly benefit D.P.-L. and outweigh the likely negative impact the loss of contact between D.P.-L and the Applicant will cause.

[61] D.P.-L. is not yet school age. The normal concerns that a child has been removed from her school and community do not play a significant factor in this instance.

[62] If D.P.-L. relocates to Grafton, her relationship with the Applicant will likely be significantly impacted. She will no longer benefit from day-to-day contact with him. While it had been thought that the Applicant would be required to go on tour, this is not presently the case. That D.P.-L. could maintain her relationship with the Applicant if he were to be posted to Trenton, this possibility is speculative at best and not, in my view, something that should be considered at this interim stage, given we know such a posting is not presently contemplated.

[63] Even accepting the Respondent’s assertion that she was the primary caregiver to D.P.-L. However, that does not diminish the importance of her maintaining close and frequent contact with the Applicant.

Motion for a temporary order and Plumley considerations

[64] By relocating to Grafton, the Respondent’s unilateral actions disturbed a status quo which has been in place throughout D.P.-L’s life. While I acknowledge that there is a limit to what status quo might be preserved at this time, given the parties’ separation, the status quo additionally involves D.P.-L’s home, community, daycare, and most importantly accustomed frequent contact with both parents.

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

[66] For reasons discussed above, while I do not discount the possibility that the Respondent will be successful in an application to relocated D.P.-L’s residence to Grafton, based upon the evidence before me at this time I do not find that there is a strong probability that the Respondent’s position will prevail.

[67] With respect to the FCSRC records, as they pertain to this family, I am satisfied that the records will contain information both relevant and material to the issues in this matter. I note that FCSRC was not served with this motion and therefore my order for their production is subject to its agreement to provide same to the parties.

Disposition

[68] For present purposes, I am of the view that it is consistent with D.P.-L.’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:

a. The Respondent shall return D.P.-L’s residence to the matrimonial home in Petawawa, Ontario within the next 14 days;

b. If the parties are not able to work out an agreeable division of parenting time and residential arrangement, the parties shall arrange with their counsel to make submissions virtually on a date and time to be scheduled during the week of March 27, 2023 (at a time to be scheduled through the trial coordinator) to address the issue of the division of parenting time as well as whether a party is asking for exclusive possession of the matrimonial home. A further ruling will be made in that event on those issues.

c. There shall be an Order for the disclosure of the records of FCSRC concerning this family subject to its consent to provide same.

[69] 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 30, 2023. The Respondent may file submissions concerning costs on or before April 10, 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 April 10, 2023, then there shall be no order as to costs.

Released: March 27, 2023 Justice M. Fraser