COURT FILE NO.: FC-22-346 DATE: 20231128

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Samantha Marie Tremblay Applicant – and – Owen Shadwell Respondent

Counsel: Roy M. Respicio, for the Applicant Unrepresented

HEARD: November 23, 2023

RULING ON SUMMARY JUDGMENT MOTION

J.P.L. McDermot J.

Background

[1] This is a summary judgment motion brought under r. 16 by the Applicant Mother, Ms. Tremblay, for judgment on the claims in her application, originally filed on April 7, 2022. In particular, the Applicant requests the permission of this court to move back to her home province, Alberta, along with the parties’ son, three-year-old Hudson.

[2] The Respondent Father, Mr. Shadwell, objects to that relief. The parties had a brief relationship in 2019 and are the parents of Hudson. Since Hudson’s birth on April 23, 2020, he has lived with the Applicant. Hudson has parenting time with the Respondent Father every second weekend pursuant to an agreement made between the parties on July 21, 2021, more than a year after Hudson’s birth.

[3] As stated, Ms. Tremblay wishes to move back to Alberta. Ontario has not been kind to her or her family. She came here with her husband, Michael Tremblay and their two children, Autumn (now 7 years old) and Lili (5 years old). She left her extended family and her friends in Whitecourt, Alberta and, according to her, she says she misses them dreadfully.

[4] Tragically, Mr. Tremblay committed suicide on June 13, 2019.

[5] The relationship that the Applicant had with Mr. Shadwell was brief. They moved in together in September, 2019 and Mr. Shadwell moved back out a month later after discovering that Ms. Tremblay was pregnant with Hudson.

[6] Initially, Mr. Shadwell had little or nothing to do with Hudson after his birth. He only became involved after DNA testing proved his parentage. The agreement was signed six months after the DNA testing giving him parenting time every second weekend. Since July 2021, Mr. Shadwell has exercised parenting time consistently, initially at his parents’ home and, since last summer, his home in Innisfil. According to his financial statement sworn June 19, 2023, he now lives with his girlfriend, Nathalie Byl.

[7] Ms. Tremblay says that it has taken until now to wrap up her husband’s estate. The matrimonial home in Nottawa, Ontario was in her husband’s name alone and has now been sold, and she has brought this mobility motion which must be decided on an urgent basis as the closing of the sale of her home will take place in January, 2024.

Disposition

[8] For the reasons set out below, I have determined that there will be summary judgment in favour of the Applicant. Specifically:

a. The Applicant is permitted to move to Whitecourt, Alberta with the child;

b. The Applicant shall have primary care and decision-making concerning the child;

c. The Respondent shall have parenting time as set out in the Applicant’s motion, and also parenting time during the child’s Christmas school and March breaks.

d. The Respondent shall pay child support of $737 per month based upon his 2021 income;

e. The Respondent shall receive a dollar for dollar credit against his support for his parenting time costs.

Analysis

[9] This is essentially a relocation motion. As with an interim motion, the disposition of a mobility motion largely determines the result in the litigation and this case is no different. If Ms. Tremblay has her way, the child would then move with her to Alberta which would obviously determine the primary residence of the child. Mr. Respicio on behalf of the Applicant asks me to determine the mobility issue and decision-making on a final basis under r. 16 of the Family Law Rules and says that there is no demonstrable genuine issue for trial concerning the child’s best interests which would lead to any decision other than to permit the move.

[10] As these parties were not married, the best interests of this child would be determined under the provisions of the Children’s Law Reform Act (the “CLRA”). Section 39.4(3) of that legislation sets out the best interests criteria to be addressed in determining whether the relocation is in the best interests of the child in issue:

(3) In determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with section 24, as well as,

(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 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 expenses; 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 has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance.

[11] Section 24(3) of the CLRA, adopted in s. 39.4(3), also sets out the best interests criteria concerning any parenting plan for the child or children as follows:

(3) Factors related to the circumstances of a child include,

(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 parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s Ie;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(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 co-operate, 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 co-operate 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.

[12] There is no family violence or outstanding orders concerning Hudson. Therefore, ss. 39(3)(e) and 24(j) and (k) are irrelevant to the determination of Hudson’s best interests. Likewise, Hudson is too young to express views and preferences; s. 24(3)(e) is also not a consideration. The remaining factors must be considered by the court.

[13] The time sharing between the parties is important to this summary judgment motion because that dictates who bears the onus concerning the relocation issues. In essence, under s. 39.4(4) of the CLRA, if care of the child is shared equally, the onus is on the party seeking to move to prove that the move is in the child’s best interests. However, under s. 39.4(6), if the parties are complying with an agreement that provides that the child spends the “vast majority of time in the care of the party who intends to relocate the child”, the onus shifts to the party objecting to the move to demonstrate why it is in the child’s best interests not to move. If the time sharing is unclear or somewhere between these extremes, both parties bear an onus to address whether the relocation is in the best interests of the child.

Summary Judgment Motion

[14] This is a motion for summary judgment. The Applicant Mother seeks a final order permitting her to move to Alberta with Hudson along with her other children. However, whether final or interim, any order permitting the mother to move to Alberta would largely decide the case. Even were the order temporary in nature, it would mean that that the child would live thousands of kilometers away from the other parent for the foreseeable future, creating or continuing a status quo wherein the child was in the mother’s care and decision-making, as a practical matter, would be with the mother. Even though the mother seeks a final order, the criteria to be addressed by the court would largely be the same whether the order was final or not. This is confirmed by the Supreme Court of Canada in Berendregt v. Grebliunas, 2022 SCC 22 where the court stated [at para. 112] that, “Without a pre-existing judicial determination, a parent's desire to relocate is simply part of the factual matrix in the assessment of what parenting arrangement is in the best interests of the child.”

[15] The interplay between a parenting a mobility orders is made clear by the provisions of s. 39.4(3) of the CLRA which states that the court shall, in determining mobility, “take into account the best interests of the child in accordance with section 24” in addition to the factors set out in that section.

[16] That is also clear from the motion filed by the Applicant. In addition to the mobility issues, she also requests decision-making concerning the child and a final order for parenting time to the Respondent. The issue then is whether the best interests of Hudson can be determined in a summary fashion without the necessity of a trial.

[17] An order for summary judgment is governed by r. 16 of the Family Law Rules. Rule 16(4) requires the moving party to provide evidence, by way of affidavit or otherwise, containing “specific facts showing there is no genuine issue requiring a trial.” That evidence must be met by the responding party not relying on “mere allegations or denials” but evidence of “specific facts showing that there is a genuine issue for trial”: see r. 16(4.1). Hearsay evidence is discouraged (r. 16(5)) and the court now has powers to weigh the evidence, evaluate credibility and drawing inferences from the evidence: see r. 16(6.1).

[18] The leading case of Hryniak v. Maudlin, 2014 SCC 7, [2014] S.C.J. No. 7 addresses these powers in the context of r. 20 of the Rules of Civil Procedure, which is similar to r. 16. Hryniak says that the touchstone in a summary judgment motion is fairness: is the court able to make an accurate determination of fact on the basis of the written record? If so, then a decision on the motion is fair and proportionate considering the issues before the court. If not, then the court can have recourse to the powers under r. 16(6.1) in assessing the evidence of the parties prior to dismissing the motion or ordering a trial.

[19] In practice, summary judgment is usually restricted to child protection matters where trials are notoriously long and difficult. However, parenting plans and mobility have been the subject matters of summary judgment motions: see for example Yousuf v. Shoaib, 2007 ONCJ 60. In that case, Spence J. noted that the test on an interim motion for mobility is the same as that for summary judgment [at para. 34]:

An examination of the case law reveals that courts are reluctant to grant interim mobility motions, which often seriously disrupt the lives of children, where there is a genuine issue for trial, thereby creating the potential for disrupting the child's life once again, should the outcome at trial require the child to return to the city where he or she formerly lived.

[20] Finally, I should note that r. 16(4.1) requires the party responding to a motion for summary judgement to put his “best foot forward” and to provide to the court the evidence that he would have led at trial to dispute the claim: see Children’s Aid Society of Toronto v. E.L.L. (2000), , 134 A.C.W.S. (3d) 263 (Ont. C.J.) and Rogers Cable TV v. 373041 Ontario Ltd., , 1994 CarswellOnt 166 (Gen. Div.). In assessing the responding party’s evidence, it is also assumed that all of the evidence that Respondent would present at trial is contained in his affidavit: see Children’s Aid Society of Toronto v. E.L.L. (supra) and Children’s Aid Society of Simcoe (County) v. R.(D.), 2010 ONSC 2092 at para. 6.

Mobility Claim

[21] The Applicant seeks an order permitting her to move to Whitecourt, Alberta where she lived prior to coming to Ontario with her husband. She says it would be in the best interests of Hudson to move with her to Alberta. She notes that the child has lived with her throughout all of his life and that she has provided him with a stable home. She has provided a plan for parenting time to the Respondent in the event that she moves. She says that she will receive the support of her family who live in Whitecourt and to move to Alberta will help her resolve her grief at the loss of her husband. She has sold their matrimonial home and she says that, other than her neighbour, she has no friends or family in Ontario at present.

[22] Mr. Shadwell says that Hudson should live with him because he has a support system and no mental health concerns as outlined in the Applicant’s affidavit. He says that the child should not be forced to go through the trauma of meeting a new family that he does not know.

[23] The court must examine this evidence and Mr. Shadwell’s position in light of the onus that is on him in this proceeding under s. 39.4 of the CLRA. These parties entered into an agreement dated July 11, 2021 which provides for Mr. Shadwell to have parenting time with Hudson every second weekend from Friday to Sunday. The parties have been adhering to that agreement since it was made. Implicit in the agreement is that Hudson would otherwise reside with the Applicant.

[24] Under that agreement, Hudson has two overnights every two weeks. That would mean that for 26 weekends, Hudson lives with Mr. Shadwell. That is 52 overnights, more or less, out of 365 days in the year which, on that measure, leaves the Applicant with nearly 86% of Hudson’s parenting time. For the first 15 months of Hudson’s life, the Respondent had no contact with him whatsoever because of doubts about whether he was Hudson’s father and delays in his signing of the parenting time agreement. Together with the present parenting arrangement, this would, in my view, bring the Applicant within the definition of having the “vast majority of time” with her. The onus is therefore on the Respondent to show that the move would not be in the child’s best interests as defined in the legislation.

[25] However, even if the onus is on the father to show that it is not in the child’s best interests to move to Alberta, that does not mean that the mother has nothing to do. Under r. 16, she must provide a clear narrative of the evidence that she relies upon to show it to be in Hudson’s best interests to leave Ontario with her. That is because the evidence concerning the best interests of the child concerning mobility is only available to her. It is, after all, her plan for relocation that is crucial to determining best interests. For example, one of the criteria under s. 39.4(3) is the reason for the move and only Ms. Tremblay can inform the court of the evidence as to why she intends to move with the child. Similarly, only the Applicant can expound on what the situation will be when she arrives in Alberta. The Respondent, in meeting his onus, can only respond to the evidence that the Applicant can provide concerning the details of the proposed move to Alberta and the plan that the Applicant has to share time with the child once the move takes place.

[26] Therefore, even in a relocation motion where the responding party bears the onus of proving the move not to be in the best interests of the child, the order of business is as follows:

a. The moving party, the party seeking relocation, must provide a clear evidentiary narrative which would present a reasonable prima facie case as to why the proposed move is in the best interests of the child.

b. The party objecting to the relocation must then respond by putting his best foot forward with evidence as to why the proposed move is not in the best interests of the child. That is where he may fulfil his onus under s. 39.4 of the CLRA.

The Applicant’s Evidence

[27] As I stated, the mother’s evidence is that Ontario has not been a happy experience for herself or her children. She came to Ontario because of her husband’s employment opportunities in this province. She left family and friends in her hometown of Whitecourt, Alberta.

[28] The move was ill-fated. Although her husband found employment and they were able to purchase a home, he committed suicide in June, 2019. She deposed about the destruction that wrought on her: she suffers from depression, anxiety and post traumatic stress disorder. She is in counselling and for a time was using medication to cope. She is, not surprisingly, still suffering from her husband’s decision to take his own life.

[29] In the midst of this, in 2019 soon after her husband’s death, Ms. Shadwell had a brief relationship with the Respondent which resulted in the birth of Hudson. He was born on April 23, 2020. Since his birth, he lived with the Applicant who has been his primary caregiver throughout. She has been struggling to clear up her husband’s estate and only recently managed to sell their matrimonial home. That transaction is closing in January of 2024.

[30] Mr. Shadwell was never involved in the parenting of Hudson, and since his birth, the Applicant has exercised decision-making authority concerning him. In fact, the Respondent was less than enthusiastic about the birth of Hudson, urging at one point that the Applicant have an abortion. Even though he seemed to acknowledge parentage in his texts about the abortion, after Hudson’s birth, he later demanded DNA testing because he said he was doubtful that he was his father. That demand led to Mr. Shadwell not being involved in any way with Hudson during his first year of life; he only signed the agreement giving him parenting time on July 11, 2021, more than a year after Hudson’s birth and six months after the DNA testing results came in.

[31] Since then, Mr. Shadwell has consistently exercised his biweekly parenting time with Hudson every second weekend. He receives assistance from his mother, who the Applicant acknowledges has been a support and involved in Hudson’s life. Mr. Shadwell also receives assistance from his partner, with whom he now lives in Innisfil.

[32] However, the evidence shows that the parties do not communicate well and are unable to co-parent this child. The mother deposes that on one occasion on November 25, 2022, when Mr. Shadwell took the child for parenting time, he immediately took him to the hospital because of a high fever. He did not inform Ms. Tremblay of this; she only found out through her family doctor two days later. Ms. Tremblay deposes that she receives “no cooperation at all” from the Respondent.

[33] Ms. Tremblay also deposes that she has an extensive support network in Alberta and that there is nothing keeping her in Ontario. She is presently unemployed and has only worked sporadically and part time since she came here. She subsists on CPP survivor benefits, ODSP, the child support paid by the Respondent and the child tax credit. She deposes that the Respondent’s family (other than the Respondent’s mother) is no support to her and that they are hostile to her. She says that she only came here because of her husband and now that he is deceased, she has no support in Ontario other than her neighbour.

[34] She has provided a plan for parenting time for the Respondent including half of the summers as well as any time that the Respondent wishes to spend with the child in Alberta.

[35] Her material addresses all of the best interests criteria set out in the CLRA and checks most, if not all of the boxes. She has a lengthy status quo with the child living with her and has been left with the decision-making responsibilities concerning the child. She has provided a stable and loving home for Hudson and this is confirmed by the affidavit from her neighbour filed in this summary judgment motion. She has good reason to move; she wishes to have support from family and friends and that is not available in Ontario largely because of her husband’s death. There is no evidence that Ms. Tremblay is moving to remove Hudson from the Respondent’s life; in fact, she voluntarily entered into a time-sharing agreement with the Respondent which she has adhered to ever since. She has an intact family and deposes that Hudson is close to his stepsisters, and in particular Lili who is only 18 months older than Hudson; they will continue to live together when Ms. Tremblay moves to Alberta. She has provided a plan for the children to see the Respondent when she moves.

[36] I find that the Applicant has made a prima facie case supporting the move to Alberta. There is little doubt from her materials that it would be in the best interests of Hudson to move with his mother to her former home in Alberta. If there was nothing more, the Applicant would clearly be permitted to relocate to her former home in Whitecourt.

The Respondent’s Affidavit

[37] Mr. Shadwell has filed an affidavit in response. He argues that Hudson would be better off with him. He says that the Respondent has acknowledged her own mental health issues in her affidavit including PTSD, anxiety, an eating disorder, emotional dysregulation and depression. He says that he has none of these problems and that Hudson would be better off with him.

[38] He also says that even if the Applicant does not have family support in Ontario, Hudson certainly does. According to his affidavit, Hudson has the support of his paternal grandmother and Mr. Shadwell’s partner. He says that Hudson has all the family support that he needs in Ontario and that to take him to Alberta to meet a whole new set of family members, presently unknown to him, would not be in his best interests.

[39] He says that he actually wants more parenting time with Hudson, but the Applicant refuses to provide that parenting time. He says that the move to Alberta will reduce his parenting time to Hudson’s detriment.

[40] A close reading of Mr. Shadwell’s affidavit indicates that he does not differ with the evidence that was offered by the Applicant in her affidavit sworn May 5, 2023. He in fact relies largely upon evidence that is proffered by the Applicant in support of her claim for relocation. Other than his criticism of the sleeping arrangements for Hudson, [4] he does not deny that the Applicant has provided a secure and loving household for their child. He does not deny that the Applicant has been exercising decision-making concerning the child or the status quo (although he blames the Applicant for refusing to permit him input concerning decisions about the child). He also does not deny that the Applicant is alone in Ontario without support or that the Applicant has been struggling with the suicide of her husband (although he uses those factors to support his claim for primary residence).

[41] The Respondent Father essentially has three major issues which he submits as triable issues in this summary judgment motion:

a. The Respondent says that he should have primary residence of the child. He says that he has a support network in Ontario which will be adequate to meet the child’s needs and that he does not have the mental health disorders that the Applicant admits to in her affidavit.

b. The Respondent says that it is not in the child’s best interests to meet another family in Alberta with whom he has had no contact until now. He says that it will be traumatizing to the child to meet new family and friends and that Hudson’s needs are met by his family here.

c. He says that the time sharing arrangement offered by the Applicant is inadequate to meet the best interests of the child. He wishes at least week about care of the child which would be impossible if Hudson is relocated to Alberta.

(a) The Respondent’s Claim for Primary Care of the Child

[42] The issue in this submission by the Respondent is whether his evidence shows any reasonable prospect that he would be successful in making a claim for primary residence of Hudson. As is clear from the legislation, speculating on whether the Applicant would relocate without the child or would not otherwise relocate is not to be considered by the court: see s. 39.4(4) of the CLRA.

[43] I am firstly extremely troubled by the inconsistencies in the Respondent’s position concerning Hudson as well as inconsistencies in his own materials. As noted above, the Respondent was angry and upset about the fact that the Applicant would not have an abortion. Then, after the child was born, he did not see the child for more than a year after Hudson’s birth and did not take steps to obtain parenting time for six months after the paternity test showed that he was the father. He was less than enthusiastic about being a father and this was the situation until July, 2021 when the time sharing agreement was signed.

[44] He is not necessarily to be blamed for this. The idea of parenting a child can be overwhelming to a father-to-be and I expect that the Respondent most probably regrets the position that he took early on during the pregnancy and after birth. However, that is not the only inconsistency; they have continued since then.

[45] The Respondent now says that he wishes to have primary residence. From the record, however, this seems to be the first time that he has proposed this. The Application filed by Ms. Tremblay is very clear that relocation and mobility were at the top of her list and that she wished to relocate to Whitecourt, Alberta. The Respondent filed an Answer, but he never requested primary residence of the child in that Answer; he only asked for parenting time on weekends on the same terms as set out in the agreement signed by the parties. He never amended his pleadings to request primary care. In submissions, he excuses this on the basis that he is unrepresented and did not know how to fill out the forms in question. However, it appears that his claim for primary residence is an afterthought, only intended to defend the claim for mobility now that a potential move is imminent, and not related to the best interests of the child. Parties are bound by the claims made in their pleadings and it appears that the Respondent was not interested in primary residence until now.

[46] As well, I am troubled by the rationale behind the claim for primary residence. He seizes on the disclosure by the Applicant of what she has been suffering as a result of her husband’s death and her reasons why she needs support. It might be said that he takes advantage of the Applicant’s honesty about her grief and the steps she has had to take to address that.

[47] It is largely seen as admirable when a party has sufficient insight to acknowledge and address their own psychological pain and grief. Ms. Tremblay has gone through an experience that most could not imagine, moving to another province for her husband’s job, having him commit suicide, dealing with her deceased husband’s estate and being left without family support thousands of kilometres from your home. None of the consequences of that trauma that is outlined in her affidavit are surprising at all. The Respondent, in taking this to the next level as a basis for a parenting claim, displays a surprising lack of empathy which would not make him an ideal person to primarily care for the child. His negative view of the Applicant would eventually, I am sure, be reflected back to the child and I would not trust him to encourage the relationship between the Applicant and Hudson if he were placed in the Respondent’s care.

[48] That is reflected in the lack of a plan for the Applicant’s parenting time in the Respondent’s materials if Hudson remained with him in Ontario. When I asked him about this during submissions, his best answer was that he would offer the Applicant the same parenting time that she was offering him, parenting time that he submitted to be inadequate to meet the child’s best interests if Ms. Tremblay leaves the province. Again, his “plan” for the Applicant’s parenting time appears to have been an afterthought and self serving.

[49] The Respondent was also inconsistent regarding his requests for additional parenting time. He says in his affidavit that he has asked for more parenting time than was in the agreement but that the Applicant refused. However, he then goes on to complain that the Applicant drops Hudson off at random times “when she has been unable to leave bed or when childcare centre has been closed.” He says that his family has been asked to participate in care of the child when Ms. Tremblay is in therapy and that he was asked to care for Hudson when she went to a funeral in Alberta. It is difficult to know exactly what the Respondent wants; does he really want more time with Hudson or is he complaining that the Applicant takes advantage of him and his family? I find that the Respondent’s inconsistencies reflect the reliability and credibility of his material and his position concerning primary care. They also reflect negatively as to whether the Respondent has any long-term plan as to how he would care for this child on a full-time basis, something lacking in his affidavit.

[50] As well, with all of the complaints about the Respondent’s mental health issues contained in his affidavit, the Respondent failed to provide any evidence whatsoever that Hudson, or indeed any of the children, were harmed or disadvantaged in any way as a result. The only place where the Respondent criticizes Ms. Tremblay’s care of the children is when he says that at times, she asked for the Respondent or his girlfriend to care for Hudson when she was “unable to leave bed.” He also never provides any observations of how the mental health concerns that he relies upon are manifested in the Applicant’s behaviour. After living with her briefly and observing the Applicant shortly after her husband’s suicide, the Respondent signed an agreement that effectively gave the Applicant primary care of the child. He was not concerned about Hudson’s best interests when that occurred or when he filed his Answer. Mr. Shadwell’s only evidence about the mental health concerns comes from the Applicant’s own materials and notwithstanding the stress and grieving she is going through, she still seems to be able to address her children’s best interests. Again, this is confirmed by the affidavit of her neighbour noted above.

[51] Regarding the support network that the Respondent says that he can offer Hudson, I would firstly note that, other than the Respondent’s mother, this is a selective support network. The Applicant deposes that the Respondent’s family is no support to her and in fact demonstrate hostility at every turn. The Respondent does not dispute this in his affidavit. And the Applicant says that she suspects (although she offers no evidence of this other than the paternal grandmother’s continued interest in Hudson) that it is the Respondent’s mother and girlfriend who do most of the parenting when Hudson is in the Respondent’s care. Mr. Shadwell did not respond to this allegation in his affidavit or depose as to the parenting role that he undertakes during his parenting time. On the other hand, if the Respondent has his way, this will have the effect of separating Hudson from his stepsisters who, according to the Applicant’s uncontradicted evidence, he loves very much. He has no plan in his materials whereby Hudson would maintain his relationship with his stepsisters; indeed, he does not address that issue at all in his affidavit. The severance of Hudson’s relationship with his stepsisters is a steep price to pay to maintain the Respondent’s family support system.

[52] Under the circumstances, the present primary residence status quo truly represents what is in the best interests of the child. If the Respondent’s affidavit reflects all of the evidence that he would lead at trial, none of it leads me to believe that the Applicant cannot parent her children or that the Respondent would do a better job. It is truly, in the words of Kershman J. in Children’s Aid Society of the County of Lanark and Town of Smiths Falls v. S.M., 2010 ONSC 2361 at para. 21 a “foregone conclusion” that the primary residence of this child would remain with the Applicant. The possibility of the Respondent receiving primary care is remote at best and because of this, there is no genuine issue for trial raised by the Respondent concerning primary residence of Hudson.

(b) Introduction to a New Family

[53] The Respondent says that Hudson has all of the support he needs from his family in Ontario. He says it would be difficult and confusing for Hudson to manage being introduced his new family in Western Canada.

[54] I have already determined that the Applicant would most probably continue to be the primary caregiver of this child for the foreseeable future. If she remains so and remains in Ontario, she will have no extended family support.

[55] It is uncontradicted that, under the circumstances, the Applicant has been very alone in Ontario, without many friends and without family support. The Respondent is of no assistance to the Applicant. I cannot suggest the benefits of the family support sought by the Applicant in any better fashion than did Spence J. in Yousuf v. Shoaib, supra where he states at para. 38:

In my view, the mother's case is made even stronger by the fact that her well-being, happiness and personal fulfilment would clearly be better served by living in Montreal, rather than in Toronto. She would be living in a city where she is surrounded by friends and family and would enjoy supports both for herself as well as Laiba. She would be living in a city where she has significant and long-standing roots. None of that is available to her in Toronto. And, as I noted earlier, the mother's wellbeing, happiness and personal fulfilment are important factors that the courts will consider in determining what is in the child's best interests.

[56] This is also confirmed by the Court of Appeal in Porter v. Bryan, 2017 ONCA 677. There the court determined that the economic circumstances of the primary caregiver of the child warranted a relocation from Cochrane to Thunder Bay. At para. 17, the court stated:

There is, in our view, a valid and compelling parenting-based reason for the move: it is necessary to enable the primary caregiver to remain financially viable while providing care for the child. The mother has done all she can be expected to do to secure employment in Cochrane. It has not worked out, and there is no good reason for her and her son to live in poverty when she has secured employment in Thunder Bay that will allow her both to parent her son and to provide economically for him.

[57] I would suggest that the same premise would apply to the primary caregiver’s psychological well-being. The evidence is uncontradicted when Applicant says that she has been traumatized by events in Ontario, and the Applicant says that the support of her family will assist her in moving on in her grief over the loss of her husband.

[58] Moreover, I must echo the words of Mr. Respicio when he said in submissions that Hudson is a lucky little boy. He is loved by two families, that of Mr. Shadwell and as well, I am sure, by that of Ms. Tremblay. I do not find that being introduced to another loving family would result in stress or confusion for this three-year-old child; in the case of extended family, I suspect that it is trite to say that “more is better”. To suggest that an introduction to a second extended family is not in this child’s best interests is counter-intuitive and simply makes no sense.

[59] Finally, again Mr. Shadwell suggests that Hudson’s family, including his relationship with his stepsisters, be ruptured by Hudson remaining in Ontario. I would have thought it to be clear that this would be much more traumatic to Hudson than meeting another extended family in Alberta.

[60] The Respondent’s speculation that it would be difficult for Hudson to be introduced to a second extended family is not, in my view, a genuine issue for trial in this matter.

(c) Parenting Time

[61] Mr. Shadwell says that the loss of parenting time to him is not in the child’s best interests. He is stating that the parenting time that he has is not enough and it will be further impaired if the child is permitted to relocate with his mother to Alberta.

[62] There is no “maximum contact principle” in the CLRA. In fact the statute says, at s. 24(6) that “a child should have as much time with each parent as is consistent with the best interests of the child.” However, as pointed out by Laskin J.A. in Reeves v. Brand, 2018 ONCA 263, the maximum contact principle is only one factor to take into account in a mobility case; there are other principles which may apply. See also Bourke v. Davis (2021), 2021 ONCA 97, 154 O.R. (3d) 431 (C.A.) at para. 53 et sequent.

[63] Moreover, although Mr. Shadwell says that the time being offered him is not sufficient, he gives no evidence as to why this is. He does not say that he does not have holidays during the summer when he can take the child. He will not suffer financially as Ms. Tremblay has offered a dollar for dollar reduction in child support for Mr. Shadwell’s costs in exercising parenting time either in Ontario or Western Canada. If he is complaining about the offer of Ms. Tremblay being inadequate, he does not address his plan to provide Ms. Tremblay with parenting time in his affidavit; it does not appear that he is concerned about her parenting time were he awarded primary care of the child.

[64] I do not find this to be a genuine issue for trial. Under the circumstances, again as stated by Laskin J.A. in Reeves, a mobility case involves balancing competing interests in the best interests of the child [at para. 18]:

Relocation or mobility cases, where one parent wants to take a child and move some distance away from the other parent, are among the most difficult cases in family law. If the custodial parent is permitted to move with the child, inevitably the relationship between the non-custodial parent and the child will be affected and may suffer. Typically the court must balance the custodial parent’s legitimate interest in relocating with the non-custodial parent’s legitimate interest in maintaining a relationship with the child. But in every case, the ultimate question is what is in the best interests of the child.

[65] In the present case, no one has questioned the benefits to the child of parenting time to the Respondent and his family. However, again, my difficulty is the lack of evidence in his affidavit. Nowhere does he outline what he does with Hudson during parenting time. Nowhere does Mr. Shadwell address the Applicant’s unproven suggestion that it is actually his mother or his partner who are actually parenting the child during his parenting time. It is acknowledged in his own affidavit that it is his girlfriend who picks Hudson up when the Applicant asks Mr. Shadwell to take extra parenting time. Although it is presumed that parenting time with the father is in the child’s best interests, I would have thought that the Respondent would speak to the relationship he has with Hudson, the activities he participates in and the things that he does with Hudson during parenting time. Again, the duty of the Respondent, especially when there is an onus to prove that the move is not in Hudson’s best interests, is to put his best foot forward, and he does not appear to have done so.

[66] I understand that the Respondent is unrepresented. He says that he cannot afford a lawyer. I also understand the difficulty that he would have in understanding how to respond to a summary judgment motion. But he does not appear to have taken into account the availability of unbundled services where lawyers will prepare affidavits or pleadings without going on the record. He does not appear to have even consulted with a lawyer. Represented or not, he bears the responsibility of responding to this summary judgment motion and meeting his onus to prove on the balance of probabilities that the relocation is not in the child’s best interests and he has not adequately done so.

[67] In the present case, the Applicant has deposed to the close relationship that Hudson has with his stepsisters. She has also deposed as to the relationship that she has with her family and as to her strong desire to live where she receives the same family support that the Respondent has from his family. There is a different degree to the need of the primary caregiver for that support as she is responsible for the child’s care and well-being on a full time basis while Mr. Shadwell’s time with the child is limited. She has also deposed as to the grief and trauma that she has suffered from her husband’s suicide and her subsequent struggles with addressing this litigation and her husband’s estate. I specifically dismiss any suggestion that this trauma and grief negatively affect the Applicant’s ability to parent the child; to do otherwise would suggest that it would have been better for her to cover up her situation and there is no evidence from the Respondent that the Applicant is not providing adequate care for the child.

[68] I therefore find, on balance, that any disadvantage to the child resulting from reduction in parenting time to the Respondent is made up by the obvious benefits to the child in relocating to Whitecourt, Alberta. There is no triable issue disclosed on the materials filed which would result in any other result. As pointed out by Spence J. in Yousuf v. Shoaib, supra, at para. 36, if there is no genuine issue for trial, r. 16(6) of the Family Law Rules “mandate[s] the making of a final order.”

[69] There will be a final order permitting relocation of the child to Whitecourt Alberta with the Applicant.

[70] I am adopting the parenting time proposal of the Applicant subject to additional time to the Respondent on notice during the child’s Christmas and March school breaks (I assume that Hudson will be enrolled in junior kindergarten once he arrives in Alberta). To fail to do so would mean that formal parenting time for the Respondent would only occur once per year which I find to be inadequate under the circumstances and considering the child’s young age. I am going to also order weekly virtual time with the Respondent at his request.

Decision-Making

[71] The Applicant requests an order for sole decision-making concerning the child. I have already permitted her to relocate to Alberta with the child and it would be difficult for the parties to consult with one another regarding major issues concerning the child.

[72] Case law requires evidence of an ability to communicate for the court to make an order for shared decision-making (once called “joint custody”). In the leading case of Kaplanis v. Kaplanis, , [2005] O.J. No. 275 (C.A.), Weiler J.A. said [at para. 11]:

The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important. In this case there was no evidence of effective communication. The evidence was to the contrary.

[73] The requirement of the parties’ ability to communicate for joint decision-making has been confirmed on numerous occasions by decisions of the courts of Ontario: see Ammar v. Smith, 2021 ONSC 3204 (S.C.J.), Graham v. Butto, 2008 ONCA 260 and Roy v. Roy, , [2006] O.J. No. 1872 (C.A).

[74] The Applicant seeks summary judgment for decision-making concerning Hudson.

[75] The Applicant says that the parties do not communicate whatsoever. Other than her relationship with the Respondent’s mother, she describes the Respondent and his family as being “hostile and uncommunicative” to her. This is uncontradicted by the Respondent and is one of the reasons the Applicant wishes to move to Alberta as they are no support to her.

[76] She says that although Hudson lives with her, the Respondent makes decisions for Hudson without consultation. She says that the Respondent will cut Hudson’s hair during parenting time without speaking with her. She also says that when she approaches the Respondent about Hudson’s therapy, he is uninterested and says he does not have time. She says that the Respondent says that he works while she does nothing and his negative view of the Applicant is confirmed by the Respondent’s suggestion in his affidavit that he takes over care of Hudson when the Applicant will not get out of bed in the morning.

[77] There was an incident on November 25, 2022, outlined above, where the Respondent and his partner took Hudson to the emergency room without informing the Applicant of the emergency situation and Hudson’s 104-degree temperature. The Applicant only found out about the hospital admission through her family doctor two days after the fact. The Respondent blames the Applicant for the admission, stating that she misdiagnosed Hudson’s respiratory distress and failed to notice that he had a temperature. That may be so, but there is no excuse for either party taking the child to the emergency room because of the child’s distress and then failing to notify the other parent.

[78] I have already commented on the negative viewpoint that the Respondent has of the Applicant and his suggestion that he can parent better because he does not suffer from the trauma of the Applicant’s husband’s suicide.

[79] There is no evidence that shows any ability of these parties to communicate between one another and co-parent Hudson. There is no evidence that there is any cooperation or joint decision-making between these parties and in fact, the uncontradicted evidence is that the Respondent is uninterested and too busy to discuss parenting issues with the Respondent. Although the Respondent says that the Applicant refuses to communicate with him, it was the Respondent who failed to inform the Applicant of the emergency hospital admission noted above.

[80] There is no triable issue concerning decision-making concerning the child. There shall be a final order for decision-making in favour of the Applicant subject to advice as to major decisions that the Applicant will make concerning the child.

[81] As well, the Applicant shall have a final order regarding travel and government issued documents as per paragraphs 6 and 7 of the Applicant’s Notice of Motion.

Child Support

[82] It is unclear as to the child support being paid by the Respondent. The Applicant says that the Respondent continues to pay $528 per month pursuant to the agreement arrived at by the parties noted above. The Respondent says in his affidavit sworn in June, 2023 that he was willing to pay $601.07 per month based upon his updated income and during submissions he said that since then, he has been paying $300.50 every two weeks.

[83] The Respondent has filed two financial statements. However, in all of that, he has failed to make the following financial disclosure:

a. He has failed to provide his 2022 Notice of Assessment. There is no independent evidence as to what he made last year.

b. He has filed a pay stub for 2023. However, it is unclear what he is going to make this year because he recently changed jobs. No disclosure has been made of any employment letter from his new employer or what he will make this year.

[84] In the latest financial statement filed by the Respondent and sworn on June 19, 2023, he says that he now makes only $64,607 per year. However, the Respondent’s Notice of Assessment for 2021 shows that he made $79,134 in that year. In previous years he made nothing like that: according to the Notices of Assessment attached to his financial statement sworn on May 13, 2022, in 2020, his income was $57,065; in 2019, $47,492 and in 2018, $38,258.

[85] The Respondent deposes that the 2021 income was an outlier. He says in his affidavit that he did not make the same income as in 2021 “due to the nature of my job.” He does not explain this somewhat enigmatic statement. However, working backwards from his statement that his income would support child support of $601 per month, this means that he is acknowledging about $64,607 per year in income (which is what he says he makes in his financial statement sworn in June, 2023).

[86] The Respondent does not explain his failure to provide his 2022 Notice of Assessment. In May, 2022, he was able to file his 2021 Notice of Assessment with his financial statement; in June, 2023 he did not file his 2022 Notice of Assessment with his updated financial statement. The Respondent asks the court to take his word for his income and has not responded, again according to the Applicant’s uncontested evidence, to the Applicant’s solicitor’s request for financial disclosure.

[87] I therefore draw a negative inference from the Respondent’s failure to provide evidence of his 2022 income or his new employment. I find that the Respondent’s income for child support is as set out in his 2021 NOA, $79,134.

[88] Therefore, the Respondent shall pay ongoing child support in the amount of $737 per month commencing January 1, 2023. The Applicant has offered a dollar-for-dollar deduction from the child support payable by the Respondent for his parenting time costs once the move takes place (which is presumed to be in January, 2024). That will also be ordered.

Final Order

[89] There shall therefore be a final order granting the Applicant summary judgement on the following terms:

a. The Applicant may relocate with the child, Hudson, to Whitecourt, Alberta.

b. The Applicant shall have sole decision-making authority concerning the child. Provided that the Applicant shall give 14 days’ notice of any major decision to be made concerning the child.

c. The child shall have his primary residence with the Applicant.

d. The Respondent shall have parenting time as set out in paragraph 5 of her Notice of Motion subject to the following additional paragraphs to be added to subparagraph (b) after clause (i):

i. The Respondent shall further have parenting time during the child’s Christmas school break of one week to include Christmas Day every second year in odd numbered years with travel arrangements to be the same as set out in clause (i) above;

ii. The Respondent shall further have parenting time for the child’s March break every year, with travel arrangements to be the same as set out in clause (ii) above.

iii. The Respondent shall have weekly parenting time by Skype or Facetime on reasonable notice by the Respondent. If the Respondent requests weekly virtual parenting time under this subparagraph, the Applicant shall make the child available at all reasonable times for this parenting time.

iv. Paragraph (b)(iv) shall be amended to add the following: If the Respondent does not provide the requisite notice for his parenting time during the summer school break, the Christmas school break and March break, the Applicant shall be free to make whatever arrangements for herself and the child as she shall see fit.

e. Order to go as per paragraphs 6 and 7 of the Applicant’s Notice of Motion.

f. Commencing January 1, 2023, the Respondent shall pay the Applicant child support in the amount of $737 per month based upon his total income as set out in his 2021 Notice of Assessment in the amount of $79,134 per year.

g. Order to go as per paragraph 9 of the Applicant’s Notice of Motion.

h. Every year so long as child support is payable, the Respondent shall disclose to the Respondent his Notice of Assessment for the previous taxation year commencing in June, 2024 along with receipts and a statement for his parenting time costs for the previous year. The child support shall be adjusted according to the said Notice of Assessment by way of consent motion to change. Provided that the Respondent shall receive as a credit toward child support for the next year a dollar for dollar credit towards child support of his parenting time costs for the previous year including his flight costs for transporting himself and Hudson back from Ontario, his travel and hotel costs for visiting Hudson in Alberta and any other reasonable expenses incurred as a result of Hudson’s residence in Alberta.

[90] The Applicant is the successful party in this summary judgement motion. She is entitled to her costs of this motion. If the parties cannot agree on the amount of the costs, the parties may make written submissions on a ten-day turnaround beginning with Applicant and then the Respondent. Submissions to be no more than five pages in length, not including Bills of Costs or Offers to Settle.

MCDERMOT J.

Released: November 28, 2023

[4] He says that Hudson sleeps with her in her bedroom in the Applicant’s one bedroom home. The Applicant’s daughters have an attic room. This will presumably be addressed by the sale of the matrimonial home closing in January, 2024.