COURT FILE NO.: FS-17-17869 DATE: 20241211

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Sokari Cain Applicant – and – Tyanna Cain Respondent

Counsel: M.A. Ducharme, for the Applicant L.M. Belowus, for the Respondent

HEARD: November 13, 2024

ENDORSEMENT ON MOTIONS

HORVAT J.:

[1] There are two motions before the court, one brought by each of the parties, that were heard together on November 13, 2024.

[2] On August 22, 2024, the respondent left the family home in Windsor, Ontario, with the parties’ four youngest children. By August 30, 2024, the respondent and the children were in Calgary, Alberta, and neither the respondent nor the children have returned to Windsor since.

[3] The applicant seeks the immediate return of the children to Windsor and police enforcement of any order. The respondent seeks an interim order permitting her to relocate with the four youngest children to Calgary. Each seeks an interim order for sole decision-making responsibility and primary residence of their four youngest children. The motion was brought and scheduled without a case conference. There is only affidavit evidence before me.

[4] For the reasons that follow, I find that it is in the best interests of the children to remain with the respondent in Calgary pending a final determination of the issues on a full evidentiary record and I dismiss the applicant’s motion.

BACKGROUND

[5] The parties were married on April 12, 2000. There are five children of the marriage: Taneidra Cain, born October 5, 2020 (now 24); Trevon Cain, born September 22, 2006 (now 18); Taejaun Cain, born December 23, 2009 (now 14); Tahrez Cain, born June 26, 2014 (now 10); and Tyri Cain, born January 26, 2016 (now 8). The oldest child is independent and resides in Montreal.

[6] The parties separated in 2017 and then reconciled after approximately a year. The applicant was convicted of assaulting the respondent in 2015 (no contact for one year) and 2017 (probation and anger management), and the police have been called to the family home on a number of occasions regarding violence in the home directed at the respondent and the older children. In 2016, the applicant was convicted of breaching his conditions (probation).

[7] On August 22, 2024, the parties again separated when the respondent left the matrimonial home with the four youngest children.

[8] Prior to August 2024, the children resided and attended school in Windsor. They have friends and family in Windsor, were involved in sports and attended religious activities regularly.

[9] By August 30, 2024, the Respondent and the four children were in Calgary, Alberta. The three youngest children started school in Calgary. Trevon now works in Calgary and is considering post-secondary education. The respondent’s mother, brother, sister-in-law and their children live in Calgary.

[10] There is no order or agreement currently in place regarding decision-making responsibility or the primary residence of their four youngest children.

POSITIONS OF THE PARTIES

[11] The respondent outlines in her affidavit evidence serious allegations of a long history of abusive and concerning behaviour by the applicant against both her and the children. Some of the incidents that the respondent describes occurred in 2024, including an incident in which the applicant allegedly assaulted Trevon in May 2024. The police were called in response. At the respondent’s request, the applicant left the home for a period of three weeks in 2024 but eventually returned. These violent incidents often take place in front of the children.

[12] The respondent says that she left with the children for Calgary “because of the applicant’s consistent and continual abusive aggressive behaviour towards [herself] and the children especially Trevon.” She went on to state in her affidavit: “We moved to Calgary because I felt it would be a safe haven for me and the children’s safety. We had to escape. This was not a happy move to Calgary. I feared for mine and the children’s safety and wellbeing.” The respondent says that she tried to speak with the applicant about separation prior to August 22, 2024, and the applicant responded: “get out, nobody is keeping you here.”

[13] The applicant generally denies the allegations of abuse and even attempts to minimize them. In his affidavits, he blames the respondent for initiating arguments and provoking him. The respondent says that to protect herself, she responded to the applicant’s violence with violence. The applicant also alleges that Trevon has “behavioural issues.” He also alleges that the respondent physically disciplines the children. The respondent says that Trevon struggles psychologically because of the abusive and turbulent home he lived in with the applicant.

[14] The evidence concerning the views and preferences of the children is conflicting. The respondent says that the two older boys do not wish to visit with the applicant or speak with him currently and refuse to live with him. The two younger children would like the applicant to visit them in Calgary, but they do not want to live with the applicant because they do not want to be without their siblings or the respondent. The applicant says that Taejaun has been calling the applicant to tell him that he misses him and his life in Windsor. The applicant also alleges that Tahrez and Tyri say that they want to return to Windsor and live with the applicant.

[15] The evidence of the support system that the respondent and the children have in Calgary is also somewhat conflicting. The applicant alleges that the respondent does not get along with her mother. The respondent says that her mother is supportive both financially and emotionally and that the children love her and her company.

[16] On behalf of the applicant, the Vice-Principal of Christ the King Elementary School in Windsor swore an affidavit stating that the applicant “was involved in many parts of his sons’ extracurricular activities such as soccer, cross-country and basketball” and that “when issues arose regarding his children’s comportment … the applicant would reach out to the school and follow up with his children as he always wanted his children to [sic] their best.” A teacher at the school also wrote a letter on the applicant’s behalf stating that he was involved in the lives of his children and always cared for the wellbeing of the children. The respondent disputes the applicant’s claim that he was involved in the children’s school or extra-curricular activities and asserts that it was the respondent that took the children to their activities.

ANALYSIS

[17] Having considered and reviewed the affidavit evidence, including the r. 35.1 affidavits, the case law relied on by each party, their oral submissions, and the factors outlined in s. 16 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), with special attention to s. 16(4), I have determined that it is in the children’s best interests that the respondent and the children be permitted to remain in Calgary pending a final determination with a full evidentiary record.

[18] There is no dispute between the parties that the court must determine what is in the best interests of the children in the circumstances of this case. When considering this issue, the best interests of the children, not what the parents want, is paramount.

[19] In Barendregt v. Grebliunas, 2022 SCC 22, 66 B.C.L.R. (6th) 1, the Supreme Court of Canada recognized that any family violence or abuse may affect a child’s welfare and should be considered in relocation decisions: at para. 142. The court rejected the suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability as untenable: at para. 143. While acknowledging that domestic violence allegations are notoriously difficult to prove, the court accepted that the proof of even one incident may raise safety concerns and may overlap with and enhance the significance of other factors in the best interests analysis: at para. 144.

[20] After considering developments in the relevant case law, including the court’s decision in Gordan v. Goertz, [1996] 2 S.C.R. 27, and subsequent decisions, and the recent amendments to the Divorce Act that instruct courts to consider any form of family violence and their impacts on the perpetrator’s ability to care for the children (ss. 16(3)(j) and 16(4)), the court in Barendregt stated, at paras. 151-152:

In light of the jurisprudential and legislative refinements, the common law relocation framework can be restated as follows.

The crucial question is whether relocation is in the best interests of the child, having regard to the child’s physical, emotional and psychological safety, security and well-being. This inquiry is highly fact-specific and discretionary.

[21] In addition to the factors that a court will generally consider when determining the best interests of the child and any applicable notice requirements, as articulated in Barendregt, at para. 154, a court should also consider:

• the reasons for the relocation;
• the impact of the relocation on the child;
• the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
• the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
• the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
• whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

[22] The court, at para. 154, also found that a court considering a relocation issue should not take into consideration how the outcome of the application would affect either party’s relocation plans.

[23] I see no rational reason why the principles established in Barendregt should not apply to an interim relocation analysis, particularly those principles that recognize the importance of domestic abuse and violence as part of the best interests analysis.

[24] While I agree that it is often difficult, if not impossible, to complete the extensive child-focused inquiry required on incomplete and conflicting affidavit evidence, the fact of the applicant’s two convictions for assaulting the respondent is not in dispute. Further, rather than presenting evidence of remorse or detailing the steps that he has taken to learn and grow in a positive way since his convictions in 2015 and 2017, the applicant minimizes the seriousness of the respondent’s abuse and violence allegations and blames the respondent for his abusive reactions. He also accuses the respondent of “also” abusing the children. I am satisfied that the history of abuse in this case is a compelling and pressing reason for the respondent’s immediate move to Calgary with the children.

[25] Applying the facts in this case to the factors outlined in Barendregt:

• the reason for the relocation is to escape the abuse;
• the impact of the relocation on the children appears to be only positive based on the affidavit evidence now that they have been removed from the violence in the home;
• based on the affidavit evidence, both parents are involved in the children’s lives;
• there is no order, arbitral award, or agreement that specifies the geographic area in which the children are to reside;
• while Calgary is a considerable distance from Windsor, there is no evidence that the respondent has denied, or intends to deny, the applicant contact with the children. And, there is no evidence of the applicant being unable to contact the children, whether by email, text, video calls or in-person, because of travel or other expenses. The distance does make it difficult for regular in-person visits with the children; and
• there is no evidence to suggest that either party will not comply with their obligations under family law legislation, an order, arbitral award, or agreement.

[26] I am satisfied based on the evidence before me, and having regard to the children’s physical, emotional and psychological safety, security and well-being, that the move to Calgary be permitted on an interim basis as it is in the children’s best interests.

[27] The applicant argued that the respondent had options apart from the self-help decision of taking the children to Calgary, including talking to a counsellor, seeking assistance from Hiatus House, and commencing a court application. In response, the respondent argued that it was not self-help but rather self-preservation for her and the children. There is no evidence before me that the respondent’s move to Calgary was not made in good faith. The respondent argued that the history of violence constitutes a compelling circumstance that should permit the move to Calgary. She said that she moved to a place where she and the children would be protected. I accept that the respondent did what she thought was best for her and for the children. The applicant’s response is to minimize the allegations and blame the respondent.

[28] In addition to Gordan v. Goertz, the applicant relies on the decisions in Tegart v. Westland, and Miller v. Young, 2016 ONSC 4481. Both the decisions in Tegart and Westland were made on affidavit evidence. While Tegart involved a long-distance move, the reasons for the move were not as compelling as a history of family violence as in the present case. Similarly, while I agree with the court in Miller that the self-help conduct of a long-distance move is not generally appropriate or to be condoned, in Miller, unlike the present case, there was conflicting evidence of abuse.

[29] The court in Miller, at para. 34, referred to the following factors for interim mobility identified in Plumley v. Plumley, at para. 7:

1. A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial;
2. There can be compelling circumstances that might dictate that a judge ought to allow the move;
3. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at a trial.

[30] Considering these factors, based on the evidence before me, there is: (i) a compelling issue for trial being whether the move is in the best interests of the children; (ii) a compelling reason for the move, being the history of family violence as outlined above; and (iii) and a strong probability that the respondent’s position will prevail at trial. Further, I am satisfied that it is not in the children’s best interests to move them in the middle of the school year into an environment where they may experience abuse of any form, including emotional or physical.

[31] A case conference is scheduled for the next available case conference date, being February 26, 2025, at 2:15 p.m. to determine next steps, including whether it is appropriate to obtain the views and preferences of the children and the best way for that to be done. The respondent may attend the case conference by videoconference.

ORDERS

[32] Accordingly, I make the following orders on an interim basis:

(a) These motions are an exception to r. 14(4) and may be heard before a case conference; (b) The applicant’s motion is dismissed, without prejudice to his right to apply for a variation of this interim order pending trial; (c) The respondent is granted interim sole decision-making responsibility and primary residence of the children, namely, Trevon Cain, born September 22, 2006; Taejuan Cain, born December 23, 2009; Tahrez Cain, born June 26, 2014; and Tyri Cain, born January 26, 2016; (d) The respondent may relocate the residence of the children to Calgary, Alberta on an interim basis; and (e) A case conference is scheduled for February 26, 2025, to determine next steps. The respondent may attend the case conference by videoconference. If this date is not convenient to the parties or counsel, they may contact trial coordination to schedule a new date for the case conference.

COSTS

[33] The costs of this motion are to be left for the judge making a final determination in this matter.

Jacqueline Horvat Justice

Released: December 11, 2024