Court File and Parties
NEWMARKET COURT FILE NO.: FC-20-1587-00 DATE: 20230929 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: R.R., Applicant AND: S.L.R., Respondent
BEFORE: The Honourable Mr. Justice G.A. MacPherson
COUNSEL: S. Zaslavsky, Counsel for the Applicant W. Doodnauth, Counsel for the Respondent
HEARD: September 28, 2023
Ruling on Motion
Relief Requested
[1] The Respondent filed an urgent motion requesting the relief that follows: an Order preventing the Applicant from relocating A.L.R., born in 2018 from Thornhill to Barrie.
[2] In response, the Applicant, represented by counsel, filed an affidavit sworn September 27, 2023.
Brief Background
[3] The parties entered into final Minutes of Settlement on June 30, 2022.
[4] Pursuant to the Minutes of Settlement the Applicant has primary residence and decision-making for the child, A.L.R.
[5] Pursuant to the Minutes of Settlement the Respondent has parenting time with A.L.R.:
(a) week # 1 – Tuesday after school to Wednesday drop off at school; and (b) week # 2 - Tuesday after school to Wednesday drop off at school; and Friday after-school until Sunday 7:30 p.m.
[6] The parties share the Jewish and Christmas Holidays as well as March Break. Each parent has two weeks of uninterrupted parenting time each summer. There are provisions for Mother’s Day and Father’s Day, birthdays and the family day weekend.
[7] While the Minutes of Settlement were not filed with the court at the time of execution, the Respondent, in his affidavit, states that they have now been filed pursuant to section 35(1) of the Family Law Act.
Mobility
[8] On or about June 6, 2023 the Applicant provided written notice of her intention to move A.L.R. to Barrie pursuant to the notice provisions under section 16.9(1) of the Divorce Act.
[9] The Respondent objects to the move. It is noteworthy that objections, pursuant to section 16.91 (1) (b) of the Divorce Act, are to be filed pursuant to the proper form within 30 days. The content of the form, pursuant to section 16.91 (2) of the Divorce Act, must set out the objection; the reasons for the objection; and the person’s views on the proposal set out in the original notice as it relates to decision-making, contact or parenting time. The Respondent did not complete the objection in writing in the proper form; and did not provide the content required in the form. The Respondent did not provide the objection within 30 days.
[10] As a result of the deficiency in filing a proper objection within the time allotted, pursuant to section 16.91(1) (a) of the Divorce Act, the relocation is authorized because,
a) the person with parenting time or decision-making responsibility in respect of the child received a notice; and b) did not object to the relocation within 30 days in a form prescribed by the regulations.
[11] It is noteworthy that the Applicant proceeded to find suitable accommodations and a school in Barrie. She also obtained employment in Barrie.
[12] Although not required to do so, as the Applicant has permission to relocate with the child pursuant to statute, I have elected to address the best interest test.
[13] Pursuant to section 16.92 (1) of the Divorce Act, 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.
[14] Pursuant to section 16.93 (2) of the Divorce Act, the onus is on the Respondent to establish that the relocation is not in the best interests of A.L.R. as she resides the vast majority of the time with the Applicant and the Applicant is the party that proposes the relocation.
Analysis
[15] The Applicant has remarried. She and her husband, B.E., have a child, I.B.E. born in 2022. Mr. B.E. is the main income earner for the family and is employed by Wavetech Controls which announced that it was moving operations to Tiny, Ontario before the end of the year. Barrie is the closest major community to Tiny, Ontario. The Applicant obtained employment in Barrie effective June, 2023. In her notice, the Applicant proposed to move to Barrie by November 1, 2023.
[16] It is noteworthy that the Respondent moved from Thornhill to Toronto in February 2023 without any prior warning to the Applicant.
[17] The Respondent exercises his parenting time regularly. As a result of his move to Toronto, transportation for parenting time is approximately an hour. Following the relocation, transportation for parenting time will now be an extra 30 minutes, give or take. Though not ideal, the current parenting arrangement, following relocation is manageable.
[18] In considering the factors set out in section 16.92 (1) of the Divorce Act, I note the following:
(a) the reasons for the move are in the best interests of the child as the Applicant’s husband is moving because his work is relocating due to circumstances beyond the control of the Applicant or her husband; (b) the impact of the move to Barrie is modest and will not impact the current parenting time arrangement although there will be additional travel time to facilitate parenting time; (c) the child is in the care of the Applicant the vast majority of the time; (d) the Applicant complied with the notice provisions set out in the Divorce Act while the Respondent did not comply with the objection provisions; and (e) there is no Order, agreement or arbitral award that limits the geographic area where the child must reside as the Minutes of Settlement are silent on the point.
For all of these reasons,
Order
- This decision is a Temporary Order.
- This decision is made under the Divorce Act.
- The Respondent’s urgent motion preventing the Applicant from relocating A.L.R. born in 2018 from Thornhill to Barrie is dismissed.
- The Applicant is permitted to relocate A.L.R. born in 2018 from Thornhill to Barrie effective November 1, 2023.