COURT FILE NO.: FS-22-00031543-0000
DATE: 20231229
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JAMES WESLEY SOBECK
Applicant
– and –
KATHERINE ALEXANDRA RAWLINSON
Respondent
Jaret Moldaver and Jesse Rosenberg, for the Applicant
Christina Doris and Christopher Burrison, for the Respondent
HEARD: November 30, 2023
SHORE J.
REASONS FOR DECISION
[1] This motion is about whether a three-year-old child will be permitted to relocate from Toronto, Ontario to Calgary, Alberta with his mother, pending final determination of the issue.
[2] As set out by the Supreme Court of Canada in Barendregt v. Grebliunas, 2022 SCC 22, at para. 8:
Determining the best interests of the child is a heavy responsibility, with profound impacts on children, families and society. In many cases, the answer is difficult — the court must choose between competing and often compelling visions of how to best advance the needs and interests of the child. The challenge is even greater in mobility cases. Geographic distance reduces flexibility, disrupts established patterns, and inevitably impacts the relationship between a parent and a child. The forward-looking nature of relocation cases requires judges to craft a disposition at a fixed point in time that is both sensitive to that child’s present circumstances and can withstand the test of time and adversity.
[3] While not an easy decision, or one that will please the father, I find that it is in the best interests of the child to relocate with his mother to Calgary on an interim basis, pending final determination of the issue at trial.
The Basic Facts
[4] The parties met in 2017. They were both living in the United States. In 2019, the Applicant father relocated from South Carolina to New York to join the Respondent mother.
[5] The parties married on June 22, 2019, and moved to Toronto on a permanent basis in September 2020, in the midst of the COVID-19 pandemic.
[6] On October 11, 2020, their son, Arthur, was born in Toronto. In January 2021, the father became a permanent resident of Canada. The mother is a Canadian citizen, having been born and raised in Calgary.
[7] The parties separated on April 14, 2022. Their son was 18 months old at the time.
[8] The mother’s desire to relocate to Calgary was triggered in August 2023, when she was offered a job as the director of communications and development for the Downstage Performance Society (“Downstage”). Downstage is a resident company of Arts Commons. Arts Commons is undergoing a significant transformation project, making it the largest live-art space in Canada.
[9] The mother accepted the job on August 10, 2023, and has been working remotely since September 1, 2023. She must be available in Calgary as of January 1, 2024, to keep her job. She will be earning approximately $60,000 annually in this new position.
[10] The mother gave the father notice of her intended move with the child per the requirement under s. 39.3(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”). The father objected to the child moving with the mother. The mother brought this motion for an order permitting her to move with the child on a temporary basis, pending final determination of the issue.
The Law
[11] The crucial question is whether relocation on an interim basis is in the best interests of the child, having regard to the child’s physical, emotional and psychological safety, security and well-being. This inquiry is highly fact-specific and discretionary.
[12] Pursuant to s. 16.92(1) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) and s. 39.4(3) of the CLRA, in determining whether to permit the relocation of a child, the court shall, in order to determine the best interests of the child, take into consideration the factors set out in s. 16 of the Divorce Act (s. 24 of the CLRA) as well as the following additional factors:
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 [s. 39.3 of the CLRA or s. 16.9 of the Divorce Act] 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.
[13] Further, in determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child: CLRA, s. 24(5).
[14] In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child: CLRA, s. 24(6).
[15] Courts are cautious about permitting temporary moves in mobility cases, because if later reversed, it will result in further disruption to the child. When determining whether to permit the relocation of a child on a temporary basis, there are some additional factors to consider. These factors were set out in Plumley v. Plumley, 1999 13990 (Ont. S.C.), at para. 17:
a. A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.
b. There can be compelling circumstances that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial, or the best interests of the children might dictate that they commence school at a new location.
c. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at a trial.
[16] The court shall not consider whether, if the child’s relocation were to be prohibited, the person who intends to relocate the child would relocate without the child or not relocate: Divorce Act, s. 16.92(2). In Scott v. MacLean, 2020 ABCA 173, 7 Alta. L.R. (7th) 225, at para. 11, the Alberta Court of Appeal explained:
The law is clear that the options being considered are not the move versus the status quo. The parent’s move is happening, or has happened. As was noted by this court in MacPhail at paras 44-45, “Canadians have the right to choose to separate and divorce, and they have the right relocate”; it not for the court to opine that it would be better if things remained the same. The issue the court must grapple with is: in which of the new locations, and with which parent, are the best interests of the children met.
[17] Pursuant to s. 16.93(2) of the Divorce Act, the father has the burden of proving that the relocation would not be in the best interests of the child because the child spends the vast majority of his time with the mother. However, under s. 16.94, a court may decide not to apply s. 16.93(2) if the order being requested is an interim order. Further, where there is a pre-existing interim parenting order, the court may also decide that both parties have the burden of proving whether, or not, the relocation is in the best interests of the child.
[18] The child has had his primary residence with his mother since separation, when he was only 18 months old. The child will continue to have his primary residence with the mother for the foreseeable future. The father has supervised parenting time with the child due to his substance abuse, discussed further below.
[19] In these circumstances, I am not changing the onus set out in s. 16.93(2). The father has the onus of proving that the relocation would not be in the best interests of the child. Even if the parties each had the burden of proving whether it was or was not in the best interests of the child to relocate with the mother on an interim basis, the outcome of this motion would not change in this case.
Analysis
[20] Arthur is a happy, healthy child with no health concerns or special needs. The mother is and has been the child's primary caregiver. There is a no dispute that she is a good mother. If the child moves with the mother to Calgary, the mother will remain the primary caregiver for the child.
[21] The father has a long-standing history of drug abuse. The mother acknowledges that when the father was sober and not using drugs there were good qualities to his parenting. However, the mother alleges that since the child was born there have been few extended periods when the father was sober.
[22] The mother describes the father’s behaviour while on drugs as being volatile, aggressive, and abusive, something he does not deny. Third parties were subjected to this aggressive behaviour as well, including counsel on the other side, the child’s nanny, and the parenting supervisor. Some of the aggressive behaviour played out in emails, which have been attached as exhibits to the motion material. The father has shown up at the mother’s place of work and posted threatening messages on social media. His inappropriate behaviour continues to bear out in his social media posts.
[23] It is alleged that during the marriage the father was rarely, if ever, left alone with the child. The only exception the father can point to is when the parties were still together, and the child had been released from a hospital stay. Upon the child’s release, the mother left the father watching the child so she could get a few hours of sleep. The mother, father and child were all in the home.
[24] The father attached emails to the child’s school as evidence of his involvement or his desire to be involved in the child’s education. One of the emails is dated April 2022, and the next one is dated April 2023, a year in between his communications with a school that his son attended on a daily basis.
[25] While discussing his close bond to the child, the father does not purport to have done much more than play with the child during the relationship. He does not talk about feeding the child, changing the child’s diaper, putting the child to bed or for a nap, bathing the child, getting up at night with the child or partaking in any other part of the child’s daily routine.
[26] There will not be a significant impact on the child if he moves to Alberta with his mother. His primary place of residence will still be with his mother. The child is still young; he is only three years old. The impact of a move is less significant on younger children. His world still revolves around his primary caregiver and wherever she lives.
[27] If the child is ordered back to Ontario following the trial, the impact will also not be as great as it would be if the child were older, in school and had independent deep ties in the community.
[28] The mother is not relocating for financial reasons. Both parties are fortunate in that they come from families that provide them significant financial resources. The mother submits that she is relocating because the job offered is a significant opportunity for her to advance her career as a writer, performer, and theatre producer, while drawing on her previous jobs in education, branding, marketing, and advertising. She submits that there is no similar opportunity available in Toronto. I accept that there are very limited, if any, similar opportunities for the mother in Canada.
[29] In order to keep her job, she must be available to begin working in Calgary in the beginning of January. If she waits until trial, she will lose her job. In any event, the reason for the move is not a persuasive factor. The Supreme Court of Canada held that courts should avoid casting judgment on a parent’s reasons for moving. A moving parent need not prove the move is justified. And a lack of a compelling reason for the move, in and of itself, should not count against a parent, unless it reflects adversely on a parent’s ability to meet the needs of the child: Barendregt, at para. 129.
[30] The mother gave the father notice of her relocation with the child on August 15, 2023. She has complied with the notice requirements. Initially, the father did not object to the move and suggested that he would get an apartment in Calgary. His position has since changed.
[31] The mother provided a detailed and reasonable plan of care for the child in Calgary, and for ongoing supervised parenting time for the father in Calgary and Toronto. The mother grew up in Calgary and lived there until she was 18 years old. It is her intention to live in her parents’ home in Calgary. Her parents have homes in other places, including Toronto and Saskatchewan. They reside in Calgary approximately four to six months of the year.
[32] The father has not offered a plan of care whereby the child resides with him in Ontario. The only position offered is that the child should remain living with the mother in Toronto. The father did not provide a proposed parenting plan or plan of care should the mother be permitted to relocate with the child.
[33] The father submits that the maximum contact principle favours the child staying in Ontario. The SCC considered s. 16(6) of the Divorce Act, which enumerates this principle, in Barendregt, at para. 135:
It is worth repeating that what is known as the maximum contact principle is only significant to the extent that it is in the child’s best interests; it must not be used to detract from this inquiry. It is notable that the amended Divorce Act recasts the “maximum contact principle” as “[p]arenting time consistent with best interests of child”: s. 16(6). [Emphasis in original.]
[34] However, the father has not been exercising the parenting time provided to him. He suspended his parenting time in August 2023 for seven weeks and missed parenting time as recently as November 5, 2023.
[35] The father’s parenting time with the child is both limited and supervised under the current interim order. He currently has supervised parenting time, pursuant to the order of Sharma J. dated June 27, 2023, every Thursday from 2:00 p.m. to 7:00 p.m. and one day on the weekend from 9:00 a.m. to 5:00 p.m. In total, he spends 13 hours a week with the child. If the child is permitted to move, the father’s time will change, but I find the mother has submitted a reasonable parenting plan, one that balances the best interests of the child with maximizing the child’s time with the father, and is in keeping with the current parenting time, as well as if and when the supervision provisions are lifted.
[36] The father has not acknowledged the extent of his substance abuse nor the impact it has had on the family, which all affects his ability to meet the needs of the child. The father submits that he only struggles with “periodic substance misuse”. The father's position on a previous motion was that he had been sober since March 18, 2023. His position changed, necessarily, when he was presented with evidence from a private investigator, including videos of him using drugs, such as cocaine and ketamine, during the time that he alleges he was sober. He subsequently also acknowledged inhaling ketamine in April and May 2023. The father then took the position on the motion that his parenting time should be supervised, which was ultimately what was ordered by Sharma J. in June 2023.
[37] The father failed two drug tests in July 2023, which tests were positive for cocaine and MDMA (ecstasy). He did not attend for drug testing in August, September, or October.[^1]
[38] On August 2, 2023, the father cancelled his parenting time with the child, and texted the supervisor that he has “given up on Arthur.” He did not seek to see the child again until September 22, 2023. He rejected the next date offered to him. The father did not show up to the scheduled visit on November 5, 2023.
[39] The father was not able to maintain his sobriety during the first half of 2023, and it is unknown what happened during the other months because he did not attend for testing. This is not to say the father should not be commended for the hard work he is doing in overcoming his addiction, but it is an ongoing process, with several relapses in the last eight months.
[40] In his motion material, the father shows little insight into the effect his substance abuse has had on the child and on the mother both during the marriage and since separation. He criticizes the mother for moving out of the home and for not disclosing her address to him, ignoring the effect the drugs had on his behaviour and the fear it instilled in the mother.
[41] There is some concern that the mother has tried to limit the father’s time with the child. This can and should be explored at trial. But in the meantime, I do not find it sufficient to prevent the mother and child moving to Calgary. The concerns can be addressed with strict guidelines to ensure the father’s parenting time occurs.
[42] If permitted to move, the child will miss out on the relationship with some of his extended family. The mother’s brother and his children live in Toronto. However, the mother grew up in Calgary and has both friends and family living there. The father’s family lives in the United States.
[43] The father has a 10-year-old son, Wesley, from a previous relationship. Wesley and his mother live in Columbus, Georgia, but may be relocating to Atlanta, Georgia. The father has supervised parenting time with Wesley. He is required to undergo regular drug testing. Their agreement provides that once the father is sober for 18 months, the supervision terms can be reviewed. To date, the review has not been triggered. If the father has a positive test result, his parenting time with Wesley is suspended.
[44] The mother, the father and the child all have a bond with Wesley. The mother and Wesley’s mother have arranged for the boys to spend time together as well as time together with their father.
[45] The father highlights in his materials that the parties have moved around often, ending up in Toronto in September 2020 during the height of the COVID-19 pandemic. Neither party nor the child has deep-seeded roots in Toronto.
[46] The father has not proven that the child’s move to Alberta is contrary to his best interests and although there may be a genuine issue for trial, I find that there is a strong probability that the mother’s position will prevail. As such, the child shall be permitted to move with the mother to Alberta on an interim basis.
Costs of Relocation
[47] Although the issue was raised by the parties, they did not make fulsome submissions on the additional costs of parenting time if the child is permitted to move with the mother. Section 39.4(9) of the CLRA provides that if a court authorizes the relocation of a child, it may provide for the apportionment of costs relating to the exercise of parenting time by a person who is not relocating between that person and the person who is relocating the child.
[48] The parties may provide written submissions on this issue as set out below.
Order
[49] This court orders as follows:
a. The child, Arthur James Rawlinson, born October 11, 2020, shall be permitted to relocate with the Respondent mother on an interim basis, from Toronto, Ontario to Calgary, Alberta, effective immediately.
b. Pending agreement or further order of this court, the Applicant father shall have supervised parenting with the child as follows:
i. Saturday, January 13 until and including Monday, January 15, 2024, from 9:00 a.m. until noon each day.
ii. Saturday, February 17 until and including Monday, February 19, 2024, from 9:00 a.m. until noon each day.
iii. Friday, March 15 until and including Sunday, March 17, 2024, from 9:00 a.m. until noon each day.
iv. Wednesday, April 3 until and including Saturday, April 6, 2024, from 9:00 a.m. until noon each day.
v. Friday, May 17 until and including Sunday, May 19, 2024, from 9:00 a.m. until noon each day.
vi. Monday, June 17 until and including Thursday, June 20, 2024, from 9:00 a.m. until noon each day.
vii. The summertime to be agreed upon between the parties, failing which either may bring a motion before the court.
viii. Thereafter, on an ongoing basis, for one long weekend each month, until further order of the court or agreement between the parties.
c. The father shall also have video parenting with the child on Tuesday evenings, between 5:30 p.m. and 6:00 p.m., MT.
d. If the parties are not able to reach an agreement on the issue of the apportionment of costs relating to the exercise of parenting time in Calgary, they may provide written submissions to the court, to be no longer than three pages each, as follows:
i. The father shall provide his written submissions within ten business days of release of this decision.
ii. The mother shall provide her written submissions within ten business days of receipt of the father’s submissions.
iii. The father may provide reply submissions, if any, within five business days of receipt of the mother’s submissions.
Justice S. Shore
Released: December 29, 2023
COURT FILE NO.: FS-22-00031543-0000
DATE: 20231229
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JAMES WESLEY SOBECK
Applicant
– and –
KATHERINE ALEXANDRA RAWLINSON
Respondent
REASONS FOR DECISION
Shore J.
Released: December 29, 2023
[^1]: There were concerns expressed that the father failed to attend for drug testing as required under the order of Sharma J. The parties argued a motion on November 7, 2023, before Faieta, J., each arguing that the other was in breach of Sharma J.’s order. That decision has not been released. It would be improper for this court to comment on the allegations that the parties have breached the terms of Sharma J.’s order while that matter is outstanding before Faieta J.