COURT FILE NO.: FS-23-00038330-0000
DATE: 20231103
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FARAH IMAM
Applicant
– and –
DAVID MOONILAL
Respondent
Afras Khattak, for the Applicant
Fasiha Khan, for the Respondent
HEARD: October 26, 2023
VELLA J.
REASONS FOR DECISION
Introduction
[1] The Applicant Mother has brought this motion on an urgent basis seeking an order that the Child (N.M.), will continue to have his primary residence with her and continue going to his current school, Humberwood Downs Junior Academy in Etobicoke (“Humberwood”).
[2] The Respondent Father brought a cross motion, but seeking to have the Child relocate to Kitchener with him, and transferring schools to Doon Public School in Kitchener (“Doon”).
[3] The Father submits that there was an agreement with the Mother that the Child would move to Kitchener and live with him and his new stepsiblings and partner last June 2023. However, once the Father moved from Brampton, where he previously lived only 20 minutes from the Mother’s residence, the Mother suddenly withdrew her consent.
[4] The Mother denies that she ever agreed to the proposed relocation, and it is in the best interests of the Child that he finish out grades 7 and 8 at Humberwood.
[5] For the reasons that follow, the Respondent Father’s cross motion is granted.
Background
[6] The Mother and Father began cohabiting on October 1, 2011. They never married. There is a dispute about the date of separation. The Mother states that they separated May 1, 2014 and the Husband states there was a reconciliation and they separated in November 2021.
[7] The Child was born to the parties on March 24, 2011 and is 12 years old. He is in Grade 7.
[8] Both parties are employed full time. The Mother is a Registered Practical Nurse and the Respondent is a Millwright Mechanic.
[9] The parties agreed that the Child would primarily reside with the Mother and would stay with the Father on alternating weekends following separation.
[10] This parenting arrangement has been in place since separation and has been flexible resulting in the Father having more parenting time than this arrangement.
[11] The Father stayed in the family home in Brampton which was only 20 minutes away from the Mother’s residence, so he could see the Child and be active in his life.
[12] The Child has been enrolled in Humberwood since he was four years old (the 2015-2016 academic year). His progress reports show that he is doing well, academically, and otherwise, at Humberwood, with the exception that he requires some extra assistance in math.
[13] According to the Father, in May 2023, he sought the Mother’s consent to relocate the Child’s primary residence to Kitchener. The idea was that the Child would primarily live with the Father and attend at a school in the Father’s catchment area. The Father stated that he made it clear that he would only move to Kitchener if the Child would be coming to live with him.
[14] By this time, the Father had re-partnered and they were looking to relocate to Kitchener with the children from his new partner’s prior relationship.
[15] According to the Father, he negotiated terms for relocation, the Child’s care, parenting time and, come September 2023, the Child would be enrolled in Doon which is located in Kitchener.
[16] The Father sent an email to the Mother with a detailed parenting agreement reflecting what he said were the negotiated terms.
[17] Two days later, the Mother advised Humberwood by email dated Friday June 30, 2023 that the Child would not be re-enrolling in that school in September 2023.
[18] The Father sold the home, with the Mother’s consent (she held joint title with the Father), purchased a home in Kitchener and enrolled the Child in Doon for the 2023-2024 school year. He and the Child attended orientation together. He set up a bedroom with a desk for the Child in his new home. He kept the Mother apprised of these steps.
[19] The Child returned to the Mother’s home on September 2, 2023. He was to return to Kitchener on September 5, 2023 in time to start school at Doon on September 6th. However, the Mother texted the Father on September 5, 2023 advising that she had withdrawn the Child from Doon and wanted the Child to live with her during the week and attend at Humberwood. She unilaterally re-enrolled him at Humberwood. The Child had also asked if he could stay one more day with his Mother to September 6th.
[20] The Mother did not release the Child to the Father on September 6th.
[21] The Mother indicated that she would only let the Father see the Child on the condition that the Child remain in Etobicoke with her. The Father agreed on a temporary without prejudice basis in order to continue seeing the Child pending this motion.
[22] The Mother then brought an urgent motion on short notice seeking, inter alia, an order that the Child be enrolled in Humberwood and sole decision-making authority.
[23] On September 29, 2023 Justice Rhinelander ordered that the Child be enrolled in Humberwood as of October 3, 2023 until the return of this motion, on consent, as he had already missed the first month of school, and set this urgent motion date. Rhinelander J. also ordered a Voice of the Child report.
[24] On October 24, 2023, the Office of the Children’s Lawyer released its Voice of the Child Report.
New Notice Requirements – CLRA Relocation Matters
[25] The Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended, contains the applicable provisions for relocation on this motion.
[26] Section 39.3 of the CLRA sets out new notice provisions as follows:
39.3 Relocation
(1) 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.
(2) The notice shall be in the form prescribed by the regulations or, if no form is prescribed, shall be in writing and shall set out,
(a) the expected date of the proposed relocation;
(b) the address of the new residence and contact information of the person or child, as the case may be;
(c) a proposal as to how decision-making responsibility, parenting time or contact, as the case may be, could be exercised; and
(d) any other information that may be prescribed by the regulations.
(3) On application, the court may in any circumstance provided that subsections (1) and (2) or anything prescribed by the regulations for the purposes of subsection (2) do not apply, or applied, with any changes the court specifies, if the court is of the opinion that it is appropriate to do so, including if there is a risk of family violence.
(5) Objection - A person with decision-making responsibility or parenting time who receives notice of the proposed relocation under subsection (1) may, no later than 30 days after receiving the notice, object to the relocation by,
(a) notifying the person who gave the notice of proposed relocation of the objection to the relocation; or
(b) making an application under section 21.
Notice Requirements
(6) A notice under clause (5) (a) shall be in writing and shall set out,
(a) a statement that the person objects to the relocation;
(b) the reasons for the objection;
(c) the person’s abuse on the proposal referred to in clause (2) (c); and
(d) any other information that may be prescribed by the regulations.
[27] The Father admits he did not provide the form setting out the formal notice requirements under s. 39.3 of the CLRA. However, I am satisfied that he complied with the substantive notice requirements insofar as the Mother knew of his intention to move to Kitchener, have the Child live with him during the week and her during the weekends, and enrol the child in Doon. The substance of the notice is reflected in writing in the email sent by the Father to the Mother on June 28, 2023 reflecting a purported agreement reached as between them regarding the proposed relocation of the Child to Kitchener. That email sets out in detail the parenting plan proposed by Father and, as shall be seen shortly, I find was accepted by the Mother. I also accept the Father’s evidence, acknowledged by the Mother, that they had discussions about his proposed move to Kitchener in advance of his actual move. The Brampton home was sold on August 31, 2023 and the Mother provided the requisite consent to the sale. The Mother was advised more than 60 days in advance of the Father’s proposed move, and agreed to the parenting arrangement including the relocation of the Child.
[28] The court has discretion to waive the formal written notice requirement under s. 39.3(3) where it is appropriate to do so (S.F. v. D.R., 2022 ONSC 2079 at para. 72; Coe v. Tope, 2014 ONSC 4002).). In this case, substantive compliance with the Notice provision has occurred. It is only the prescribed form that was not complied with. The Mother did not object until on or about September 5, 2023, and the Mother has set out the substance of her objections in her motion record.
Findings and Analysis
[29] Section 24(1) of the CLRA provides that in making a parenting order with respect to a child, the court “shall only take into account the best interests of the child in accordance with this section”.
[30] Furthermore, under s. 24(2) of the CLRA:
In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
[31] Section 24(3) of the CLRA sets out a non exhaustive list of factors the court shall consider:
(a) the love, affection and emotional ties between the child and;
(i) each person including a parent or grandparent entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application.
[32] Section 39.4(3) of the CLRA sets out a number of factors that the court must take into account in the context of the best interests of the child analysis:
(a) the reason for the relocation;
(b) the impact of the relocation on the child;
(c) the amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child’s life of each of those persons;
(d) whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 and any applicable act, regulation, order, family arbitration award and agreement;
(e) the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside;
(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expense; and
(g) whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child as complied with their obligations under any applicable act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance.
(4) In determining whether to authorize a relocation of the child, the court shall not consider whether, if the child’s relocation were to be prohibited, the person who intends to relocate the child would relocate without the child or not relocate.
(5) If the parties to the proceeding substantially comply with the order, family arbitration award or agreement that provides that a child spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.
(7) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.
39.4(2) A person who has given notice of a proposed relocation in accordance with section 39.3 and who intends to relocate a child may do so as of the date referred to in the notice if,
(a) The relocation is authorized by a court; or
(b) No objection to the relocation is made in accordance with section 39.3(5) and there is no order prohibiting the relocation.
Status Quo
[33] The caselaw is clear that generally speaking the court will be reluctant to disturb the status quo in terms of a parenting schedule particularly where the situation has been long standing.
[34] One reason for generally favouring the status quo is that courts will be reluctant to make a change at an early stage of the litigation pending a more fulsome evidentiary record at trial (Kennedy v. Hull, 2005 ONCJ 275). The courts will require a compelling reason for changing the status quo which has been characterized as the “Golden Rule” in family law proceedings (Courville v. Courville, 2015 ONCJ 535) or in the absence of urgency (I.(F.) v. P. (S.P.), 2010 ONCJ 473).
[35] In this case, the Child has been living primarily with the Mother since the separation, on consent of the Father. This worked so long as the Father lived about 20 minutes away from the Child. However, given the fact that the school year has started, and the Child has now been attending Humberwood for about a month, there is a sense of urgency. If a change is to be made, it must be made promptly.
The Best Interests of this Child Warrants a Relocation
[36] I have considered the various factors set out by the CLRA regarding the best interests of the child and the additional factors that inform that analysis within the context of a motion seeking relocation of the child.
[37] The parents have both had active parenting roles with the Child.
[38] Up until this issue, it appears that the parents were able to communicate effectively with respect to decisions concerning the Child.
[39] The Mother has had a more active role in taking the Child to various medical appointments, and in relation to schooling activities. She has also been paying for the Child’s extra curricular activities, such as swimming lessons and summer camp. The Mother attends at the Child’s school events and ensures he goes to birthday parties and other events with his friends in her neighbourhood.
[40] The Father has been in charge of taking the Child to dental appointments. He has also taken the Child to extra curricular activities in Kitchener.
[41] The Father attends at church services with the Child on Fridays and Sundays and the child attends a “Tweens program” at his church on Fridays while the Father attends at a men’s meeting at the same time at church.
[42] In addition, during the COVID-19 period, when school was online, the parties shared supervision of the Child during his classes resulting in each parent supervising the Child 2 – 3 days during the school week.
[43] The Child has community ties to Etobicoke including extra curricular activities and friends.
[44] The Child also has extra curricular activities in Kitchener and has been developing a relationship with the Father’s new family, including notably the stepsiblings.
[45] The Father works from 7 a.m. to 7 p.m. two days on, two days off, for two weeks, and then from 7 p.m. to 7 a.m. two days on, and two days off for two weeks, on an alternating basis. This schedule includes alternating Fridays to Sundays.
[46] The Mother works 8:30 a.m. to 4:30 p.m. from Monday to Friday.
[47] Prior to the Father’s relocation to Kitchener, he lived in Brampton in the family home, which was only a 20 minute drive from the Mother’s current residence.
[48] Under the prior parenting schedule, the Father had parenting time after school pick up to 8:00 or 9:00 p.m. two days in a row, and alternating weekends from Fridays after school to Sunday evening or Monday morning drop off. Under this schedule, the Father was not apart from the Child more than 2 days in a row.
[49] The Child has been attending at Humberwood since kindergarten. While he missed all of September, he has been attending Humberwood for about a month as at the date of the release of this endorsement.
[50] The documentary evidence demonstrates that the Mother agreed to the Father’s proposed relocation and change of primary residence of the Child, including transferring him to a new school in the Father’s catchment area in June 2023.
[51] While the Father’s email of June 28, 2023 purporting to set out the detailed agreement reached between himself, the Mother, and the Child, was not formally signed or explicitly accepted in writing by the Mother, she does not dispute having received it nor does she suggest that she advised the Father in response to that email in writing that she did not agree with those terms and had never reached that agreement. To the contrary, by email dated June 30, 2023, on which the Father is copied, the Mother advised the Toronto District School Board that,
[the Child] will not be returning to this school in September. Can he leave his computer today? Sorry I misplace the form I do not have it. Thanks. Farah Imam”.
The Mother does not deny sending this email two days after receiving the Father’s email setting out their agreement.
[52] The Mother claims that she was pressured by the Father to comply with his wishes. However, I am not satisfied of the Mother’s claim on the evidentiary record. The Mother did not send this email for two days after receiving the Father’s email and, at the time, the Child was living with her, and the Father was living elsewhere. The Mother did not claim she was under any duress or coercive control by the Father in her affidavit filed in support of her urgent motion. Rather this allegation appears in her reply affidavit after the Father raised her email to the school board. The Mother de-registered the Child from Doon against the Father’s wishes. This shows that she is empowered to make decisions that she believes are in the best interests of the Child.
[53] The evidence falls short of establishing that the Mother was in an abusive or coercive relationship with the Father. It establishes that they argued a lot during their on again and off again relationship but not that the Mother was under duress at the hands of the Father after their separation or before.
[54] I reject the Mother’s evidence that the Father unilaterally changed their parenting schedule or forcibly enrolled the child in Doon without her consent. In her affidavit, she deposes that it was not until June 29, 2023 that she found out that the Father proposed that the Child would move to Kitchener with him. However, the Father’s email setting out the agreement is dated June 28, 2023. This email was produced by the Father, and not the Mother.
[55] Furthermore, the Mother did not produce her email dated June 30, 2023 telling the Toronto School Board that the Child would not be attending at Humberwood come this Fall, 2023 when she brought her urgent motion, originally, before Justice Rhinelander. The Father did not have time to prepare his responding record. Her Honour specifically noted in her endorsement that “If the Applicant had sent an email to the school in June, this is important information that contradicts her affidavit and materials relied upon on this application.”
[56] The Mother did not voice any objection until early September, after the Father sold their jointly held home in late August (with her consent) and had already committed to moving to buy in Kitchener.
[57] There is no explanation for the Mother’s apparent sudden change of mind other than her concern that the Father would not stay true to his commitment that he would ensure that the Child is dropped off and picked up from the Mother’s residence every weekend (as evidenced in the undated text messages exchanged between them contained in the Mother’s affidavit).
[58] In terms of stability, I note that the school records produced by the Mother demonstrates that the Child is a strong student overall and well adjusted. He requires some extra help in math which is provided by tutoring. The evidence demonstrates that the Child is resilient and should be able to handle transferring schools at this early stage of the school year. It is to be noted that both parents “de-registered” the Child from the respective schools with the result that he missed school entirely until October 3rd, which is the date Justice Rhinelander ordered that the Child be re-enrolled in Humberwood at the latest. The parents have already disrupted the Child’s school year.
[59] On the other hand, the Child would be attending at Doon, the new school, with his stepsiblings. According to the Voice of the Child Report, ordered by Justice Rhinelander, the Child is looking forward to going to Doon and has closed the chapter, psychologically, on Humberwood.
[60] Furthermore, the Child is enjoying being with his new stepsiblings and has had significant time with them. The Father’s new partner has sworn an affidavit in this proceeding in which she deposes that she is supportive of the Child coming to live with them, the developing bond with the step siblings, and that she refers to herself as his “auntie” recognizing the role of his Mother.
[61] Therefore, the Child will have stability in the new parenting arrangement with his stepsiblings.
[62] The views and preferences of the Child is also an important, though not determinative, factor. The Voice of the Child Report was released two days before this Motion. Overall, the Child’s views and preferences as conveyed to the clinical investigator at the Office of the Children’s Lawyer is that his preference is to be with his Father during the week, and to give his dad a chance. Furthermore, he is developing a strong bond with his stepsiblings and that one of those siblings is his age. As stated, his strong preference is recorded as going to Doon and not to Humberwood.
[63] The Voice of the Child Report makes it clear that the Child loves both of his parents, and spending time with each of them.
[64] However, the Report also notes that BOTH parents have put the Child in an untenable position – in the middle of their own conflict. He is aware of his Mother’s preference to be the “primary parent’ and his Father’s preference to have a “60-40” parenting split. He is aware that both parents unregistered him from the schools. First his Mother unregistered him from Doon, and then his Father unregistered him from Humberwood. He expressed being very angry with his Mother for disrupting what he thought was agreed upon; namely that he would be attending at Doon this Fall and living with his Father during the week. However, the Report also notes that there was some confusion on the Child’s part. While he was clear that he would be going to Doon, “it appeared that he still wanted to see his mom even during the week if he resided in Kitchener – on the days that the Father works night shifts returning to Kitchener the next morning. This is not practical.
[65] The Mother urges that I place little weight on this Report. The Father submits the opposite.
[66] In this case, I am satisfied that the Child’s views and preferences should be given considerable weight (though not determinative, but as one of the factors I have balanced in my analysis) and it is clear that he wishes to go to Doon with his stepsiblings and to give his Father a chance to spend more time with him. It is also clear that the Child loves his Mother and wants to spend considerable time with her.
[67] The evidence also demonstrates that prior and after to separation, the Father was very involved in the Child’s life. Both parents work full time though the Father’s schedule will pose some challenges. I am satisfied that those challenges are compensated by the fact that the Father’s partner is prepared to step in and the Child will have the opportunity to be with his stepsiblings.
Orders
[68] This matter has not been properly case conferenced yet. Accordingly, I am making a temporary interim order with respect to the Child’s school and primary residence.
[69] The Child will relocate to Kitchener and attend Doon, on a temporary and interim basis, pending further court order. However, the Mother will have parenting visits with the Child each weekend, and the Father is responsible for dropping off the Child each Friday after school to the Mother’s residence, and then picking up the Child every Sunday at 5:00 p.m. (or Monday’s at 5:00 p.m. if Monday is a school or statutory holiday) from the Mother’s residence. This is consistent with the agreement the parties reached, and is in the best interests of the Child.
[70] The Father indicated that as he works in Brampton, he is able to drop off and pick up the Child. This drop off and pick up schedule has not been thoroughly discussed. Hence, if there are difficulties posed by virtue of the Father’s work schedule, they should be discussed at the case conference referenced below. The Father also indicated that he is open to mid week visits by the Mother, but the Mother will have to make those arrangements. Again, this can be discussed at a case conference.
[71] The Mother shall provide her written consent to enrollment of the Child in Doon immediately, and, at the same time, will deregister the Child from Humberwood. The Father shall do what is necessary to register the Child in Doon promptly and deregister the Child from Humberwood. A copy of the Order following this endorsement can be provided to the respective school boards if necessary to expedite this process given the fact that school has already started.
[72] The Mother’s request that the OCL conduct a s. 112 investigation be ordered is deferred to the case conference which shall be scheduled at the earliest available date that is mutually available to the parties.
Costs
[73] The costs of the urgent motion before Justice Rhinelander have been deferred to this motion.
[74] If the parties cannot agree upon costs of the motions, the Respondent will have 10 days to deliver his cost outline and submissions. The Applicant will then have 10 days to deliver her cost outline and responding submissions. The submissions will not exceed four double spaced pages each.
Justice S. Vella
Released: November 03, 2023
COURT FILE NO.: FS-23-00038330-0000
DATE: 20231103
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FARAH IMAM
Applicant
– and –
DAVID MOONILAL
Respondent
REASONS ON MOTION
Vella J.
Released: November 03, 2023