NEWMARKET COURT FILE NO.: FC-24-1204-00 DATE: 20240823 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: A.J., Applicant AND: M.N., Respondent
BEFORE: The Honourable Mr. Justice G.A. MacPherson
COUNSEL: V. Terentyeva, Counsel for the Applicant A. Koren, Counsel for the Respondent
HEARD: August 21, 2024
Ruling on Motion
Relief Requested
Notice of Motion # 1
1The Respondent filed an urgent motion requesting the relief that follows:
(a) an Order that the Applicant, A.J. return the child of the marriage, namely N.E.A.J. born in 2017, to the primary care of the Respondent, M.N., by delivering the child to Vancouver on August 8, 2024;
(b) in the alternative, permission for the Respondent to travel with the child from Ontario to British Columbia;
(c) an Order restraining the Applicant from denigrating the Respondent in any manner whatsoever;
(d) an Order prohibiting the Applicant from leaving the child in the care of the paternal grandparents pending the return of the child to Vancouver;
(e) a finding that the Respondent is the primary caregiver with sole decision-making authority for the child and an Order to correspond to such finding;
(f) an Order declaring the parties consented to the relocation of the child from Ontario to British Columbia;
(g) in the alternative, an Order that Ontario does not have jurisdiction to determine the issues of parenting of the child because the child is not ordinarily resident in Ontario; and
(h) in the alternative an Order declaring that the Respondent is entitled to relocate the child to British Columbia.
Notice of Motion # 2
2The Respondent filed a second urgent motion requesting an Order that a Certificate of Pending Litigation be issued by the court and for the certificate to be registered against the property know municipally as 11 Waterside Crescent, Maple, Ontario.
Notice of Motion # 3
3The Applicant filed an urgent cross-motion requesting the relief that follows:
(a) an Order that N.E.A.J. born in 2017 reside primarily in Maple, Ontario;
(b) an Order that the Applicant have sole decision-making for the child; and
(c) an Order preventing the removal of N. from Ontario by the Respondent or any third parties.
Urgency
4Pursuant to Rule 14(4) of the Family Law Rules, no notice of motion or supporting evidence may be served and no motion may be heard before a conference dealing with the substantive issues in the case has been completed.
5Pursuant to Rule 14(4.2) of the Family Law Rules, Subrule (4) does not apply if the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice.
6At the commencement of the motion this Court advised the parties that only two issues met the criteria for urgency and they were:
(a) jurisdiction; and
(b) mobility.
7The issue of mobility is urgent. The Respondent has re-located to Vancouver. She has registered N. in school. The Applicant remains in Ontario and has registered N. in school. School commences in two weeks. The issue of mobility is urgent as the Respondent advances the position that the Applicant consented to N. moving to Vancouver and the Respondent denies any consent. A determination of mobility at an early stage will mean that N. can commence her academic year, without interruption, and that is in her best interests. In order to determine mobility, the court must first determine jurisdiction by determining N.’s habitual residence.
8At the commencement of the motion, the Respondent conceded that Ontario was the appropriate jurisdiction. This court agrees. By any metric, on the evidence before the court, the child is habitually resident in Ontario and has been since the family relocated to Ontario from British Columbia in the summer of 2021.
Background Facts
9The parties met in Vancouver and commenced cohabitation in or about 2012.
10The parties have one child namely, N.E.A.J. born in 2017.
11The parties married in 2017.
12While in Vancouver the Respondent was an early childhood education teacher and the Applicant a jewelry designer. The Applicant’s parents owned a jewelry store in Vancouver at one time. The Respondent’s family resides in Vancouver.
13During the summer of 2021 the parties and N. re-located from Vancouver to Ontario. The Respondent states the relocation was for a trial period only. Regardless, the parties have been in Ontario for three years.
14The Respondent states that both parties maintain close connections to Vancouver. The Applicant states that the Applicant frequently travels to Vancouver to meet clients and take orders for custom jewelry.
15The parties resided with the Applicant’s parents for much of the time after they re-located from Vancouver to Ontario.
16The Respondent states that while living in Ontario the Applicant’s parents exerted extreme coercive control over her and N. The Respondent states that she was treated like a servant, subjected to all kinds of degrading behaviour, and was frequently yelled at. The Applicant denies the allegations.
17The Respondent states that the Applicant exerted coercive control over the financial resources of the family. The Respondent states that the Applicant sold the matrimonial home in December 2023 with the net proceeds totalling $1,300,000. The Respondent states that the Applicant gave his parents $700,000 and the Applicant kept $350,000. The Respondent states that she received nothing. The Applicant states that the proceeds from the sale of the matrimonial home were used to pay off debts and pay for living expenses. The Applicant provides no further details electing instead to “address the disposition of the sale proceeds during the court matter”.
18On March 4, 2024 the parties separated. The Respondent states that she could no longer take the abuse. The Respondent and N. moved from the home and into a shelter, “Yellow Brick House.” The Respondent and N. remained in the shelter for four months until July 3, 2024. No child support was paid by the Applicant during the months the Respondent and N. were at the shelter.
19The Respondent states that in late June 2024 the parties discussed their marriage and agreed that it was best for N. and the Respondent to move back to Vancouver. The Respondent states that the parties agreed that N. would stay with the Applicant for a short period until she finished grade 1 at the end of June and that the Respondent would travel to Vancouver and make arrangements for housing, school, activities, doctor, etc. The Respondent states that the Applicant suggested that N. travel with his parents to Costa Rica from July 11, 2024 until August 15, 2024 and then N. would relocate to Vancouver.
20The Applicant, in his affidavit sworn August 5, 2024, states that in June 2024 the Respondent started talking about moving to Vancouver with N. It contradicts his affidavit sworn August 15, 2024 wherein he states that the parties never discussed the proposed move to Vancouver and the Respondent never sought his consent or input on how the move would affect N. Despite the contradiction, the Applicant goes on to state, in the same affidavit, that the Respondent did start talking about relocating to Vancouver in May 2024. He states that the discussions were ultimatums and not consents. In his affidavit sworn August 5, 2024 he states: “I avoided the discussions about her move altogether fearing that she would forbid me to see N. altogether.”
21The Respondent states that she agreed that N. could spend the summer in Costa Rica with the paternal grandparents as long as she was delivered to Vancouver following the trip. The Respondent and Applicant both signed a travel consent for the Costa Rica trip which indicates: N. would return “to Vancouver, Canada before or about August 31, 2024.”
22In respect of the travel consent, the Applicant states that he did not want to disappoint N. or his parents and signed the consent form without reading it thoroughly. It is noteworthy that the consent is one page, totals 15 lines and takes about 20 seconds to read.
23The Respondent states that the Applicant purchased tickets for he and N. to travel to Vancouver from Toronto on August 18, 2024, consistent with the information contained within the travel consent. Copies of the tickets were filed. The Applicant does not address why he purchased airline tickets for himself and N. to travel to Vancouver for August 18, 2024.
24The Respondent also states that she attended the Newmarket Courthouse in June 2024 and registered her and the Applicant to attend mediation to create a comprehensive relocation and parenting plan. The Respondent states the Applicant convinced her to withdraw from mediation as he was agreeable to the proposed move.
25The Applicant concedes he was contacted by a mediator but was unable to speak when the call came in. He states the Respondent told him that “she did not do any arrangements” about the mediator, and he received no further calls.
26The Respondent withdrew N. from school in Ontario, advised N.’s Ontario family doctor of the move, and resigned from her work. The Respondent enrolled N. in school in Vancouver, and registered N. for gymnastics, French, and tennis. The Respondent secured employment in Vancouver and made arrangements to live with her sister in Vancouver.
27Prior to her departure the Applicant’s mother gave the Respondent $10,000 for the move telling her to find a suitable place for N. and her. The Applicant’s mother provided the Respondent with the name of a private school in Vancouver. The Applicant’s mother agreed to ship her belongings to Vancouver. The Applicant shipped the Respondent’s car to Vancouver.
28On July 4, 2024 the Respondent travelled to British Columbia. On July 11, 2024 N. went to Costa Rica with the Applicant’s parents.
29Following the Respondent’s move, the Applicant blocked her telephone number, and the Applicant’s parents restricted communications with N. while she was in Costa Rica.
Mobility
30Pursuant to section 16.9 (1) of the Divorce Act, a person who has parenting time or decision-making responsibility in respect of a child of the marriage and intends to undertake a relocation shall notify, at least 60 days before the expected date of the proposed relocation and in the form prescribed by the regulations, any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intentions.
31Pursuant to section 16.9 (2) of the Divorce Act, the notice must set out: a) the expected date of the relocation; b) the address of the new place of residence and contact information of the person or child, as the case may be; and c) a proposal as to how parenting time, decision-making responsibility or contact, as the case may be, could be exercised; and d) any other information prescribed by the regulations.
32Pursuant to section 16.9 (3) of the Divorce Act, the court may, on application, provide that the requirements in subsections 16.9 (1) and 16.9 (2), do not apply or may modify them, including where there is a risk of family violence.
33Pursuant to section 16.91 (1) (a) of the Divorce Act, the relocation is authorized if,
a) the person with parenting time or decision-making responsibility in respect of the child received a notice; and
b) did not object to the relocation within 30 days in a form prescribed by the regulations.
Discussion
Was there a Consent to Relocate
34The Respondent states that she has always been N.’s primary caregiver. When the parties were planning on relocating from Vancouver to Ontario, the Applicant moved to Ontario in the summer of 2021 and the Respondent and N. relocated in December 2021.
35Following their separation on March 4, 2024, the Respondent and N. lived in a shelter. They did so in March, April, May and June 2024. The Applicant remained in the matrimonial home. In her affidavit the Respondent states that the Applicant made little effort to contact N. during this four-month period. The Applicant states that during February he would spend time with N. and bring her to extra-curricular activities. In March 2024 the Applicant states that the parties agreed that N. would stay overnight at his home ‘on a weekly basis.’ N. lived with the Applicant for a week in July before N. went to Costa Rica with the paternal grandparents for six weeks.
36The Applicant makes a broad stroke statement, void of any detail, that he was the primary caregiver of N. That statement is inconsistent with his other statements and inconsistent with the balance of the evidence.
37I find the parties had a temporary parenting agreement in March, April, May and June, 2024. The agreement was the foundation from which parenting arrangements were conducted. The agreement found N. residing primarily with the Respondent and that parenting time between the Applicant and N. was in or about one time per week. During March, April, May and June 2024, there were no court applications and there were no disputes over the terms.
38I am satisfied, on the evidence before me, that the Respondent also complied with the spirit of the relocation provisions set out in the Divorce Act. The Respondent provided the Applicant with notice of the move, (in May 2024), the timing of the move (August 18, 2024 for N.) and advised that she and N. would reside with her sister. The Respondent also scheduled mediation well before the relocation to address parenting time post re-location.
39I am so satisfied that the Respondent complied with the spirit of the relocation provisions for the reasons that follow:
(a) the Applicant acknowledges that in May 2024 the Respondent proposed the move to Vancouver;
(b) the parties signed a travel consent on May 24, 2024 indicating that N. would return to Vancouver on or before August 31, 2024;
(c) the Applicant purchased airline tickets to transport N. to Vancouver on August 18, 2024 confirming his consent and confirming that the timing of the move was identified; and
(d) the Applicant knew that the Respondent proposed to live with her sister because he arranged to have the Respondent’s car shipped to Vancouver at her sister’s address.
40I am satisfied, on the evidence before me, that the Respondent did not provide notice in the proper form. Indeed, many parents going through a separation without the assistance of legal counsel may be unaware of the requirement to provide re-location notice in a prescribed form. This court is less concerned about notice being on a prescribed form and more concerned with actual and timely notice of the proposed re-location.
41I am satisfied that the Applicant did not object to the proposed move. Rather, I conclude that the Applicant consented to the move as stated by the Respondent and evidenced in the signed travel consent and the purchase of N.’s airline ticket. Following the Respondent’s relocation to Vancouver, the Applicant either: a) reneged on that agreement, or b) agreed to the move in a clandestine manner to get the Respondent relocated and then file an Application with the court opposing the move.
42For the reasons aforementioned, this court finds that the parties consented to N. relocating to Vancouver in August 2024.
Best Interests
43I conclude that prior to the relocation, N. resided with the Respondent six out of seven days per week and she would reside one day per week with the Applicant. Although the parties’ separation was only a few months before the relocation there was no evidence of any objection to that parenting arrangement. There was no court application. There was no lawyer letter. There were no emails or text messages or any communication that suggested the Applicant was opposed to the temporary parenting arrangement. The Respondent states that the Applicant made little effort to contact N. after the separation. I accept the evidence that N. was in the care of the Respondent the vast majority of the time prior to the proposed move, and, accordingly, pursuant to section 16.93 (2) of the Divorce Act, the onus is on the Applicant to establish that the relocation is not in the best interests of N. It is noteworthy that the parties did not have a written parenting agreement. However, the Divorce Act does not require an agreement to be in writing. It is preferrable that any agreement be in writing, but it is not essential.
44Pursuant to section 16.94 of the Divorce Act, the court is not required to apply the onus when making an interim order. Indeed, in most cases, at least on an interim basis, the party proposing the move may have the heavy burden. However, I elect to apply the onus on this interim Ruling for the reasons that follow. As stated, I find that the Applicant consented to the Respondent and N. relocating back to Vancouver at the end of August 2024. I find that the Respondent was the primary caregiver with N. in her care the vast majority of the time. The Applicant’s consent to the relocation and subsequent refusal is a compelling circumstance to apply the onus when making an interim order. Accordingly, where a party reneges on their consent after the party opposite, who is the child’s primary caregiver, has relocated, the onus of establishing that the child’s relocation is not in their best interests appropriately falls squarely on the party opposing the relocation.
45Regardless of the onus, and pursuant to section 16.92 (1) of the Divorce Act, the court must still consider if it is in N.’s best interests for the court to authorize a relocation. The court must consider the factors set out in section 16 of the Divorce Act and, in addition to those factors, the court must consider:
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.
46The Respondent desires a return to the community the parties lived in before relocating to Ontario. That is where her family, friends and support system is. Vancouver is where N. lived for the first five years of her life. At the time of the proposed move the Respondent and N. had been living in a shelter for four months. The Respondent terminated her employment in Ontario and secured employment in Vancouver. The Respondent, relying on the Applicant’s consent for the relocation, moved, obtained accommodation, obtained a job and had her car shipped to Vancouver. The Respondent was the primary caregiver of N. and the two have a very strong relationship. The Respondent was proactive in requesting mediation to ensure that the Applicant’s parenting time was addressed before relocation. In that respect, the Respondent persuades the court that she will support the maintenance of N.’s relationship with the Applicant.
47The Applicant states that the relocation will result in N. leaving her family and her friends. The move, he states in broad strokes, would be disruptive to her current learning and development. Further, he states, there is no parenting arrangement in place following the re-location.
48I do not accept the arguments made by the Applicant. There is no evidence that the move would impact N.’s learning or development despite his statement. N. has family in Ontario and in Vancouver. She has lived in both centres. It is preferrable for N. to live with her primary parent in Vancouver as agreed. The Applicant has provided no cogent argument to demonstrate that it is not in N.’s best interest to relocate with the Respondent.
49Further, the Applicant’s actions are not consistent with a parent placing N.’s best interests first. N. and the Respondent lived in a shelter for four months while the Applicant remained in the home. The Applicant did not make any child support payments during those four months they lived in a shelter. The Applicant reneged on his consent after the Respondent relocated to Vancouver. He blocked her telephone number after she moved. The Respondent was unable to contact N. regularly when she was with the paternal grandparents in Costa Rica. The Respondent made no arrangement for parenting time following N.’s return from Costa Rica. Based on his conduct, the court concludes that he is unable or unwilling to support the maintenance of N.’s relationship with the Respondent.
50The Respondent and N. are returning to a known community, with family and friends. The relocation will permit N. to return to Vancouver where she lived prior, where she has family and friends, and where her primary caregiver (the Respondent) now resides. This Court is satisfied that the Respondent will facilitate a relationship between N. and the Applicant. This court finds that it is in N.’s best interest to relocate with the Respondent to Vancouver on an interim basis.
51The court is unable to make a finding that the allegations of domestic violence and the allegations of coercive control exist. The evidence is contradictory and there is a dearth of objective collaborative evidence that could assist the court in making this finding on an interim basis absent cross-examination.
ORDER
This is a temporary Order.
This Order is made pursuant to the Divorce Act.
N. is habitually resident in Ontario and, accordingly, Ontario is the appropriate jurisdiction to determine the parenting issues arising from the breakdown in the parties’ marriage.
N. shall relocate to Vancouver. The Respondent shall collect N. from the Applicant’s home and return her to Vancouver as soon as possible. If N. is not released to the Respondent by the Applicant, the Respondent may bring this matter back on short notice for police enforcement.
The next step in this matter is a Case Conference to be scheduled by the Trial Coordinator.
If the parties cannot agree on the issue of costs regarding this motion, I shall consider the request for costs. The Respondent shall serve written submissions on the Applicant and file them electronically, through the Trial Coordinator, within 20 days of this decision being released. The Applicant shall serve written submissions on the Respondent and file them electronically, through the Trial Coordinator, within 10 days of receipt of the Applicant’s submissions. Submissions shall be limited to three pages exclusive of the Bill of Costs and Offers to Settle. There shall be no right of Reply.
The Honourable Justice G.A. MacPherson
Date: August 23, 2024