Court File and Parties

Court File No.: FC-19-2430 Date: 2024-07-31 Superior Court of Justice - Ontario

Re: Michael Samuel Skuce, Applicant And: Leah Katherine Friesen, Respondent

Before: Rees J.

Counsel: Jack Pantalone, for the Applicant/Responding Party Richard Bowles, for the Respondent/Moving Party

Heard: July 22, 2024

Endorsement Relocation Motion

I. Overview

[1] The applicant, Michael Skuce, and the respondent, Leah Friesen, have three children of the marriage: Dylan (11), Neil (9), and Adrian (7). Ms. Friesen, a Lieutenant Commander with the Royal Canadian Navy, has brought this motion under s. 16.9 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), seeking the temporary relocation for her and the children to North York, Ontario. She has been posted there by the Canadian Armed Forces to the Joint Command Staff Program. This is a career development course, which begins on August 11, 2024.

[2] Ms. Friesen also seeks a temporary order authorizing her to make parenting decisions for the children and to allow the children to get passports and to travel internationally for professional film and competitive soccer without Mr. Skuce’s approval.

[3] Mr. Skuce opposes the temporary relocation. He also opposes Ms. Friesen’s request for temporary decision-making. He argues that Ms. Friesen is seeking to marginalize his role in the children’s lives.

[4] On the record before me, it is in the best interests of the children to grant the motion, in part, to allow Ms. Friesen and the children to temporarily relocate to North York, so that Ms. Friesen can attend the Joint Command Staff Program for the approximately 11-month course.

[5] But I do not grant Ms. Friesen a temporary order authorizing her to make sole parenting decisions for the children. Nor do I grant her the authority to get passports and to travel internationally for professional film and competitive soccer without Mr. Skuce’s approval. Neither of these changes are justified on a temporary basis.

II. Procedural history

[6] The procedural history is relevant to the determination of the relocation motion. It is therefore useful to summarize the key events.

[7] Mr. Skuce commenced an application for divorce and corollary relief in December 2019.

[8] On March 24, 2020, Blishen J. ordered, on consent, that the children would reside primarily with Ms. Friesen. Mr. Skuce’s parenting time was for 30 minutes before school on Tuesdays in Ms. Friesen’s presence, every Saturday from 9:30 a.m. to 12:30 p.m. at an activity in Ms. Friesen’s presence, and every Saturday from 12:30 p.m. to 3:30 p.m. supervised by Mr. Skuce’s mother and/or her husband. Mr. Skuce was required to submit to random drug and alcohol testing at least twice per month conducted by SureHire. Mr. Skuce was prohibited from operating a motor vehicle during parenting time. He was also required to prevent all contact between the children and Mr. Flaherty.

[9] Two days later, on March 26, 2020, Doyle J. varied Blishen J.’s order, due to the COVID-19 pandemic, by suspending Mr. Skuce’s parenting time on Tuesday mornings until schools reopened and varying his Saturday parenting time to be from 9:30 a.m. to 3:30 p.m. at his mother’s home, supervised by her and her husband.

[10] The parties brought additional motions in July 2023. These were delayed through additional submissions and the illness of counsel. On May 23, 2024, MacEachern J. granted Ms. Friesen’s motion to appoint an assessor under s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, but appointed a different assessor than requested by Ms. Friesen. Justice MacEachern also dismissed Mr. Skuce’s motion for additional parenting time and to remove the requirement that his parenting time be supervised. On May 29, 2024, MacEachern J. released additional reasons regarding the evidence filed on the motion, and allegations made by Ms. Friesen regarding family violence.

[11] On June 21, 2024, Kaufman J. heard a motion regarding Mr. Skuce’s parenting time. Mr. Skuce had been non-compliant with court-ordered drug testing. Ms. Friesen had suspended Mr. Skuce’s parenting time because he failed a drug test on May 24, 2024, and did not attend for testing on June 7, 2024.

[12] Justice Kaufman ordered that Mr. Skuce continue to undergo random drug and alcohol screening through SureHire at least twice per month. If Mr. Skuce fails to attend a scheduled test, or if he tests positive for any non-prescribed substances contained in Schedule 1 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, his parenting time will be suspended until he passes two consecutive tests or as determined after a review. If the applicant tests positive for cannabis or alcohol or any prescribed medication, his parenting time shall continue subject to any motion for a review of his parenting time.

[13] Following Kaufman J.’s order, Mr. Skuce failed to attend a testing appointment on July 12, 2024. His parenting time is currently suspended.

[14] The application is set down for trial on the May 2025 trial list.

III. Analysis

A. The law

[15] The test on a motion for temporary relocation is child-centric. In deciding whether to authorize the temporary relocation of the children, I must determine what is in their best interests: ss. 16(1) and 16.92(1) of the Divorce Act. Subsection 16(2) directs me to give primary consideration to the children’s physical, emotional and psychological safety, security and wellbeing. Subsection 16(3) directs me to consider all the factors related to the circumstances of the children, including specific factors listed therein. In addition, s. 16.92(1) provides that I shall take into account the following 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 a pending application for a parenting order 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 complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;

(e) the existence of an order, arbitral 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 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

(g) 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.

[16] The parent who cares for a child on a daily basis is uniquely positioned to assess what is in their best interests: Barendregt v. Grebliunas, 2022 SCC 22, at para. 119. The Supreme Court of Canada recognized in Barendregt, at para. 171, that a “[r]elocation that provides a parent with more education, employment opportunities, and economic stability can contribute to a child’s wellbeing”. These benefits are relevant to the best‑interests‑of‑the‑child assessment. Moreover, “[i]t is often difficult to disentangle the interests of a parent from the interests of a child… A child’s welfare is often advanced in tandem with improvements in the parent’s financial, social, and emotional circumstances”: at para. 173 (citations omitted).

[17] Section 16.93 sets out the burden of proof on relocation motions. Here, the relevant provision is that “[i]f the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child”: s. 16.93(2). It is open to me to decide not to apply this burden of proof if the order is an interim order: s. 16.94. In such a case, the parties “have the burden of proving whether the relocation is in the best interests of the children”: s. 16.93(3).

[18] A court will be more reluctant to upset the status quo on an interim motion and permit the move when there is a genuine issue for trial: Plumley v. Plumley. But there may be compelling circumstances to permit the temporary relocation. This includes a financial benefit to the family unit that would be lost if the matter awaits a trial of the best interests of the children: Plumley.

B. Burden of proof

[19] The children spend the vast majority of their time in the care of Ms. Friesen, and have done so since at least the order of Blishen J. on March 24, 2020. I therefore apply the burden of proof under s. 16.93(2) of the Divorce Act. Mr. Skuce, as the party opposing the relocation, bears the burden of proving that the relocation would not be in the best interests of the children. Although I have the discretion not to apply the burden of proof under s. 16.93(2) to an interim order, the fact that the children have spent the vast majority of their time for over four years with Ms. Friesen persuades me that it should apply here.

[20] In any event, even if I were not to apply the burden of proof set out in s. 16.93(2), I am persuaded that the relocation is in the best interests of the children.

C. Factors

Reasons for the relocation

[21] As discussed, Ms. Friesen is a Lieutenant Commander with the Navy. She has served in the Navy for over 26 years.

[22] There is credible and reliable evidence from Ms. Friesen’s commanding officer, the Director of Military Digital Operations, regarding postings within the CAF and, specifically, Ms. Friesen’s career development and posting to the Joint Command Staff Program.

[23] A member of the Regular Force can expect to be geographically posted every two to five years. Ms. Friesen has been posted to Ottawa for 12 years. She must be able to move to fulfill her duties as a commissioned officer in the CAF.

[24] In November 2023, in compliance with procedures of Naval succession planning, Ms. Friesen formally requested that she be considered for further employment in Ottawa within the CAF.

[25] A member’s wishes are not determinative, however. They may be taken into account, but the needs of the CAF take precedence and often require members to be posted to locations outside of their personal preferences.

[26] On April 19, 2024, Ms. Friesen received a Posting Instruction to relocate to the Joint Command Staff Program in North York.

[27] I accept Ms. Friesen’s commanding officer’s evidence that refusing to relocate as directed by Posting Instructions would have negative career repercussions for Ms. Friesen. I find that if she refused or were unable to relocate, it would most likely lead to an administrative review. If the CAF were to conclude that Ms. Friesen’s family situation meant that she were not post-able outside Ottawa, it may lead to her release from the CAF. This is not a remote possibility given she has been posted to Ottawa since 2012, and the Navy’s expectation that she eventually return to sea. As the Navy advised her in 2014, “the needs of the service must prevail”.

[28] Declining the posting would harm Ms. Friesen’s career and the financial security of the children. Ms. Friesen’s income provides for the children’s basic daily needs. Mr. Skuce pays $208 per month towards s. 7 expenses and his obligation to pay child support only recommences on May 1, 2026.

[29] Nor does declining this posting mean that the CAF would post Ms. Friesen to Ottawa. It could simply mean that she is posted elsewhere, for example to one of Canada’s coasts.

[30] I further accept Ms. Friesen’s commanding officer’s evidence that the CAF is a unique employer. It is not like civilian or even other government employers.

[31] I also find that Ms. Friesen did not seek a posting outside of Ottawa. To the contrary, in the annual posting cycle, all of her preferences were to remain in Ottawa. She noted her family situation was an obstacle to mobility. Ms. Friesen also requested the distance learning option for the Joint Command Staff Program. Despite this, the Naval Selection Personnel Board posted her to North York. I accept both Ms. Friesen and her commanding officer’s evidence that it is not unusual for members to be posted outside of their preferences.

[32] I disagree with Mr. Skuce’s argument that Ms. Friesen should have applied for an exception on compassionate grounds in advance of a court decision on relocation. Again, this would have had a negative impact on her career. I reject Mr. Skuce’s suggestion that Ms. Friesen has acted inappropriately in not seeking to decline her posting.

[33] The Joint Command Staff Program is prestigious. The 11-month course leads to a Masters of Defence Studies. It would enhance Ms. Friesen’s career, preparing her for future promotions.

Impact on the children

[34] The temporary relocation would enhance the children’s economic wellbeing by giving their mother, the primary income earner, further education and enhanced career prospects.

[35] Further, Dylan aspires to compete in soccer at an elite level. Neil is represented by a professional talent agency for acting. I am persuaded that the programming and opportunities in Toronto would enhance their prospects in both fields. Neil and Adrian would also benefit from being in the feeder program for the “Talent Pathway” for soccer.

[36] The move would not negatively impact the children’s medical needs, as their pediatrician and Neil’s psychologist have agreed to online visits.

[37] I am satisfied that there would not be any meaningful disruption to the children’s schooling, which would continue in North York. Further, the children would continue to have access to military-supported tutoring for their studies.

[38] There is inevitably going to be some disruption to contact with friends and family in Ottawa. Although the children would be temporarily relocated from Ottawa and the home they have known throughout their lives, they would have an opportunity to grow closer to their extended family in Toronto. Ms. Friesen and the children have a close connection to maternal cousins in Toronto and Oshawa. Further, over the last ten years, they have gone to a sleepover camp in the summers with long-time fellow campers. Both the children and Ms. Friesen have friends in Toronto.

[39] I find that the children’s continued connection with their father and paternal grandparents can continue to be fostered through a suitable schedule for parenting time, as discussed below.

Children’s views and preferences

[40] According to Ms. Friesen’s evidence, the children have each expressed a desire to participate in the sport and cultural activities in Toronto, and are positive about temporarily relocating there. I have no independent evidence of the children’s wishes, however.

Time spent with the children by each person who has parenting time

[41] As discussed, for over four years the children have spent the vast majority of their parenting time with Ms. Friesen. By contrast, Mr. Skuce has only had the children for six hours of supervised access on Saturdays. Mr. Skuce’s parenting time is subject to drug tests and is currently suspended. His parenting time was suspended from the end of November 2023 until the late May 2024 because he had failed to attend drug testing for nine months.

Level of involvement in the children’s lives

[42] Ms. Friesen is vastly more involved in the children’s lives than Mr. Skuce.

Compliance with notice requirement

[43] I find that Ms. Friesen has complied with the notice requirement under the Divorce Act.

[44] On December 12, 2023, Ms. Friesen served a Notice of Relocation as a schedule to her affidavit sworn December 15, 2023 on the motions before MacEachern J. The notice was in anticipation of a posting out of Ottawa around August 1, 2024. It stated that Ms. Friesen and the children would live in housing close to the Canadian Forces College in North York, Ontario.

[45] Mr. Skuce indicated in an affidavit sworn on December 19, 2023, that he did not consent to the relocation.

[46] On April 19, 2024, Ms. Friesen received a Posting Instruction to relocate to Toronto.

[47] Ms. Friesen was required by CAF to find her own accommodation at her new place of duty. She was authorized to go to Toronto on May 7, 2024 to do so. On this visit, she found suitable accommodation.

[48] On May 13, 2024, Ms. Friesen served an updated Notice of Relocation.

[49] On June 4, 2024, Mr. Skuce indicated that he opposed Ms. Friesen’s requested relocation through an attachment to a Confirmation of Conference.

[50] In light of the CAF posting and the need to follow orders, I find that there was nothing untoward in Ms. Friesen preparing for the move before the temporary relocation motion was brought and determined. Moreover, the parties were awaiting the outcome of their previous motions.

Any order, arbitral award, or agreement that specifies the geographic area in which the children are to reside

[51] Although not specifically addressed in the temporary consent order made by Blishen J., it is implicit that the children would continue to reside in Ottawa.

[52] But I do not see this as controlling in the circumstances. Over four years have passed since this application commenced. As Corbett J. observed in Konkin v. Aguilera, 2010 ONSC 4808, at para. 27:

[S]ome of the cases consider that it is unwise to make interim orders on mobility issues, when the matter may remain contested at trial. That is a fine ideal, but the court process does not follow the same rhythm as real life.… But a decision must be made now, rather than months or years from now, and a legitimate and timely request to move should not be thwarted by the inevitable effluxion of time inherent in the litigation process.

[53] In my view, this observation is applicable here.

The reasonableness of the proposal of the person who intends to relocate the children to vary the exercise of parenting time, decision-making responsibility or contact

[54] Ms. Friesen has proposed five alternative schedules. I am satisfied that Ms. Friesen reasonably seeks to vary parenting time, but the proposals require some adjustment. First, it is not reasonable to tie Mr. Skuce’s parenting time to the children’s soccer schedule. Maintaining a parent-child relationship is more important than soccer, however talented a child may be in sport. Second, there should be regular rotation between Ottawa and Toronto. Third, Mr. Skuce’s parenting time should continue to be supervised by his parents, rather than a professional.

[55] I do not agree with Mr. Skuce’s proposal for parenting time. As recently as May 23, 2024, MacEachern J. declined to remove Mr. Skuce’s supervision requirement or to vary his parenting time. Accordingly, I decline to increase Mr. Skuce’s overall parenting time. Further, given Mr. Skuce’s substance use and repeated failures to attend testing, it is inappropriate to allow him pick up and drop off the children.

[56] Practical adjustments will need to be made to the parenting schedule following relocation. With the guidance I have provided in mind, I direct the parties to attempt to reach an agreed schedule. If the parties are unable to agree, they shall each provide proposals to the court and I will set the temporary parenting schedule.

Compliance with orders

[57] In her May 23, 2024 endorsement, MacEachern J. held that Ms. Friesen was permitted to suspend Mr. Skuce’s parenting time given his non-compliance with the drug testing requirements. In his June 21, 2024 endorsement, however, Kaufman J. held that Blishen J.’s order did not mandate an automatic suspension of parenting time upon a relapse. Rather, the order provided for a review of the Mr. Skuce’s parenting time.

[58] Mr. Skuce has failed to abide by court-ordered testing and drug relapse notice requirements.

Family violence

[59] In her May 23, 2024 endorsement, MacEachern J. found that the bulk of Ms. Friesen’s claims that Mr. Skuce is violent and a threat to her and the children are made in a conclusory way, unsupported by specific incidents. But she accepted that there has been family violence conduct by Mr. Skuce.

Summary of children’s best interests

[60] I conclude that the foregoing factors support Ms. Friesen’s and the children’s temporary relocation to North York.

D. Decision-making and passports

[61] I am not persuaded that an order that Ms. Friesen be the children’s sole decision-maker should be made. This is an issue for trial.

[62] As counsel for Ms. Friesen rightly acknowledged at the hearing, the passports are not connected to the relocation. I am not persuaded that this should be addressed on a motion for relocation.

IV. Disposition

[63] Ms. Friesen and the children may temporarily relocate to North York so that she may attend the Joint Command Staff Program.

[64] The parties shall explore whether they can reach a mutually-agreed parenting schedule given my reasons above. If the parties are unable to do so, they may each submit parenting schedule proposals of no more than 1,000 words within 14 days of this endorsement, and I will determine the issue.

[65] If the parties are unable to agree to costs, they may make costs submissions of no more than 1,000 words, supported by costs outlines, within 14 days of this endorsement.

[66] Submissions may be sent to my attention at scj.assistants@ontario.ca.

Justice Owen Rees

Date: July 31, 2024