Brown v. Harvie, 2023 ONSC 6265

Court File and Parties

Court File No.: FC938/20-01 Date: 2023-11-10 Superior Court of Justice – Ontario Family Court

Re: Delaney Louise Brown, Applicant And: Tyler Shaquille Harvie a.k.a Jaylan Harvie and Jaylan Lindstrom, Respondent

Before: Henderson J.

Counsel: Stephanie Ouellette, for the Applicant Anita Osmani, for the Respondent

Heard: November 1, 2023

Endorsement

1The applicant brings a motion seeking permission to move the child from London to Stayner, Ontario. The parties cohabited from June 2017 until March 2020. They have one child who will turn five later this month. The child has been in the primary care of the applicant since separation.

2Following separation, the applicant commenced court proceedings. The parties signed Minutes of Settlement on August 9, 2023, which were incorporated into the final order of Sah, J. dated August 15, 2023.

3By that order, the child was placed in the primary care of the applicant. The parties are to consult on all major decisions affecting the child with the applicant having final say in the event of a dispute. At that time, both parties were living in London. In the order, there was no provision for the possible relocation of the child.

4In her affidavit of October 15, 2023, the applicant deposes that she had informed the respondent by text the day before the parties signed the Minutes of Settlement that she intended to move to Stayner without specifying when. The respondent denies receiving such a text.

5I find that the respondent received no such notice. While the applicant included copies of other texts between the parties, a copy of this text was not included. When the applicant did notify the respondent on September 8, 2023 by text that she intended to move as of November 1, he immediately objected. Based on that exchange, it is reasonable to infer that the respondent would not have signed the Minutes of Settlement without addressing the relocation issue if he had been aware of the proposal.

6Beyond the text notification, the applicant through counsel formally advised the respondent on September 13, 2023 of her intention to relocate.

The Parties’ Positions

7In her affidavit sworn October 5, 2023, the applicant says she has to relocate to Stayner because:

• She has been evicted from her current residence effective November 1, 2023;
• She is in financial straights. Her dog grooming business has not been successful. She has fallen behind in her bills including her rent. Her roommate who was assisting with the rent moved out in August;
• She cannot afford rent for a two-bedroom home in London and she does not have the means to put down first and last month’s rent;
• She cannot afford daycare;
• She cannot find a job that would work around the parenting schedule;
• She has family supports in Stayner. Her father and stepmother own a large home. They will provide her a home while she gets back on her feet financially. The stepmother will provide daycare. The child will be registered in school. The applicant will operate a dog business and return to her film work. The child is emotionally close to the maternal family; and
• The respondent is not a reliable parent. He is facing several charges arising from his relationship with another woman. She described the respondent’s residence as “disgusting” with junk and garbage everywhere.

8In his affidavit sworn October 24, 2023, the respondent deposes in response:

• That he admits to using inappropriate language towards the applicant out of frustration;
• That the applicant has not provided sufficient evidence that she has been unable to find affordable housing or that she has been unable to find a job suitable to her skills. She has provided no evidence of an application for subsidized daycare or explained why the child was not otherwise enrolled in school;
• That he denies exposing the child to domestic violence;
• That he denies his home is in an inappropriate state. He had an appointment scheduled for a visit from a CAS worker, but she cancelled it and has not rescheduled. She asked a few questions about his home. He has not heard from her since;
• That he cannot afford insurance for the car, so he does not have access to a vehicle to drive even halfway to Stayner;
• That any concerns the applicant has about his parenting abilities is contradicted by the terms of the minutes of settlement.

The Law

9The Supreme Court of Canada decision in Gordon v. Goertz, [1996] 2 SCR 27, has been the leading case regarding relocation issues. Based on the principles set out in that case, the court is expected to take a child focussed approach and consider the best interests of the child, to be distinguished from the interests of the parties.

10The law laid out in Gordon v. Goertz was largely codified in legislative changes to the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), and the Children’s Law Reform Act, R.S.O. 1990, c. C.12, (“CLRA”), in 2020. The CLRA applies to the present case.

11Sections 39.3 and 39.4 apply. Section 39.3(1) provides that the person who has decision-making authority, in this case the applicant, must provide 60 days notice of the intended relocation. Section 39(2) spells out the notice requirements. Under s. 39.3(5), the respondent has 30 days to object to the relocation and s. 39(6) sets out the notice requirements for the objection.

12Relocation is defined in s. 18 as:

“relocation” means a change in residence of a child, or of a person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child, that is likely to have a significant impact on the child’s relationship with,

(a) another person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child, or

(b) a person who has contact with respect to the child under a contact order; (“déménagement”).

13Section 39.4 lays out the specifics of how the court should determine the issue. Section 39.4(3) mandates the court to take into account the best interests of the child in accordance with s. 24 of the CLRA as well as an additional seven factors set out in that subsection. One factor the court is not to consider is if the relocation is prohibited whether the person would relocate without the child or not relocate (s. 39.4(4)).

14The burden of proof to show the move is not in the best interests of the child rests on the objecting party where the child spends “the vast majority of time” in the care of the relocating party (s. 38.4(5)). If the order setting out the time-sharing is interim, the court may determine that subsections (5) and (6) do not apply. The order in the present case is a final order.

15Finally, s. 39.4(9) permits the court to allocate the costs of the non relocating party exercising parenting time when relocation has been authorized.

Discussion

16This is the applicant’s motion to permit her to relocate the child to Stayner, Ontario from London, approximately a three-hour drive. As of the return of the motion she in fact has moved to her parents home in Stayner. The respondent objects to the move. Notably, however, he has not cross-moved to have the child placed in his care, nor otherwise offered a plan of care. The applicant has agreed she will be responsible for all the driving between Stayner and London. Pending the release of this decision, I ordered that she continue to do so and that the respondent shall have parenting time three out of four weekends commencing Friday November 10, 2023.

17The starting point of the analysis is the order of Sah, J. dated August 15, 2023 which was based on the parties minutes of settlement dated August 9, 2023. The main provisions of the order are:

1. The parties will consult “regarding any major decisions” affecting the child. In the event of a dispute, the applicant shall make the final decision;

2. The primary residence of the child shall be with the applicant;

3. The respondent shall have parenting time with the child:

a. On alternate weekends from Friday after school (or 3:00 p.m. if there is no school) until Monday at 9:00 a.m.;

b. Additional parenting time with the child at his request on reasonable notice at times as agreed between the parties; and

4. Parenting time during the holidays was also specified.

18There was contradictory evidence from the parties as to what extent mid-week parenting time was exercised over the short duration of the order. The applicant said the respondent was unreliable and the respondent said the applicant never made the child available when he requested. It is not contested that the respondent had no parenting time scheduled or unscheduled between September 17, 2023 at the time of his arrest and the order of Howie, J dated October 11, 2023, when resumption of parenting time was ordered. In my view of the wording of the order additional parenting time would best be described as casual, and irregular designed to suit the convenience of the parties.

19Little was disclosed about the child in the parties’ material. He is almost five and does not go to school. He started JK last year but was withdrawn because of unspecified behavioural issues. He has not been enrolled in SK this year although the applicant indicates an intention to enroll him in school in Stayner. According to the applicant’s 35.1 affidavit, the child suffers from asthma but has no other special needs.

20Corbett, J. in Konkin v. Aguilera, 2010 ONSC 4808, eloquently described the practical implications of an interim motion to permit relocation. At paragraph 27, he wrote:

27Finally, I acknowledge some of the cases consider that it is unwise to make interim orders on mobility issues, when the matter may remain contested at trial. That is a fine ideal, but the court process does not follow the same rhythm as real life. The goal of an interim order here, as in other contexts, is to preserve a reasonable state of affairs that accords with the best interests of the child pending trial. As I indicated to the parties orally, I would have preferred to have heard this issue as a trial, to have listened to the various family members testify, and to have more time to reflect on the matter. But a decision must be made now, rather than months or years from now, and a legitimate and timely request to move should not be thwarted by the inevitable effluxion of time inherent in the litigation process.

21The leading case regarding interim mobility decisions is Plumley v. Plumley, 1999 (ONSC). At paragraph 7, Marshman, J. lists the factors that a court should consider:

7It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis:

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.

22In weighing these factors, I must consider the statutory provisions and specifically r. 39.4.

23First, I do find that the move is a “relocation” for the purposes of s. 39.4. The move to Stayner, a three-hour drive from London, will have a “significant impact” on the respondent’s parenting time with the child.

24Section 39.4(6) applies when determining the burden of proof. There is an existing final order of Sah, J. dated August 15, 2023. The question is whether the child spends “the vast majority of time in the care of the party who intends to relocate”, that being the applicant.

25Price, J. in Nouri v. Watters, 2022 ONSC 5181, cited the comments of P.J. Monahan, J. in Credland v. Cymbalisty [2022] O.J. No. 572, regarding the definition of the “vast majority of time” at para. 55:

55The interpretation to be applied to the words “vast majority of the time” was discussed by Justice P. J. Monahan in Credland v. Cymbalisty. He wrote that s. 39.4(6),

178 …does not define the threshold above which a child could be said to be spending the "vast majority of time" with one parent. However, given that s. 9 of the Federal Child Support Guidelines describes a 60/40 split in parenting time as one of "shared custody", in my view a child would need to be spending significantly more than 60% of their time with one parent in order to cross the "vast majority of time" threshold in s. 39.4(6) of the CLRA.

179 Furthermore, the relatively few cases interpreting this provision have held that a parent has crossed the "vast majority" of time threshold only when they have a child in their care for more than 80% of the time. For example, in KDH v. BTH [footnote removed], Lema J. held that where an order provided that the mother had the children in her care for 12 out of every 14 nights, or about 85% of the time, "the order indeed provided that the children spend the 'vast majority of their time' with her [the mother]." Similarly, Professor Rollie Thompson, a respected authority on these issues, has opined that "a range of 75 to 87 per cent is a reasonable representation of "vast majority", but I would personally peg it at 80 per cent", noting that this is consistent with the opinions he obtained through a canvass of family law professionals.[6]

180 In my view, interpreting the "vast majority of time" threshold in s. 39.4(6) in this manner gives meaningful effect to the burden of proof that it contemplates, without giving undue effect to the burden and thereby skewing the "best interests" assessment in a particular direction.

26In the present case, based on the terms of the order of Sah, J. the child would spend approximately 80% of his time with the applicant on a week in/week out basis. Additional midweek access is unscheduled and the additional holiday time in the order would not significantly affect the calculation.

27On the basis of this conclusion, I find that it is the respondent who bears the onus of proof on a balance of probabilities to demonstrate that the relocation is not in the child’s best interests.

28I find for the following reasons, the respondent has not met that onus:

1. With reference to s.39.4(3), I find that it is in the child’s best interests to move with the applicant. While I agree with the respondent, that the applicant was likely aware of her precarious financial circumstances when she signed the Minutes of Settlement, in my view she has made a sensible move to retrench. The respondent’s suggestion to move to a shelter is simply not an option and certainly not in the child’s best interests even in the short term. In Stayner, the applicant can stay with her parents who are able to provide both financial and emotional support. The applicant now has a parttime job in her field. She hopes to be able to move out in a year. The child will no doubt benefit from the improvement in the applicant’s financial fortunes. He is also close to his extended maternal family.

Based on what has been disclosed about the child, I do not see the move as having a serious impact on the child. He is not in school, does not participate in extra-curricular activities and has no special needs that require specialized care. The applicant says she has a family doctor lined up. There will be some impact on his time with the respondent but that can be compensated with the appropriate order.

I find that the applicant did provide notice as required, although two weeks short of the required time. I find that there has been substantial compliance and that the respondent has not been unduly prejudiced. He has had the time to retain counsel and properly put forward his position.

There is no term in the order of Sah, J. restricting the geographic location in which the child was to reside. The respondent says he would not have signed the Minutes of Settlement if he had known the applicant was about to move. While he is rightly frustrated about the lack of candour by the applicant, I am confident that if the matter had been tried, there would not have been a blanket prohibition on the child moving from London. While there may have been a geographic limit imposed, relocation beyond that area would likely have triggered an application process as set out in the Family Law Rules, O. Reg. 114/99.

The applicant has agreed to drive the child both ways for visits. Due to the respondent’s financial circumstances, he is unable to afford the insurance coverage on his car and so is unable to assist in the driving.

Finally, for purposes of s. 39.4(3)(g), there has been no significant noncompliance by either party.

2. I have also considered the broader factors set out in s. 24 when considering the child’s best interests. The applicant has been the child’s primary giver since birth. He has had a stable and loving relationship with her. She has been able to meet his emotional and material needs, with limited financial support from the respondent. The applicant has made it clear that she wants the respondent to be an active parent in the child’s life. She is prepared to provide the transportation necessary to ensure the respondent’s parenting time.

3. In consideration of the Plumley factors, I find that the applicant’s current financial circumstances are sufficiently compelling reasons to move. As I indicated, the child will reap the benefits of the applicant’s improved financial circumstances. In respect of a genuine issue for trial, the only issue would be regarding parenting time. As matters stand now, the respondent has not sought an order placing the child in his care. In my view, given the history of this matter, even if the respondent so moved, the applicant would likely prevail at the end of a trial.

29For the foregoing reasons, I order as follows on a temporary basis:

1. The applicant shall be permitted to relocate the child to Stayner, Ontario;

2. The respondent shall have parenting time three out of four weekends per month from Friday at 7:00 p.m. until Sunday at 4:00 p.m.;

3. The holiday schedule contained in the order of Sah, J. dated August 15, 2023 shall remain in effect;

4. The applicant shall provide all transportation during parenting time, unless the parties agree otherwise;

5. The respondent shall have at least one video call with the child per week on Wednesday at 6:00 p.m. for a maximum of 30 minutes and at such other times as the parties may arrange; and

6. The applicant shall immediately register the child in a school appropriate for the catchment area in which he is residing. The respondent shall be named as an emergency contact and shall be entitled to all information regarding the child’s education.

30As neither party has the means, there is no order as to costs.