CITATION : Delarosbel v. Birch , 2024 ONSC 5591
COURT FILE NO.: FS 23-0116 DATE: 2024/10/08
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
DELAROSBEL, Kelsey Keijo Applicant – and – BIRCH, David John Respondent
Counsel: Self-represented, for the Applicant S. Hamilton, for the Respondent
HEARD: September 27, 2024
REASONS FOR DECISION
Wilcox, J.
INTRODUCTION
[1] We are dealing here with the Applicant’s request to relocate with the children from North Bay to Bear Island in Lake Temagami during ongoing family law proceedings and in the face of an Interim Order that dealt with parenting issues.
BACKGROUND
[2] The parties were married in 2013 and separated on March 1, 2022. There are two children, Tuuliki, born April 21, 2014, and Talon, born July 5, 2019.
[3] The parties are from the North Bay area. They moved to Squamish, B.C. around July, 2019. Both worked there. They were living there at the time of separation.
[4] Following separation, the parties continued to reside under the same roof for about six months until August, 2022 when the Applicant and children moved to an apartment in Squamish.
[5] The Respondent then agreed to the Applicant moving to North Bay with the children, which appears to have occurred in November, 2022 with the Respondent following in October, 2023. He secured employment and accommodations with separate bedrooms for each of the children.
[6] The Application was served on August 15, 2023. The Respondent delivered an Answer/Claim by Respondent. The Applicant delivered a Reply in October, 2023. Both parties claimed for decision-making responsibility and parenting time. In particular, the Respondent sought to have parenting time week about.
[7] The Applicant filed a basket motion and an urgent motion which were reviewed by RSJ Ellies in chambers on November 4, 2023. He was not satisfied on the basis of the materials filed that a temporary, without notice, order should issue granting the Applicant sole custody of the children. However, he made an order that neither party may remove either of the children from the City of North Bay without further order of the court. Both motions were adjourned to the short motions court on November 17, 2023, to be spoken to.
[8] The Applicant’s Form 14B motion forms, the ones originally brought ex parte before RSJ Ellies, sought a restraining order against the Respondent and an emergency custody order of the children. She alleged in those forms and in her affidavit of November 2, 2023 that she was fearful of the Respondent and wanted the orders to protect her and the children. Among other fears expressed was one that the Respondent will take and withhold the children. Her affidavit of November 3, 2023 stated that she was not comfortable with the children sharing parenting time with the Respondent.
[9] The Respondent’s Notice of Motion sought week-about parenting time or, in the alternative, other specified parenting time. He indicated that he had arranged his work schedule to accommodate the children's school schedules.
[10] Despite her serious allegations about the Respondent, the Applicant in her November 27 and Nov. 30, 2023 affidavits requested the court to order shared parenting, with the Respondent having the children every other weekend.
[11] Then, in court on December 1, the Applicant indicated that the parties had had a week about arrangement since approximately October 9, 2023 and that the children were in fact with the Respondent at the time of the motions. Exchanges were on Mondays when the parent whose week was ending would drop the children off at school in the morning and the parent whose week was beginning would pick them up at the end of that school day.
[12] Asked why, then, it was urgent that she bring a motion before a case conference to deal with the Respondent’s parenting time, she referred to alleged events that had taken place in the months prior to making the week about arrangement, not since.
[13] In those circumstances, I was not persuaded that there was any urgency to this matter. The Applicant’s stated concerns were not congruent with her actions as revealed in both sides’ documents.
[14] A case conference had not yet been held. To stabilize the matter, prior to the case conference, I made a temporary without prejudice order that the parties share parenting time with the children on a week-about basis with exchanges at the children's school on Monday mornings, or as otherwise agreed between the parties in writing.
[15] On consent, I varied RSJ Ellies’ order of November 4, 2023 to allow the parties to travel in their respective parenting time with the children outside of the City of North Bay, but within Ontario.
[16] I also made an OCL order. When I made the OCL order, I concluded the following under “judge’s comments”:
The parties have two young children. The Applicant mother is resisting the Respondent father’s claim for parenting time. She alleges fearing him and property destruction, alcohol abuse, stalking of her, slander of her and others close to her, manipulation of the children, criminal activity, and harassment of her by him. Her complaints sound serious, but also excessive, and do not entirely correspond to her actions in this matter. This is confusing. The Respondent denies substance abuse and other allegations. He alleges that she suffers from alcoholism and mental illness and mixes alcohol and her medications, which she denies. Indeed, she is on some form of leave from her job as a school vice-principal. He has gone to considerable lengths to maintain his relationship with the children in difficult circumstances. There is a great need in this case for an objective, expert third party, the OCL, to cut through it all so that decisions can be made in the best interests of the children.
[17] The OCL consented to provide services pursuant to s. 112 of the Courts of Justice Act and assigned the matter to a clinician, Jason Millward on January 16, 2024. He informed the court by letter of February 12, 2024 that, although the children’s lawyer report in this matter was originally due to be filed with the court on April 5, 2024, Ms. Delarosbel had informed the OCL via email on February 7 that she was withdrawing from the OCL investigation immediately. Therefore, a discontinued report of February 26 was filed with the court. That report did not include recommendations, as the investigation was discontinued. It did include the January 30, 2024 interview with Ms. Delarosbel and the January 31 in-person observational visit with her and the children.
[18] Ms. Delarosbel provided the following explanation by email of February 6 to Mr. Hamilton:
Regarding my involvement with the Office of the Children’s Lawyer (OCL), I wish to emphasize that my participation is voluntary. I am reluctant to prolong the divorce proceedings and other matters due to an unnecessary investigation. Prior to their Father’s return home, the children were flourishing, rendering the investigation redundant and a misuse of time and resources. I am willing to discontinue my involvement with the OCL as the safety and mental health of my children is of the utmost importance. Their well-being has significantly deteriorated since the change in parenting and their Father’s return two months ago. I am not willing to subject my children to further distress for the sake of an investigation.
[19] There is, of course, an ongoing dispute between the parties over what parenting order should be made regarding their children. As stated in the “judge’s comments” above, there are conflicting serious allegations, reasons to question them and, therefore, a great need for the OCL’s assistance in deciding what is in the children’s best interests, as the court is required by law to do. It is not for either side to decide the matter unilaterally as they see fit. Now, months have been lost in the process, presumably to the detriment of the children.
[20] A case conference was begun by Nadeau J. on March 27, 2024, and adjourned to be continued on a date to be set. Nadeau J. endorsed as follows:
Mr. Hamilton is to forward to me a draft order approved as to form and content on the matters agreed upon from today and moving forward.
[21] Those matters were not explicitly set out. However, on April 2, Mr. Hamilton wrote to the Applicant summarizing Nadeau J.’s endorsement as well as what allegedly was agreed upon at the case conference:
- Renewed OCL request;
- Shared decision making;
- Shared parenting time;
- Some adjustments to reflect holiday time and special days you have requested (i.e. concert time re Sara and Teagan, summer Canadian Adventure Camp time, etc.);
- Use of your last financial statement from July 2023 to determine issues on child support (i.e., your income); and
- Mutual cooperation and non-disparaging clause in the order.
[22] Later that day, the Applicant emailed Mr. Hamilton saying, “I did not agree to shared parenting or shared decision-making”. Later still that day, she emailed Mr. Hamilton again, this time requesting “that the Respondent take on a greater parenting role for three weeks out of the month to allow me the opportunity to alleviate my financial burdens”, and setting out a new parenting schedule between May 6, 2024 and January 12, 2025.
[23] On April 8, Mr. Hamilton sent draft minutes of settlement reflecting the discussions with Nadeau J. at the case conference as well as the Applicant’s proposal of April 2. The Applicant replied on May 2 advising that she was not in agreement with the draft minutes of settlement.
[24] On May 21, the Applicant notified Mr. Hamilton that she was intending to relocate with the children to Ogama Island on Lake Temagami, to which Mr. Hamilton responded by email on May 21 and June 6 that the Respondent opposed the relocation. On August 16, the Applicant advised Mr. Hamilton that she had moved with the children to Bear Island (also in Lake Temagami) and that they would be starting school there on August 28.
THE MOTIONS
[25] The Applicant then brought a Notice of Motion dated August 23 for a change to the Order of December 1, 2023, authorizing her relocation with the children to Temagami and reducing the Respondent’s parenting time to weekends and some holidays. The Respondent brought a Motion Without Notice on September 5 and obtained a temporary order continuing the Order of December 1, 2023. The Applicant attempted by a further Motion Without Notice of September 13 to reverse that Order. All three motions were put to September 27 to be heard.
[26] As previously indicated, the Applicant emailed Mr. Hamilton on May 21, 2024 with a Notice of Relocation. It indicated that she planned to relocate with the children to Ogama Island in Lake Temagami. The Respondent would then have parenting time every weekend or every other weekend and on some holidays. Mr. Hamilton had responded by email stating the Respondent’s objection to that relocation proposal and his continued reliance on the December 1, 2023 order. At the hearing, the Applicant took the position that the Respondent did not formally object to her relocation notice in that he had failed to complete an Objection to Relocation form or bring a court application opposing the relocation within 30 days.
[27] Section 16.9 of the Divorce Act (DA) requires a person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to undertake a relocation to give 60 days notice to any other person who has parenting time or decision-making responsibility.
[28] Relocation is defined as meaning a change in the place of residence of a child of the marriage or a person who has parenting time or decision-making responsibility – or who has a pending application for a parenting order – that is likely to have a significant impact on the child’s relationship with (a) a person who has parenting time, decision-making responsibility or an application for a parenting order in respect of that child pending or (b) a person who has contact with the child under a contact order.
[29] A parenting order is an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage. Interim as well as final parenting orders may be made.
[30] “Pending” means awaiting decision or settlement.
[31] So, it appears that someone with parenting time or decision-making responsibility, or who has a pending application for parenting time or decision-making responsibility, may use the relocation provisions of the DA.
[32] Section 16.91(1) of the Divorce Act provides:
Relocation authorized
16.91 (1) A person who has given notice under section 16.9 and who intends to relocate a child may do so as of the date referred to in the notice if
(a) the relocation is authorized by a court; or
(b) the following conditions are satisfied:
i. (i) the person with parenting time or decision-making responsibility in respect of the child who has received a notice under subsection 16.9(1) does not object to the relocation within 30 days after the day on which the notice is received, by setting out their objection in
(A) a form prescribed by the regulations, or
(B) an application made under subsection 16.1(1) or paragraph 17(1)(b), and
ii. there is no order prohibiting the relocation.
Content of form
(2) The form must set out
(a) a statement that the person objects to the proposed relocation;
(b) the reasons for the objection;
(c) the person’s views on the proposal for the exercise of parenting time, decision-making responsibility or contact, as the case may be, that is set out in the notice referred to in subsection 16.9(1); and
(d) any other information prescribed by the regulations.
[33] In this case, there was a temporary without prejudice order of December 1, 2023 already in place when the Applicant sent her Notice of Relocation. That order provided for week-about parenting time, with exchanges at the children’s school on Monday mornings.
[34] There is an extensive body of law with respect to interim relocation motions.
[35] There is an issue here of whether the Notice of Relocation provision is available in the face of an existing temporary order. The Respondent’s counsel had no prepared submissions on this point. In response to the court’s questions, he noted the December 1, 2023 order and submitted that the Applicant should have brought a motion to vary it.
[36] I have found no cases that have dealt with this situation. Given that the point was not thoroughly argued, I am not prepared to make any hard and fast findings about how to resolve this issue. However, I will make some observations.
[37] There was already an existing court process dealing with the parenting issues in this case. It seems to me that it is unnecessary and inappropriate to introduce a new, parallel, process, the Notice of Relocation process, to that.
[38] The Divorce Act requires the objecting party to set out their objection in a form prescribed by the regulations. The regulations say that the person objecting must do so by providing the information set out in Form 2. Practically, that information is set out in Mr. Hamilton’s email of May 21, 2024. The Respondent’s objection was made clear.
[39] With respect to the Respondent’s option to object to the relocation in an application, he already had done so in his Answer/Claim by Respondent which sought, among other things, week-about parenting time.
[40] Finally, there is an order prohibiting the relocation in effect. The terms of the November 4 and December 1, 2023 orders were made in the context of the children living and going to school in North Bay.
[41] I will deal with the matter without further reference to the relocation provisions.
[42] The temporary order of December 1, 2023, as I endorsed that day, was made to stabilize the matter prior to the case conference. As previously indicated, the case conference was begun but not completed. Another date has been scheduled for some months away. The Respondent’s counsel pointed out that the Applicant did not have leave to bring her relocation motion.
[43] The December 1 order was made without prejudice. Therefore, it was not intended to have the same precedential value as a temporary order that was not made “without prejudice”. However, it continued a status quo which was only interrupted briefly by the Applicant’s unilateral action and then restored by the order of September 5, 2024. Consequently, I am guided by the law regarding interim motions for mobility and the status quo.
[44] The legal principles (first set out in Plumley v. Plumley, [1999] O.J. 3234 at para. 7) applicable to interim motions regarding mobility are:
- A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.
- There can be compelling circumstances that might dictate that a judge 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 or the best interests of the children might dictate that they commence school at a new location.
- Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at a trial.
[45] The importance of maintaining the status quo in interim matters was explained by J. Wright J. in Kimpton v. Kimpton, [2002] O.J. 5367, as follows:
There is a golden rule which implacably governs motions for interim custody: stability is a primary need for children caught in the throes of matrimonial dispute and the de facto custody of children ought not to be disturbed pendente lite, unless there is some compelling reason why in the interests of the children, the parent having de facto custody should be deprived thereof. On this consideration hangs all other considerations. On motions for interim custody the most important factor in considering the best interests of the child has traditionally been the maintenance of the legal status quo. This golden rule was enunciated by Senior Master Roger in Dyment v. Dyment, [1969] 2 O.R. 631, (aff’d by Laskin J.A. at Dyment v. Dyment, [1969] 2 O.R. 748), by Laskin J.A. again in Papp v. Papp, [1970] 1 O.R. 331 at pp. 344-5 and by the Nova Scotia Court of Appeal in Lancaster v. Lancaster, 38 R.F.L. (3d) 373. By status quo is meant the primary or legal status quo, not a short lived status quo created to gain tactical advantage. See on this issue Irwin v. Irwin, 3 R.F.L. (3d) 403 and the annotation of J.G. McLeod to Moggey v. Moggey, 28 R.F.L. (3d) 416.
Unless the courts insist that they will not disturb the existing arrangements for children on interim motions except in those cases where it is clear that the children are being exposed to danger or there is some other compelling reason, the courts will continue to be confronted with litigants demanding that the court embark upon the impossible task of attempting to assess the relative merits of parties who have filed numerous affidavits contradicting the affidavits of the other.
This passage continues to be referred to in the case law. See also Cesare v. Cesare, 2024 ONSC 34, para. 70.
[46] This was explained further by MGJ Quigley J. in Datars v. Graham:
The problem that this court faces on this motion [mobility]…is that it is difficult if not impossible in most cases to complete the extensive child-focused inquiry required under Gordon v. Goertz on the typically conflicting and incomplete affidavit evidence that is often available to the court on interim motions.
[47] The Berry v. Berry, 2011 ONCA 705 also is instructive. In it, the court was dealing with a situation wherein the child had been living approximately half of the time with each parent in Toronto since their separation. The issue was whether a relocation with the mother to Kingston after which he would see his father only every second weekend was in the best interest of the child. The court found that “reducing the time the child lives with the father from approximately one half of the time to every second weekend and shuttling the child back and forth between two cities is “highly disruptive” and “did not attach proper weight to the maximum contact principle”. Berry v. Berry at para. 27.
[48] In regard to this, I note that, although the Divorce Act has since been amended, the court is now, as it was then, required to give effect to the principle that a child should have as much contact with each parent as is consistent with the best interest of the child. See also B.V. v. P.V., 2012 ONCA 262.
[49] The Applicant deposed that she grew up on Lake Temagami and has family, friends, cultural connections and a family home there. Further, there is a school there for the children to attend, which she had enrolled them in for 2042/2025.
[50] The Respondent countered that he is familiar with the Lake Temagami area, Bear Island and where the Applicant is residing. He says that Ogama Island is about a five kilometre boat ride from Bear Island. On Ogama Island, the Applicant was residing in a small loft style boathouse without separate bedrooms for the children or the Applicant and her new partner. He was aware of the accommodations as he had attended there with the Applicant numerous times during their relationship. From there, the children would be travelling by boat daily to and from the reserve to attend school. However, he had been advised more recently by the children that the Applicant had relocated again from Ogama Island to the Bear Island reserve and that the children were required to share a bedroom. He did not feel that was appropriate given the children’s ages. He also objected to the Applicant’s proposed parenting time arrangements. Her request to have exchanges occur at the Bear Island police station on Bear Island, he opined, was not reasonable because Bear Island is only accessible by boat or snowmobile, neither of which he has, and is inaccessible at times during the year. These would be when the lake is freezing over for winter or thawing during the spring breakup.
[51] In North Bay, the Respondent continues to have his residence there for the children, they have returned to their previous school, and their extracurricular activities may be continued.
[52] The Applicant alleged that she had to move for financial reasons due to the Respondent’s failure to pay child support reliably and that she and the children are more financially stable following the relocation.
[53] In addition, she alleged that she had been made unemployable in her area of expertise, teaching, in North Bay due to some alleged slander of her by Shayla Brunet, who she identifies as a close family friend of the Respondent’s. In support, she filed an excerpt from a heavily redacted copy of a complaint form filled out by Brunet seemingly in response to the Applicant’s allegedly false complaints to the CAS. The situation is not clear from the materials filed, but it appears that Brunet was sufficiently concerned that she contacted the British Columbia Commissioner for Teacher Regulation, the North Bay Police Services, and the Ontario College of Teachers, as well as seeking a Peace Bond. The Respondent deposed that Brunet is the Applicant’s current partner’s ex-partner and the mother to his child, and that the Respondent has nothing to do with the allegations. Nevertheless, the Applicant indicated that she got a teaching job at the school in Temagami.
[54] In response to the Applicant’s continued accusations of the Respondent’s lack of financial contribution, he alleges that he has provided financial support for the children’s extracurricular activities when asked but that the Applicant has never reimbursed him for any of the children’s medical, dental or other expenses. As for the Applicant’s claim that her relocation was for financial reasons and because the Respondent refused to help financially, he pointed out that he and the Applicant had been parenting the children on a week-about basis since October, 2023. He denied that the Applicant’s hardship was due to his lack of financial contributions. In fact, he predicted, the Applicant’s income for 2024 would likely be higher than his.
[55] Seemingly inconsistently, despite her alleged financial distress, the Applicant deposed that she is willing to bear the majority of the parenting costs and is prepared to withdraw the request for child support for the 2024-2025 school year.
[56] With respect to support, the Applicant filed a Financial Statement dated July 25, 2023, with her Application. Her Certificate of Financial Disclosure of that date shows her income disclosure for the years 2020 through 2023. However, her Financial Statement has not been updated since, despite the rules about financial disclosure.
[57] The Respondent filed a financial statement dated October 25, 2023, about one month after his Answer. His Certificate of Financial Disclosure of October 26, 2023 shows income disclosure for the years 2020 through 2023. His Affidavit of March 25, 2024 advised of his employment and projected income for 2024. He filed an updated Financial Statement dated September 25, 2024. In view of this, if the situation warranted it, the information was available based on which the Applicant could have brought a motion for support. However, she had not done so until recently.
[58] This was in her Notice of Motion of August 23, 2024, which also sought child support per the Child Support Guidelines, including s. 7 expenses. However, she did not make submissions about that at the hearing. If she wants to pursue support, she would have to produce current financial information.
[59] The Applicant also alleged that the children have special needs. The Respondent denied that either child has ever been diagnosed with special needs.
[60] The Respondent’s counsel characterized the situation of the Applicant as “chaotic”. Certainly, her position with respect to the OCL, parenting, residence and finances have been inconsistent and at times contradictory as demonstrated. Despite her expressed concerns, she has not made the best use of court process to address these. I refer here, in particular, to her withdrawal from the OCL and her failure to bring a timely motion for support, if she thought it should be payable to her. She moved with the children from the matrimonial home to other accommodation in Squamish, B.C. before moving with them across the country to North Bay, only to try to move them on from there to Temagami within about two years.
CONCLUSION
[61] In the circumstances, I find that the Applicant has not met the test for varying a temporary order to relocate with the children to Temagami. The status quo is in North Bay. There are issues to be resolved. There are no compelling circumstances for allowing the move. Although there might be some financial benefit to the Applicant, overall, I find that the move would not be in the best interests of the children. They have had enough disruption in recent years. The proposed move would also substantially reduce the amount of contact the children have with their father.
[62] Even acknowledging that the December 1, 2023, temporary order was made without prejudice and therefore lacks precedential value, for substantially the same reasons, I would find that the best interests of the children require that they remain in North Bay at this time.
[63] Therefore, the Applicant’s motion to vary the December 1, 2023, order and relocate the children to Temagami is dismissed.
[64] It may be that the parties shall have to make other parenting arrangements if the Applicant’s employment keeps her on Bear Island for the school year. Perhaps those arrangements could be a reversal of her proposal in her Notice of Motion, such that the Respondent has the children though the week with the Applicant having time on weekends and holidays. However, as there is no motion for such relief, I will not make such an order at this time.
[65] Costs are reserved to the trial judge.
Wilcox, J. Released: October 8, 2024