Court File and Parties

COURT FILE NO.: FC-22-1184 DATE: 2024/08/08 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: James Bryan Begg, Applicant AND Eve Pariseau, Respondent

BEFORE: Justice Shelston

COUNSEL: Manraj Grewal for the Applicant Vlad Floca-Maxim for the Respondent

HEARD: July 30, 2024

Endorsement

[1] The main issue for this motion is the respondent’s request to be permitted to relocate with the child, L., within a 20 km radius of Petawawa, Ontario. The applicant seeks the dismissal of the respondent’s request.

Background

[2] The parties cohabitated from May 3, 2019 to February 20, 2022.

[3] There is one child of their relationship namely L., born in 2020.

[4] The respondent is an operating room technician in the Canadian Armed Forces, Sgt. rank. She has been living in Ottawa for nine years.

[5] The applicant is a master corporal, works for CANSOFCOM and lives in Ottawa. He moved from Petawawa to Ottawa to live with the respondent.

[6] The child has resided in the primary care of the respondent since separation in Ottawa.

[7] The applicant is the father of W., who lives with his biological mother in Pembroke.

[8] The respondent has two children from a prior relationship namely I., born in 2022, and J., born in 2005. J. resides with the respondent in Ottawa.

[9] After separation, in March 2022, the respondent advised the applicant she wanted to move to Montréal with the child as her parents lived in Montréal and that the applicant was having limited contact with the child, had a short temper, and had a dependency on alcohol.

[10] On June 12, 2022, the respondent signed a notice of relocation which was subsequently served on the applicant seeking to move to Montréal. The applicant did not consent. In the notice of relocation, the respondent indicated that she was moving to the north shore of Montréal as she and the child would have a lot of support and family around and it would be a better environment for the child as he would be able to see the family on a regular basis. Further, she alleged that the applicant was a negligent parent who abused alcohol.

[11] Consequently, on June 29, 2022, the applicant filed an Application seeking a final order that the parties have joint parenting decisions regarding the child, a shared parenting schedule in either a 2-2-2 schedule or a 2-2-5-5 schedule and once the child is of an appropriate age, the parties shall switch to a week on an week off schedule and that the parties equally divide the holidays on an rotating basis.

[12] By Answer dated August 2, 2022, the respondent sought an order that the parties have joint decision-making responsibility, that the child’s primary residence be with the respondent, that the applicant have graduated parenting time with the child increasing to two full weekends from Friday evening to Sunday afternoons per month, a specific holiday schedule, an order permitting the respondent to move with the child to Montréal, child support, a contribution toward Section 7 Expenses, life insurance as security for support, and costs.

[13] In paragraph 8 of Important Facts Supporting Her Claim in her Answer, the respondent stated:

8. The respondent’s family and support network reside in Montréal, Québec. The respondent would like to apply for a compassionate posting to Montréal so that she and L. may benefit from the support and care of her family.

[14] The parties attended a Case Conference on November 4, 2022, at which time the court ordered the parties to update their financial statements, complete their 2022 tax return, advise of any changes in employment status, granted leave the parties to proceed to temporary motions and made no order as to costs.

[15] After the Case Conference, the parties negotiated Minutes of Settlement signed in December 2022, where the parties agreed on a without prejudice basis as follows:

1. The child’s primary residence would be with the respondent.
2. The applicant would have parenting time on a without prejudice basis as follows: a) Week one: Tuesday after daycare until Thursday morning at daycare drop off. b) Week two: Tuesday after daycare until Wednesday morning at daycare drop-off and Saturday at 10:30 AM until Sunday at 2:30 PM.
3. The parties agreed to exchange the child at the St. Laurent Shopping centre if not picked up at the daycare or a mutually agreed upon location.
4. Applicant to refrain from using alcohol while in the caregiving role.
5. Commencing December 1, 2022, based on an income of $70,000, the applicant to pay the respondent table child support of $654 per month and $278 per month for his share of the net daycare expenses.
6. Applicant to pay $1905 for child support arrears within 30 days.
7. Both parties to pay their own costs for the preparation and negotiation of these minutes of settlement

[16] The agreement was never confirmed by the court in the parties. The respondent never pursued her plan to move to Montreal.

[17] The parties followed the Minutes of Settlement. Despite alleging that the applicant was an alcoholic in her pleadings, the respondent agreed to the parenting time set out in the Minutes of Settlement and at the request of the respondent, the applicant cared for the child from April 24 to April 30, 2023, while the respondent was at a conference and then again from May 3 to May 24, 2023, when she was in Alberta for training.

[18] Prior to the applicant being posted to the Congo on September 22, 2023, text messages exchanged between the parties indicates that the parties were considering reconciliation and even buying a home together. By September 2023, the respondent no longer alleged that the applicant was an unfit parent who abused alcohol. Rather, the evidence is that the applicant was having significant parenting time with his child and that the respondent relied upon him in April and May 2023 to care for the child by himself while the respondent was away on training.

[19] The applicant stated that the parties had an argument before he was deployed to the Congo. After deploying, in October 2023, the respondent, in a phone conversation with the applicant, advised him that there was a possibility of being promoted and posted to Petawawa as the current Warrant Officer was promoted and posted to Ottawa. The applicant advised that he did not consent to the child moving.

[20] While in the Congo, the applicant had 12 video calls with the child in the last months of 2023 and had 7 video calls between January 25 and May 12, 2024. The applicant was in Ottawa from January 6 to January 25, 2024, for leave. He cared for the child from January 13 to January 21, 2024.

[21] On January 31, 2024, the respondent became aware that she was eligible for promotion from Sgt. to Warrant Officer in Petawawa. Due to the applicant’s position, there are only four positions in the Canadian Armed Forces being two in Ottawa, one in Petawawa, and one in Edmonton. Currently, there is no ORT Warrant Officer in Petawawa.

[22] By email dated April 5, 2024, Warrant Officer Nicole Claxton advised that the respondent should receive a message from her career manager posting her from Ottawa to Petawawa on a date yet to be determined and that she will be promoted to Warrant Officer which would result in increased responsibility and an increase in pay. On May 23, 2024, the respondent received orders posting her to Petawawa as of August 15, 2024.

[23] On May 23, 2024, the respondent signed her Notice of Motion, affidavit, notice of relocation and other pleadings. The respondent submits that it is in the child’s best interest that he be permitted to move to Petawawa for various reasons including that the child would thrive in Petawawa, that he would see his father regularly, that he would see his brother W. regularly and that the child and the respondent would have a devoted support system. She wishes to enrol L. in the same school with W. She submits that Petawawa has a large Francophone community, and it is important for the child to nurture his Francophone heritage.

[24] The applicant returned from the Congo on June 12, 2024. He resumed his parenting time with the child and had the child from June 26 to July 7, 2024, as summer vacation.

[25] The respondent submits that Petawawa has a large familial to raising children and that L. would be supported by the respondent’s daughter J., friends and the Petawawa Military Family Resource Centre and the child’s paternal grandmother who lives in the area.

[26] The respondent has sold her home in Ottawa and seeks an order to move within 20 km of Petawawa. She has not disclosed any information about her new residence.

[27] The applicant submits that the respondent has not been forthright with the court regarding the chronology of events, the reason she sought to move to Montréal, her unfounded allegations that he is an alcoholic and cannot care for the child, the contradiction in her evidence regarding the reasons to move to Petawawa and her attempt to avoid a trial to determine the best interests of the child by moving to Petawawa.

[28] The parties have not proceeded to questioning, a Settlement Conference date has not been set and the matter is not on any trial list.

Analysis

[29] The Children’s Law Reform Act R.S.O. 1990, Chapter C.12 (“CLRA”) section 39(4) mandates that the court in authorizing the relocation of a child shall consider the best interests of the child in accordance with section 24 and consider 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 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 section 39.3 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. 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.

[30] In matters, such as where the parties to the proceeding substantially comply with an agreement that provides that the child spends most of the 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. Section 39.4(6) CLRA.

[31] If the order sought is interim, in the circumstances, the court may determine that the sub-section on burden of proof does not apply. Section 39.4(8) CLRA.

[32] In this case, I have decided that the burden of proof set out in section 39.4 (6) CLRA does not apply. I do so because the Minutes of Settlement dated December 2022, are on a without prejudice basis and were never confirmed by a court order, the parties lived together with the child from his birth until February 2022, that from December 2022 to September 2023, the applicant was having weekly parenting time with the child and such parenting time was interrupted because of the applicant being deployed through his employment with the Canadian Armed Forces.

[33] Even if I am wrong on the burden of proof, I find that the applicant has met his burden for the reasons set out herein.

[34] I accept the evidence of the respondent that the applicant sent inappropriate text messages to her when she raised the issue of possibly going to Petawawa while he was in the Congo.

[35] I accept the evidence of the applicant that he is deployable as required through his employment but that if he was either a shared parent or the primary parent of the child, he would not be deployable.

[36] I accept the evidence of the applicant that after signing the without prejudice Minutes of Settlement in December 2022, the parties reconciled in May 2023 and the parties were considering purchasing a house. I find that a text message sent by the respondent to the applicant raised the issue of an equal sharing parenting arrangement. In her reply affidavit dated July 22, 2024, the respondent does not deny the applicant’s allegations.

[37] I accept the evidence of the applicant that the parties had a falling out in the fall 2023 before the applicant was posted to the Congo. In her reply affidavit dated July 22, 2024, the respondent does not deny the applicant’s allegation.

[38] I accept the evidence of the applicant signed by Colonel Purdy that while in the Congo, what the applicant was exposed to could give rise to stress related mental health challenges that he needed to address upon returning to Canada.

[39] The leading case on the principles to determine if relocation should be permitted on a temporary motion is Plumley v Plumley, 1999 O.J. No. 3234 where the court set out the following factors:

a) The 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. b) There can be compelling circumstances which might dictate that a justice 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 of the best interests of the children 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 possibility that the custodial parent’s position will prevail at trial.

[40] I make the following findings regarding the factors set out in section 39(4) CLRA that I am to consider:

The reasons for the relocation

[41] The main reason that the respondent’s seeks permission to relocate with the child is because she has been ordered to report to Petawawa on August 15, 2024.

[42] The only evidence provided by the respondent about her transfer is the email dated April 6, 2024, from Warrant Officer Claxton and her formal orders dated May 23, 2024. The respondent has not provided a signed affidavit or even a signed letter from her commanding officer or someone in the chain of command to confirm that she has been ordered to report to Petawawa for August 15, 2024, and that she had no other alternative to delay such transfer.

[43] Both parties refer to various printouts produced by the Canadian Armed Forces on the issue of transfers, institutional and operational needs, situations when members are deployed, etc. These documents are designed to provide general information. There is no specific evidence provided by the respondent to address the issue as to whether she requested a transfer and her alternatives after she received her formal orders to seek a delay of such transfer pending the resolution of the family law litigation.

[44] The documentation provided by the applicant appears to indicate a request for a delay of transfer is possible. There is no evidence that the respondent requested a delay in her transfer.

[45] Further, the evidence is contradictory as to whether there is an available position for an OR Tech in Ottawa. The applicant states that he is also aware as being a member of the Canadian Armed Forces that she can turn the job down by asking her career manager to consider her family commitments any of her career manager refused, she may apply for a compassionate posting.

[46] I find there are sufficient issues raised in the affidavit material that the respondent, after the applicant was deployed to the Congo, pursued a transfer to Petawawa. The respondent has not provided reliable and credible evidence that there are other options available to her such as requesting a delay in the transfer. The reasons for the relocation and the possible alternatives are triable issues that cannot be resolved based on the contradictory evidence filed by the parties.

The impact of the relocation on the child

[47] Due to the young age of the child, he has not been in school but has been in daycare in Ottawa as is the applicant.

[48] The respondent indicated that there are services available for the child at Petawawa and the evidence is contradictory as to the size of the Francophone community in Petawawa or in Pembroke versus Ottawa.

[49] I find that the impact of the child relocating to Pembroke or Petawawa is that he will have significantly less parenting time with the applicant. The court is to consider the best interests of the child and consequently, this issue must proceed to trial to determine who will be the parent with decision-making responsibility and what parenting plan is in his best interests.

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.

[50] From December 2022 to September 22, 2023, the child was with his father one week from Tuesday overnight until Wednesday morning and the next week on Tuesday after daycare until Thursday morning as well as on the subsequent Saturday from 10:30 AM to Sunday at 2:30 PM. Further the applicant cared for the, at the request of the respondent, in April and May 2023.

[51] Since returning from the Congo in mid June 2024, the applicant has had parenting time in accordance with the Minutes of Settlement as well as holiday time.

Whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement.

[52] The notice of relocation does not provide an address for the new place of residence but simply that the new address had not yet been confirmed but would be within 20 km of Petawawa.

[53] The notice of relocation does not provide any information regarding a proposed daycare for a child who is not yet four years of age or if the child is eligible to attend junior kindergarten. However, in her affidavit material, the respondent indicates that she has confirmed that the child can attend a school in Pembroke in the same school board as the one in Orleans where L. would be attending if he stayed in Ottawa.

The existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside.

[54] The Minutes of Settlement did not grant the respondent sole decision-making responsibility for this child. Rather, the parties agreed that the child’s primary residence would be with the respondent and the applicant would have parenting time.

[55] The Minutes of Settlement dated December 2022 do not specify a geographic area in which the child is to reside but at the time the agreement was signed, both parties were living in the city of Ottawa and parenting time has been exercised in the city of Ottawa.

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.

[56] The respondent proposes that the applicant would have parenting time on alternating weekends from Friday after daycare/school until Sunday at 6 PM, every professional development day, every long weekend except Easter weekend which shall alternate, every March break, a full week during the Christmas break, a two week alternating summer schedule resulting in each parent having one month as well as brief telephone call or video calls with the child every Wednesday and Sunday at 6 PM or as agreed to by the parties.

[57] The respondent proposes that the exchange of the child will be in Pembroke, or any other location agreed to by the parties and that the applicant refrain from using alcohol in a caregiving role.

[58] The applicant has another child by a previous relationship, namely W., who resides in Pembroke with his biological mother. The applicant has regular parenting time with this child.

[59] I find that the proposal made by the respondent is a significant reduction in the child’s parenting time with the applicant and do not find it reasonable in the circumstances.

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.

[60] I find that both parties have been complying with the Minutes of Settlement dated December 2022.

Conclusion on relocation

[61] In my view, there are serious credibility and factual issues that cannot be resolved on a motion to permit the court to complete the extensive child-focussed inquiry required under the law when the court is confronted with conflicting and incomplete affidavit evidence.

[62] The respondent concedes that there is a genuine issue for trial based on the credibility findings that must be made based on the contradictory evidence set out in the parties’ affidavit.

[63] The applicant submits that there were compelling circumstances that require the court to permit the child to move from Ottawa to Petawawa with the respondent by August 15. The main argument from the respondent is that she has no choice but to report.

[64] Both parties are in the Canadian Armed Forces and are aware of the regulations and provisions that are applicable to transfers. I find that when the respondent served a notice in June 2022 of her relocation to Montréal, she indicated that she was considering a compassionate request but did not make a formal request to transfer to Montréal. The respondent has not explained why such a request on compassionate grounds could not be made to delay her transfer to Petawawa.

[65] I do not find that the unsigned email from Warrant Officer Claxton is sufficient evidence for me to conclude that she has no alternative but to attend her proposed new posting as of August 15, 2024. There is no explanation as to why the respondent could not provide a signed affidavit or even a signed letter from a superior officer in her chain of command confirming that she had no other alternative but to move to Petawawa. Further, counsel for the applicant advised that the pay increase viewed proximally $5000 a year which is not enough of an increase to make the move compelling.

[66] I find that the documentation relied on by both parties does not provide the court with a clear picture as to what alternatives are available to the respondent.

[67] On the contrary, I find there is a compelling reason for her not to move. The parties are in litigation regarding a determination regarding decision-making responsibility, a parenting schedule, and a relocation request by the respondent. Since the Case Conference in November 2022, neither party has moved this matter forward. Neither party has an order or agreement regarding decision making responsibility.

[68] The issue as to the ultimate decision-making responsibility will be an issue for trial. In her Answer, the respondent proposed joint decision-making responsibility. In her Notice of Motion, the respondent seeks to amend her Answer to plead, on an interim without-prejudice basis only, the parties shall have joint decision-making with final say going to the respondent. This change in position is a triable issue.

[69] I cannot conclude that it is inevitable that the respondent will be the successful party on decision-making responsibility or a parenting schedule. The respondent has raised serious concerns regarding domestic violence and alcohol abuse by the applicant which is denied. Both parties make allegations that each has an insulted the other. In arriving at a final decision on decision-making responsibility, the trial judge will be in a better position to adjudicate on each parties’ reliability and credibility in reaching a final decision on decision-making responsibility. I find that issue is one that must proceed to trial.

[70] Considering all these factors, I dismiss the respondent’s motion to be permitted to relocate on a temporary basis to Petawawa Ontario with the child pending further order of this court.

Temporary orders

[71] I order that the respondent shall serve and file an Amended Answer to plead the relocation of the child to Petawawa, Ontario indefinitely and to plead, on an interim without-prejudice basis only, the parties shall have joint decision-making responsibility with final say going to the respondent, after consultation with the applicant by August 22, 2024.

[72] I order that the applicant shall serve and file a Reply by September 5, 2024.

Parenting schedule if child remains in Ottawa and respondent moves to Petawawa

[73] In his Notice of Motion, the applicant has requested primary residence of the child if the respondent relocates to Petawawa without the child. Further, he proposes that the respondent shall be responsible to pickup and drop off the child alternate weekends when the applicant’s other child is not in the applicant’s care from Friday after school until Sunday at 6 PM. Alternatively, the applicant proposes that the respondent will bring the child to Pembroke on Friday after school and pick the child up from Pembroke on Sunday. For the second exchange, the applicant will be responsible to pick up the child in Ottawa.

[74] The applicant seeks child support from the respondent. Currently, the applicant is paying table child support to the respondent which would change if the child is placed in the primary care of the applicant.

[75] The applicant proposes that the child live with him in his accommodations on the military base which is a bilingual community where the child has friends, where there is a Military Family Resource Centre which has a community centre, pool, day camps, splash pads.

[76] The child is registered in kindergarten at Voyageur Elementary School and is registered in the before and after program. He proposes the child continue with the French education system and plans to keep them in the same school. The applicant will retain the same family doctor.

[77] Upon a review of the respondent’s reply affidavit dated July 22, 2024, I do not find that she has sufficiently addressed the request made by the applicant seeking primary residence of the child and granting the respondent parenting time and addressing the responsibility for pickup and drop off the child.

[78] I require a further affidavit from the respondent to address the issues raised by the applicant in his affidavit including child support, to be served and filed and uploaded to CASELINES by Wednesday August 14, 2024. Once said document has been served, filed, and uploaded to CASELINES, I will review the documentation and release a decision on the parenting time and child support, if the respondent is relocating to Petawawa without the child.

[79] If the respondent does not relocate to Petawawa, the parties are to advise the court by sending a letter addressed to me to the Trial Coordinator’s Office.

Parenting schedule if child and respondent remain in Ottawa

[80] If the respondent remains in Ottawa, I confirm and order the parties to abide by the terms of the Minutes of Settlement dated December 2022.

[81] I will not grant either party sole decision-making responsibility as that will be a triable issue.

Next Steps

[82] Based on my reasons, this matter must proceed to trial as soon as possible. I order that this matter shall be placed on the November 2024 trial sittings on a priority basis. I order that the parties shall contact the Trial Coordinator’s Office to schedule a 90-minute Settlement/Trial Management Conference to occur before October 11, 2024. I order that the parties shall prepare a Settlement Conference Brief, serve an Offer to Settle on all issues and that the parties shall cooperate and complete a Trial Scheduling Endorsement Form to be filed before the conference.

[83] The parties are to complete questioning as soon as possible to ensure that the questioning and answers to any undertakings be completed by October 1, 2024.

COSTS

[84] If the respondent moves to Petawawa and the child remains in Ottawa, the issue of costs will be deferred until after I render my decision on parenting time. If the respondent does not move to Petawawa and remains in Ottawa, I order the applicant to provide his cost submissions not to exceed two pages plus a detailed bill of costs and any offers to settle by no later than August 19, 2024. I order that the respondent shall provide her cost submissions subject to the same terms to be provided by no later than August 30, 2024. There shall be no right of reply to the applicant.

Mr. Justice Mark Shelston Released: August 8, 2024