Court File and Parties

COURT FILE NO.: 5079/22 DATE: 2024-08-20 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

NATHANIEL FISHER-HARRIS Applicant – and – STEFFANIE FISHER Respondent

Counsel: Daniel Dominitz, for the Applicant Jasmine Gassi Harnden, for the Respondent

HEARD: July 24, 2024

Before: Gareau J.

Reasons on Interim Motions

[1] Before the court are two motions, at Tabs 21 and 23 of the continuing record. The motions pertain to the children of the parties, namely, Gabriella Emilia Fisher, born April 19, 2018, and Kaden Stanley Fisher, born May 20, 2021.

[2] The parties have opposite views on where the children should reside. The applicant father wishes the principal residence of the children to be with him in Elliot Lake, Ontario. The respondent mother wishes it to be with her in Sudbury, Ontario.

[3] The parties were married on December 31, 2017, and separated on September 26, 2022. At the time of separation, the parents and the children were residing in Elliot Lake, Ontario. The children resided in Elliot Lake, Ontario since November 2018, in other words, since Gabriella was approximately seven months of age. The youngest child, Kaden, has lived in Elliot Lake all of his life.

[4] The evidence is that both parents have participated fully in the care of Gabriella and Kaden and have assisted in their upbringing. The applicant father was able to stay at home for 10 months after the birth of Kaden in order to assist the respondent with the care of the two children. The respondent has been at home with the children and currently is a fulltime stay at home caregiver to the children.

[5] It is the allegation of the father that the parties agreed to a sharing of the children on a four-day basis with him having the children on his four days off and the mother having the children on the four days that the father was working. Apparently, this arrangement broke down and the mother arbitrarily and without the father’s consent moved the children from Elliot Lake to Sudbury on September 28, 2022. The father alleges that after the move of the children to Sudbury took place, he had difficulties exercising parenting time to the children which necessitated a motion to the court brought by him and first returnable on October 13, 2022. That motion was resolved on consent and on October 14, 2022, the court made a temporary without prejudice order that provides as follows:

1. The children Gabriella Fisher, born April 19, 2018 (“Gabriella”) and Kaden Fisher, born May 20, 2021 (“Kaden”) (hereinafter collectively referred to as “the children”) shall reside with the respondent/mother, Steffanie Fisher, from Wednesdays at 6:00 p.m. to Sundays at 10:00 a.m.
2. The children shall reside with the applicant/father, Nathaniel Fisher-Harris, from Sundays at 10:00 a.m. until Wednesdays at 6:00 p.m.
3. Gabriella shall continue to attend school at Ecole Georges Vanier in Elliot Lake during the respondent/father’s parenting time.
4. All pick-ups and drop-offs shall take place at Tim Horton’s, 329 Highway 17, McKerrow, Ontario, P0P 1M0 (near Espanola). Both parties shall be on time.
5. Neither party shall change the children’s name.
6. The respondent/father’s motion scheduled for October 13, 2022 shall be adjourned to a case conference, to be scheduled.
7. Each party shall bear their own costs of the October 13, 2022 attendance.

[6] The aforementioned arrangement has been in place since the October 14, 2022 order to the present time. Both parents agree that this arrangement is no longer in the best interest of the children, primarily, since Gabriella is going into Grade 1 this September and into full time attendance at school. Gabriella needs a permanent residence and can no longer commute between Elliot Lake and Sudbury given her educational needs. Gabriella has to be either in Elliot Lake attending school or in Sudbury attending school. Where Gabriella will reside will determine where her younger brother Kaden will reside.

[7] This is a divorce proceeding.

[8] Section 16 of the Divorce Act governs the imposition of parenting orders and the relocation of children. Sections 16(1) and 16(2) of the Divorce Act provide the general framework for the imposition of parenting orders:

Best interests of child

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

Primary consideration

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

[9] Section 16(3) lists non-exhaustive factors that a court can consider when making a parenting order:

Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

[10] Section 16(4) of the Divorce Act discusses the impact that family violence has upon such orders:

Factors relating to family violence

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

[11] Sections 16(5) of the Divorce Act describes the proper use of past conduct in making any determination:

Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

[12] Section 16(6) of the Divorce Act describes the principle regarding maximum contact with each parent:

Parenting time consistent with best interests of child

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

[13] With respect to relocation, section 16.9 of the Divorce Act governs the form of notices and other such procedural issues. Sections 16.92(1) and 16.92(2) of the Divorce Act outlines the non-exhaustive factors to be considered by the court in making such a relocation decision, and factors that may not be considered:

Best interests of child — additional factors to be considered

16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,

(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.

Factor not to be considered

(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.

[14] Finally, section 16.92(3) describes the burden of proof in relocation cases:

Burden of proof — person who intends to relocate child

16.93 (1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.

Burden of proof — person who objects to relocation

(2) If 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.

Burden of proof — other cases

(3) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.

[15] Currently the children spend a substantially equal time with each parent but in different communities. The burden of proof set out in section 16.93(1) of the Divorce Act therefore does not apply and I am of the view that section 16.92(3) applies and that the parties to the proceeding have a burden of proving whether the relocation is in the best interests of the children. In other words, in the case at bar, is it the best interest of Gabriella and Kaden to reside in Elliot Lake, Ontario or is it in their best interest to reside in Sudbury, Ontario?

[16] Although it would be erroneous to say that a “status quo” has developed with respect to the residency of the children given the provisions of the October 14, 2022 order and where the children have resided since that order, it is not unfair to say that Gabriella and Kaden have spent more time in their young lives in Elliot Lake than they have in Sudbury. Gabriella resided exclusively in Elliot Lake from the time she was seven months old until she was approximately four-and-a-half years of age, and began dividing her time between Elliot Lake and Sudbury under the current arrangement.

[17] On the evidence before the court, the children have had more of a connection with Elliot Lake than they have had with Sudbury. That is particularly true for the oldest child Gabriella who has attended Ecole Georges Vanier School in Elliot Lake, which is the only school that she has attended. It appears from the evidence that Gabriella is progressing well at that school and there are systems in place at that school to assist her, such as counselling. There is no evidence before that court as to where Gabriella will go to school if she resides in Sudbury. The mother’s material is deficient in that regard. The mother takes the position that she cannot enroll Gabriella in school in Sudbury until she knows where Gabriella is residing but that does not prevent the mother from disclosing what school Gabriella would be attending and what that school has to offer to assist Gabriella with her educational needs. What the court does know is that Gabriella is going into Grade 1 and that she has been in the JK and SK program at the Ecole Georges Vanier School in Elliot Lake and has thrived there. The court does not know what the arrangement will be for Gabriella in Sudbury and of course has no idea if Gabriella will thrive in school in Sudbury as the mother has homeschooled Gabriella when she has been in her care in Sudbury. As to Gabriella’s education, we have a known in Elliot Lake and an unknown in Sudbury.

[18] Both parents appear to have a support system in place in their respective communities and the father represents that his work is flexible to allow him to be with the children if they are to be placed in his care. The mother offers herself as a fulltime caregiver for the children who would be home with Gabriella when she is not in school and home with Kaden until he enters school in September 2025. At paragraph 5 of the applicant father’s affidavit sworn on February 29, 2024 at Tab 22 of the continuing record, the applicant deposes that,

During our marriage, Steffanie experienced major depressive episodes approximately two to three times each year, for which she sometimes received treatment and was prescribed antidepressants. During some of these episodes, Steffanie would leave me with Gabriella and/or both the children once Kaden was born, to stay with her mother in Sudbury. During the marriage, I spent substantial time alone with the children, which has cultivated a deeper bond between us.

[19] In her responding material the respondent mother does not deny the aforegoing allegation made by the applicant father. She does not deny experiencing major depressive episodes in the past which has at times rendered her incapable of caring for Gabriella and Kaden. The respondent’s counsel acknowledged in argument that there was no denial of this allegation by the respondent and described the incidents as “historical”. Regardless of the historical nature of the events, the court is left with concerns about past instability of the mother and there is no explanation about these incidents. No similar suggestions of instability about the father is alleged by the mother. If the mother has a similar reoccurrence while living in Sudbury with the children, the father’s assistance will be difficult to obtain if he is residing in Elliot Lake, Ontario without the children. A repetition of these difficulties with the mother can only put the children at risk of a disruption in their education, routine and activities. No such risk of disruption in the children’s lives is likely to occur if they are in the care of the applicant father.

[20] Section 16(6) of the Divorce Act provides that a child should have as much time with each parent as is consistent with the child’s best interest. This provision reinforces the maximum contact principle. The father proposes that the mother have three weekends with the children and equal holiday periods. The mother proposes that the father have alternate weekends from Friday at 4:30 p.m. to Sunday at 4:30 p.m. and, in addition, every third weekend, every second month. What is being proposed by the father if the children reside in Elliot Lake will provide for more time with the children being in the care of the mother than what the mother proposes for the father if the children were to reside in Sudbury. I agree with the applicant’s counsel that this proposal results in a “drastic reduction” in the time the father will have with the children. The father’s proposal is not so much of a “drastic” reduction in time with the mother and provides for ongoing time by the mother with Gabriella and Kaden.

[21] In my view, the plans proposed for the children by the applicant and the respondent are not comparable. It is in Gabriella and Kaden’s overall best interest to reside in Elliot Lake, Ontario with the applicant father. He has a proven plan in place which represents the least disruption for the children, especially Gabriella. The respondent’s plan is not well set out, not established, and is vague and uncertain at best.

[22] Accordingly, a temporary order is granted that the applicant father shall have primary care of Gabriella Fisher, born April 19, 2018 and Kaden Fisher, born May 20, 2021 and that they shall reside in Elliot Lake, Ontario.

[23] Gabriella and Kaden shall be in the care of the respondent mother, and she shall have parenting time with the children on the first, third and fourth weekends each month from Friday at 5:00 p.m. to Sunday at 5:00 p.m. with this to be extended to Thursday at 5:00 p.m. or Monday at 5:00 p.m. if Thursday or Monday is a school holiday or statutory holiday.

[24] All pick-up and drop-offs shall take place at Tim Horton’s, 329 Highway 17, McKerrow, Ontario (near Espanola) with the parties to be on time for the pick up and delivery of Gabriella and Kaden.

[25] All holiday periods shall be shared equally between the father and the mother on dates and times agreed to by the parties, or failing agreement, to be ordered by the court.

[26] If costs of the motions at Tabs 21 and 23 of the continuing record are in issue, counsel may submit written submissions no longer than five typed pages in length, excluding bills of cost and offers to settle, within 30 days.

[27] This order is effective September 2, 2024, and the provisions of the October 14, 2022 order shall continue until that date.

Released: August 20, 2024 Gareau J.