citation: "Delarosbel v. Birch, 2024 ONSC 7212" parties: "Kelsey Keijo Delarosbel v. David John Birch" party_moving: "David John Birch" party_responding: "Kelsey Keijo Delarosbel" court: "Superior Court of Justice" court_abbreviation: "ONSC" jurisdiction: "Ontario" case_type: "motion" date_judgement: "2024-12-23" date_heard: "2024-12-20" applicant:

• "Kelsey Keijo Delarosbel" applicant_counsel:
• "Dhiren Chohan" respondent:
• "David John Birch" respondent_counsel:
• "Shawn Hamilton" judge:
• "M.G. Ellies" summary: > The respondent brought a motion for a temporary order for primary residence of the children and weekend parenting time for the applicant. The applicant cross-moved for the children to attend a different school on Bear Island and for primary residence with her. The court found that the applicant had been removing the children from their current school in North Bay, Vincent Massey, despite a previous order. The court dismissed the applicant's motion, finding her reasons for relocation and school change unconvincing and her actions detrimental to the children's best interests. The respondent's motion was allowed, granting him primary residence and establishing a new parenting schedule for the applicant, with the children to remain at Vincent Massey. Costs were awarded to the respondent due to the applicant's inappropriate conduct. interesting_citations_summary: > This decision clarifies the application of the Divorce Act's provisions on varying parenting orders, particularly s. 17(5) regarding the requirement for a material change in circumstances, even for interim orders. It emphasizes that a child's relocation prohibited by a court order (s. 17(5.3)) does not constitute a change in circumstances for the relocating parent, preventing them from benefiting from their own breach. The court reiterates that interim orders should only be varied if the current arrangement is clearly not in the child's best interest and the proposed one is, citing Treuman v. Wegrynowski. Furthermore, the case highlights the role of costs awards in sanctioning inappropriate litigant behaviour, such as deliberately breaching a court order regarding a child's schooling, as per Serra v. Serra. final_judgement: > The respondent's motion for primary residence of the children was allowed, and the applicant's cross-motion for the children to attend a different school and for primary residence with her was dismissed. A temporary order was issued, varying a previous order, stipulating that the children shall reside primarily with the respondent, attend Vincent Massey school, and the applicant shall have parenting time every second weekend, with a specific holiday period granted. The applicant was ordered to pay the respondent $2,500 in costs within 30 days for her conduct in removing the children from school against a court order. winning_degree_applicant: 5 winning_degree_respondent: 1 judge_bias_applicant: 3 judge_bias_respondent: 0 year: 2024 decision_number: 7212 file_number: "FS-23-0116" source: "https://www.canlii.org/en/on/onsc/doc/2024/2024onsc7212/2024onsc7212.html" cited_cases: legislation:
  • title: "Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.)" url: "https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html"
  • title: "Family Law Rules, O. Reg. 114/99" url: "https://www.canlii.org/en/on/laws/regu/o-reg-114-99/latest/o-reg-114-99.html" case_law:
  • title: "Delarosbel v. Birch, 2024 ONSC 5591" url: "https://www.minicounsel.ca/scj/2024/5591"
  • title: "Tone v. Tone, 2021 ONSC 3747" url: "https://www.minicounsel.ca/scj/2021/3747"
  • title: "Treuman v. Wegrynowski, 2022 ONSC 3937" url: "https://www.minicounsel.ca/scj/2022/3937"
  • title: "Thomas v. Wohleber, 2020 ONSC 1258" url: "https://www.minicounsel.ca/scj/2020/1258"
  • title: "Innocente v. Innocente, 2014 ONSC 7082" url: "https://www.minicounsel.ca/scj/2014/7082"
  • title: "Green v Cairns, 2004). Rather, I will set out only the events that lead to the October 8 decision and those that have happened since then.

Background

4The applicant returned to North Bay from British Columbia with the children in November 2022. The children have been enrolled at Vincent Massey school in North Bay since January 2023. The respondent returned here in October 2023. The children have been enjoying week-about parenting time with each party since about the time the respondent moved back to this area. On December 1, 2023, this parenting time regime was captured in an order by Wilcox J.

5In May 2024, the applicant advised the respondent that she planned on relocating with the children to an island near Bear Island, in Temagami. The respondent objected immediately to the proposal. In August 2024, the applicant advised that she was relocating with the children notwithstanding the respondent’s objection.

6On September 5, 2024, the respondent brought a motion without notice, seeking to continue the week-about parenting schedule and an order that the children continue to attend Vincent Massey school. On that same date, Wilcox J. made a temporary order granting the respondent the relief he sought, adjourning the motion to September 27, and ordering that the motion materials be served on the applicant together with a copy of his September 5 order.

7The applicant then brought her own motion without notice, dated September 13, 2024, seeking to vary Wilcox J.’s September 5 order by allowing her to enroll the children at the Laura McKenzie Learning Centre on Bear Island and granting the respondent parenting time on weekends and holidays. As he had done with the respondent’s without notice motion, Wilcox J. ordered service and adjourned the applicant’s motion to September 27, 2024.

8Justice Wilcox heard both motions together on that date and reserved his decision. On October 8, 2024, he released his reasons, dismissing the applicant’s motion, maintaining the week-about parenting time, and requiring that the children remain in North Bay.

9In November 2024, the respondent discovered that the applicant had been removing the children from school in North Bay during her bi-weekly parenting time since October 7, 2024. Again, he brought a motion without notice on November 20, 2024, this time seeking primary residence and providing the applicant with parenting time every second weekend, among other things. Once again, Wilcox J. ordered that the motion be served, as it should have been.

10On December 4, the respondent brought a motion on notice, returnable on December 13, 2024, renewing his request for primary residency and a change in the applicant's parenting time. On that date, I made a consent order providing the applicant with time to respond. Although it was not on consent, I also ordered that the children not be removed from school in North Bay without further order of the court.

11In response, on December 17, the applicant brought her own motion, this time asking that the children be permitted to attend the school on Bear Island only while in her care or, in the alternative, for the same relief she had requested in her September 13 without-notice motion, namely that the children have primary residence with her and that the respondent have weekend-only parenting time.

ISSUE

Issue

12As counsel for the applicant alluded to in his submissions, the real issue in these motions is not what school is best for the children. That issue was decided by Wilcox J. on October 8, 2024. The real issue is whether Wilcox J.’s decision should be varied.

13For the reasons that follow, I conclude that it should, but not in the way sought by the applicant.

ANALYSIS

Analysis

14The parties agree that this motion is governed by the provisions of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.).

15Section 17(1)(b) of that Act provides that a court may vary a parenting order or any provision in one. However, s. 17(5) of the Act provides that, before such a variation may be made, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order sought to be varied. The Act is silent as to whether the requirement of a change of circumstances applies to the variation of temporary, as opposed to permanent, orders.

16The Act was amended significantly in 2020. However, courts have continued to apply jurisprudence decided prior to the amendments where it is not clearly inconsistent with the amended Act, including the requirement that there be a change in circumstances even to vary an interim order: Tone v. Tone, 2021 ONSC 3747, at para. 20. In another case dealing with the issue of which school children should attend, Fowler Byrne J. wrote in Treuman v. Wegrynowski, 2022 ONSC 3937, at paras. 23 and 24:

In particular, the change in circumstances has to have occurred since the last interim order. The change must be material, in that it materially affects the child. The material change must raise exceptional circumstances where immediate action is required, and any order varying the previous order must still meet the best interests of the child: Thomas v. Wohleber, 2020 ONSC 1258, at para. 45; Innocente v. Innocente, 2014 ONSC 7082, at para. 45.

This makes sense. The purpose of an interim parenting order is to establish some stability for the child until … the parents can sort out a long[-]term plan, or their dispute can be tried. In parenting cases such as this, an interim variation of an interim order may well substitute one routine to which a child has become accustomed for another, only to have first or even a third substituted at trial. For this reason, an interim order should only be varied on an interim basis if the evidence establishes clearly and unequivocally that the present arrangement is not in a child’s best interest and the proposed arrangement would be: [Green v Cairns, 2004) at para. 14.

17In her affidavit of December 17, 2024, the applicant relies on a myriad of accusations about the respondent's behaviour both before and after their separation in the fall of 2021 in support of her request that the children be permitted to enroll either full-time or part-time in the Bear Island school. I accept none of these accusations. I will address only the major ones in these reasons.

18The applicant alleges that the respondent quit a well-paying job with B.C. Hydro after they separated solely to thwart the request for support she made in the application within which these motions have been brought. I do not accept that allegation. As counsel for the respondent submits, the respondent left a job with a large British Columbia employer and took a job with a large North Bay employer. While the pay may be different, the move has allowed him to enjoy week-about parenting time since he arrived here. Therefore, it is just as likely that the respondent left his job in British Columbia to be close to his children.

19The applicant also alleges that she had to move to Temagami because she could not find work in North Bay as a teacher and because she could no longer afford to live here. She offers no proof beyond her own evidence that she tried to find a job in North Bay. As for housing, the applicant purchased and owned a home in North Bay for over a year before she sold it. Until recently, she was receiving EI benefits. The applicant contends that she was precluded from pursuing a claim for interim support because her case had not been fully conferenced. However, as counsel for the applicant is aware, r. 14(4.2) of the Family Law Rules, O. Reg. 114/99, permits a motion to be brought before a case conference is completed in a situation of urgency or hardship. Instead of bringing such a motion, the applicant opted to sell her house and move away. I do not accept that this was her only, or even her best, option.

20The applicant alleges that the children were not doing well in Vincent Massey, that one of the children has been identified as suffering from some issues that must be accommodated at school, and that the Laura McKenzie Learning Centre is better for the children for these reasons. I find it hard to believe that a large, urban school like Vincent Massey cannot accommodate the issues that have been identified and I flat out reject the applicant's allegation that the children are not doing well there. The report cards the applicant attaches to her affidavit say precisely the opposite, as I read them.

21Until the applicant insisted that they be amended, those same report cards also indicated that the applicant's act of removing the children from Vincent Massey every second week was having a detrimental effect on at least one of them. As the applicant admits, she insisted that the report card of the youngest child dated October 18, 2024, be amended to remove a comment that his removal from school “has had an impact on his ability to learn and follow classroom rules and routines” and that “[c]onsistent and regular attendance is important for his academic progress and success.”

22Finally, the applicant contends that the children have no “supports” in North Bay other than the respondent. And yet, the applicant chose to return to North Bay, not Temagami, with the children after the parties separated while living in British Columbia. For this reason, I reject the applicant's evidence about North Bay as being inconsistent with her own actions.

23In any event, none of the applicant's accusations are relevant. They all relate to events that took place prior to, or to circumstances that existed at the time of, Wilcox J.’s decision on October 8. The only change in circumstances that has occurred since that decision is the removal by the applicant of the children from school every second week, which began the day before the decision was released and continued thereafter, until I put a stop to it on December 13, 2024.

24Under s. 17(5.2) of the Act, the relocation of a child is deemed to constitute a change in circumstances. However, and importantly, s. 17(5.3) of the Act provides that the relocation of a child that has been prohibited by a court under a parenting order does not, of itself, constitute a change in the circumstances of the child for the purposes of s. 17(5). As I interpret s. 17(5.3), only the applicant is precluded from relying on this change. It would make no sense if the parent who had been complying with a parenting order was precluded from relying on the other parent's deliberate breach of that order.

25In his October 8 decision, Wilcox J. considered and explicitly denied the applicant's request that the children be permitted to attend school on Bear Island. By removing the children from Vincent Massey every second week, the applicant acted against Wilcox J.’s decision and against the best interests of the children.

26Clearly, the present parenting time regime is not working. For that reason, I am allowing the respondent's motion and temporarily ordering that the children reside primarily with him.

27The applicant suggested in her September 13 motion that the respondent be permitted parenting time every second weekend and, during submissions, counsel for the applicant submitted that, if I was not inclined to grant his client's motion, that she be given such parenting time, instead. I do not believe that the applicant should have the children every weekend. That would mean that the respondent has them for all the “work” time and the applicant has them for all the “fun” time.

28Instead, until more permanent arrangements can be made, which may involve the applicant returning to North Bay and the respondent paying interim support, the applicant will have the children every second weekend, from the time school finishes on Friday until the time it begins on Monday morning. The applicant's parenting time shall be extended on any long weekend to account for school closures.

29During the hearing of the motion, I also ordered that the applicant shall have the children beginning after school on Friday, December 20, 2024, and ending at the same time on Friday, December 27, 2024. The applicant's weekend parenting time shall begin on January 3, 2025.

30This parenting time schedule shall be re-visited at the case conference to be held on February 5, 2025, but shall remain in place unless varied on consent in writing or by further court order.

CONCLUSION

Conclusion

31For the foregoing reasons, the applicant's motion of December 17 is dismissed, and the respondent's motion of December 4 is allowed. A temporary order will issue, varying the December 1, 2023, order of Wilcox J., to provide as follows:

(1) the children shall reside primarily with the respondent;

(2) the applicant shall have parenting time with the children during the week of December 20, 2024, from Friday, December 20, 2024, after school until the same time on Friday, December 27, 2024;

(3) the applicant shall have parenting time every second weekend, commencing on January 3, 2025, from the time school finishes on Friday until the time school begins on Monday, to be extended during any school closures for long weekends; and

(4) the children shall remain enrolled in and shall attend school at Vincent Massey and not at any other school.

COSTS

Costs

32The respondent was entirely successful in his motion. Under r. 24(1), he is entitled to his costs.

33The parties agree that costs should be fixed in the amount of $2,500, all-inclusive. However, on behalf of his client, Mr. Chohan submits that they should be reserved to the trial judge. I am unable to agree.

34One of the functions of a costs award is to sanction inappropriate behaviour on the part of a litigant: Serra v. Serra, 2009 ONCA 396, at para. 8. The applicant's act of removing the children from school even after the release of Wilcox J.’s reasons and without telling the respondent is conduct worthy of condemnation. For that reason, I order that the applicant pay the respondent his costs of the motions in the amount of $2,500 within 30 days.

M.G. Ellies J.