Court File and Parties

COURT FILE NO.: FC300/22 DATE: July 25, 2024 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Benjamin Wilton, Applicant AND: Julie Elizabeth Moreau, Respondent

BEFORE: HASSAN J.

COUNSEL: P. Allen Skuce, for the Applicant L. Thompson as agent for Erin O’Leary, for the Respondent Paul Van Meppelen, for the Office of the Children’s Lawyer

HEARD: July 19, 2024

Endorsement

Motion

[1] The Applicant commenced this Motion in June 2024, seeking permission to relocate to Tilbury, Ontario, with the three children of the marriage.

[2] The Respondent opposed the move and argued that the determination ought to be reserved to the trial in the matter, scheduled for November 2024.

[3] For reasons set out below, I find that it would not be in the best interests of the children for their relocation to be permitted at this time. I find that the Applicant’s plan of care lacks in important detail, putting into question his ability to meet the needs of the children should the move be permitted at this time. I also find that there is no compelling reason to permit the move at this interim stage, prior to a full assessment of the issue at trial.

Background

[4] Most of the main facts are not in dispute.

[5] The parties cohabited from 2008–December 25, 2021. They were married on June 25, 2016.

[6] There are three children of the relationship: Ava Wilton, born June 16, 2010 (14 years of age), Kayleb Wilton, born August 9, 2011 (almost 13 years of age), and Lorra Wilton, born March 6, 2015 (9 years of age).

[7] Following their separation in December 2021, the Respondent left the matrimonial home in Dutton and moved to a rental home in the same town. The Applicant remained in the matrimonial home. The children resided primarily with the Respondent.

[8] In May 2022, the Applicant left the home and began residing with his Aunt, Uncle and two cousins, in Wallacetown, near Dutton. The child, Ava, began living primarily with the Applicant after the move.

[9] In October 2022, an incident occurred at the Respondent’s home. The police attended at the home and the Respondent brought the children to the Applicant’s home. Neither party offered clear evidence surrounding the incident. The Applicant alleged that the incident related to the Respondent’s drug use and association with persons involved with drugs, in her home. The Respondent deposed that the police were looking for an acquaintance of hers, whom she had been dating, and that he was not in the home.

[10] The Respondent has admitted to past drug use and present use of marijuana. She did not detail steps taken to address her drug use. The Applicant claims that the Respondent’s drug use and related risks continue to be an issue.

[11] Shortly after the above incident the Respondent relocated to a rental home in St. Thomas, minutes from her Mother’s home.

[12] Following the October 2022 incident, the Family and Children’s Services of St. Thomas and Elgin County became involved with the family. With their assistance and the appointment of Counsel for the children, Mr. Van Meppelen, the parties were able to come to an interim parenting agreement, contained in a Memorandum of Understanding, dated May 12, 2023. Pursuant to the agreement, the parties share decision-making responsibility. The children are in the care of the Respondent on alternate weekends from Friday until Sunday. The child, Lorra, has parenting time with her Mother each Wednesday and the two older children are encouraged to have parenting time with their Mother on alternate Wednesdays. It was not disputed that the child, Ava, attends these visits and the child, Kayleb does not. The parties agreed to share all major holidays and parenting time in the summer.

[13] The Memorandum provides for a “safety plan” wherein the Maternal Grandmother will check in on the Respondent during her parenting time; that only persons pre-approved will spend time with the children; and that the children will have an emergency contact should they feel unsafe.

[14] Neither party reported concerns about the children’s care or safety in the care of the Respondent since the May 2023 agreement.

[15] The parties agreed that the Memorandum of Understanding was not legally binding or enforceable and that either parent could apply for a court order in the terms of the Memorandum.

[16] The parties have followed the terms of the Memorandum, for the most part. It is not disputed that some of the Wednesday parenting times are missed or changed, due to the Respondent’s work schedule.

[17] In relation to the issue of mobility, the Memorandum requires that the parties provide at least 90 days’ notice prior to moving any distance that would affect the parenting schedule.

[18] Counsel for the children was recently reappointed and both parties agreed to allow Counsel to share the children’s views and preferences from counsel table.

Proposed Move

[19] The Applicant claims that the Respondent has known of his and the children’s proposed move to Tilbury for over a year. The Respondent deposes that she was not advised by the Applicant of any proposed move, but that she was told by the children.

[20] On June 20, 2024, the Applicant served a Notice of Relocation, indicating his intended move with the children in September 2024. The Respondent served her Objection to Relocation in July 2024.

[21] The Applicant deposes that he and the children wish to have their own residence, that they want to “upgrade their lifestyle”, and that they have always loved the Tilbury area. He says that the children are aware of the new schools they would attend. He claims that he has several prospects for employment and expects to achieve full-time employment with benefits and standard hours. He did not provide particulars or evidence of applications for employment. The Applicant provided no details of where he and the children would reside or how he would manage their care.

[22] The Town of Tilbury is approximately 141 kms from the Respondent’s home in St. Thomas, which equates to a drive of approximately 1.5 hours. Presently the parties reside approximately a half-hour's drive apart.

Position of the Parties

Applicant

[23] The Applicant argued that he and the children have wished to move to Tilbury for a long time. He claims that the move would not materially impact the Respondent’s parenting time. He argued that it was unlikely that the parenting time schedule would significantly change at trial and that any increases in parenting time could be facilitated at other times. The Applicant claimed that the distance was not significant and there should be no reason for the Respondent to object to the move.

[24] The Applicant argued that more weight should be placed on the views and preferences of the child, Ava, because of her age, over the child, Lorra. He proposed that parenting time could be different for each child, according to their needs or preferences.

Respondent

[25] The Respondent argues that the Applicant has simply not provided sufficient evidence for an interim determination relating to the move and that the issue ought to be left for trial. She claims that the complete lack of evidence as to where the children would live places the security of the children in question. She further argues that the proposed move would take the Applicant and the children away from all family supports, on which the Applicant has relied since the children have been in his care.

[26] The Respondent conceded that it can be challenging to provide evidence of employment prior to receiving permission to move, but that there was a complete lack of meaningful information about the Applicant’s plan of care.

[27] The Respondent argued that the proposed move would negatively impact her parenting time during the week, which was important to her relationship with the children, particularly the child, Lorra. She also argued that her ability to continue to engage in the children’s activities, schooling, and medical care would be impacted as well.

[28] The Respondent conceded that she would not be seeking a change in the residency of the children at trial, but that she would be seeking an expansion of her parenting time, including an expansion of her weekend time to Monday, to allow her to deliver the children to school.

Children’s Views and Preferences

[29] It was not disputed that the children are in favour of the present residency with their Father continuing.

[30] Counsel for the children confirmed that the children are aware of the proposed move. He advised that the children held competing views, with the child, Ava, being in favour; the child, Lorra, being opposed; and the child, Kayleb, being reluctant to engage or express a preference.

[31] Counsel advised that the child, Ava’s, preference likely stemmed from her perception of a superior school in Tilbury. She will be entering high school in September. She was described as academically promising.

[32] There was no evidence of the quality of schools in the two locations. Such evidence has not generally been found to be relevant to relocation.

[33] It was likely that the child, Lorra, was opposed to the move out of reluctance to have her time reduced with her Mother and to leaving her school and friends.

Legal Considerations

[34] My sole consideration, of course, is the best interests of these three children. In making that determination I must take into account the “best interest” factors set out in Section 16 of the Divorce Act and the additional “best interest” factors relating to relocation, as set out in Section 16.92 of the Act.

[35] Jurisprudence has also developed around special considerations given to requests to relocate on interim motions. Those consideration continue to be relevant and were first set out by Marshman J., in Plumley v. Plumley, as follows:

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. 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.
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.

[36] Additional considerations have developed over time since Plumley. These have included the distance of the move, with moves more likely to be permitted when the distance is not significant and would not materially interfere with a party’s ability to exercise parenting time. (See Schlegal v. Schlegal, 2016 ONSC 4590, and M.K. v. J.K., 2020 ONCJ 387.)

[37] All cases stress that the determination turns on the unique circumstances of each family and that the sole issue is the best interests of the children, not the interests or rights of the parents.

Burden of Proof

[38] Neither party argued strenuously about the burden of proof. Section 16.93(2) of the Divorce Act would place the burden of proof on the Respondent. The May 2023 Memorandum of Understanding provides that the children spend the vast majority of their time with the Applicant.

[39] However, the Memorandum is an interim measure, put in place following a significant event in the family, and it represents a significant change to the existing status quo. The issue of parenting time is yet to be determined on a final basis. Although it has been in place for over a year, I do not find that the Memorandum ought to be considered as creating an onus or burden of proof. The Memorandum specifically provides that it is not legally binding or enforceable.

[40] My conclusion is supported by the provisions of Section 16.94 of the Divorce Act, which provides that a court may decide not to apply subsections 16.93(1) and (2) if the order referred to in those subsections is an interim order.

Analysis

Consideration of Divorce Act Factors

[41] In relation to the factors set out in Section 16 of the Divorce Act, caselaw is clear that some factors may weigh more heavily than others in the determination. I find that to be the case here.

[42] Regarding the children’s relationship with each parent, I find the evidence supports a finding that both parents have a strong relationship with their children. I also find that both parents are competent and capable parents, able to meet the needs of their children. Despite the level of conflict and mistrust, I also find that both parents understand and support the children’s relationship with their other parent. There is some concern about the value placed on the Respondent’s mid-week parenting time, but the Applicant did offer some proposals as to how to address the reduction of this time, that would follow from his move.

Plan of Care

[43] I find this factor to be significant to my determination. At present, the Applicant resides with his Aunt, Uncle and two cousins, and would receive support from them in his parenting of the children. Other family members live nearby, including the Paternal Grandparents. The Applicant has never had the children in his primary care while residing independently.

[44] The Applicant’s Affidavit contains no evidence as to where he and the children would reside in Tilbury. He provides no evidence of efforts to secure housing. He provides no evidence relating to the housing market.

[45] The Applicant proposes to relocate with the three children in six weeks and there is no evidence offered as to where they would reside. I agree with the Respondent that this creates serious concerns relating to the security of the children should the move be permitted, and the level of preparation and thought put into the move. While I recognize that it is difficult to secure housing prior to securing permission to relocate, the complete lack of evidence relating to housing is concerning.

[46] The Applicant also provided very little evidence as to how he proposed to support the children. He described some “expectations” and “intentions” as to employment and income generation but no concrete evidence of potential jobs or applications for employment. While I recognize that it can be more challenging to seek employment without confirmation of a move, this does not preclude conditional offers of employment or specific proof of available jobs and applications for employment.

[47] At present, the Applicant resides with family. He gave no evidence as to whether he pays toward his and the children’s housing. His proposed move would mean he will need to secure and pay for housing suitable for him and three children. He has provided no evidence as to either requirement.

[48] Lastly, the Applicant provided no evidence as to how he would meet all the needs of the children absent the extensive family network he now has available to him. He deposes that he will work full time but does not address how the children would get to school or home from school or what he would do in the event of an emergency or illness of any of the children requiring immediate attention.

[49] The circumstances of the children and their care at present are radically different from what is being proposed by the Applicant, yet he provides no evidence as to how he will manage the care of the children, on his own; something he has not done since they were placed in his primary care in November 2022.

[50] The lack of evidence under this factor alone, in my view, precludes me from making a determination as to the best interests of the children. The lack of a plan, some six weeks from this proposed move, I find, is not in the best interests of the children.

[51] I also find these two factors combined to be relevant, but in relation to parenting time as opposed to decision-making responsibility. The parties have agreed to a shared decision-making regime. There was no evidence from either that they would look to change that agreement. However, it was not disputed that prior to the events of October 2022, the Respondent was the children’s primary parent, at least for the younger two children. The children have a close relationship with their Mother and are accustomed to her being engaged in all areas of their lives. In my view, it is understandable that the Respondent would seek to expand her parenting time with the children, in particular the child, Lorra. I find that adding an additional 100 kms between the Respondent and the children, at this stage in the proceedings, would significantly impact the Respondent’s claim in relation to parenting time. In the circumstances, I find this potential impact to be material.

Views and Preferences

[52] As indicated by Counsel for the children, the views and preferences of the children were competing; one was in favour; one was opposed, and one was neutral.

[53] The Applicant urged me to place more weight on the views and preferences of the child, Ava, over the child, Lorra. I decline to do that for several reasons. The main reason offered by the child, Ava, was that she believed the school in the Tilbury area was superior. There was no evidence to that effect. The child, Ava, may believe that, but there is no evidence that this is the case.

[54] One of the main reasons offered by the child, Lorra, was the concern that her time with her Mother would be reduced. As set out above, there is a real risk of such a reduction given the three-hour return trip between the two locations. If I were to place more weight on one or the other child’s input, it would be on that of the child, Lorra. However, I find, instead, that this factor is really neutral at this stage.

Reason for the Move

[55] The reason for a proposed move is now a factor to consider under the Divorce Act, when that consideration was generally prohibited prior to the 2021 legislative amendments.

[56] The main reason offered by the Applicant for the proposed move was to “upgrade the lifestyle” for him and the children. While the Applicant did not define what this upgraded lifestyle would be, I took it to mean a lifestyle of living close to water, in a fishing community, surrounded by outdoor activities. The Applicant described the children’s love for fishing, boating and swimming. I also took it to mean living independently and not with extended family.

[57] I do not find this reason, on its own, to represent a compelling reason to relocate the children. The activities referenced by the Applicant are activities that the children can and do engage in often, and without having to move. They reside within a 20-minute drive from the fishing village of Port Stanley. If there are features of the lifestyle unique to the Tilbury or Lighthouse Cove area, the Applicant did not reference them. Absent unique and compelling features, a nebulous reason of “upgraded lifestyle”, in my view, is not a sufficient reason to support a move prior to trial.

[58] The Applicant also referenced economic advantages but offered no concrete evidence of such advantages. He also referenced a superior school for the child, Ava. He offered no independent evidence in this regard; only his understanding. Even if he had offered evidence relating to the two competing schools, this type of evidence is generally not considered absent a unique program or qualification.

[59] The remaining relevant “relocation” factors in the Divorce Act are already addressed above (i.e., the impact of the move and the potential change in parenting time).

Plumley Considerations

[60] As indicated above, the “Plumley” considerations continue to be relevant in considering interim relocations; whether it would be in the best interests of the children to permit the move prior to trial. For many of the reasons set out above, I find it is not.

[61] The Court in Plumley found that a compelling reason could justify permission to relocate prior to trial; a benefit to the family. This suggests, in my view, the chance that the benefit will not be available after trial. That is not the case in relation to the reasons offered by the Applicant in this case. The “lifestyle” in Tilbury will not change between now and trial. What could change is the quality of evidence offered, in relation to the lifestyle, which would only assist the trial judge.

[62] The court in Plumley also referred to the possible preference of the children to commence school in the new location, if the move was likely to be permitted. The Applicant made reference to the same preference. The difference, in my view, from the court in Plumley is that this factor assumed an otherwise compelling reason for the relocation, and the timing of the move was the only issue. In this case I have not found, at this time, that the Applicant has offered a “compelling reason”. Absent that, the timing of the proposed move, prior to the commencement of trial, in my view is not relevant.

Order

[63] For all the reasons above, I do not find that the proposed move by the Applicant, with the children, at an interim stage, would be in the best interests of the children. I find that the “plan of care” offered by the Applicant, being so short on concrete details, offers no level of confidence that the children would be secure in housing or have their needs properly met. This does not mean that such evidence will not exist at trial but it does not today.

[64] As well, I do not find the reasons offered by the Applicant to be compelling enough to justify an interim move of the children further away from their Mother. The lifestyle benefits and activities enjoyed by the children, which were suggested by the Applicant, in my view, do not require a move; they can and are accessed by the Applicant regularly. A move closer to Tilbury may make the benefits more readily available, but this must be weighed against time with their Mother being less available.

[65] In my view the Applicant’s plan of care, the impact of the move on the children’s time and relationship with their Mother, and the Applicant’s reasons for the proposed move are all genuine issues for trial. Without fuller and more detailed evidence on all, I cannot conclude that the proposed move is in the best interests of the children.

[66] For these reasons, an order shall issue:

1. Dismissing the Applicant’s Motion dated June 20, 2024;
2. If the parties are not able to resolve the issue of costs of the Motion, then the parties may provide written cost submissions, not to exceed three pages, double-spaced, with Bills of Cost and any relevant Offers to Settle, as follows: a) The Respondent to provide submissions within 10 days; b) The Applicant to provide responding submissions within 10 days thereafter; and c) The Respondent to provide reply submissions, if necessary, limited to two pages, within 5 days thereafter; d) The parties shall file cost submissions through the JSO (portal) or to StThomas.Courthouse@ontario.ca.

“Justice Sharon E. Hassan” Justice Sharon E. Hassan Date: July 25, 2024