Court File and Parties
COURT FILE NO.: FS-22-137 DATE: 2023 11 15 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Martina Kanavor, Moving Applicant AND: Jaroslav Kanavor, Respondent
BEFORE: M.T. Doi J.
COUNSEL: Joshua Cohen, for the Moving Applicant Mikesh H. Patel, for the Respondent
HEARD: October 30, 31 and November 1 and 2, 2023
Endorsement
Overview
1On this motion, brought on an urgent basis, the Applicant mother seeks an order allowing her to relocate to St. Julian’s, Malta with the children, along with ancillary orders for primary residence, sole decision-making and other relief. [1] The Respondent father opposes the proposed relocation over concerns with the children’s cultural, linguistic, religious and other needs, including their need for stability, and his limited ability to share parenting time after the relocation.
2Given the relief sought on the motion, as detailed below, I found that this motion raised pressing matters that should be heard on an urgent basis in the interests of justice. Accordingly, I proceeded to hear the motion even though a conference on the substantive issues had not been conducted: Rule 14(4.2) of the Family Law Rules.
3For the reasons that follow, I find that it would be in the children’s best interests for the mother to be allowed to temporarily relocate with them to Malta and to have temporary primary residence and sole decision-making until trial, which should proceed at the earliest opportunity. In making this decision, I find that it would be in the children’s best interests to have liberal video contact time and prescribed blocks of in-person parenting time with the father that should progress from daytime visits to later include overnight parenting time once the children have had some time to re-establish their relationships with him and acclimate to the temporary parenting arrangement.
Background
4Both parties immigrated to Canada from Slovakia. The mother immigrated to Canada with her parents in 1998. More recently, the father immigrated to Canada in 2017. The parties met on a dating site and married on November 11, 2017. They separated on August 3, 2022.
5There are two children of the marriage, namely the daughter M.K. (born March 16, 2020) and the son, L.K. (born May 27, 2021). Both children were born in Canada.
6From about the Fall of 2017 to May 2019, the parties lived in a home in Oakville, Ontario. During this period, the mother worked as a French teacher and the father worked outside of the home. After obtaining a real estate agent licence in 2019, the mother worked as a realtor from roughly 2019 to 2022.
7The parties sold their Oakville home in May 2019 and moved to a home in Niagara Falls, Ontario which they renovated and later sold in September 2020. They went on to buy and renovate a home in Stevensville, Ontario which they sold in September 2021. The proceeds of sale for the Stevensville property approached $800,000.00 which the parties deposited in a joint bank account.
8The daughter was born in March 2020. Around July 2020, the parties mutually agreed that the mother, who had been earning a higher income through real estate and on-line work, would be the primary income earner for the family and the father would work on renovations to their home (i.e., with a view to flipping the property for a profit) while caring for the daughter and performing other household duties. The parties disagree on who had acted as the daughter’s primary care provider. On balance, I find that each party had worked from or at home and equally shared the parenting responsibilities for the daughter while performing other household duties. The parties continued with essentially the same household arrangement after the son was born in May 2021.
9In August 2021, the parties mutually decided to relocate from Stevensville, Ontario to the Village of Mt. Zion in Macon County, Illinois. While in Mt. Zion, the mother worked as a high school French teacher and the father took care of household responsibilities.
10Around October 2021, the parties moved to Dallas, Texas. Despite some disagreement as to which party initiated or wanted this move, I find that both parties had been interested in the prospect of residing in a larger urban setting and welcomed the opportunity to live in Dallas.
11Around January 2022, the parties moved to West Palm Beach, Florida after the mother obtained a contract position with Mandala World, a global provider of customized learning and educational curricula to various K-12 learning institutions around the world. However, as she did not hold a valid visa to work in the United States, the parties ended up briefly returning to Ontario in April 2022 before deciding to relocate to Slovakia until her visa situation could be resolved. The parties and the children went to stay with the paternal grandparents in Bratislava, Slovakia before staying with maternal family members in the Town of Humenné, Slovakia.
12While staying at the home of a maternal aunt in Humeneé, the infant son fell onto the floor from a bed on August 2, 2022. The parties took him to hospital for assessment. Fortunately, the child was not seriously injured. Hospital staff offered to admit him for observation, but the parties decided to take him home. Understandably, both parties were upset. The father claims that the incident reveals that the mother is unduly inattentive and, therefore, unfit to parent the children. However, this is the only such incident that he has recounted. Moreover, as set out below, he later consented to an order for the mother to have temporary primary residence and sole decision-making for the children, albeit on a without prejudice basis. On balance, I find that the fall was an unfortunate incident that does not necessarily reflect poorly on the ability of the mother, or the father who was also in the home when the incident occurred, to reasonably care for the children. Accordingly, I do not find this one incident to be significant in deciding the motion.
13The next day, on August 3, 2022, the maternal aunt apparently used corporal punishment to discipline the daughter after she slammed a door to the kitchen. The father confronted the aunt, asked her to not use corporal punishment, and went to console or calm the son who was crying in the living room. The mother, who was working remotely from a virtual work-space in the home, heard the commotion and went to the living room holding her cell phone. Wanting her undivided attention, the father asked the mother to put down the phone. She declined the request as she was on a work call. Out of frustration, the father concedes that he tried to wrestle the phone from the mother’s hand. This led her to flail her arms in the fetal position. The mother suffered a sore right arm in the incident. At the mother’s request, the aunt called police who asked the father to leave and stay with the paternal grandparents in Bratislava, which he did. According to the mother, police later tracked him down to recover her phone after he apparently tried to take it without permission. Following the incident, the parties separated.
14Fearing for her safety, the mother retained a lawyer in Slovakia to seek a restraining order against the father. Later on, and acting on the advice of her lawyer, the mother returned with the children to Ontario where domestic abuse victims are said to have better legal protections. She also instructed her lawyer in Slovakia to pursue charges against the father, and later reported to Peel Police that the father had stalked and harassed the maternal grandmother and a maternal aunt in Ontario after he had returned to Canada.
15After returning to Ontario with the children, the mother travelled to Florida to terminate the lease agreement for the West Palm Beach home and pack up or otherwise deal with its contents. After learning that she was in West Palm Beach, the father had a friend visit the home without notice to retrieve his personal belongings. Taken by surprise and apparently fearing for her safety, the mother called police in West Palm Beach, reported an incident, and experienced panic attacks.
16The mother claims that the father abused her physically, emotionally and financially during the marriage and after separation. The father flatly denies the allegations and claims that she has either exaggerated, embellished or fabricated events and allegations to gain a litigation advantage.
17Since returning from Slovakia in August 2022, the children have primarily resided with the mother who has been caring for and supporting them while working remotely as an independent contractor with Mandala World from her home in Mississauga, Ontario.
18Following the August 3, 2022 incident in Slovakia, the mother brought an urgent motion in this proceeding for a restraining order against the father and to require his parenting time with the children to be supervised. On January 24, 2023 Mirza J. granted a temporary restraining order against the father, dismissed the motion for supervised parenting time, and left the matter of the children’s parenting-time schedule for the parties to work out. On consent, Mirza J. granted a temporary without prejudice order for the mother to have primary residence and sole decision-making responsibility for the children.
19On January 27, 2023, the mother proposed to phase in a parenting time schedule for the children and the father with visits to take place every Sunday for three (3) hours at a local indoor play location with a maternal aunt to facilitate the exchanges and passively observe the visits from a distance, subject to the father completing parenting and anger management classes. She also proposed revisiting the arrangement in six months after the father had completed her suggested classes and established a parenting plan for the children.
20On April 4, 2023, the father responded by asking the mother, through counsel, to agree to the children sharing supervised parenting visits with him at a supervised access centre. The mother consented to his proposal for supervised parenting visits. On May 2, 2023, the father proposed a parenting centre in Oakville for the visits. After making some inquiries, the mother responded on May 16, 2023 that the proposed centre did not offer supervision services and suggested other centres in Milton, Mississauga and Hamilton where parenting supervision services were available. Ultimately, the parties agreed on a supervised parenting centre in Burlington, submitted an intake application on May 23, 2023, and agreed that the children should share supervised parenting visits with the father on alternating Saturday afternoons for 1½ hours per visit starting on August 26, 2023 and ending on December 16, 2023. [2]
21A few days before the first August 26, 2023 parenting visit, the father had second thoughts, expressed dissatisfaction with the supervised nature of the visits, and indicated that he intended to cancel the scheduled visit. Through counsel, the mother strongly encouraging the father to attend the parenting visit as the children had not seen him since August 23, 2022. After reconsidering the matter, the father relented, attended the August 26, 2023 visit, and went on to share supervised parenting visits with the children according to the consent parenting time schedule.
22In August 2023, Mandala World (i.e., which had been contracting the mother’s remote services), offered the mother a new full-time salaried position as the Executive Assistant Director with Mandala World Global Academy’s office in the Town of St. Julian’s, Malta. The employment offer provides the mother with a unique and rare career opportunity to help establish the company’s Kindergarten to Grade 12 educational curriculum in Malta.
23Through her previous remote contract work, the mother apparently proved herself to be a capable, reliable and valued member of Mandala World’s workforce which led the company to extend the offer of employment to her. Among other things, she received specialized training and developed unique skills and knowledge through her prior neuroscience and psychology work on the company’s curriculum development projects. To assume the role being offered, the mother must physically relocate to Malta where she will be tasked with helping to establish and expand Mandala World’s education programs and activities through in-person work with local educators who are implementing its unique proprietary educational curricula. The role will also permit her to network and develop important business connections to grow the company’s market share. The position that Mandala World has offered her is at the leading edge of the educational development field and reflects a rare and important career opportunity that is only available with the company at this time. I accept that it is not possible for her to find a comparable position locally (i.e., within the Greater Toronto Area). In addition, I find that this opportunity would place her career in a much stronger position as she would gain invaluable experience in a unique role where she can develop important connections in her field of education curriculum development.
24By accepting the position with Mandala World in Malta, the mother will achieve a measure of financial and employment security that, in turn, will enable her to provide both children with a more stable future. The position comes with a base salary of $90,000.00 CDN (i.e., which is almost double her current average annual income as an independent contractor), along with health care benefits, better job security, and the potential for future career advancement in the field for which she has developed specialized knowledge and work experience.
25Since separating on August 3, 2022, the father has paid no child support, has reported an annual income of $10,878.00 in 2022, and has been unemployed since July 7, 2020 until just a few weeks before the motion returned on October 30, 2023 after apparently finding work as a labourer. Although served with the Application by January 24, 2023, he did not deliver his Answer until mid-August 2023. Among other things, he is claiming spousal support in this litigation.
Legal Principles
26As discussed below, the parenting and relocation provisions that apply on this motion are set out in the Divorce Act, RSC 1985, c 3 (2nd Supp).
27Section 16 of the Divorce Act directs the court to consider only a child’s best interests in making a parenting decision that affects them, and sets out the criteria to consider in deciding the best interests of the child. Section 16 reads as follows:
Best interests of child
16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
Primary consideration
(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
Factors to be considered
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
Factors relating to family violence
(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
(h) any other relevant factor.
Past conduct
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
Parenting time consistent with best interests of child
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
Parenting order and contact order
(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.
28Subsection 2(1) of the Divorce Act defines “relocation” as follows:
relocation means a change in the place of residence of a child of the marriage or a person who has parenting time or decision-making responsibility — or who has a pending application for a parenting order — that is likely to have a significant impact on the child’s relationship with
(a) a person who has parenting time, decision-making responsibility or an application for a parenting order in respect of that child pending; or
(b) a person who has contact with the child under a contact order.
29The provisions governing the relocation of a child are set out in ss. 16.9 to 16.95 of the Divorce Act. A person with parenting time or decision-making responsibility for a child of the marriage who intends to relocate must provide at least 60 days’ prior notice of that intention, in a prescribed form, to anyone else with parenting time, decision-making responsibility or contact under a contact order: ss. 16.9(1) of the Divorce Act. A person who gives notice pursuant to s. 16.9 and intends to relocate a child may do so if: a) the court authorizes the relocation; or b) a recipient of the s. 16.9 notice does not object in the prescribed manner within 30 days of receiving notice and there is no order prohibiting the relocation: ss. 16.91(1) of the Divorce Act.
30In deciding whether to authorize a relocation, “the crucial question is whether relocation is in the best interests of the child, having regard to the child’s physical, emotional and psychological safety, security and well-being”, which is a highly fact-specific and discretionary inquiry: Barendregt v Grebliunas, 2022 SCC 22 at para 152. The court must consider the best interests of the child in the particular circumstances of the case: Barendregt at para 123; Shearhart v Shearhart, 2023 ONSC 4931 at para 14.
31A list of best interest factors that apply to relocation decisions is set out in s. 16.92 of the Divorce Act, which provides:
Best interests of child — additional factors to be considered
16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,
(a) the reasons for the relocation;
(b) the impact of the relocation on the child;
(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;
(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.
Factor not to be considered
(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.
32When considering whether to permit the relocation of a child, the primary consideration is the child’s best interests. None of the factors under ss. 16.92(1) of the Divorce Act is more important than any another, not all will apply in each case, none is determinative, and other factors not listed may be relevant in certain cases. These statutory factors are a non-exhaustive guide or check-list of customary factors to be considered, along with the factors under s. 16 of the Divorce Act, in determining whether a relocation is in the best interests of the child: Cote v. Parsons, 2021 ONSC 3719 at para 130; Zychla v. Chuhaniuk, 2022 ONSC 6884 at para 31.
33In the context of deciding the best interests of the child in relocation matters, the court must further consider all of the factors related to the child’s circumstances, including but not limited to the following:
a. the child’s views and preferences;
b. the history of caregiving;
c. any incidents of family violence;
d. the reasons for the relocation;
e. the impact of the relocation on the child;
f. the amount of parenting time spent with the child and the level of the parties’ involvement in the child’s life;
g. the existence of a court order, arbitral award or agreement that specifies the geographic area in which the child is to reside;
h. the reasonableness of the relocating party’s proposal to vary parenting time, decision-making responsibility, taking into consideration, among other things, the location of the new place of residence and the applicable travel expenses; and
i. whether the parties have complied with their respective obligations under statute, a court order, arbitral award or agreement and the likelihood of future compliance.
Barendregt at paras 153-154.
34The court should not consider how the outcome of the relocation motion would affect the parties’ relocation plans, such as whether the moving party would relocate without the child or not relocate at all: Barendregt at paras 140.
35In keeping with the so-called “primary caregiver presumption”, a relocation will more likely be approved, “where the clear primary caregiver for a child seeks to relocate” and denied if there is a shared parenting arrangement: Barendregt at para 121.
36On a relocation motion, the burden of proof is as follows:
i) where there is substantial compliance with a court order, arbitral award or agreement that provides that the child spend substantially equal time in the care of each party, the party intending to relocate the child has the burden of proving that the relocation would be in the child’s best interests: ss. 16.93(1) of the Divorce Act;
ii) where there is substantial compliance with a court order, arbitral award or agreement that provides that the child spend the vast majority of their time in the care of the party intending to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the child’s best interests: ss. 16.93(2) of the Divorce Act;
iii) in all other cases, the parties share the burden of proving whether the relocation is in the child’s best interests: ss. 16.93(3) of the Divorce Act; and
iv) the court has the discretion to refuse to apply the burdens of proof under ss. 16.93(1) and (2) on a interim motion: s. 16.94 of the Divorce Act.
37In authorizing a relocation of a child of the marriage, the court may apportion costs relating to the exercise of parenting time by the person who is not relocating as between that person and the person who is relocating the child: s. 16.95 of the Divorce Act.
38Despite amendments to the Divorce Act, the law appliable on interim relocation motions has not appreciably changed: Tass v. Jackson, 2022 ONSC 4702 at para 15, citing Arabi v. Al Sahnawi, 2021 ONSC 6124 at paras 18-24. The applicable legal principles for an interim relocation motion are well settled. In Gordon v. Goertz, , [1996] 2 SCR 27 at paras 49-50, the Supreme Court majority summarized the framework for a temporary mobility (now relocation) motion as follows:
The law is summarized as follows:
The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.
This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.
Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
The focus is on the best interests of the child, not the interests and rights of the parents.
More particularly the judge should consider, inter alia:
a. the existing custody arrangement and relationship between the child and the custodial parent;
b. the existing access arrangement and the relationship between the child and the access parent;
c. the desirability of maximizing contact between the child and both parents;
d. the views of the child;
e. the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
f. disruption to the child of a change in custody;
g. disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?
39In Plumley v. Plumley, at para 7, Marshman J. identified the following as important factors to consider in deciding a mobility issue on an interim basis:
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.
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.
Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong possibility that the custodial parent’s position will prevail at trial.
40In Boudreault v. Charles, 2014 ONCJ 273 at para 26, Sherr J. set out additional principles to consider on a temporary relocation motion:
26The following are additional principles regarding temporary relocation cases:
a. The burden is on the parent seeking the change to prove compelling circumstances exist that are sufficient to justify the move.
b. Courts are generally reluctant to permit relocation on a temporary basis. The decision will often have a strong influence on the final outcome of the case, particularly if the order permits relocation. The reality is that courts do not like to create disruptions in the lives of children by making an order that may have to cause further disruption later if the order has to be reversed.
c. Courts will be more cautious about permitting a temporary relocation where there are material facts in dispute that would likely impact on the final outcome. In such cases, the court requires a full testing of the evidence.
d. Courts will be even more cautious in permitting a temporary relocation when the proposed move involves a long distance. It is unlikely that the move will be permitted unless the court is certain that it will be the final result.
e. Courts will be more cautious in permitting a temporary relocation in the absence of a custody order.
f. Courts will permit temporary relocation where there is no genuine issue for trial, or where the result would be inevitable after a trial. [T]he importance of the father’s contact with the child could not override the benefits that the move would have on the child.
g. In assessing [the] three considerations in Plumley, the court must consider the best interest factors set out in subsection 24(2) of the Children’s Law Reform Act (the Act) and any violence and abuse in assessing a parent’s ability to act as a parent as set out in subsections 24(3) and (4) of the Act as well as the leading authority on mobility cases, Gordon v. Goertz, , [1996] 2 S.C.R. 27 (S.C.C.) [n.b., as summarized above].
h. These principles apply with necessary modifications to an initial consideration of custody and access and not just to a variation of access.
i. The financial security of the moving parent is a relevant factor in mobility cases.
j. Several cases have recognized that requiring a parent to remain in a community isolated from his or her family and supports and in difficult financial circumstances will adversely impact a child. The economic and financial benefits of moving to a community where the parent will have supports, financial security and the ability to complete their education and establish a career are properly considered in assessing whether or not the move is in the child’s best interests. See MacKenzie v. Newby, supra, paragraph 53, where in paragraph 54, Justice Roselyn Zisman also accepted the following passages from Lebrun v. Lebrun [1999] O.J. No. 3393 (SCJ) where the court wrote at paragraphs 32034 as follows:
The children’s need for shelter, food and clothing which could be provided by adequate earnings by the mother must take priority over the disruption of a move, and reduced contact with the father and his family. The intellectual and emotional flowering of these children cannot occur until their basic physical needs are met.
The economic realities require that the mother be free to pursue employment which will permit her to escape the welfare rolls. I am confident she will manage the move in a way which promotes the children’s best interests.
An order restricting the residence of the children would, as in Woods v. Woods (1996), , 110 Man R. (2d) 290 (CA) condemn the mother and children “to a life of penury with a dissatisfied [mother] bereft of work and dignity. The alternative is to empower the [mother] to improve their lives from both a material and psychological standpoint.” While the security of the positions offered to the mother cannot be assured, I am satisfied that the prospects of good, full-time employment are much better in southern Ontario. Leave is granted to the mother to move the residence of the children within Ontario.
k. There is case law that says that if a primary caregiver is happier, this will benefit the child.
l. The level of co-operation that the moving parent will provide in facilitating access to the other parent is also a relevant consideration in a mobility application. [Some citations omitted]
41As the Supreme Court noted in Barendregt at paras 148-149, the Divorce Act amendments dealing with relocation have largely codified earlier jurisprudence under the framework in Gordon v. Goertz, as set out earlier, and the collective judicial experience in applying this framework to applications for relocation and consequential parenting order variations. Accordingly, I accept that earlier jurisprudence in this area, including that which pre-dated the Divorce Act amendments, should continue to apply in considering a temporary relocation motion: Tass at para 16.
Onus
42As mentioned earlier, the parties agreed on a consent order for the mother to have primary residence and sole decision-making responsibility for the children on a temporary without prejudice basis. Thereafter, they agreed on a parenting schedule for the children to share 1½ hours of supervised parenting time with the father on alternating weekends. In my view, the foregoing clearly reflects a current care time agreement. I accept that the parties have substantially complied with the consent order and their parenting time agreement, by which the children clearly have spent the vast majority of their post-separation time in the mother’s care. In light of this, I find that the onus under ss. 16.93(2) of the Divorce Act should apply to require the father, as the party opposing the relocation, to discharge the burden of proving that the relocation would not be in the children’s best interests. In any event, even if no onus were placed on the father, I find that the mother has established a compelling case that a temporary relocation should be permitted, as set out below.
The Status Quo
43In this case, I find that the status quo is established by the January 24, 2023 consent order (i.e., for the mother to have primary residence and sole decision-making responsibility) and the parenting time agreement, both of which the parties have substantially complied with, as described above: N.F. v S.G., 2023 ONSC 2644 at para 56. Importantly, neither the consent order nor the parenting agreement contain any terms to limit or restrict the mobility rights of the parties. That said, I am mindful that my decision, which is interim in nature, may well vary the status quo which may later become difficult to change in the context of a trial that might take place some time into the future: Trudel v. Ward, 2019 ONSC 5047 at para 10.
Analysis
44As set out below, I find that the mother should be allowed to temporarily relocate with the children to Malta and have primary residence and temporary sole decision-making responsibility on terms pending the trial of this family application.
45In my view, the requirement under Gordon for a material change is not a necessary criterion on this interim relocation motion given the limited nature of the prevailing status quo which was not the subject of a prior determination of the children’s best interests by the court. The temporary orders for the mother to have primary residence and sole decision-making responsibility were made on consent and on a without prejudice basis. It follows that the relief sought on the motion is best construed as being at first instance and not in the nature of a variation for which a material change should be required. However, if a material change is required to grant a temporary order for the mother to relocate to Malta with the children, I would find that this requirement has been satisfied by the recent offer of employment which the mother has received from Mandala World.
46After carefully considering the limited record filed on this urgent motion, I found myself unable to decide the relocation issue on a permanent basis. In my view, a trial is required determine where the children should permanently reside, which will be intertwined with a final determination of the decision-making and parenting time issues in this proceeding. Each party has raised serious allegations against the other, including allegations that incidents involving domestic violence either occurred or were fabricated, which will be relevant in deciding each party’s ability to parent the children. Although the children have primarily been in the mother’s care since separation, I accept that the father previously shared a warm and nurturing relationship with the children, who are said to be missing him. In my view, a permanent assessment of the best interests of the children will require a more fulsome examination of all of their circumstances with the benefit of a more complete evidentiary record and a comprehensive unfolding narrative at trial.
47Before addressing the factors set out in the Divorce Act, I wish to address the evidence and submissions from the parties in respect of the underlying issues on this motion.
48From the record, I do not find that the mother has or ever had any health issues that would make her unfit to parent the children. Although she briefly experienced post-partum depression after the son was born, she was never diagnosed with or hospitalized for other mental health issues. Given the nature of the father’s limited and speculative evidence, I do not accept that the mother was ever unfit to parent the children. My finding on this is supported by the father’s choice, albeit on a temporary and without prejudice basis, to consent to the temporary parenting order which gave the mother primary residence and sole decision-making responsibility for the children.
49Respectfully, I am not persuaded by the father’s submission that the mother is seeking to relocate the children in a calculated or underhanded effort to alienate them from him. On balance, I accept that the mother earned the rare job opportunity in Malta through her earlier contract work with Mandala World. Although the father is suspicious of the timing of her employment offer, as it came during the course of this high-conflict litigation, I do not find on the evidence before me that she colluded with the employer to further a parental alienation campaign against him.
50The mother has raised serious allegations that the father was physically, emotionally and financially abusive towards her during the marriage. For his part, the father either has denied the allegations or otherwise asserted that the allegations against him are embellished, taken out of context, or fabricated to gain a litigation advantage. That said, the mother now candidly concedes that the children’s parenting time with the father need not be supervised, which aligns with the findings that Mirza J. made earlier. Taking this all into account, I accept that the father will be able to adequately parent the children on his own, without supervision, after a period in which he has re-established his parenting relationships with the children whom he has seen for only 1½ hrs every other weekend at a supervised parenting centre. Although it was open for the father to exercise a less restrictive form of parenting time with the children after Mirza J. denied the mother’s motion for his parenting time with the children to be supervised, he negotiated and followed the supervised parenting schedule. In light of this, I accept that the father chose to exercise a more limited form of parenting time than otherwise was available to him.
51As set out earlier, the parties realized about $800,000.00 in net proceeds from the sale of their home in Stevensville in September 2021. Although the parties deposited the sale proceeds to a joint bank account, the father claims that the mother later prevented him from accessing any portion of these proceeds which he claims frustrated his plans to open an auto repair shop and earn income as an auto mechanic, which is his skilled trade by training. He also claims that she either withheld, lost, converted or disposed of about half of his set of work tools, and also lost or disposed of his mechanic’s certificate from a Slovak training institute, all of which allegedly left him unable to obtain work as an auto mechanic (i.e., given his lack of tools and work credentials) and impacted his ability to pay child support. The mother claims that the father’s friend retrieved all of the tools from a storage unit where she had moved them in order to vacate their West Palm Beach home after separation. She cannot explain why any of his belongings are now purportedly missing. In response to her submission that he could have replaced the missing tools and certificate, the father has claimed that he could not afford to replace the tools and that a replacement certificate would be impossible to locate or obtain from Slovakia. He flatly denies the mother’s claim that he improperly dissipated family funds without her knowledge, which is why she has been steadfastly refusing to consent to any release of family funds to him before receiving his financial disclosure, which is outstanding and due in January 2024 pursuant to an agreement by the parties.
52In my view, the father’s failure to pay any child support after the August 3, 2022 separation cannot be entirely attributed to the mother’s conduct. It was open for him to seek other reasonable employment outside of auto repair work (i.e., as he did shortly before the return of the motion) and pay appropriate child support to meet the children’s respective needs. The father’s failure to pay any child support after separation effectively forced the mother to solely assume this responsibility on her own and undoubtedly caused her to experience financial strain.
53Prior to separation, I find that each party equally cared for both children, albeit with varying degrees of support. To this end, I accept that the father often asked a family friend in Niagara Falls to care for the daughter, often for entire days at a time, but apparently without informing the mother who worked remotely from home believing that the father was taking the daughter on excursions together without knowing that the family friend apparently had been caring for the child. Although the father claims that he often asked the family friend to care for the child while he worked on renovations to the family home, the mother claims that many if not most of the home renovations were performed by contractors which the parties had hired. On balance, I find that the father has inadequately explained why the family friend had cared for the daughter with such frequency, and that his whereabouts during those periods when he asked the friend to help care for the child are not properly accounted for.
54From the record, I am satisfied that the mother has raised the children in a manner that is respectful of their Slovak heritage and traditions. In addition, I find that the mother has shared her Catholic faith with both children who attend a local Slovak Catholic Church.
55Regrettably, the father recently chose to unilaterally renew the children’s health cards without notifying the mother, who came to learn of this when the children were denied care at a doctor’s visit after their otherwise valid health cards were deactivated by his renewal application. After finding an expired health card for the daughter, the father chose to renew the health cards for both children without first inquiring with the mother, apparently believing that time was of the essence to avoid the children lacking valid health cards which they need to access medical care. As it turned out, his actions essentially caused the very problem that he purportedly tried to avoid. The matter was eventually sorted out and the children did obtain new health cards, but not without much unnecessary time and effort which further strained the parties’ complicated relationship and left them feeling even more mistrustful of the other. That said, and with some reservations, I am prepared to accept at this time that the father did not deliberately try to scuttle the children’s health cards or compromise their ability to access health care. I also accept that he acted with reasonable dispatch through counsel to rectify the matter after realizing what had occurred.
56On balance, I do not accept the father’s claim that the son has a delayed speech issue, or that the mother acted irresponsibly by either ignoring or not properly dealing with the matter. Without any supporting medical evidence, the father baldly asserts that the child, “may be suffering from Asperger’s Syndrome or some type of developmental disability, as he displays exaggerated gestures and demonstrates frustration at random moments.” The father’s claims on this point are wholly unsupported by any corroborating medical or health information. The mother, who trained as a teacher, flatly denies that the son has developmental issues or other special needs and states that she would have promptly investigated any such signs had they actually manifested.
57Similarly, I am not persuaded by the father’s other claims that the mother is neglectful of the children’s health or their medical care. His allegations on this are entirely unsupported by any meaningful evidence. From the evidence, I see no basis to find that the mother has somehow failed to take the children’s medical or other care issues seriously.
58I now turn to the factors concerning the children’s best interests under the Divorce Act.
a. The Children’s Needs given their Ages, Stages of Development and Need for Stability
59In my view, changing the children’s primary care giver would not serve their best interests at this time.
60Both children are relatively young. Since separation, they have spent the vast majority of their time in the mother’s care and have shared only 1½ hours of supervised parenting time with the father on alternating weekends since August 26, 2023 under a consent parenting time schedule. In addition, the mother has exercised primary residence and sole decision-making responsibility under a consent temporary without prejudice parenting order. Taking everything into account, and to give the children a measure of stability, I find that the mother should continue as the children’s primary care provider at this time.
b. Nature and Strength of the Children’s Relationship with Each Spouse, Each Sibling and Grandparents, and Any Other Person who Plays an Important Role
61Given the amount of time the children have been sharing with each party, I am persuaded that the children have a stronger relationship with the mother and members of the maternal family at this time.
62For the past year, the maternal grandmother, who lives near to the mother and the children, has been actively helping to care for the children by joining them at parks, by taking them on playdates in the community, by helping to bring the children to extra-curricular activities (e.g., by taking M.K. to ballet class), by cooking or preparing the children’s meals, by taking the children to medical appointments as needed, and by providing the mother with parenting tips and other supports. The grandmother is prepared to reside with the mother and the children in Malta for at least the first year of their relocation, and is willing to stay for a longer period, as may be required, as she has no ties to Mississauga beyond owing a home in the municipality.
63The maternal aunt, who lives in Etobicoke, Ontario and works flexible hours, had been helping the mother to care for the children over the past year by visiting several times each week. When the children’s in-home daycare provider abruptly stopped providing childcare services, the aunt became the children’s full-time babysitter and cared for the children from about 8:30 am to 5:00 pm daily. Their daily routine included indoor and outdoor activities, and social interactions with other neighbourhood children at the local pool, park and splash pad. The aunt has helped the children with meals, naps, diapers, and other daily activities. She claims to have an extremely close relationship with the children, and is willing to join the mother, the children and the maternal grandmother to Malta for the first two to three months to assist with their transition from Canada. Afterwards, she plans to visit Malta ever few months on an ongoing basis for as long as the mother and the children are residing there. In addition, she is willing to immediately travel to Malta to help her sister and the children should an urgent or unpredicted situation ever arise.
64The paternal grandparents, who reside in Bratislava, Slovakia, have never travelled to North America to see the children after they were born. Their only contact with the children was during the family trip to Slovakia just before the parties separated on August 3, 2022.
c. Each Spouse’s Willingness to Support the Development and Maintenance of the Children’s Relationships with the Other Spouse
65Having regard to the respective parenting plans that both parties have proposed, I am satisfied that each party is willing to support the development and maintenance of the children’s parenting relationships with the other party, respectively.
d. History of the Children’s Care
66As mentioned earlier, the parties shared the responsibility for caring for the children before they separated. Following separation, the children have remained in the mother’s primary care while the father has shared limited supervised parenting time with them.
e. Children’s Views
67Given their ages, as well as the limited nature of the record, I am satisfied that the children’s views and preferences cannot be ascertained at this time. That said, I am satisfied that both children are maintaining positive relationships with both parties. In addition, I am satisfied that the children share positive relationships with their grandparents and other immediate relatives.
f. Cultural, Linguistic, Religious and Spiritual Upbringing and Heritage
68I am satisfied that both parties have raised the children to be aware and respectful of their Slovak culture and traditions, and to observe the tenets of the Catholic faith as parishioners with the local Catholic Church in the Slovak community.
69In my view, the mother reasonably identifies with her Slovak culture and heritage and the maternal grandmother and maternal aunt have been mindful of the family’s Slovak heritage while helping to raise both children. Although the mother, who immigrated to Canada from Slovakia as a child, speaks to the children in English, I am satisfied that the children have been appropriately raised by the mother, members of the extended family, and other friends to respect their Slovak linguistic and cultural traditions. In addition, I find that the mother identifies with her own Slovak-Catholic religious upbringing and is raising the children to learn and appreciate these religious observances and traditions.
70The relocation to Malta would take the children from their current Slovak community in Mississauga, including their current parish. However, upon relocating to Malta, the mother plans to join a Catholic parish in St. Julian’s and continue to raise the children in the Catholic faith. Although the father, who more recently came from Slovakia, is the only party who speaks to the children in Slovakian, the mother plans to continue acclimating the children to Slovakian culture, heritage and traditions with the maternal grandmother’s help and assistance.
g. The Ability and Willingness of Each Person in Respect of Whom the Order Would Apply to Care for and Meet the Needs of the Children
71I accept that each party has expressed a willing to care for and meet the needs of both children. That said, I am concerned by the father’s purported inability to pay child support since separation. From the record, and as discussed earlier, I do not accept that his alleged inability to financially support the children is wholly attributed to the mother’s unwillingness to consent to an advance on equalization, which purportedly prevented him from opening an auto repair shop to earn income, as he has asserted in his evidence and argued in submissions. In my view, it was open for him to find other reasonable means to earn income and pay child support. In contrast, I am satisfied that the mother is very willing and able to care for and meet the needs of both children.
h. The Ability and Willingness of Each Person in Respect of Whom the Order Would apply to Communicate and Cooperate, in Particular with One Another, on Matters Affecting the Children
72I am satisfied that the mother is prepared to communicate with the father to address matters involving the children and to keep him reasonably updated with information and images or videos about them and their activities. Given how the father dealt with the matter of the children’s health cards, I have some reservations with his willingness or ability to communicate and cooperate with the mother and reasonably deal with matters pertaining to the children.
i. Family Violence
73The mother has raised serious allegations of domestic abuse and violence against the father which are troubling. That said, I acknowledge that the father has completed anger management counselling where he learned about coping strategies. In addition, I am satisfied that the mother is not concerned with the children sharing unsupervised parenting time with him at this time. Taking this all into account, I find that the children would not be at risk of harm while in his care.
j. Reasons for the Relocation
74I am satisfied that the mother has good and valid reasons for relocating to Malta.
75The mother has an offer of employment for a full-time salaried position in Malta. The position is a unique one at the leading edge of global education and would provide her with added job security, a salary that is roughly double her current work income, and health and other benefits. It would also give her the opportunity to pursue a fulfilling career by gaining invaluable work experience while developing helpful business connections that will be important for her future career progression. Given the unique nature of this position, I accept that the mother would be unable to find a comparable position in the Greater Toronto Area.
76By accepting this position, I find that the mother would be in a strong position to provide a stable future for the children and herself, both economically and professionally. Since separation, the mother has solely provided for the children as the father, who had been unemployed until quite recently, has not contributed any support or other financial assistance to the children. In addition, given Malta’s lower cost of living, I accept that the mother could better afford to maintain a comfortable lifestyle for the children in Malta. Furthermore, I accept that the position in Malta would likely provide her with better work-life balance and a better ability to care for the children.
77Having regard to the entire evidentiary record, I find that the multi-faceted reasons for the mother’s wish to relocate to Malta with the children, and the positive effects of the relocation on the children associated with her emotional, psychological, social and economic well-being all support allowing the relocation in the best interests of the children: Bjornson v. Creighton (2002), , 62 OR (3d) 236 (CA) at para 30; Wu v. Yu, 2022 ONSC 3661 at paras 187 and 190-191; Wood v. Wood, 2014 ONSC 4470 at para 28. In this regard, I accept that the importance of the father’s contact with the children cannot override the benefits that the relocation would have on them: Tass at para 19, citing Boudreault at para 26 (f).
k. Impact of the Relocation on the Children
78In my view, the impact of the relocation on the children would be manageable. In addition, I accept that the mother has a thoughtful and viable plan to mitigate the impact of the relocation.
79The daughter is 3 years of age, and the son is 2 years of age, respectively. Both children are quite young and have not yet started kindergarten. In light of this, I am satisfied that they have not created the sort friendship bonds with other children that would otherwise be more disruptive in the case of older children or teens: Reeves v. Brand, 2018 ONCA 263 at paras 30-31. Their normal caregivers from the maternal family, namely the maternal grandmother who lives in Mississauga and the maternal aunt who lives in Etobicoke, have offered to accompany them to Malta to help ease the children’s transition by preserving their home environment to the extent possible. The maternal grandmother and the maternal aunt are both in good health, share positive and nurturing relationships with the children, and strongly support the mother and both children.
80For the past year, the maternal grandmother has been helping to care for the children by joining them on outings, taking then on playdates, bringing them to their extra-curricular activities, preparing their meals, taking them to medical appointments, and otherwise helping and supporting the mother. The maternal grandmother is prepared to join the mother and children in Malta for at least the first year of their relocation, and will stay longer as required to help them.
81The maternal aunt has helped to care for the children and essentially became their full-time babysitter during the day. She engages with the children various activities, including interactions with neighbourhood children at the local pool, park and splash pad, and also helps the children with meals, naps, diapers, and other aspects of daily living. She is willing to reside in Malta for the first two to three months of the relocation to help with the transition, and thereafter plans to visit Malta ever few months for as long as the mother and the children are living there. She is also willing to join her sister and the children in Malta if any urgent or unpredicted situations arise.
82I find that the mother has carefully researched the available resources and opportunities for the children in Malta, which she has referred to in her proposed parenting plan for the relocation.
83The mother has secured a three-bedroom, two-bathroom apartment, with amenities for the children, that is said to be located in a safe and family-friendly neighbourhood in St. Julian’s. This apartment in Malta, which apparently reflects an upgrade to her current living accommodations, is beyond her current financial means and is not something that she could otherwise afford to rent in the Greater Toronto Area. According to the mother, Malta has a lower cost of living, which will enable her to send both children to private school (i.e., at a fraction of the cost for private school in Ontario), where they would receive classroom instruction in the English language, leaving her with more available funds for extracurricular and other activities for the children.
84The mother claims that the position with Mandala World in St. Julian’s will provide her with better work-life balance. In addition, the demands and the quality of life in Malta are said to be less burdensome in some respects than her current living situation in the Greater Toronto Area. As a result, the mother expects to have additional free time to spend with the children
85The mother has arranged for the daughter to enrol in kindergarten at an English-language primary school in Malta as soon as they arrive. In addition, the son can attend childcare at the school free of charge. From the record, I am satisfied that the mother has carefully researched the educational opportunities for the children. In addition, I accept that her proposal for the children to enrol in private school and attend various extra-curricular programs would appropriately engage and benefit the children. Her co-curricular activity plan includes ballet lessons for the daughter and kinesthetic learning activities for the son together with the mother.
86I am satisfied that the mother and the children will likely acclimate to life in Malta, despite some cultural, linguistic and other differences that differentiate Canadian and Maltese society. Like many others who relocate to different parts of the world, I accept that adapting to change in new surroundings is not insurmountable, that the children would likely benefit from experiencing new cultural traditions, and that remaining in Canada is not imperative to ensure their emotional or psychological well-being as the father has suggested in responding to the motion.
87Taking everything into account, I am satisfied that the impact of the relocation on the children will be quite manageable.
l. The Amount of Time and Involvement that Each Party has Shared with the Children
88This factors leans in favour of allowing the relocation as the children have clearly shared the vast majority of their time and had the most involvement with the mother and other maternal family members since separation, as discussed previously.
m. Compliance with Notice Requirements and Court Orders
89The mother has complied with the notice requirements under the Divorce Act.
n. Existence of an Order or Agreement Specifying where the Children are to Reside
90The consent order of January 24, 2023, made on a temporary without prejudice basis, gave the mother sole decision-making responsibility and primary residence of the children. There is nothing in the order to limit the geographic area in which the children are to reside with her.
91Similarly, there is nothing in the supervised parenting time agreement which limits where the children are to reside.
o. Reasonableness of the Proposal of the Person Who Intends to Relocate the Children
92In my view, the mother’s proposed parenting plan would, with some modifications, serve the best interests of both children pending the trial of this proceeding.
93As discussed earlier, I find that the mother has prepared a well-researched and thoughtful parenting plan that includes enrolling the daughter and son in kindergarten and daycare programs at an English-language private school, having them in co-curricular activities, and enlisting the support of the maternal grandmother and maternal aunt, among other things.
94There is no question that the relocation to Malta would impact the father’s ability to share parenting time with the children. The mother has proposed a parenting time schedule that would give the father three (3) extended periods with the children over the months of April, August, and December, respectively, in either Canada or Slovakia. She has also proposed video parenting calls.
95Since separation, the father has only shared parenting time with the children at a supervised access centre. However, as mentioned earlier, the mother is not proposing to require the children’s parenting time with the father to be supervised. Instead, she is seeking to have their parenting time exercised during the day (i.e., without any overnight visits) so that the children would return to her care each evening until the following morning when their parenting time with the father would resume. The mother is also seeking to include herself and a friend during the daytime parenting visits to assist the father and to show the children the parties’ ability to engage in conflict-free co-parenting in their presence.
96I accept that the children likely require a period of time to get re-acquainted with the father and re-establish their parenting relationships. That said, I am not persuaded that the children should be entirely precluded from sharing overnight visits with the father, particularly given their limited ability to share parenting time with him after the relocation. Similarly, I am not persuaded that the mother should be included in the children’s parenting time with the father, without his prior written consent, as I find that the children’s best interests would be served by affording them a reasonable opportunity to meaningfully develop their parenting relationships with the father outside of her presence.
97In my view, the children and father should share graduated parenting time that progresses to overnight parenting visits. Doing this would allow the children to maximize their limited parenting time with the father in a supportive manner that is consistent with their best interests.
98Having regard to the circumstances of this case, I find that the mother should assume the responsibility for paying the reasonable travel and other expenses associated with the children’s parenting time with the father. During submissions, the mother through counsel did not raise any serious concerns or objections when questioned about this.
99The mother has proposed a weekly video parenting call at a designated time. In my view, the children’s best interests would be served by having liberal video parenting calls with the father to maximize their contact time together. To this end, I find that the children should share daily video calls with the father at a mutually convenient time.
p. Compliance with Existing Orders or Agreements
100To date, both parties have complied with orders and agreements.
101As the court must be confident that a parent will support the terms of a relocation order, a party’s history of compliance with their parenting and non-parenting obligations under an order or agreement is relevant and may inform the viability of granting an order: Apa v. Vagadia, 2022 ONSC 2095 at para 110; N.F. at para 86.
102Given their compliance with prior court orders, and their apparent ability to cooperate by agreeing on the current supervised parenting time schedule, I am reasonably confident that both parties will continue to comply with their obligations under any court order.
Outcome
103I acknowledge that courts proceed cautiously in deciding temporary relocation motions, and that a temporary relocation should only be permitted when there are clear and compelling reasons for the relocation on a clear evidentiary record. I accept that these principles apply with particular import on motions involving relocations over a long distance.
104Having considered all of the relevant factors, I am satisfied that the mother has shown a compelling and persuasive basis for allowing the relocation to Malta pending trial in the children’s best interests. Accordingly, the motion is granted on terms.
105Based on the foregoing, I make the following temporary orders:
a. Leave is granted to bring this motion before a case conference and for the parties to file materials exceeding the prescribed page limits for motions;
b. Pursuant to s. 16.91(1)(a) of the Divorce Act, the Applicant mother is authorized to relocate with the children, M.K. (born March 16, 2020) and L.K. (born May 27, 2021) to St. Julian’s, Malta, on a temporary basis until trial, subject to further court order or written agreement of the parties;
c. On a temporary basis until trial, the mother shall have primary residence of the children and shall exercise sole decision-making responsibility for the children, subject to further court order or written agreement of the parties;
d. On a temporary basis until trial, and subject to further court order or written agreement of the parties, the respondent father shall share in-person parenting time with the children as follows:
i. During the winter holiday season from mid-December 2023 to mid-January 2024, the father may share unsupervised parenting time with the children in one continuous period of up to three (3) weeks (i.e., up to 21 days), either in Malta, Slovakia or the Greater Toronto Area (“GTA”), in which: aa.) the first seven days of parenting time shall be exercised during the daytime (i.e., with the children returning to the mother’s care by 7:00 pm each evening and then returning to the father’s care by 8:00 am the next morning); and bb.) the father may share up to three overnight visits with the children in the second seven day period;
ii. During the month of April 2024, the father may share unsupervised parenting time with the children in one continuous period of up to two (2) weeks (i.e., up to 14 days) either in Malta, Slovakia or the GTA, in which: aa.) the father may share up to four overnight visits with the children during the first seven day period; and bb.) the father may share unlimited overnight visits with the children in the second seven day period;
iii. During the month of August 2024, the father may share unsupervised parenting time with the children in one continuous period for up to three (3) weeks (i.e., up to 21 days) either in Malta, Slovakia or the GTA, in which they may share unlimited overnight visits during this period;
iv. Thereafter, the father and the children may share unsupervised parenting time as follows:
during the holiday season from mid-December to mid-January, for a period of up to three (3) weeks (i.e., up to 21 days) in one continuous period, either in Malta, Slovakia or the GTA, with overnight visits;
during the month of April, for a period of up to two (2) weeks (i.e., up to 14 days) in one continuous period, either in Malta, Slovakia or the GTA, with overnight visits; and
during the month of August, for a period of up to three (3) weeks (i.e., up to 21 days) in one continuous period, either in Malta, Slovakia or the GTA, with overnight visits;
v. The mother shall be responsible for reasonable travel costs which the father and/or the children may incur in following the above-mentioned temporary parenting schedule;
vi. When not caring for the children, a party shall have liberal video and phone time with the children for at least 15 minutes each day at an appointed time which the parties shall mutually agree on in advance, and whenever the children wish to speak with that party;
e. On a temporary basis until trial, the mother may travel with the children to other jurisdictions on short-term visits of no longer than 20 days and the travel consent of the father is dispensed with, subject to further court order or written agreement of the parties;
f. On a temporary basis until trial, the mother shall regularly send photos and videos of the children to the father, at least once per week, and shall also share information about the children’s health, education, and extracurricular activities to keep him reasonably apprised about the children;
g. The parties shall promptly conference or mediate the remaining issues in dispute, and proceed to trial on the unresolved issues at the earliest opportunity; and
h. I may be spoken to within 30 days should implementation issues arise with my orders.
106If the parties are unable resolve the issue of costs for this motion, the mother may deliver written costs submissions of up to 2 pages (excluding any costs outline or offer to settle) within 15 days, and the father may deliver responding costs submissions on the same terms within a further 15 days. Reply submissions shall not be delivered without leave.
Date: November 15, 2023 M.T. Doi J.
Footnotes:
1Malta is a contracting party to the Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, also known as the Hague Convention.
2A parenting visit on October 7, 2023 was omitted from the schedule as the parenting centre was closed that day for Thanksgiving.