COURT FILE NO.: FC1012/14-02 DATE: July 25, 2024

SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Shari C. Robitaille, Applicant AND: Brooke William Askin, Respondent

BEFORE: TOBIN J.

COUNSEL: Rebecca Coyne, for the Applicant Christos Vitsentzatos, for the Respondent

HEARD: July 24, 2024

ENDORSEMENT

Motion

[1] This is the applicant’s motion (“the mother”) dated June 18, 2024. She asks for an order allowing her to relocate the residence of the parties’ two children to Italy for a period of 10 months, for the upcoming school year. If she is granted permission to relocate the children’s residence, she also asks for ancillary relief to allow for the move and parenting time to proceed in an uneventful and predicable manner.

[2] The respondent (“the father”) opposes the relief. He wants the parties’ children to live with him for the year that the mother is abroad.

[3] This motion was before the court on July 17, 2024. At that time, the father asked for and was granted an adjournment. He had to deal with the change in his representation. A one-week’s adjournment was granted. Also, the father was granted leave to file an affidavit in response to the mother’s motion. In addition to filing an affidavit, he served a notice of motion in which he sought relief including an order granting him interim decision-making authority for and primary residence of the children. He also requested an order that the children not be permitted to relocate to Italy.

[4] The mother objected to the father’s motion being heard. She was afforded very little time to respond. The motion was considered by me as a cross motion in which the father made clear his objection to the mother’s relocation request. The parties were advised that I would not consider the father’s request for a change of decision-making responsibility and primary residence.

[5] This motion is brought within the application brought by the mother issued June 3, 2022.

Facts

[6] The parties are the parents of two children, [M.], born [2011] (soon to be 13), and [A.], born [2013] (11).

[7] The parties separated on August 7, 2013.

[8] The mother and father divorced on December 28, 2014.

[9] The mother remarried and with her husband has one child, born in 2018.

[10] The parties’ children have resided in her care since the date of separation. She has been their primary caregiver. As found by Justice Korpan in her endorsement of October 12, 2022 at para. 35, “[t]he long-standing status quo is that the children have been in the primary care of the mother.”

[11] The mother is employed as the principal of a French language school in Owen Sound.

[12] The mother was granted one school year leave of absence. It is her plan to take a teaching position in Italy. She made plans for this eventuality a number of years ago by arranging for a deferred leave. In Italy, she will be working for a leading international K–12 education group. This will provide her with the opportunity to add to her credentials.

[13] There is no evidence to suggest that the children are not doing well in her care. She is meeting their needs.

[14] The father has had regular parenting time with the children on alternate weekends. They have never been with him for extended periods. The father had less parenting time for a period while he addressed issues with his then partner. The children witnessed violence between the father and his then partner. This adversely affected the children. They became reluctant to attend at parenting time. With the mother’s assistance, parenting time did resume in August 2022 on alternate weekends. This arrangement was confirmed in the temporary order of Justice Korpan dated January 10, 2023. That order allowed the mother to relocate the children’s residence to Sauble Beach. The move allowed her to take her position in Owen Sound.

Legal considerations

[15] The mother’s request is made under the Divorce Act.

[16] The Divorce Act provides that in determining any aspect of a parenting order, the court is to take into consideration only the best interests of the child of the marriage. I have considered ss. 16 and 16.9.

[17] The mother’s counsel cited Barendregt v Grebliunas, 2022 SCC 22. In this case, the Supreme Court of Canada provided a summary of the framework for determining whether relocation is in the best interests of the children, as follows:

150 The new Divorce Act amendments also respond to issues identified in the case law over the past few decades, which did not arise in Gordon. Section 16.92(2) now provides that trial judges shall not consider a parent's testimony that they would move with or without the child. Furthermore, ss. 16(3)(j) and 16(4) of the Divorce Act now instruct courts to consider any form of family violence and its impact on the perpetrator's ability to care for the child.

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

152 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.

153 Our jurisprudence and statutes provide a rich foundation for such an inquiry: see, for example, s. 16 of the Divorce Act. A court shall consider all factors related to the circumstances of the child, which may include the child's views and preferences, the history of caregiving, any incidents of family violence, or a child's cultural, linguistic, religious and spiritual upbringing and heritage. A court shall also consider each parent's willingness to support the development and maintenance of the child's relationship with the other parent, and 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. These examples are illustrative, not exhaustive. While some of these factors were specifically noted under Gordon, they have broad application to the best interests of the child.

154 However, traditional considerations bearing on the best interests of the child must be considered in the context of the unique challenges posed by relocation cases. In addition to the factors that a court will generally consider when determining the best interests of the child and any applicable notice requirements, 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.

Application of legal considerations

Relocation

[18] I find that allowing the relocation as requested by the mother is in the best interests of the children.

[19] The mother’s reason for relocating for a period of 10 months, one school year, is reasonable. She is advancing her career and income potential. This is important as she is receiving little child support from the father.

[20] The father’s affidavit contains speculation and concern that the mother’s job offer is not real and that she may never return from Italy. He submitted that the mother did not provide evidence of her job offer and plans. That is not the case. She detailed those particulars in her affidavit. That is evidence the court can rely upon. In her reply affidavit, the mother provided corroborative evidence in the form of a copy of the contract she says she will enter into. The father's beliefs are not grounded in the evidence before the court, and I am not persuaded that this is a factor that weighs against finding the mother's plan is in the best interests of the children.

[21] The mother acknowledges that there will be an impact on the children by reason of the relocation. They will be away from their familiar surroundings, family, friends and activities for the next school year. They will have less frequent in-person contact with the father and his extended family. However, there will be extended periods when the children will be with the father and his family. Under the mother's plan, the father will have the children in his care for almost the same amount of time he would have under the current parenting time scheduled.

[22] The mother has made a reasonable proposal that will allow for the father to have parenting time during the next year. It is set out at para. 62 of her affidavit sworn on June 17, 2024, which provides as follows:

a) 8–14-day visit between October 11, 2024 and October 27, 2024 b) 1–4-day visit December 19–22, 2024 c) 4–6-day visit between December 25, 2024 and January 1, 2025 d) 8–14-day visit between February 21, 2025 and March 21, 2025 e) 8–14-day visit between April 30, 2025 and May 15, 2025.

[23] The amount of time will vary depending upon flight schedules and reasonable costs.

[24] In addition, the father will have regular virtual parenting time with the children according to a schedule to be determined.

[25] I also take into consideration that the children will be with their mother, stepfather and sibling. They will continue with their education and be able to enjoy extracurricular activities and the benefits of experiencing a foreign country. The mother's plan maintains the longstanding status quo that she remain the children's primary caregiver. The mother’s plan is well thought out. She has arranged for their schooling, medical care, sports opportunities as well as keeping her family intact.

[26] The intended move is not a permanent one but for a school year. They will return in June 2025.

[27] All of these factors tend to mitigate any negative impact the relocation may have.

[28] I am satisfied that the mother wants to ensure the children maintain their relationship with the father while they live abroad.

[29] I received conflicting evidence on the views and preferences of the children from the parties. The significant reason expressed by the father for his opposition to the move is that according to him, [M.] does not want to go and [A.] is not excited to go. According to the mother, both were very excited to go but [M.]’s enthusiasm waned after spending time with the father.

[30] During the period of the adjournment of the motion, a Voice of the Child Report was prepared by Ms. Paula DeVito on an expedited basis.

[31] [M.] expressed to Ms. DeVito that both parents spoke to him about the move to Italy. He also told Ms. DeVito he “does not really want to go to Italy because the rest of his family are here” and he wants to play basketball as well. He does not want to leave for a year, make new friends and then leave them.

[32] [A.] told Ms. DeVito that he wants to go to Italy “to have an experience and learn new things—a little bit of Italian and there is lots of cool places to go.”

[33] [M.]’s views and preferences are deserving of respect. His concerns as a tweenager about friends and family are understandable. I am persuaded the mother’s parenting time plan for the father takes these concerns into account. It recognizes that he has a close and loving relationship with his father and wants the opportunity to spend time with him. I also accept the mother’s evidence that when the children moved to Owen Sound, they “adjusted to the change quickly, they loved their new school, they were happy to make new friends, and they embraced their new sports teams willingly.” I infer from this evidence that there is the likelihood that they will experience the same in Italy.

[34] The next school year in Italy will provide an enriching opportunity for the children, for a brief period in their lives. The father will continue to have meaningful parenting time with the children.

[35] The mother met her onus in establishing that the move is in the children’s best interests. The father has not met his onus in establishing otherwise.

Passports

[36] In order to ensure that the move is facilitated without incident and having regard to the mother’s evidence as to the father’s past actions related to exchanging the children, I find that it is in the best interests of the children that the mother be allowed to obtain the children’s passports without the prior consent or signature of the father.

Police assistance order

[37] I decline to grant a police assistance order as requested. Such a request should not be granted on a “just in case basis.” The father will undoubtedly face very serious consequences including costs if he fails to abide by the court order for his parenting time.

Section 7 and Travel costs

[38] The parties are to share the costs of the children’s school fees, excluding tuition fees, on an equal basis as that has been their longstanding agreement.

[39] Pursuant to Divorce Act s. 16.95, I will order that the parties are to share in the children’s parenting time air travel costs, with the mother paying 75 percent and the father paying 25 percent, while the children reside in Italy. It is the mother who is moving with the children and the evidence suggests she has more income than he does.

Order

[40] For these reasons, a temporary order shall issue as follows:

1. The Applicant mother shall be permitted to apply for and renew passports for the children of the marriage, namely [A.], born [2013], and [M.], born [2011], and for that purpose the signature of the Respondent father, Brooke William Askin, is dispensed with.

2. Paragraphs 1, 2, and 3, of the Order of Korpan J., dated January 10, 2023, shall be varied as follows: (a) On or about August 18, 2024, the Applicant mother shall be permitted to relocate the children, namely, [A.], born [2013], and [M.], born [2011], to Italy, until the end of June 2025; (b) The children shall be registered for school at the Canadian School of Florence, for the 2024–2025 school year, commencing September 5, 2024; (c) When the children are resident in Italy, the Respondent father shall have parenting time with the children, to occur in Canada, according to a schedule to be determined, taking into consideration the children's school calendar, travel arrangements and the applicant mother’s proposed schedule being: i) 8–14-day visit between October 11, 2024 and October 27, 2024 ii) 1–4-day visit December 19–22, 2024 iii) 4–6-day visit between December 25, 2024 and January 1, 2025 iv) 8–14-day visit between February 21, 2025 and March 21, 2025 v) 8–14-day visit between April 30, 2025 and May 15, 2025. The amount of time will vary depending upon flight schedules and reasonable costs.

   In addition, the father will have regular virtual parenting time with the children according to a schedule to be determined.

   and

   (d) When the children return to Ontario, the Respondent father shall have parenting time as set out in the Order of Korpan J., dated January 10, 2023.

3. The parties shall share equally the costs of the children’s school fees, excluding tuition which shall be the responsibility of the mother;

4. The parties shall share in the children’s parenting time air travel costs, with the mother paying 75 percent and the father paying 25 percent, while the children reside in Italy, to facilitate the father’s parenting time.

5. Upon the Applicant mother's request, the Respondent father shall release the children into the care of Shari Robitaille, or her designate, namely Wade Mathewson, or Teddy Robitaille.

6. The applicant’s request for a police enforcement order is dismissed.

7. The respondent’s request for decision-making responsibility and primary residency with the children is dismissed.

8. If the parties wish to make submissions regarding costs, they are to be limited to three pages double-spaced, 12-point font, together with a Bill of Costs and any Offers to Settle. The Applicant is to provide his submissions within seven (7) days of the release of this endorsement and the Respondent within seven (7) days after being served with the Applicant’s submissions.

9. If submissions are not filed in accordance with this timeline, the issue shall be deemed settled and no order shall issue.

“Justice B. Tobin”

Justice B. Tobin

Date: July 25, 2024