Endorsement

Court File No.: FC-24-77-01
Date: 2025/02/20
Ontario Superior Court of Justice
Re: Kemi Andrew Emberson – Applicant
v.
Trystian Elizabeth Hilton – Respondent
Before: Sylvia Corthorn
Counsel:

• Byron J. Cavanaugh, for the Applicant
• Marcus Mattucci, for the Respondent
• Deanna Paolucci, for the Office of the Children’s Lawyer
  Heard: February 11, 2025 (Brockville – In person)

Introduction

[1] The parties co-habited for approximately eleven years (from 2011 to 2022); they separated in March 2022. The parties are the parents of two children: Fable Anne Emberson, born in June 2014, and Levon Eric Emberson, born in November 2016.

[2] Fable was diagnosed as having autism spectrum disorder, experiences hypermobility (with a diagnosis of Ehler Danlos Syndrome (“EDS”) pending as Fable matures), and utilizes a wheelchair. Fable has an Individualized Education Plan at school. Levon is described as experiencing hypermobility.

[3] Since the date of separation, the children have been primarily resident with the respondent mother (“Ms. Hilton”). Also, since the date of separation, the applicant father (“Mr. Emberson”) has been exercising, and continues to exercise, parenting time with the children.

[4] Immediately prior to the date of separation, the parties and the children resided at a home on Washburn Road in Athens, Ontario (“the family home”). Mr. Emberson purchased that property in 2017 and was the sole owner. The family home was sold in the spring of 2024.

[5] Subsequent to the sale of the family home, Ms. Hilton moved, with the children, on three occasions. At present, Ms. Hilton resides with the children in a single room at a motel in Seeley’s Bay, Ontario.

[6] In the same period, Mr. Emberson moved twice. Most recently, in December 2023, Mr. Emberson moved to Ottawa, where he resides in a two-bedroom apartment with his new partner. The apartment forms part of Mr. Emberson’s remuneration from his employer, Minto, for his position as a superintendent of a rental apartment building. Mr. Emberson asserts that he moved to Ottawa in late 2023 to pursue stable employment, at a higher rate of pay than that available in Athens and the surrounding area, so as to be able to provide for himself and the children.

[7] The parties are before the court on Mr. Emberson’s motion for an interim order providing that the children move to Ottawa to reside with him and attend a school within the catchment area for his residential address. Ms. Hilton opposes the motion.

[8] The litigation history is relevant to both the substantive issues raised by Mr. Emberson’s motion and Ms. Hilton’s request for leave to file responding documents over the bench on the return of the motion.

The Litigation History

[9] In the spring of 2024, after the family home was sold, Ms. Hilton moved with the children to Selkirk, Ontario. She did so unilaterally and without notice to Mr. Emberson. Prior to commencing his application, Mr. Emberson brought an urgent motion for the return of the children to Athens or the surrounding area. Ms. Hilton returned with the children to the area.

[10] On June 4, 2024, the parties consented to relief on a temporary and without prejudice basis. The relief to which they consented set a schedule for the exchange of pleadings, and addressed parenting time, child support, the involvement of the Office of the Children’s Lawyer (“OCL”), and monetary issues (“the June 2024 order”). Pursuant to the June 2024 order:

a) the parties are prohibited from moving the children from the jurisdiction of Leeds & Grenville County;
b) the children are to continue to attend Pineview Avenue School in Athens;
c) Ms. Hilton is required to “ensure the children attend all regularly scheduled classes on time absent medical emergency or other valid medical reasons supported by their physician’s express recommendation in writing”; and
d) Ms. Hilton is required to keep Mr. Emberson “apprised of all major issues affecting the children’s health, education and general welfare.”

[11] The June 2024 order does not address decision-making or primary responsibility for the children.

[12] The parties were before the court in late July 2024. On that occasion, the parties consented to a slightly revised version of the June 2024 order (“the July 2024 order”). The slight differences in wording between the two orders are not material for the purpose of Mr. Emberson’s motion. The effect of the relevant terms in the July 2024 order is the same as the effect of the terms set out in paragraph 10, above. Like the June 2024 order, the July 2024 order does not address either decision-making or primary responsibility for the children.

[13] The parties were before the court for appearances in July 2024 (twice), September 2024, October 2024 (twice), and December 2024 (twice).

[14] At a case conference conducted on October 29, 2024, Mr. Emberson informed the court that he intended to bring a motion for an interim order providing for the children to move to and live with him in Ottawa. At the same conference, Ms. Hilton informed the court that she wishes to move with the children to Selkirk. In his endorsement for that case conference, Johnston J. “expressed concern over the fact the children have not been regularly attending school while in [Ms. Hilton’s] care”: Emberson v. Hilton (29 October, 2024), Brockville, FC-24-77 (Ont. S.C.).

[15] Justice Johnston ordered Ms. Hilton “to provide in [the] form of affidavit an explanation for [the] children missing school[.] If it is due to medical issues, a Doctor’s letter”: (“the October 2024 order”). Ms. Hilton was given twenty-one days, from the date of the October 2024 order, within which to provide that evidence. In the same order, she was given a second (and final) extension, of seven days, within which to file her Answer and related documents.

[16] The October 2024 order also required the parties to serve their respective parenting plans within twenty-one days of the date of the order. Justice Johnston specifically ordered the parties to address transportation if, in their parenting plan, they intend to seek an order permitting them to move with the children.

[17] Twice in December 2024, the parties were before the court in relation to Mr. Emberson’s motion. In early December, Mr. Emberson’s request to file materials in excess of a stipulated page limit was refused: Emberson v. Hilton (9 December, 2024), Brockville, FC-24-77 (Ont. S.C.).

[18] The first return date for Mr. Emberson’s motion was December 17, 2024. For all appearances prior to that date, Ms. Hilton was represented by the same counsel of record. On December 17, 2024, Ms. Hilton appeared as a self-represented litigant.

[19] Ms. Hilton attended on December 17, 2024, without having filed any responding materials. She requested an adjournment of the motion “in order to prepare her responding material & present her plan to meet her parenting obligations”: Emberson v. Hilton (17 December, 2024), Brockville, FC-24-77 (Ont. S.C.) (“the adjournment endorsement”).

[20] Ms. Hilton’s request for an adjournment of the motion was granted by Schwartz J. In the adjournment endorsement, Schwartz J. emphasized to Ms. Hilton that she was being “given significant time” to prepare her responding materials.

[21] Justice Schwartz set a timetable for the parties to exchange their respective materials on the motion. Mr. Emberson was given until January 8, 2025 to serve and file better evidence in support of the relief he seeks; Ms. Hilton was given until January 21, 2025 “to serve & file responding affidavit evidence, which shall include the previous required affidavit evidence relating to the children’s school attendance and medical status.” Regarding the reference to “previous required affidavit evidence”, Ms. Hilton had not yet complied with the October 2024 order requiring her to file affidavit evidence to explain the children’s absences from school. Last, Mr. Emberson was given until January 28, 2025 to serve and file any reply evidence.

[22] Justice Schwartz adjourned Mr. Emberson’s motion to February 11, 2025. In the adjournment endorsement, Schwartz J. recorded an assurance received by the court from Ms. Hilton “that she understands her obligations to get the children to school at Pineview Public in Athens, on time & fully prepared to learn in the interim period.”

[23] In support of his motion, Mr. Emberson relies on a Form 35.1 Affidavit sworn by him on December 9, 2024; a Form 14A affidavit sworn by his mother on the same date; and his Form 14A affidavit sworn on January 6, 2025. In anticipation of a request from Ms. Hilton for the motion to be adjourned, Mr. Emberson filed a Form 14A affidavit sworn by him on February 6, 2025. This latter affidavit does not address the substantive issues on the motion.

[24] On the return of the motion on February 11, 2025, Ms. Hilton requested leave to file three documents, all dated February 10, 2025 (“the Documents”), over the bench: a motion confirmation form; Ms. Hilton’s Form 14A affidavit; and a factum. Ms. Hilton did not request an adjournment of the motion (i.e., including as an alternative if the court did not grant leave to file the Documents over the bench).

[25] The court heard submissions regarding the Documents and gave brief oral reasons refusing the request, with written reasons to follow. The court heard submissions on the substantive interim relief sought by Mr. Emberson on his motion.

[26] I start with written reasons for refusing Ms. Hilton’s request for leave to file the Documents over the bench and continue thereafter with reasons on Mr. Emberson’s motion.

The Request for Leave to File the Documents is Refused

[27] Ms. Hilton did not rely on any evidence in support of her request for leave to file the Documents over the bench. She relied exclusively on the submissions of her counsel. I wish to highlight that the reasons, which follow immediately below, are in no way a criticism of either of Ms. Hilton’s present or former counsel.

[28] For the following reasons, Ms. Hilton’s request for leave to file the Documents over the bench was refused.

[29] First, Ms. Hilton submits that she was aware by October or, at the latest, in early November 2024 that she was granted a Legal Aid Certificate. Ms. Hilton asks the court to consider the difficulties she submits she encountered in finding counsel to accept a retainer on a Legal Aid basis. Ms. Hilton submits that she was diligent in her efforts to find counsel who would accept a retainer on that basis. Her present counsel was retained in late January 2025.

[30] Yet, there is no evidence to support Ms. Hilton’s submissions and permit the court to assess (a) when Ms. Hilton became aware that her previous counsel would not continue as counsel of record; and (b) the level of diligence with which Ms. Hilton sought to find new counsel.

[31] There is nothing in any of the endorsements pre-dating February 11, 2025, to indicate that Ms. Hilton would be seeking new counsel or that her search for new counsel might result in a request for an adjournment of Mr. Emberson’s motion.

[32] For example, as of first return date for the motion (December 17, 2024), Ms. Hilton knew that she had a Legal Aid Certificate and was no longer represented by her former lawyer. Ms. Hilton consented to the February 11, 2025 date for the motion. As described by Schwartz J., Ms. Hilton was given “significant time” within which to file her responding materials (in excess of six weeks from the date of the adjournment). If Ms. Hilton anticipated that she might experience challenges in retaining counsel to represent her on the motion, it was incumbent upon her to address with the court, at that time, the litigation timetable and the return date for the motion.

[33] Second, I consider that Ms. Hilton has on several occasions prior to February 11, 2025, failed to comply with deadlines set in court orders. As already identified, Ms. Hilton failed to comply with the deadline set in the October 2024 order for the delivery of an affidavit explaining the children’s absences from school. She failed to comply with that deadline a second time, after it was extended by Schwartz J. in the adjournment endorsement.

[34] Set out below are other deadlines, set by the court, which Ms. Hilton failed to meet:

• To file her Answer within 20 days of the date on which she was served with the Application (see the June 2024 order); and
• To file her Answer by October 2, 2024 (see the endorsement of Johnston J. dated September 27, 2024).

[35] Regarding the October 2, 2024 deadline, I note that in an endorsement dated October 10, 2024, Ms. Hilton was granted a further extension, to October 17, 2024, within which to file her Answer.

[36] In summary, Ms. Hilton is a litigant who, even when represented by counsel, repeatedly failed to meet deadlines set by the court.

[37] Third, I consider the lack of communication from Ms. Hilton with Mr. Emberson’s counsel between December 17, 2024 and late January 2025 (i.e., when Ms. Hilton retained her current counsel). For more than a month, Ms. Hilton left Mr. Emberson’s counsel in the dark as to her challenges in retaining counsel and the impact those challenges would have on her position when before the court on February 11, 2025. As a self-represented litigant, it was incumbent upon Ms. Hilton to communicate with Mr. Emberson’s counsel in that regard.

[38] Last, I consider that if Ms. Hilton were granted leave to file the Documents, an adjournment of the motion would be required so as to permit Mr. Emberson to review the documents (dated the day prior to the return date for the motion) and consider what reply evidence is required. An adjournment of the motion—even if only to a date in March 2025—would not serve the best interests of the children.

[39] The concerns regarding the children’s historical and continuing absences from school are mounting. The evidence before the court is that the children are, at this stage of the current academic year, approaching having missed one-third of the school days in the academic year.

[40] The motion had already been adjourned once—for approximately two months. It is important for the children and the parties that the motion be determined and that the proceeding move forward.

[41] I pause to note that Ms. Hilton’s February 10, 2025 affidavit does not include the evidence she has, since the October 2024 order, been required to provide. The affidavit does not include an explanation for the children’s absences from school in the academic years dating from September 2021 to and including the present academic year (i.e., 3.5 years of school). The affidavit does not include, as an exhibit, a letter from a physician specifically tying any of the children’s absences from school to a medical issue. Ms. Hilton has yet to comply with an order first made more than three months ago.

[42] For those reasons, Ms. Hilton’s request for leave to file the Documents over the bench is refused. I turn to the substantive issues raised on Mr. Emberson’s motion.

The Issues

[43] In his notice of motion, Mr. Emberson requests relief related to the children’s primary residence, the school at which the children attend, Ms. Hilton’s parenting time with the children, and child support.

[44] Specifically, Mr. Emberson requests an order that the children shall, effective immediately, reside with him in Ottawa. Recognizing that such a move would necessitate a change in the children’s school, Mr. Emberson identifies two schools in the catchment area for his residence. Mr. Emberson proposes parenting time for Ms. Hilton, differentiating between a scenario in which she continues to reside in Eastern Ontario and a scenario in which she relocates to Selkirk, Ontario. Last, if the court orders that the children move to Ottawa, then Mr. Emberson requests that his child support obligation of $683 per month be terminated.

[45] Mr. Emberson approaches the request for the children to move to Ottawa as a mobility issue. In support of his request, Mr. Emberson relies, for example, on the decision of Marshman J. in Plumley v. Plumley, [1999] O.J. No. 3234 (S.C.J.). At para. 7 of that decision, Marshman J. lists factors which must be considered when determining a mobility issue on an interim basis.

[46] I find Mr. Emberson’s characterization of the issues as related to ‘mobility’ to be a mischaracterization of the nature of the request he makes for the children to move to Ottawa. I characterize the nature of that request as falling within the scope of a change in the children’s primary residence (i.e., from primary residence with Ms. Hilton, to primary residence with Mr. Emberson). The mobility issue is subsidiary to the issue of the change requested for the children’s primary residence.

[47] For the reasons which follow, Mr. Emberson’s motion is dismissed.

Analysis

[48] One of the decisions upon which Mr. Emberson relies is Boudreault v. Charles, 2014 ONCJ 273. In Boudreault, the applicant mother was the parent with primary care of the parties’ child. The mother brought a motion for an order permitting her to relocate to another city with the child. At para. 25 of Boudreault, Sherr J. reviews the principles set out in Plumley v. Plumley, [1999] O.J. 3234 (S.C.J.); at para. 26, Sherr J. summarizes principles from seven other decisions.

[49] In many of, if not all, the decisions cited in Boudreault, the parent seeking an order for relocation of a child is the parent with whom the child has been primarily resident. Decisions involving that fact scenario are distinguishable from the circumstances in the matter before this court. Mr. Emberson made the choice in late 2023 to move to Ottawa. He did so without addressing, at that time, the children’s primary residence. For clarity, Mr. Emberson is not a parent with whom the children are primarily resident and who is seeking to move, together with the children, to a new location.

[50] I approach the decision on Mr. Emberson’s motion based on the principles related to “material change” set out in the Supreme Court of Canada decision in Gordon v. Goertz, [1996] 2 S.C.R. 27, at para. 13:

It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

[51] The order which Mr. Emberson seeks to vary is the July 2024 order to which the parties consented. By the spring of 2025, the children will have been primarily resident with Ms. Hilton for three years. The court is unable, based on the evidence before it, to determine whether there has been a “material change” which supports granting of the interim relief, changing the children’s primary residence, requested by Mr. Emberson:

• The only evidence before the court consists of two affidavits from Mr. Emberson and an affidavit from his mother. Neither Mr. Emberson nor his mother were cross-examined on their respective affidavits;
• The court does not have the benefit of a fulsome record, with affidavit evidence from both parties and transcripts of cross-examinations if conducted; and
• In the absence of evidence from or on behalf of Ms. Hilton, the court is not in a position to assess the credibility of the parties.

[52] I do not in any way discount the historical, continuing, and increasing concerns regarding the children’s absences from school and the impact of children’s chronic absences from school on their education, socialization, and general well-being. The number of days each child has been absent from school for the past 3.5 academic years is very concerning.

[53] It is also concerning that the children’s absences persisted, let alone appear to have increased in frequency, even after Ms. Hilton consented to an order which requires her to “ensure the children attend all regularly scheduled classes on time absent medical emergency or other valid medical reasons supported by their physician’s express recommendation in writing”: see the July 2024 order, at para. 7, item c.

[54] The exhibits to Mr. Emberson’s Form 14A affidavit include report cards for each of the children for the three most recent complete academic years. Mr. Emberson expresses concern for the children’s academic performance based on the final report card each received for the 2023-24 academic year. For example, Mr. Emberson identifies that Fable received four letter grades of “D”, two letter grades of “C”, and three letter grades of “I” (insufficient evidence upon which to assign a letter grade). For the same year, Levon’s final report card includes one letter grade of “D” and two letter grades of “C”.

[55] It would be reasonable to infer that if both children were to attend something closer to one hundred percent of the school days (as opposed to 70 percent or less), their academic achievement would improve and they would be better positioned to continue to learn in future grades. I need not, however, draw an inference and make a finding at this time.

[56] The final report card for each child includes a positive summary statement by the child’s teacher about the child and their achievements during the academic year. That is not to say there is not room for improvement for each child when their respective academic performances are considered on a subject-by-subject basis. The contents of the report cards do not, however, support a finding that the children are at risk of harm, such that it is in their best interests to change their primary residence to Ottawa and change schools, the latter with 4.5 months left in the school year.

[57] The OCL’s involvement in this matter is relatively recent. In her submissions, counsel for the OCL acknowledged that she has not completed the requisite interviews in this matter. Despite the limitations on her ability to make meaningful submissions, counsel for the OCL made thoughtful submissions regarding the impact on the children of their chronic absences from school. The concerns expressed in that regard by counsel for the OCL echo the concerns expressed by Johnston J. in October 2024 and by Schwartz J. in December 2024.

[58] The children are relatively young. Regardless, their input, as provided by counsel for the OCL will be of assistance to the court when it makes final determinations on the issues raised in the pleadings—including where the children will primarily reside.

[59] To relocate the children at this stage in the academic year would (a) disrupt the primary residence they have known for almost three years (i.e., with their mother); (b) cause the children to lose the day-to-day connections that they have with their friends at school and in the area in which they live; and (c) require them to adjust to a new academic setting with approximately 4.5 months left in the school year.

[60] It is, however, important that the parties, specifically Ms. Hilton, take every measure required to ensure that the children regularly attend Pineview Public School to the completion of the academic year. If the children’s attendance at school improves, they will be better-positioned than they are now for the beginning of the next and future academic years (i.e., September 2025 and beyond).

[61] The evidence before the court is that Mr. Emberson has, from time to time, taken on the sole responsibility of ensuring that the children attend school. The children’s attendance at school significantly improved during the periods that Mr. Emberson, or his delegate, was responsible for transportation of the children to and from school.

[62] The evidence before the court is that Mr. Emberson has also considered Ms. Hilton’s limited financial means and both provided direct financial aid (a single $7,500 payment) and addressed, in an anticipatory way, potential costs awards against Ms. Hilton.

[63] In summary, from both a practical and monetary perspective, Mr. Emberson has attempted to address the children’s attendance at school and provide assistance to Ms. Hilton to facilitate an improvement in the children’s rate of attendance at school.

[64] I pause here to note that Ms. Hilton presents herself as someone who is economically challenged. Yet, she pays $1,750 per month to reside in a motel and continues to pay $1,800 towards a residence in Selkirk (to which she hopes to eventually move with the children). Ms. Hilton appears to rely on a lack of financial resources as one of the reasons why the children miss school on occasion. The motel in which they reside is outside the school bus route for Pineview Public School. As a result, Ms. Hilton must find and pay for other means of transportation for the children to/from school.

[65] Without making any findings, I simply point out that Ms. Hilton’s financial management skills are concerning. She chooses to put her hope of relocating with the children to Selkirk ahead of the children’s current academic needs and the benefits to them of ensuring that those needs are met. The $1,800 per month spent on a home in Selkirk, which Ms. Hilton and the children do not occupy, would go a long way to assisting the children in their current location.

[66] It is important that the children’s primary residence and school be settled prior to the beginning of the 2025-26 academic year. For that reason, I order that the parties proceed to an expedited trial.

[67] Last, it is important that Mr. Emberson have a reasonable opportunity to monitor how the children are faring pending a trial. For that reason, his parenting time is increased in accordance with the order set out below.

Disposition

[68] For the reasons set out above, I make the following order:

1. Mr. Emberson’s motion is dismissed.

2. The parties shall proceed to an expedited trial.

3. To facilitate scheduling the trial on an expedited basis, the parties shall attend at a case conference on Tuesday, February 25, 2025 at 9:30 a.m. (for 20 minutes).

   Note: The purpose of the case conference is to set dates for a settlement conference and a trial scheduling conference. If the parties require a litigation timetable for events or steps in the proceeding prior to the settlement conference, they shall, at the case conference, also address the litigation timetable.

4. If the parties are unable to attend the case conference on the date and at the time set out in paragraph 3, immediately above, then the parties shall contact the Trial Co-ordinator and schedule a case conference for as soon as practicably possible after February 25, 2025.

5. Pending a further order of the court, the father shall have parenting time with the children pursuant to the following schedule:

   a) Paragraph 9 of the July 2024 order shall remain in force and effect – with Mr. Emberson having parenting time with the children every second weekend from the Friday after school until the Sunday at 5:00 p.m.;

   b) For the March Break (March 10-14, 2025), Mr. Emberson shall have parenting time with the children for up to a maximum of six nights, in accordance with the following parameters:

   i) The parties shall agree, including, if necessary, with the assistance of the judge presiding at the case conference referred to in para. 3, above, to identify the start date and end date for the six nights and whether they are to occur in a single block of time or in two separate blocks (again, up to a maximum of six nights);

   ii) Mr. Emberson shall be responsible for picking up the children and returning the children to Ms. Hilton – at a location or locations to be agreed upon; and

   iii) The children shall be returned to Ms. Hilton no later than 3:00 p.m. on Sunday, March 16, 2025 (i.e., in the event they are with Mr. Emberson overnight on Saturday, March 15, 2025);

   c) Regardless of whether the Easter Weekend is a weekend on which Mr. Emberson is regularly scheduled to have parenting time with the children, he shall have parenting time with them from the Thursday after school until the Monday at 2:00 p.m. Pick up and return shall be in accordance with para. 9 of the July 2024 order;

   d) Regardless of whether the May Victoria Day Weekend is a weekend on which Mr. Emberson is regularly scheduled to have parenting time with the children, he shall have parenting time with them from the Friday after school until the Monday at 3:00 p.m. Pick up and return shall be in accordance with para. 9 of the July 2024 order; and

   e) In the summer of 2025, following the end of the academic year and prior to the commencement of the 2025-26 academic year, Mr. Emberson shall have up to a maximum of three weeks (with no more than fourteen consecutive nights in any one block of time) of parenting time with the children, with the parties to agree upon a parenting time schedule for the children in the summer.

6. The terms of the July 2024 order shall otherwise remain in force and effect.

[69] Although Mr. Emberson’s motion was not successful, Mr. Emberson was motivated, at least in part, out of concern arising from Ms. Hilton’s failure to comply with the terms of the July 2024 order and her failure to comply with the orders made by Johnston and Schwartz JJ. to provide affidavit evidence explaining the children’s chronic absences from school. The costs of Mr. Emberson’s motion are therefore reserved to the judge hearing the trial of this proceeding or, if pursued, any further motion to change the children’s primary residence.

Sylvia Corthorn
Date: February 20, 2025