COURT FILE NO.: 15-1850-1

DATE: 2023/12/14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Alexis Barrett Applicant

– and –

Hareesh David Watson Respondent

Gonen Snir, for the Applicant

Katrina Anders, for the Respondent

HEARD: November 28, 2023

REASONS FOR DECISION ON MOTION

Somji J

Introduction

[1] The Respondent father brings a motion requesting the return of the parties’ nine-year old daughter A.W. (“child”) to Ottawa after the Applicant mother unilaterally relocated to Tillsonburg, Ontario, approximately 540 kms from Ottawa, in August 2023. The father has not seen the child since July 27, 2023.

[2] The parties are governed by a Parenting Order issued by Ratushny J on June 20, 2017 (“Parenting Order”). The Parenting Order has the child’s primary residence with the mother and parenting time with the father. The Parenting Order includes clauses regarding notice to the other parent should either party seek to relocate.

[3] In December 2019, the father brought a Motion to Change the parenting schedule to a week on/week off arrangement on the basis of a material change in circumstances. The father argues that the current Parenting Order provides for parenting time for him on weekday afternoons which is no longer viable given he works full time and the child is in elementary school. The father points out that the parties were actively engaged in litigation proceedings related to his Motion to Change when the mother unilaterally relocated to Tillsonburg, Ontario.

[4] The mother brings a cross-motion that the child be permitted to move to Tillsonburg permanently and that the child’s primary residence remain with her. She argues that she was struggling financially and with her mental health in Ottawa and relocated to Tillsonburg, because she has the support of her new partner of 10 months as well as extended family in the region. She proposes that the father have parenting time during school and summer holidays.

[5] The issues to be decided are one, has there been a material change in circumstances warranting a change in the Parenting Order?; two, is it in the child’s best interest to be relocated to Tillsonburg?; and three, what parenting schedule is in the best interests of the child?

[6] Upon review of the evidence, I find it is not in the best interests of the child to relocate to Tillsonburg. Below I set out my detailed reasons.

Issue 1: Has there been a material change in circumstances?

[7] Given the parties never married, the governing legislation regarding parenting is the Children’s Law Reform Act, R.S.O. 1990, c. C. 12, as am (“CLRA”). Section 29 CLRA requires that the court be satisfied of a material change in circumstances before varying Parenting Order.

[8] The parties met in 2013. They had a child A.W., presently nine years of age, born in 2014. At the time of birth, the mother was 17 and the father was 20 years of age. The parties moved in with the father’s parents and were in a common-law relationship for two years. The parties separated in March 2015 at which time the mother went to live with her own parents in Ottawa. In the summer of 2022, her parents returned to live in Nova Scotia.

[9] In 2017, the parties attended mediation following which they entered into the Parenting Order. Under the Parenting Order, the mother has decision-making responsibility for the child on issues of health and education following consultation with the father and primary residence of the child. In addition to a parenting schedule for holidays and special days, the Parenting Order provides the father with parenting time as follows:

a. Week 1: Monday and Wednesdays from 1 pm until 6 pm and Friday at 1 pm until Sunday at 6 pm;

b. Week 2: Monday, Wednesday, and Friday from 1 pm until 6 pm. The Wednesday visit can be extended to an overnight upon certain conditions being met.

[10] The Parenting Order included a clause that the parenting schedule would be reviewed if the parties’ employment schedule conflicts with parenting times and when the child commences junior kindergarten. However, the child is now nine years of age, and there have been no amendments to reflect the change in circumstances for either the parents or child.

[11] The Parenting Order includes a clause governing relocation. Clause 12 states that the child’s primary residence shall continue to be in the National Capital Region. In the event the mother plans to move out of the National Capital Region, she shall provide to the father at least 90 days notice of such intention.

[12] I find that there is a material change in circumstances warranting a review of the existing Parenting Order. First, the father was in post-secondary school at the time of the child’s birth. He graduated from his MBA program in 2018 and is now working full time in Ottawa at DLS Technology Corporation. The child has also started elementary school. Therefore, the existing parenting schedule that has the father’s parenting time on weekday afternoon is no longer in the best interests of the child as it would require her to be out of school and furthermore, is not workable for the father’s full time working schedule.

[13] Second, the mother has now moved to Tillsonburg with the child and without proper notice resulting in the father being unable to exercise any parenting time as per the existing Parenting Order and without either he or the child travelling to and from Ottawa. This unilateral relocation alone constitutes a material change warranting a review of the Parenting Order.

Issue 2: Is it in the child’s best interests to be relocated?

[14] Section 39.4 CLRA set out the legal factors for assessing relocation of children, the primary consideration being the best interests of the child. Section 39.4(3) states as follows:

Best interests of the child

39.4 (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. 2020, c. 25, Sched. 1, s. 15.

[15] The legislation is consistent with the dicta of the Supreme Court of Canada in Gordon v Goertz, 1996 191 (SCC), [1996] 2 SCR 27, that there is no legal presumption in favour of the primary parent. While the views of the primary caregiver are to be considered, it is the best interests of the child, not the parent, that is determinative: Goertz at para 49.

[16] Before addressing the best interests of the child factors with respect to both relocation and the parties’ proposed parenting schedules, I address below the other relevant factors under s. 39.4(3) with respect to relocation.

A. S. 39.4(3)(a) - the reasons for the relocation

[17] The mother explains that she relocated to Tillsonburg because she felt she no longer had family support in Ottawa after her parents’ relocated and because she was struggling with her mental health and with meeting her financial obligations. In Tillsonburg, she is closer to one set of grandparents who live 27 minutes away and a second set of grandparents who are one hour and 15 minutes away. She also has an aunt and uncle who live one hour and 20 minutes away. These relatives are available to help her with childcare should she need it on an emergency basis. The mother claims the father has not been available to care for the child in her times of need and the paternal grandparents have been minimally involved in the child’s life.

[18] The mother explains that she is supported financially by her new partner who has lived all his life in Southern Ontario. His family can help with driving, childcare, and emergencies. Since relocating, she also has been able to get the support from a local church group, Knights of Columbus, as well as the East Elgin Sportsman Association.

[19] While I accept that the relocation has improved the mother’s personal situation and mental health, I find the mother’s reasons for moving focused on her own personal circumstances with little consideration for what was in the best interests of the child and the impact that such a move would have on the child’s contact with her father.

[20] First, there are aspects of the mother’s claim that are inconsistent with the evidence before the court. For example, the mother suggests that part of the reason for relocation was the father’s lack of interest in parenting the child. As discussed further, this is disputed by the father who attests that he has been involved in the child’s life.

[21] In addition, the mother filed an assessment report from Royal Ottawa Hospital dated April 5, 2023. The seven page report is entirely redacted save for seven sentences. These select sentences indicate that the mother informed someone at Royal Ottawa Hospital that she felt lonely and unsupported in Ottawa and that she would like to relocate closer to her new partner of 10 months who lives eight hours away if she can amend the court order.

[22] As counsel for the father correctly pointed out, if the mother was struggling with her mental health and looking for additional support to care for the child, it is difficult to reconcile why she would not have reached out to the father to revisit the existing parenting schedule. The father has been requesting for increased time with the child since December 2019, almost four years ago. Text messages filed demonstrate his requests for more time with the child. While admittedly there were delays in litigation proceedings due to the pandemic, the affidavit of Allessandra DiMatteo confirms that the parties have been in active litigation proceedings throughout 2022 and 2023 to address the father’s parenting time. In short, the mother would have been well aware that the father was looking for increased time with the child which would have freed up her time to work and address her mental health.

[23] Furthermore, the mother has thwarted the father’s attempts to address increased parenting time. The mother cancelled a mediation session scheduled for November 16, 2022. The father made efforts all through the spring and summer of 2023 to organize a settlement conference on parenting, but the mother did not co-operate with the setting of dates. The mother acknowledged she received an email on June 12, 2023, from the father’s counsel proposing a settlement conference date of August 21, 2023. She states that because the request was for a settlement conference and not a motion to prevent relocation, she understood the father was willing to resolve issues of the move amicably. It is hard to understand how she arrived at this viewpoint.

[24] The mother then requested to proceed with mediation and a date of September 11, 2023, was scheduled. When she found out the mediation would cost $900, she did not follow through on that either. Based on the evidence filed, I do not accept the mother’s claim that the father is unavailable or unwilling to parent the child requiring her to relocate to obtain more support. On the contrary, the evidence suggests that the mother continues to resist entering into a shared parenting arrangement with the father.

[25] Second, I do not find the availability of the grandparents and aunts and uncles as constituting a sufficient or valid reason to warrant relocation. Some relatives live over an hour way from Tillsonburg which would involve long commutes for the child unless they come to Tillsonburg. The mother has not relocated to a town where the relatives are, but rather where her new partner is located. In addition, little information is provided about these sets of relatives and their ability and willingness to provide meaningful support for the child. It is unclear who these grandparents are given the mother indicated her own parents relocated to Nova Scotia or their ages. None of these relatives filed any affidavits in support of the mother’s cross-motion. The mother has also failed to explained who her new partner is and why he cannot relocate to Ottawa for work particularly given that both of her children’s fathers live here.

[26] In contrast, the paternal grandparents live in Ottawa and can provide care for the child along with the father. I also note that the mother has another six year old child whose father is located in Ottawa. While it is unclear what parenting arrangement has been made for the father of this other child, it is clear that residency in Ottawa would more readily facilitate both the mother’s children having parenting time with their respective fathers.

[27] The mother highlights the presence of church groups in Tillsonburg that can provide her support. However, as the father’s counsel points out, there are also chapters of the Knights of Columbus in Ottawa as well as other community supports should the mom need them. Given the extensive redactions in the Royal Ottawa Hospital assessment, it is unclear what discussions, if any, the mother had with health practitioners to identify and avail herself of local supports for her mental health here in Ottawa. Based on the extremely limited medical evidence, I do not agree with counsel’s suggestion that the mother’s continued residency in Ottawa is unsustainable and will negatively impact her ability to care for the child.

[28] I find the mother’s reasons for relocating because of a lack of support for child care in Ottawa are not borne out by the evidence. I find the mother’s move was motivated because of her preference to relocate with her new partner with limited consideration for the child or father.

B. S. 39.4(3)(b) - the impact of the relocation on the child

[29] The mother attests that since moving to Tillsonburg, the child is enrolled in a French Catholic school and is doing well academically and socially. She has also found a family doctor for the children, but the doctor is located in another town. No information was provided as to how far away the town is. The mother indicates that the child participates in archery and community activities like fishing derbies, cookouts, and the community Christmas party.

[30] It is difficult to gauge the impact of the relocation on the child since the only information available is from the mother. Consequently, I put little weight on this factor.

C. S. 39.4(3)(c) - Amount of time each parent has had with the child

[31] The father has had no contact with the child since July 2023 save for a few telephone calls. The mother has not brought the child to Ottawa for even the father’s alternative weekend of parenting time. She states the father refused parenting time at Thanksgiving, but as per the affidavit of Ms. DiMatteo, the parties’ correspondence does not support any such offer.

[32] The father has had little, if any information about the child’s schooling and health. In fact, the first time he learned of the mother’s reasons for moving and information of the child’s circumstances was upon the filing of her affidavit in November 2023.

D. S. 39.4(3)(d) - Whether moving parent complied with notice provisions

[33] The mother claims she told the father on March 26, 2023, that she was going to move to Southern Ontario, and the reasons why. She claims she asked the father if he was considering moving to Toronto to which he replied he had considered it but it was not something he planned to do. The mother then started to look for places to live at the end of April 2023 and received approval for a house in Tillsonburg on May 30, 2023. She states she phoned the father that same night to talk about a parenting schedule going forward. She states that she let the father know she would be moving by June 15, 2023, but that the child would spend the summer with him. She states that the father informed her only then he was not supportive of the move.

[34] The father claims he was never told by the mother that she intended to relocate to Tillsonburg. He acknowledges that he did speak to the mother at one point when she indicated she was considering moving to Toronto. At that time he did not strongly object but indicated to her he would have to have a discussion with his lawyer about his options. He attests that he never received any updates from the mother about her plans to relocate until May 30, 2023, at which time she told him she had found a place to move to in Toronto. He only learned that she was moving to Tillsonburg on June 17, 2023. He later learned upon reading her November affidavit that she sought to bring a motion to relocate without notice to him on June 13, 2023.

[35] Section 39.3(2) CLRA requires that a parent who has decision-making responsibility or parenting time for a child must provide 60 days notice of their intent to relocate to any person who may have parenting time or contact with a child. The notice is to be in writing and must set out the expected date of the proposed relocation as well, the address of the new residence and contact information of the person or child, a proposal on how decision-making responsibility or parenting time could be exercised, and other information prescribed by the regulations.

[36] It is not disputed that the mother failed to provide the father with the requisite written notice as required to do so under the governing legislation. Counsel for the mother argues that latitude should be given to the mother because she was without counsel at the time and could not be expected to know the precise requirements of the legislation. I respectfully disagree. The notice provisions are legislated precisely to prevent parents from relocating without informing the other parent. The onus is on parents subject to parenting orders to inform themselves of the requirements of the governing legislation around relocation.

[37] Irrespective of the legislation, the mother was aware of her obligation to notify the father of her intention to relocate from the Parenting Order with which she was familiar. Clause 12 of the Parenting Order states that the child’s primary residence is to be in the National Capital Region and should the mother intend to relocate, she must notify the father. Furthermore, as indicated in the April 2023 Royal Ottawa Report, the mother informed the assessor that “She cannot easily move out of the area because of the custody arrangement she has with the father of her daughter.”

[38] Recognizing she had to engage in the court process to amend the Parenting Order, the mother nonetheless proceeded to file an ex parte motion before the court for relocation without notice to the father. The mother filed the ex parte motion at a time when the father and his counsel had been communicating with the mother over several months to schedule a settlement conference to address the father’s request for increased parenting time. In circumstances where the father had been looking to increase his parenting time with the child for over four years and had been engaged in active litigation for that purpose, it is difficult to fathom how the mother believed the father would agree to his child relocating to another town over 500 kms away only for his parenting time to be further decreased.

[39] Finally, while I accept the parties had a conversation in March 2023 about relocation, I am not satisfied that the mother notified the father of her intent to move to Tillsonburg. The father disputes that there was any reference to Tillsonburg at the time. Furthermore, it is unclear why the mother would notify the father that she was intending to move to Tillsonburg but then inquire with him if he was interested in moving to Toronto. I find the mother’s recollection of the events is not reliable, and even if such a conversation had transpired as she described, I do not find the conversation was sufficiently clear so as to constitute adequate notice to relocate.

E. S. 39.4(3)(e) the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside;

[40] As already noted, clause 12 of the Parenting Order specified that the child’s primary residence would remain in the National Capital Region.

F. S. 39.4(3)(f) the reasonableness of the proposal of the person who intends to relocate

[41] The mother argues that she has proposed generous parenting time for the father. More specifically, she suggests that the father would have 84 days a year of parenting time consisting of one week at Christmas, one week for March break, Thanksgiving weekend, Father’s Day weekend, and two months in the summer. This is an increase from the 62 days he is presently exercising with alternate weekends and 1 week each in the summer and winter.

[42] The father rejected the mother’s offer which was made to him after she relocated with the child in August 2023. He takes the position that he has been struggling to move to a shared parenting schedule for four years for the purpose of not only spending more time with the child but to allow him to be more engaged in her schooling. The mother’s proposal does not allow for that. Furthermore, the father’s work schedule does not necessarily allow him to take two months off the summer. He would be required to enrol the child in summer camps and fears that if he does this, the mother will question his dedication to parenting.

[43] Counsel for the mother cites various cases where he argues the court’s have supported relocation where it will not significantly impact the relationship between the child and the non-moving party. I have considered these cases. While they affirm that time with the other parent under the new arrangement is a factor for consideration, it is clear that this factor alone was not determinative. Many of the cases cited had distinguishing factors. For example, in Sferruzi v Allan, 2013 ONCA 496, the child had required specialized and extensive treatment, which was a significant factor for relocation. In Schlegal v Schlegal, 2016 ONSC 4590, the mother’s need to re-educate herself post-separation to return to the workforce was a factor for relocation and moreover, the distance the mother was relocating was fairly close and would not adversely affect the father’s parenting time in any significant way. In DRT v KAD, 2018 ONSC 273, the court permitted relocation of a much greater distance, but the longest time the father had spent with the children since separation in that matter was a few nights which is also not the case here. Counsel also cites Brouse v Lillini 2008 28217 where the court endorsed relocation from Ottawa to Taipei, Taiwan. That case is also distinguishable as the mother had been a Foreign Service Officer and requiring her to stay to Ottawa would have resulted in her losing her career and seniority which the court found would have adversely affected the children economically. The children had lived most of their lives in foreign countries and only for a small period in Ottawa. In short, each case must be decided on its own facts with regard to the factors as a whole.

[44] I find that while the mother’s offer for parenting time may be comparable in days to the father’s current parenting time, the proposal is not in the best interests of the child. The mother’s proposal focuses on the quantity of days rather than the quality of the parenting time. While the proposal is convenient for the mother, it means that the child would go for lengthy periods without seeing her father. Consequently, the child does not have the opportunity to develop the same type of bonding that comes with daily or weekly engagement. Moreover, the proposed schedule excludes the father from the experiencing and sharing in the child’s growth through her day to day life, whether at school, with friends, or through extracurricular experiences.

[45] Finally, the mother’s proposal does not discuss the costs or responsibility for travel. For example, if the father is to have parenting time on father’s day weekend or for a week at Christmas, the mother has not indicated that she would be committed to dropping the child off in Ottawa and returning her to Tillsonburg when the visit is over.

G. S. 39.4(3)(g) compliance with obligations under legislation and the likelihood of future compliance.

[46] As already discussed, the mother has not complied with the governing legislation on relocation or Clause 12 of the Parenting Order. In addition, she has failed to respect the parenting time provisions in the Parenting Order following her relocation as the father has not seen his child since the mother moved. Clause 5(ix) of the Parenting Order entitles the father to shared parenting time Thanksgiving weekend which the mother did not comply with. There is also no evidence that the mother informed the father that the child has a new doctor or informed him of all medical appointments as required by the Parenting Order.

[47] I find that the mother’s unilateral relocation, failure to inform the father of the changes in the child’s life, and failure to facilitate his ongoing parenting time since the move suggests that she is unlikely to comply with future court orders governing parenting.

H. The Best Interest factors – s. 39.4(3) and 24 CLRA

[48] The best interests of the child factors are set out in s. 24 CLRA as follows:

Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.

Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.

Factors

(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 life;

(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. 2020, c. 25, Sched. 1, s. 6.

[49] While I have considered all the best interest factors in arriving at my decision on relocation as well as an interim parenting schedule going forward, I focus below on those factors which I find are highly relevant to this motion and sometimes collectively.

i. S. 24(3)(a) - the child’s needs, given the child’s age and stage of development, such as the child’s need for stability

[50] The father argues the mother has not been able to provide residential stability. In addition to the recent move to Tillsonburg, the mother has moved several times resulting in the chid attending multiple daycares and schools.

[51] The child is nine years of age. She is in elementary school. She has lived all her life in Ottawa. While living in Ottawa, she had consistent contact with her father who has his own home and a bedroom. She participated in multiple extracurricular activities like swimming. Her family physician and dentist are also in Ottawa.

[52] While the mother claims the child has adopted to her new environment in Tillsonburg, the unilateral move uprooted the child from her father, paternal family, school and community she has always known.

[53] I find the child would benefit from a stable and consistent parenting regime that would allow her to have meaningful time with both parents in the same city.

ii. S. 24(3)(d) - the history of care of the child

[54] I find the evidence indicates both parents have been involved in the child’s care.

[55] First, the parents moved in with the paternal grandparents following the child’s birth. The mother suggests that the paternal family and father were emotionally abusive, but the father disputes this. While I accept that the mother was likely more involved in the child’s primary care following birth because the father was still in school, he was nonetheless present in the child’s life from the start. This is not a situation of an absentee father.

[56] Second, the mother argues that the father is not interested in caring for the child. This is not supported by the evidence. Even after the mother moved out of the shared home, the father continued to exercise considerable caregiving time with the child three afternoons a week and on alternating weekends. This was at a time when the father was engaged in undergraduate and later post-graduate studies. While the father acknowledges he became unable to care for the child during the week, this was because he started working full time and the child started school.

[57] This change in circumstance was contemplated in the Parenting Order. However, it was the father who took the initiative to change the parenting schedule, both outside of court and then by way of a Motion to Change. The mother has resisted moving to a shared parenting arrangement. The evidence suggests the mother has been unwilling to provide the father greater opportunities for care rather than the father being unwilling to engage in care.

[58] I also do not agree with the mother’s suggestion that the father’s failure to be available on short notice when the child is sick means he is unwilling to care for her. The father appreciates that children get sick without notice and has been available to care for her when she is residing with him. While one can never entirely predict when a child will get sick, a shared parenting arrangement would enable the parties to be responsible for ailing children more evenly thereby alleviating some of the mother’s burden mother during the workweek. However, the mother has resisted such an arrangement or calling on the support of the father’s family.

[59] Third, the mother suggests the father is not involved in the child’s schooling and has never attended a medical appointment. The father disputes this. He explains that he has attended visits with the child’s former physician Dr. Mwanz, but that the mother fails to inform him of appointments. I note that the mother does not appear to have informed the father of the change in the child’s physician since the move. Similarly, with school engagement, the father claims he has spoken to the child’s teachers and prefers to deal with them directly as both parents acknowledges challenges in communication.

[60] While the mother has been the designated “custodial” parent, I find the evidence supports the father has been involved in the child’s care and seeks to be further involved in parenting.

iii. S. 24(3)(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 life

[61] Both parties claim they have a strong bond with the child.

[62] The father point out that the child also has a strong bond with his parents. The mother takes issues with the child spending too much time with the paternal grandparents. However, it is not unusual for a parent to spend part of their parenting time with extended family or overnights with grandparents. The child’s relationship with her paternal grandparents is to be nurtured in the same manner that the mother seeks to have her extended family spend time with her children.

[63] The mother suggests that it is important for the child to be able to remain in Tillsonburg with her stepbrother who she has known all her life. I would agree. However, as the father points out, the father of the other child also lives in Ottawa. Residency in Ottawa would allow both children to remain together and to see their respective fathers on a regular basis without the involvement of a 13 hour commute.

iv. S. 24(3)(c) - each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent and s. 24(3)(i) - to communicate and co-operate on matters affecting the child

[64] As discussed under Issue 2G above, the mother’s unilateral relocation, unwillingness to increase the father’s parenting time, and failure to facilitate the child’s visit with her father since the move, demonstrates that she is not willing to support the development and maintenance of the child’s relationship with her father.

[65] The father claims that in addition to thwarting his parenting time, the mother has tried in the past to marginalize the child from his life by telling the child that her previous boyfriend is the father of his child. The mother did not reply to this assertion.

v. S. 24(3)(e) - the child’s views and preferences

[66] There is no evidence submitted on the child’s views and preferences.

vi. S. 24(3)(f) - the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage

[67] Neither parent addresses this as a factor impacting relocation or parenting time.

vii. S. 24(3)(g) - plans for the child’s care and s. 24(3)(h) - ability and willingness of each person in respect of whom the order would apply to meet needs of the child

[68] The mother’s plan is for the child to stay with her and her son in Tillsonburg. The child would continue to attend a French Catholic Elementary school. The mother and her children would continue to partake in the community groups discussed above. She also has the support of her new partner and extended family who live in the region..

[69] The mother suggests that an equal parenting schedule “would never work” in Ottawa because of the father’s distance from the child’s school which would require him to wake up at 5 am to take the child to school and then drive across the city to get to work. As the father noted in his affidavit, there was nothing preventing him from renting a home near the child’s school had the mother been receptive to his request for increased parenting time.

[70] The mother has indicated that should the court not accede to her request to relocate, it is her intention to return to Ottawa with the child, but that she requires time to find a place and resettle. The mother acknowledged she is not confined to any particular neighbourhood.

[71] The father’s plan is to have the child return to Ottawa and attend school nearby. He would continue with having the child attend the same doctor and dentist. The father hopes to enrol the child in extracurricular activities. The father has a stable job, owns his home, and is able to meet the child’s needs. Contrary to the mother’s suggestion, he has not wavered in his financial support for the child. He has paid child support and contributed to extracurricular activities. In several instances, the father paid entirely for activities like swimming or summer camps. His parents have also contributed to the purchase of clothing and shoes for the child.

viii. S. 24(3)(j)any family violence and its impact on, among other things

[72] While the mother suggests that the father and the paternal family were emotionally abusive to her when she lived with them, the father disputes this claim. There is no evidence that the father has engaged in any emotional or physical violence toward the child.

Conclusion

[73] Upon consideration of all the above factors, I find it is in the best interests of the child to return to Ottawa and to have on a temporary, without prejudice basis, equal parenting time with both parties.

[74] There will be a Final Order that:

a. Effective January 1, 2024, the child’s primary residence will be in Ottawa and she will be returned to Ottawa from Tillsonburg by that date;

b. Should either party seek to relocate the child, they will provide the other parent 90 days notice in writing; and

c. Should the parties consent to relocation, that agreement shall be in writing and upon obtaining such consent, the parties will arrange to have the Final Order amended accordingly.

[75] There will be a Temporary Order that:

a. Commencing January 1, 2024, the parties will have shared parenting time on a week on/week off basis. The father will have the child the first week commencing Monday January 1, 2024, and the mother will have the second week commencing Sunday January 7, 2024. The parenting exchanges will occur every Sunday at a time agreed upon by the parties. The parties may amend the date, time, and location of the weekly parenting exchanges upon written agreement.

b. If the mother is unable to relocate to Ottawa by January 7, 2024, the child will reside with father and the mother will exercise her parenting time with the child on alternative weekends in Ottawa. This will alleviate the need for the child to commute back and forth to Tillsonburg.

c. If by February 1, 2024, the mother decides not to relocate to Ottawa, the parties shall return the matter before me if they are unable to reach an agreement on the mother’s parenting time.

d. The father will enroll the child for the January 2024 semester at a school within his neighbourhood as soon as possible and will inform the mother so that she may make arrangements to locate a residence, if feasible for her, close to the school.

e. Child support shall be adjusted according to the parenting schedule in accordance with the Child Support Guidelines, O.Reg. 391/97 as am.

[76] The Parenting Order indicates that parenting time at Christmas is to be negotiated annually. Given the proximity of the holiday season and that neither parent addressed this issue at the motion hearing, there will be a temporary order that the parties will split the 2023 Christmas holidays evenly. The mother will have the child from December 23^rd to December 27^th and will transport the child to the father’s residence by 6 pm December 27, 2023. The father will have the child from December 27, 2023, until January 1, 2024. The parties may amend the 2023 holiday schedule upon written agreement.

[77] The father has not seen his child since the end of July and should not have to wait until December 27^th to do so. There will be a temporary order that the mother will facilitate an overnight visit for the child and her father between Saturday December 16, 2023, at 1 pm and Sunday December 17, 2023, at 1 pm. The mother shall be responsible for transporting the child to and from Tillsonburg and the father’s residence in Ottawa.

[78] The father is the successful party on this motion and presumptively entitled to costs. The parties are encouraged to resolve the issue of costs. If the parties cannot resolve the issue of costs for this proceeding, they may file brief written submissions not exceeding two pages exclusive of Bills of Costs. The father shall file his submissions by January 12, 2024. The mother shall file her submissions by January 26, 2024, and the father will have until February 2nd for a brief reply. Costs submissions are to be sent to scj.assistants@ontario.ca and to my attention.

Somji J.

Released: December 14, 2023

COURT FILE NO.: 15-1850-1

DATE: 2023/12/14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Alexis Barrett Applicant

– and –

Hareesh David Watson Respondent

REASONS FOR DECISION ON MOTION

Somji J.

Released: December 14, 2023