OSHAWA COURT FILE NO.: FC-23-346 DATE: 20230602 ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

BETWEEN:

S.D. Applicant – and – C.H. Respondent

COUNSEL:

Rachael Rohr, for the Applicant Self-represented, for the Respondent

HEARD: May 15, 18 & 19, 2023

JUDGEMENT

L. E. FRYER, J

I. Introduction

[1] I heard a focussed hearing over two days in relation to the following issues:

• Is Ontario the proper jurisdiction to determine the parenting issues in this case?
• If so, should the children be returned to Ontario as requested by the Applicant (Father), Mr. D. or should the Respondent (Mother), Ms. H.’s move with the children be permitted on a temporary basis.

[2] In order to address these issues expeditiously, I provide parties with summary oral reasons on May 23, 2023, and issued my judgment that day. These written reasons take precedence to the extent there is a discrepancy with my oral reasons.

II. Background

[3] The parties cohabited from May 2014 to October 2020.

[4] They have two children: B. D., born , 2014, and E. D., born , 2017. E. has been identified as having autism spectrum disorder (“ASD”) and B. is going through an assessment process to determine if he has ASD.

[5] Ms. H. has a child from her previous relationship with K. W.; that child is H. W., now age 13. H.W. has ASD. H. formerly lived primarily with Ms. H. Ms. H. was charged with assaulting H.W. in relation to an event that occurred in December 2021, and H.W. has resided with his father ever since.

[6] Ms. H. has re-married to B. S. They have a young child whose name and birthdate were not disclosed.

[7] When Ms. H. and Mr. D. separated, Ms. H. was living with the children in Gravenhurst, Ontario. She later moved with the children to Kingston, Ontario.

[8] On or about November 22, 2022, Ms. H., Mr. S. and the three children travelled to Alberta where they have remained ever since.

[9] Mr. D. commenced his Application on March 23, 2023, seeking a return of the children to Ontario.

[10] Mr. D. brought an urgent, regular (one hour) motion before Hughes J. on March 23, 2023. Ms. H. requested an adjournment to file responding material and to obtain counsel. The motion was adjourned to April 17, 2023, before me.

[11] On April 17, 2023, I reviewed the evidence filed by both parties limited in length per the Notice to the Profession. Upon the conclusion of the motion, I determined that there were too many unanswered questions arising out of the evidence. I set the matter down to the first available date for a focussed hearing to permit each of the parties to provide further, more complete evidence and to conduct cross-examinations.

[12] At the return on May 15, 2023, Ms. H. requested a further adjournment of several weeks to file her evidence in chief and to obtain counsel. As the matter had now been delayed for two months and the children had been out of Ontario for almost 6 months, I declined that longer adjournment, but gave Ms. H. two more days to finalize her affidavit evidence.

III. Analysis

1. Jurisdiction

[13] Ms. H. raised the issue of jurisdiction in her affidavit sworn April 11, 2023, at paragraph 11. She states that Alberta is the appropriate jurisdiction as “that is where the children have been residing for the past 5 months with the Applicant’s full knowledge and consent”.

[14] Ms. H. has not commenced a court proceeding in Alberta, as she stated she did not have the funds to do so, among other things.

[15] Section 22 of the Children Law Reform Act, R.S.O. 1990, c. C. 12 (“CLRA”) sets out the statutory criteria for determining jurisdiction as follows:

(1) A court shall only exercise its jurisdiction to make a parenting order or contact order with respect to a child if,

(a) the child is habitually resident in Ontario at the commencement of the application for the order; or

(b) the child is not habitually resident in Ontario, but the court is satisfied that,

(i) the child is physically present in Ontario at the commencement of the application for the order,

(ii) substantial evidence concerning the best interests of the child is available in Ontario,

(iii) no application respecting decision-making responsibility, parenting time or contact with respect to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,

(iv) no extra-provincial order respecting decision-making responsibility, parenting time or contact with respect to the child has been recognized by a court in Ontario,

(v) the child has a real and substantial connection with Ontario, and

(vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.

[16] Habitual residence is defined under the CLRA as follows:

22(2) A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:

1. With both parents.
2. If the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order.
3. With a person other than a parent on a permanent basis for a significant period of time.

[17] Section 22(3) of the CLRA confirms that a child’s habitual residence cannot be changed unilaterally:

The removal or withholding of a child without the consent of all persons having decision-making responsibility with respect to the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld.

[18] When determining jurisdiction, the court is not considering the “best interests” of the children: F. v. N., 2022 SCC 51, at para. 65. However, In F. v. N. the majority of the Supreme Court of Canada held with reference to the relating to decision-making responsibility and parenting time under the CLRA, at para. 19:

…In addition to discouraging child abduction, the legislature seeks to ensure that the child’s best interests are paramount to the making of ultimate parenting orders and that parenting determinations be made in the place to which the child has the closest connection, barring exceptional circumstances.

[19] The majority of the court in F v. N. went on to state at para. 64:

…resolving parenting issues in the children’s home jurisdiction fosters stability, while ensuring that custody will be determined by the authorities of the place with which the child has the closer connection, which is an objective set out under s. 19 of the CLRA. Indeed, the jurisdiction from which the children have been removed is usually in the best position to determine which arrangement will be in their best interests [cites omitted].

F. v. N. had to do with whether Ontario should assume jurisdiction for children who had been removed from United Arab Emirates and were present in Ontario, yet these principles equally apply when children have been removed from Ontario to another jurisdiction.

[20] The analytical pathway to the determination of jurisdiction under s. 22 of the CLRA is set out in Dovigi v. Razi, 2012 ONCA 361, leave to appeal refused: Dovigi v. Razi, 2012 CarswellOnt 14546 (S.C.C.). See also: M. v. K., 2022 ONSC 2497.

[21] The children last resided with both parents in either Nestleton, Ontario or Gravenhurst, Ontario. Nothing turns on whether it is one location or the other. When the parties separated, the children remained living primarily with Ms. H. Later, Ms. H. moved with the children to Kingston, Ontario.

[22] Mr. D. acknowledged that he had not formally consented but had acquiesced to the move to Kingston.

[23] Section 22(1)(b) of the CLRA does not apply as the children were not physically present in Ontario when Mr. D. brought his Application. Therefore, the court must determine the habitual residence of the children under s. 22(1)(a) of the CLRA at the time of the Application.

[24] I concur with Mitrow J. in M. v. K. when he held that, in issues of jurisdiction under the CLRA, the court must look to the definition of “habitual residence” as set out s. 22 rather to cases under Hague Convention which contains no definition of this term: M. v. K., at paras. 63-65.

[25] There is no court order (other than the temporary orders for parenting time made since these proceedings were commenced) or formal separation agreement between the parties. Therefore, the court must determine if Mr. D. otherwise consented or acquiesced to the move to Alberta

(i) Did Mr. D. consent to the move?

[26] Ms. H.’s position is that Mr. D. consented to her moving with the children to Alberta and that this is now their habitual residence.

[27] Ms. H. stated that she and Mr. D. had two conversations about her proposed move to Alberta.

[28] The first conversation was on September 4, 2022, while they were on a hike with the children in Kingston. Ms. H. initially stated that during this conversation she told Mr. D. that she had done research about the services for children in Alberta. According to her, Mr. D. did not seem interested and did not say anything. Only later in her oral evidence did she add that it was in this same conversation, that she told him that they would be leaving for Alberta at the latest in November when the lease on their Kingston home terminated.

[29] The second conversation, according to Ms. H., took place at Tim Horton’s on October 23, 2022; the focus of this conversation was on the superior services available to the children in Alberta.

[30] There was no documentary evidence such as texts or e-mails that would evidence that Ms. H. told Mr. D. that she was planning to move to Alberta and when the move might be taking place.

[31] Mr. D.’s evidence was that he was never given notice of the move at all. He said that Ms. H. told him in September 2022 that she was looking to move somewhere in the rural area around Kingston. He acknowledged that she had talked about Alberta having better services for children with ASD.

[32] Mr. D. texted Ms. H. on November 24, 2022, to ask where they were going to meet for his usual Sunday parenting time. Ms. H. told him that the family was “travelling”. She did not provide him with details of their whereabouts. When Mr. D. saw that the children were on a water slide, he investigated places like Great Wolf Lodge to try to figure out their location.

[33] Ms. H. says that she told Mr. D. the names of the towns where they stopped. There was no documentary evidence such as texts or e-mails introduced to support Ms. H.’s position.

[34] On or about December 6, 2022, Ms. H. advised Mr. D. that the family were in Alberta. He understood that they were staying at an AirBnB but he was never given a residential address. Ms. H. did give him an address which turned out to be a P.O. Box.

[35] Mr. D. went to Ms. H.’s home in Kingston on December 10, 2022; the home was vacant. He went to the courthouse the same day to investigate his options.

[36] Mr. D. also followed up with Mr. W. in December 2022 to see if he had any information about Ms. H.’s whereabouts, but Ms. H. had not informed Mr. W. about a move.

[37] On December 18, 2022, Mr. D. asked Ms. H. by text when she will be coming back from her vacation. He thought that they might be vacationing in Drumheller, Alberta as the children like dinosaurs. Ms. H. responded stating: “I don’t feel safe disclosing anything to you”.

[38] Mr. D. texted Ms. H. repeatedly asking to speak to the boys without receiving a text reply. On January 29, 2023, Ms. H. sent Mr. D. a text message saying that she is upset that he went by the house in Kingston when “she already told him they were moving”.

[39] On February 9, 2023, Mr. D.’s lawyer, Ms. Rohr contacted Kelly Aitchison, the lawyer representing Ms. H. in the case with Mr. W. asking if she knew where Ms. H. was. Ms. Aitchison replied saying that she believed her client had moved but did not provide other details.

[40] Mr. D. stated that it was not until court proceedings commenced that he learned that Ms. H. had re-located with the children to Alberta.

[41] I found Ms. H. credible in other aspects of her evidence, but on this topic – consent/acquiescence – I prefer Mr. D.’s evidence for the following reasons.

[42] Ms. H. has been extremely worried about Mr. W. finding out about her whereabouts and/or stalking her for some time. She was not prepared to provide information to Mr. D. for fear that he would pass it along to Mr. W. I find it more likely than not that Ms. H. deliberately withheld significant information about her proposed plans from Mr. D.

[43] Ms. H. initially stated that Mr. D. had consented to the move, but she later clarified that she relies on the fact that he said nothing when she allegedly advised him of her plan.

[44] Mr. D. presented as rather artless. I find it unlikely that he would request parenting time on November 22, 2022, and later drive to Kingston to look at Ms. H.’s home, if he already knew that she had moved with the children.

[45] I find that Mr. D. did not have knowledge of Ms. H.’s move to Alberta, and therefore could not have provided his advance consent.

(ii) Did Mr. D. acquiesce to the move?

[46] Mr. D. did not consent to the move and Ms. H. now bears the burden of demonstrating that Mr. D. acquiesced: Duman v. Duman, 2017 ONCJ 629 at para. 93.

[47] In order to discharge this burden, Ms. Hackeny must present clear and cogent evidence of subjective acquiescence by Mr. D. I concur with Sager J. who held:

Whether a wronged parent acquiesces to the move after the fact is a subjective test. The wronged parent’s conduct, including what they do and do not do and what they say and do not say is all relevant. See Katsigiannis v. Kottick-Katsigiannis, 55 O.R. (3d) 456 (Ont. C.A.) and Jackson v. Graczyk, 2007 ONCA 388 (Ont. C.A.)

[48] In Duman, Sager J. did not find that that father had acquiesced despite waiting over two months before initiating proceedings after he learned that the mother had moved. This even though the mother had arranged housing, obtained a job and daycare, and located a doctor for the child.

[49] When Mr. D. learned that Ms. H. had left Kingston with children, he made efforts to find out where Ms. H. was located. He was worried about pressing Ms. H. too much as he feared she might cut off him off from the children altogether. When he asked her when she would be returning from vacation, Ms. H. declined to answer him, rather than confirming what she says he already knew: that they had moved. It was not until the end of January that Ms. H. stated in writing that she and the children had moved. When Mr. D. had confirmation that his children would not be returning voluntarily, he moved with greater dispatch to retain Ms. Rohr and commence this Application.

[50] Having regard to the evidence before me, I do not find that Mr. D. acquiesced to the children remaining in Alberta.

[51] Section 22(3) CLRA states:

The removal or withholding of a child without the consent of all persons having decision-making responsibility with respect to the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld.

[52] Section 20 of the CLRA provides that “a child’s parents are equally entitled to decision-making responsibility with respect to the child”. However, section 20(4) of the CLRA states that when parents separate and a child lives with one of them with the “consent, implied consent or acquiescence of the other, the right of the other to exercise the entitlement to decision-making responsibility with respect to the child, but not the entitlement to parenting time, is suspended until a separation agreement or court order provides otherwise.”

[53] The children have been living primarily with Ms. H. since separation. Mr. D. acquiesced, and possibly consented, to this arrangement although he did not agree with the parenting time being offered to him. He signed a document which appears to be for Canada Revenue Agency confirming that the children were primarily resident with Ms. H.

[54] There are few authorities interpreting the application of this section, particularly at what point a parent with primary care is entitled to make unilateral decisions for the children and what impact that has with respect to s. 23(3) of the CLRA and a unilateral change in habitual residence.

[55] In Moniz v. Deschamps, 2010 ONSC 598, after a period of shared parenting, the mother agreed that children would reside primarily with the father. The father unilaterally moved with the children from Kitchener to Hamilton. The court rejected the father’s argument that because they had been in his primary care for over 14 months, they were habitually resident in the jurisdiction where he was residing. Although this case speaks to jurisdiction, it is really a dispute about venue and mobility. See also: Ascani v. Robert, 2014 ONSC 611 (Div. Crt.).

[56] In Pearson v. Whittingham, 2012 ONCJ 187 (Ont. C.J.), the mother argued that as she had de facto custody, this gave her the right to determine the place of a child’s residence and to change that place from Ontario to Alberta. Section 20(4) of the CLRA was not specifically referenced. Murray J. stated:

10 In my view, the Respondent’s motion must fail. If her position is correct, then a parent, by adopting a non-confrontational course at separation and not immediately litigating custody or access, faces the risk that the parent who has possession of the child will unilaterally and without notice change the child’s “habitual residence,” and change the forum in which issues about the child must be litigated.

[57] Murray J. found in favour of the father in part because the children had only been in primary care of the mother for two months. She commented that “where the de facto care period is much longer — for example, three years — then that may be sufficient to endow the residential parent with authority to make that decision without consent of the other parent”: para. 13.

[58] In the earlier cases of Wright v. Wright, 1973 CarswellOnt 148 (Ont. C.A.) and Wickham v. Wickham, 1983 CarswellOnt 313 (Ont. C.A.) it was held that a parent with custody is entitled to move with the child and thereby change that child’s “habitual residence” subject to a specific term in a court order or agreement restricting mobility or terms of access that would be impaired by the move. In Wright the parties had a separation agreement stipulated that the mother had custody of the children and could move “to such place as she thinks fit”. In Wickham, the mother had custody pursuant to a court order and the father had an order for “reasonable access”.

[59] These cases all pre-date the enactment of the re-location provisions to the CLRA that are expressly designed to prevent the removal of children from a parent who may not have decision-making authority but has parenting time with the child.

[60] Many parents after separation make their own, unwritten arrangements for the care of the children. In some cases, one parent is content that the other have primary residence and makes decision involving the children such as medical or educational decisions without objection. This informal arrangement may reflect parenting roles that existed prior to the separation. In this context, s. 20(4) CLRA codifies the parties’ informal arrangement subject to a court order. However, many parents would be surprised if not shocked to learn that their cooperative agreement in terms of caring for the children could also extended to authorizing the de facto primary care parent to move from the province and to establish a new jurisdiction potentially outside of Canada altogether without their consent.

[61] Mr. D.’s right to exercise decision-making responsibility for the children as defined in s. 18(1) CLRA may or may not have been suspended pursuant to s. 20(4) CLRA. I do not make that finding at this time. Even if s. 20(4) CLRA applied to suspend Mr. D.’s ability to make certain decisions for the children, I do not conclude that his right to object to re-location as set out in s. 39.3 CLRA was suspended by operation of s. 23(3) CLRA. That right is afforded to him as a parent who has parenting time. Had Ms. H. complied with her obligations under s. 39.3, she would only have been permitted to move if Mr. D. failed to object or she obtained a court order: s. 39.4(2) CLRA.

[62] Mr. D. did not consent to Ms. H. moving to Alberta. Did he unduly delay within the meaning of s. 22(3) CLRA?

[63] In Moniz, Turnbull J. cited the 1964 English case of P. (G.E.) (An Infant), Re (1964), [1965] Ch. 568 (Eng. C.A.) in which Lord Denning held that “Six months’ delay would, I should have thought, go far to show acquiescence. Even three months might in some circumstances. But not less.”: para 14.

[64] Mr. D. commenced his Application on March 23, 2022, approximately four months after Ms. H. left Ontario, but only about two months after he learned that she and the children had in fact re-located. This delay is not insignificant, but I do not find that is undue such that Mr. D. can be found to have acquiesced to the move.

[65] Ms. H. argued that she did not attorn to this jurisdiction. Attornment is not dispositive of the issue of jurisdiction. In N. (J.) v. Durham Regional Police Services, 2012 ONCA 428, at para. 25 the Court of Appeal for Ontario stated:

Jurisdiction is not optional, cannot be conferred by consent, cured by attornment, or assumed voluntarily just because there is an interest and significant issue to be considered

[66] In E. (H.) v. M. (M.), 2015 ONCA 813 the Court of Appeal for Ontario held in the context over whether attornment was crucial to the determination of jurisdiction under s. 22(1)(b) CLRA:

[80] There is no reference to attornment in the CLRA. In Wang, at para. 51, this court held that if the statutory test for jurisdiction under s. 22 is not made out, the court cannot resort to a common-law test for jurisdiction. The respondent’s reliance on the common law test for attornment is therefore misplaced.

[81] Standing alone, attornment can be at most, one of the factors to consider in the analysis under s. 22(1)(b) or the decision whether to decline jurisdiction under s. 25: Murray v. Ceruti, 2014 ONCA 679, 325 O.A.C. 300, at paras. 38-40, leave to appeal to S.C.C. refused, 36193 (March 12, 2015).

[82] The CLRA mandates a child-centered approach based on the best interests of the child in discouraging child abduction. Children have no control over where their parents litigate.

[67] The circumstances of this case are such that it is not appropriate to decline jurisdiction under s. 25 of the CLRA.

[68] In summary, the habitual residence of the children at the time of the Application was Ontario. Mr. D. did not consent explicitly or impliedly to Ms. H. re-locating to Alberta. Ms. H. did not have the authority to unilaterally re-locate with the children by virtue or having de facto decision-making authority or otherwise. Mr. D. acted reasonably quickly once he ascertained where Ms. H. and the children were, and that they intended to remain in Alberta permanently. Pursuant to s. 22(1)(a) of the CLRA, I find that Ontario is the proper jurisdiction to determine the parenting issues.

2. Interim Mobility

[69] Having found that this matter is properly before the court, Mr. D. asks the court to order that the children be returned to Ontario namely to reside with him in Durham Region.

[70] Ms. H. did not comply with s. 39.3(1) of the CLRA which states:

A person who has decision-making responsibility or parenting time with respect to a child and who intends a relocation shall, at least 60 days before the expected date of the proposed relocation, notify any other person who has decision-making responsibility, parenting time or contact under a contact order with respect to the child of the intention.

[71] Ms. H. did not provide any notice of her intended move to Mr. D.

[72] The notice requirements can be dispensed with under s. 39.3(3) of the CLRA if the court finds it appropriate, including where there is a risk of family violence. The importance of analyzing and understanding the impact of family violence in mobility cases was emphasized by the Supreme Court of Canada in Barendregt v. Grebliunas, 2022 SCC 22.

[73] For reasons explored in more detail below, I do not find that this exception applies.

[74] The re-location provisions do not contain a specific sanction for a parent who fails to follow the protocols although it is a factor under the assessment of best interests: s. 39.3(2)(d) of the CLRA.

[75] The court can still permit a move to take place even when a parent has failed to give notice and cannot demonstrate that the exception under s. 39.3(3) applies.

[76] I am not at this stage making a final determination with respect to whether the children should be permitted to remain residing in Alberta. Although I heard evidence that was tested by cross-examination, both parties have had to act relatively quickly to put their case together in order for the court to make this initial ruling. It is anticipated that they both may have further evidence they wish to adduce before a final order is made. Ms. H. wishes to engage a lawyer to assist her. The issues should be conferenced.

[77] It is necessary to determine whether the children should be required to return to Ontario pending the final resolution.

[78] The principles applicable to interim mobility are set out by Marshman J. in Plumley v. Plumley, at para. 7 as follows:

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.

See also: M. v. K. supra.

[79] I do not condone Ms. H.’s unilateral self-help remedy. She knew, or ought to have known, particularly having the benefit of counsel in her other case with Mr. W., that she needed to provide proper notice of the move to Mr. D. She deliberately failed to do that. Her actions fly in the face of the principles outlined in the CLRA regarding child abduction.

[80] Despite the need to sanction such behaviour, the focus must still be on the best interests of the children pursuant to ss. 24 and 39.3(3) of the CLRA.

[81] It is not disputed that Ms. H. has been the children’s primary caregiver since separation. Mr. D. has had regular parenting time with the children, albeit significantly reduced, without much objection over the past year leading up to the move.

[82] The children both have special needs. E. was assessed around April 28, 2022, at the Quinte Assessment and Treatment Group Inc. and identified as having ASD – Level I. In her report, Dr. Ramani states:

E.’s willingness and capacity to successfully engage in activities to develop and maintain relationships with peers are impaired; he has better skills when engaging with adults. He will struggle to tolerate changes in the environment, routine, activities, or behaviours. Sometimes his social overtures lack integration into context. E. may require some help when engaging in play activities with his peers.

[83] Ms. H.’s son, H., also has ASD, and she believes, based on his presentation, that B. does as well. Ms. H. was well informed and presented as very proactive and assertive in terms of getting her children the supports they need.

[84] Ms. H. has re-married and lives with her husband, B. S. Ms. H. and B. S. have another child, who is approximately one year old (no specific details were given for this child).

[85] Mr. D. has not taken issue with Ms. H.’s parenting of the children. He was content for the children to reside primarily with her. He did express displeasure at the reduction in his parenting time, but went along with it, as he did not want to rock the boat.

[86] Ms. H. was charged with assaulting her son, H., who is now 13 years old, in relation to an incident that occurred around Christmas 2021. The charges were resolved by way of peace bond. H.W. has lived with Mr. W. ever since.

[87] Ms. H. indicated that she was not necessarily pursuing an order that H.W. resume living with her, as she was worried about some of his behavioural issues which were escalating and the possibility that her younger children could be at risk. For example, she reported that one time in the past H.W. picked up his brother by the throat and another time he threw dinky cars at E. She was worried that H.W was not getting proper supports for his ASD. There is litigation still ongoing in the court in Ontario between Ms. H. and Mr. W. in relation to H.W.

[88] Mr. W. expressed concerns about H.W. not being able to spend time with his half-brothers with whom he lived primarily until Christmas 2021. At that time B. was 7 years old, and E. was 4 years old. However, the evidence does not suggest that H.W. and his brothers have spent any significant time together since then.

[89] The parties lived on the paternal grandparents’ property for a period of time. They have not spent much time with paternal grandparents since Mr. D. stopped having parenting time at his home.

[90] Ms. H. has a poor relationship with her father, R.H. Her evidence was that when she and Mr. D. were together, they limited the time the children spent with her father due to alcohol abuse and anger management issues.

[91] R.H. was called by Mr. D. to give evidence. R.H. presented as mean and insensitive. For example, he called Ms. H. a “filthy little liar” during her cross-examination of him. When she asked why he did not assist her in supervising her parenting time with H.W. following the criminal charges after previously consenting to do it, he said it was because the maternal grandmother (now deceased) “hated her guts”.

[92] B.S. has family in Ontario, but he advised that he was not particularly close with them.

[93] Ms. H. was historically reasonably supportive of Mr. D. having a relationship and parenting time with the children. Shortly after the separation, she was unhappy because Mr. D. was not exercising as much parenting time as she would like. As indicated above, the reduction in Mr. D.’s parenting time appeared to be because Ms. H. feared that Mr. D. would abduct the children. For example, when asked by the court why she implemented “supervision” of Mr. D.’s parenting time, her first response was “I was afraid he was going to take the children”. Only later did she add that Mr. D. was not aware of the children’s needs, and she need to act as “interpreter”. In the year prior to their departure, Ms. H. and B.S. facilitated reasonably regular visits between Mr. D. and the children at their home.

[94] There was little evidence with respect to the children’s views and preferences. Ms. H. referred to one or more of the children not wanting to have parenting time with Mr. D. For a variety of reasons, including the source of the information, the context of this Application, their age, and unique needs, I put little or no weight on that evidence.

[95] Ms. H. outlined in some detail the plan for the care of the children in Alberta. I found her evidence very child focussed. She has already implemented many of the services for the children that she advised were the reason for the move.

[96] Ms. H.’s husband, B.S., has recently obtained work as a chef. He is self-employed and working on contract for a golf course and a minor league hockey team. Although Mr. S. stated that he had obtained a contract as early as December 2022, I find it more likely that he has only recently solidified his employment opportunities.

[97] Ms. H. and B.S. have been living in the same residence since they got to Alberta. Ms. H. advised that they have put forward an informal offer to purchase the home, that has been accepted. B.S.’s family have provided them with the necessary down payment. They have put the purchase on hold while this legal case is determined.

[98] Mr. D. is requesting that the children be returned to Ontario. Although he is not seeking primary care of the children over the long term, he recognizes that Ms. H. would likely have difficulty obtaining a residence for the family, and he suggests that he would assume primary care of the children on a temporary basis.

[99] Mr. D. lives with his parents. He works at a local farm supply store. Mr. D.’s plan is for the children to live with him in his parents’ home where they will each have their own bedroom. They would attend the local school in Blackstock and take the bus to and from school. Mr. D.’s mother would assist him in getting the children ready before and after school.

[100] Mr. D. obviously loves his children very much and understandably misses seeing them in-person. He is a capable parent in many respects. I find that many of Ms. H.’s complaints about Mr. D. have been magnified or embellished to initially support the stated need for supervision, something that was more related to a fear of abduction and later to support her unilateral move.

[101] There are significant concerns with Mr. D.’s plan even on a short-term basis.

[102] These children are both young and appear to have high needs. Mr. D. did not take issue with Ms. H.’s view that the children needed supports and benefitted from homeschooling, although he noted that they might also benefit from attending public school and obtaining supports there.

[103] Mr. D. seemed less informed with respect to the details of the children’s needs. Ms. H. provided an example when E. became stressed on a Zoom call with Mr. D. and vigorously flapped his arms; Mr. D. asked if he was a chicken. Mr. D. explained that they had been talking about chickens earlier and he assumed it was related to that.

[104] Mr. D. professed not to know if there was a diagnosis or doctor’s information about the boy’s needs, yet Ms. H.’s evidence, which I accept, was that this was a regular topic of discussion between them. In his updated Form 35.1 Affidavit sworn May 2, 2023, Mr. D. noted only that both children had food sensitivities and “possible autism”. This even though he had claimed the expense for E.’s assessment (in which he had been identified with ASD) on his insurance benefits, and he and Ms. H. had been discussing the need for an assessment for B.

[105] Mr. D.’s plan involves significant disruption for the children aside from their possible separation from their primary care parent. There was some question as to whether the children could function adequately at school without supports. Ms. H. spoke to the Special Education Resource Teacher in Blackstock and was advised that the children would not likely have an Educational Assistant at the school, and it would be ill-advised to enrol them in a new learning environment this late in the school year. Mr. D. did not contradict this evidence.

[106] Mr. D.’s plan would also likely separate the children from their younger sibling, and from B.S.

[107] The parties have poor communication, although it is not necessarily uncivil or high conflict. Much of their communication that I reviewed was quite polite and respectful, but often ineffective. For example, Mr. D. complained that he was not sent Zoom links to speak with the children after they left Ontario. Ms. H. was sending the links to his old e-mail address, and she refused to use Facetime for these virtual visits. Ms. H. kept telling Mr. D. about the Zoom links, but she did not volunteer to send the link by text and Mr. D. did not check his other e-mail address or request that she send the link another way. Ms. H. acknowledged that she should have been more proactive in ensuring Mr. D. was able to contact the children.

[108] Ms. H.’s pre-occupation with Mr. W. has interfered with her willingness to communicate with Mr. D. However, based on the evidence, I do not find that she is unsupportive of Mr. D. having a relationship with the children.

[109] Section 24(3)(j) CLRA emphasizes the importance of considering family violence under the expanded definition in the statute. The Supreme Court of Canada in Barendregt also stressed the importance of the court considering family violence in the context of a mobility case.

[110] Ms. H. raised a number of incidents of family violence:

• Ms. H. stated that Mr. D. hit B. “all over his body” after he accidentally broke a window while the parties were together. Mr. D. denied ever harming the children.
• Ms. H. stated that in April 2021, Mr. D. “dragged B. off an exercise bike by his ear”, which was again denied by Mr. D.
• Ms. H. also alleged that E. had told her that Mr. D. touched his penis in the bathroom when he came for a birthday party in December 2022. Mr. D. vehemently denied that he had ever done anything inappropriate to the children. Mr. D. stated that this was not the first time that this allegation had been made. Ms. H. made the same allegation in 2020 and he initiated contact with the police to protect himself. The CAS and the police investigated and closed the investigations shortly thereafter. Mr. D. continued to have unsupervised parenting time.

[111] I prefer Mr. D.’s evidence with respect to the allegations that he harmed the children. Ms. H. is a strong advocate for the children. If she believed that Mr. D. was truly at risk of harming them, I am confident based on the evidence that she would have taken formal steps earlier to limit his contact. After the parties separated, Ms. H. was more upset that Mr. D. was not exercising as much parenting time as she would have like post-separation rather than trying to limit his time due to fears for the children’s safety. Similarly, after the April 2021 alleged incident, he continued to have regular, unsupervised parenting time. With respect to the most recent allegation, I put less weight on Ms. H.’s evidence for the reasons already set out above.

[112] Ms. H. testified that there was a history of a domestic violence against her by Mr. W. She advised that he had been abusive to her during their relationship, and she believed that he continued to stalk and harass her. She introduced photos of one of her truck wheels in which the lug nuts had been loosened; Mr. D. thought they might have been deliberately tampered with.

[113] Mr. W.’s evidence was that “Ms. H. also falsely accused [him] of sexual assault and criminal harassment and charges were laid – such charges have been withdrawn”.

[114] Ms. H. was very upset that Mr. D. had been in communication with Mr. W. It appeared that the reason that Mr. D.’s parenting time moved to “supervised” had more to do with Ms. H.’s fear that Mr. D. might abduct the children as, she felt Mr. W. had done with their son, H. In fact, the advent of “supervision” roughly coincided with H.’s disclosure that Ms. H. had assaulted him and H. going to live with his father full time. There was no credible evidence that Mr. D. had ever threatened or attempted to abduct the children.

[115] I prefer Mr. D.’s evidence on this topic for the reasons already outlined above. Having regard to the evidence before the court at this focussed hearing, I do not find that Mr. D. perpetrated or was at risk of perpetrating family violence either toward Ms. H. or the children having regard to the definition s. 24(4) of the CLRA.

[116] The evidence before me was focussed on the circumstances between Ms. H. and Mr. D. rather than the case between Ms. H. and Mr. W. I am unable to make any findings with respect to what transpired between Ms. H. and Mr. W. This will likely be a relevant issue for trial as the impact of family violence in the analysis may not be limited to that as between the parties.

[117] The CLRA sets out specific additional best interests factors for the court to consider in re-location cases at s. 39.4(3).

a. The Reason for the Relocation.

[118] The court in Barendregt held that:

128….There will often be a connection between the expected benefits of the move for the child and the relocating parent’s reasons for proposing the move in the first place. Relocation for financial reasons, for instance, will clearly carry implications for a child’s material welfare. Considering the parent’s reasons for moving can be relevant, and even necessary, to assess the merits of a relocation application.

129 That said, the court should avoid casting judgment on a parent’s reasons for moving. A moving parent need not prove the move is justified. And a lack of a compelling reason for the move, in and of itself, should not count against a parent, unless it reflects adversely on a parent’s ability to meet the needs of the child: Ligate v. Richardson, 34 O.R. (3d) 423 (C.A.), at p. 434.

[119] Ms. H. stressed that the move was primarily motivated by the need to obtain ASD supports for the children. I found her evidence on this point persuasive. I accept Ms. H.’s evidence that she had real difficulty obtaining supports for the children in Ontario, and that she had the children on a number of waitlists without much hope of speedy engagement.

[120] Ms. H. did some advance research and learned that support and resources in Alberta were more readily available for children with special needs like E. and B. Since moving to Alberta, E. has started occupational therapy and speech therapy. B. has been referred to a developmental pediatrician and he is currently receiving occupational therapy to develop better self-regulation.

[121] I also find it likely that Ms. H.’s other reason for wishing to move was to get away from Mr. W.

b. The impact of the relocation on the children

[122] The relocation will obviously negatively impact the children’s relationship with their father. They have had only virtual visits with him since November.

[123] The re-location also separates the children from their sibling, H. although the evidence suggested that the boys had not seen H. much since December 2021.

[124] There are few other negative impacts of the relocation.

[125] B. attended school in Ontario for only two months and stopped attending when he struggled with sensory issues. E. has never attended school. Ms. H. was home-schooling B. and has registered to continue to do so in Alberta.

[126] Ms. H. has no family support in Ontario. As indicated above, she has a poor relationship with her father. The children do not appear to have spent much time with him or with paternal grandparents over the past year or so.

[127] The relocation appears to have been positive in terms of the children engaging in therapeutic supports.

[128] Ms. H. and Mr. S. have settled into a home they hope to purchase, and B.S. has obtained employment. These factors provide stability and security for the children.

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.

[129] Mr. D. initially spent every weekend with the children from after the parties separated to around Easter 2021. After that he had alternate weekends with the children on the same schedule as Mr. W.’s alternate weekends with H.

[130] Ms. H. moved to Kingston with the children in July 2021. Mr. D. continued to have alternate weekend parenting time until December 2021, when Ms. H. decided that his parenting time need to take place in Kingston with her or her husband, Mr. S. present.

[131] I find that Ms. H.’s main worry was that Mr. D. would abduct the children and many of the allegations about his being a risk to the children were more likely raised to bolster her decision to supervise his parenting time. For his part, Mr. D. took a cooperative, passive approach, and permitted Ms. H. to dictate terms.

[132] Since January 2022, Mr. D. has had parenting time for only a few hours on Sundays in the presence of Ms. H. or Mr. S., and sometimes only with E.

[133] Mr. D. stated that he was always an involved father. The evidence would suggest that while the parties were together this was likely true. However, his active role in the children’s lives was steadily reduced.

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

[134] Ms. H. did not comply with the notice requirements under the CLRA, and she did not comply with my order to provide Mr. D. with her residential address.

e. 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

[135] The Supreme Court in Barendregt held that: “…what is known as the maximum contact principle is only significant to the extent that it is in the child’s best interests; it must not be used to detract from this inquiry…. Indeed, going forward, the ’maximum contact principle’ is better referred to as the ’parenting time factor’”: para. 135.

[136] Ms. H.’s initial plan did not include any real consideration of what parenting time Mr. D. could exercise, other than virtual visits, after the move. In her more recent draft order, she proposed that he could have “supervised” day visits with the children in Alberta once per month in a public place. There is no proposal for an expansion of time. Ms. H. does not address how Mr. D. is expected to afford the monthly trips to Alberta.

[137] Mr. D. had very minimal parenting time with the children in the year or so leading up to the move, something to which he acquiesced. Ms. H. estimated only 22 hours over the past year. While Ms. H.’s plan in relation to the move is deficient with respect to parenting time for Mr. D., practically speaking, the children were used to seeing him for only brief visits on Sunday, and B. was often not present.

[138] Ms. H. presented as somewhat controlling and possibly overprotective of the children, however she was also reasonably supportive of Mr. D. having parenting time with them. Ms. H. appeared attuned to the children’s unique needs and wanted to ensure that Mr. D. responded to them appropriately. The evidence did not suggest that she was trying to cut him out of the lives of the children.

f. 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

[139] It is of concern that Ms. H. failed to give Mr. D. proper notice of the proposed move let alone comply with the notice requirements in the CLRA. In addition, Ms. H. is in breach of my order that she provide Mr. D. with her residential address.

[140] Ms. H. stressed that if she can have some assurances that Mr. D. will not collude with Mr. W., she will feel more comfortable sharing information with him.

(b) Summary of Interim Mobility

[141] The burden of proof in mobility cases is determined by s. 39.4(5) – (8) of the CLRA.

[142] Section 39.4(6) states that:

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 party opposing the relocation bears the burden of providing that the relocation would not be in the best interests of the child.

[143] There is no court order or written agreement between Ms. H. and Mr. D. However, in J.L. v. D.L., 2021 ONSC 4997, Himel J. noted in the context of a re-location case: “many parents follow schedules that they never put down in writing. That does not in and of itself negate the existence of an agreement.”

[144] The parties appear to have agreed that Ms. H. would have primary residence of the children. Mr. D. signed a document on July 23, 2022, stating that the children have “resided with their mother, [C. H.] since birth and that she has been their primary caregiver”. Mr. D. was content to have weekend parenting time with the children. Although he was not happy with the move to supervised day visits, he acknowledged that he acquiesced to keep the peace with Ms. H.

[145] As this is a motion for a temporary (interim) order, pursuant to s. 39.4(8) the court is not required to determine the burden of proof. Although the evidence would point to Mr. D. bearing the burden of proof on the facts before the court, I do not need to rely upon the burdens of proof to make a determination at this interim stage.

[146] I find that there are compelling reasons to permit Ms. H. to remain in Alberta on a temporary basis. The benefits to the children in remaining pending a trial are such that they outweigh the impact on Mr. D.’s parenting time.

[147] Ms. H. has been the children’s primary caregiver since birth. She is attuned to the children’s special needs, and I find that her primary motivation in moving to Alberta is to get appropriate resources for the children in a timely way.

[148] Mr. D. is a loving, caring and for the most part, a capable parent. Many of the criticisms of his parenting and allegations of abuse have likely been exaggerated by Ms. H. due to her fear that the children will be abducted, and to support her decision to move to Alberta. However, the reality is that he has spent relatively little time with the children over the past year prior to the move and for some of those visits only one of the children attended.

[149] There are significant benefits to the move in terms of immediate access to services and supports for the children. Furthermore, the family appears to have some financial stability in terms of Mr. S.’s employment and a stable residence – something they struggled with in Kingston.

[150] This is not a summary judgment motion, and the court may not have received all evidence relevant to a final determination, however it would appear, based on the evidence I do have, that Ms. H. has a reasonably strong case.

[151] This is not to say that there are no triable issues. The court is concerned about Ms. H.’s wilfulness – her failure to give proper notice of any intended moves and her failure to comply with the court’s previous order to provide her residential address. There is not a full picture of the circumstances of Ms. H.’s relationship with Mr. W., whether domestic violence in their relationship is a factor in terms of the move. Whether Ms. H.’s concerns with Mr. W. warranted the degree of interference with Mr. D.’s parenting time. Lastly, while the court has found that Ms. H. has been generally supportive of Mr. D.’s relationship with the children, in order for her to prevail at a trial, she will need to provide details as to how his parenting time could be exercised in Alberta and what accommodations can be made to help him defray the cost of travel.

[152] Ms. H.’s failure to give Mr. D. notice of the move cannot be condoned. However, I find that it is in the children’s best interests for them to remain living in Albert pending a final resolution.

ORDER:

1. The proper jurisdiction for the determination of the parenting issues regarding the children: B. D., born , 2014, and E. D., born , 2017, is Ontario.
2. On a temporary basis the children will reside primarily with the Respondent (Mother) in Alberta.
3. The Respondent (Mother) shall comply with my previous order that she forthwith provide the Applicant (Father) with the residential address where she and the children are residing.
4. The Respondent (Mother) shall forthwith provide the Applicant (Father) with her telephone number (not a WhatsApp or a similar service contact number) where she and the children can be contacted.
5. The Respondent (Mother) shall forthwith provide the Applicant (Father) with the names and contact information of all professionals involved with the children including, but not limited to doctors and therapists. The Applicant (Father) shall be entitled to speak to these professionals directly and obtain information about the children and the Respondent (Mother) shall execute whatever consents are required to enable him to do so.
6. The Applicant (Father) shall not disclose the information provided to him under paragraphs 3-5 to anyone, other than his lawyer, without consent or court order.
7. The Respondent (Mother) is not required to include her residential address or phone number on any court document in these proceedings.
8. On a temporary, without prejudice basis the Applicant (Father) shall have virtual visits with the children at least twice per week for up to 30 minutes. These visits may take place by Zoom or Facetime at his option.
9. The issue of temporary decision-making responsibility and additional parenting time, including in-person parenting time and terms associated with same, shall first be conferenced and then, if necessary, the Applicant (Father) can bring a motion on an expedited basis. The case management judge shall set the date for the motion.
10. The trial of this matter shall proceed in the trial sittings commencing June 26, 2023, on standby unless the case management judge deems it appropriate to defer the matter to a later trial sitting.
11. A Case Conference is set for June 14, 2023, at 2:00 p.m. peremptory on the Respondent (Mother) to proceed virtually by Zoom.
12. The Applicant (Father) may make submissions with respect to this motion in writing not to exceed 6 pages not including bill of costs and offer to settle by no later than June 9, 2023. The Respondent (Mother) shall make submissions not to exceed 6 pages not including bill of costs and offer to settle by no later than June 20, 2023. The Applicant (Father) may deliver a reply of up to 3 pages by no later than June 27, 2023.

JUSTICE L.E. FRYER