Hayford v. Hayford, 2025 ONSC 2594

COURT FILE NO.: FC-21-2264
DATE: 2025/04/29
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Christa Hayford, Applicant
– and –
Oral Roberts Hayford, Respondent

Applicant: Self-Represented
Respondent: Self-Represented
Heard: April 8, 2025
Motion decision on mobility and interim parenting
Somji J.

Introduction

[1] The Applicant mother brings a motion for an order to allow her to relocate to New Brunswick for continuing education with the parties’ two young children and for sole decision-making responsibility and parenting time for the father. The Respondent father opposes the relocation. He seeks an order for joint decision-making and generous parenting time at the mother’s home for the next few months until he is out of student housing.

[2] Following the motion hearing, I reserved my decision on relocation. I issued a Temporary Order for the father’s parenting time on consent of the parties pending my decision.

[3] The issues to be decided are:

a. Is it in the best interests of the children to relocate to New Brunswick? and
b. What Interim Parenting Order is in the best interests of the children?

[4] Given that both issues require consideration of the best interest of the child factors, I review those factors below in relation to both relocation and parenting along with other relevant factors for determination of mobility.

[5] In arriving at my decision, I have considered the following evidence: the mother’s affidavit dated February 10, 2025, and reply affidavit dated February 28, 2025, and supporting exhibits; and the father’s factum and affidavit dated February 26, 2025, and supporting exhibits.

Issue

Is it in the best interests of the children for the mother to relocate and what Temporary Parenting Order is in the best interests of the children?

A. Law Governing Determination of Parenting Time and Relocation

[6] There are no shared parenting presumptions. The primary criterion in determining a parenting order on an interim or final basis is the best interests of the child: Section 16(1) Divorce Act, RSC 1985, c 3 (2nd Supp).

[7] In considering the children’s best interests, the court must give primary consideration to the children’s physical, emotional and psychological safety, security, and well-being while also considering all factors related to the circumstances of the children: ss. 16(2) and 16(3) DA; see also S.S. v. R.S., 2021 ONSC 2137, para 30.

[8] S. 16(3) DA lists the best interest factors as follows:

Factors to be considered

16(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

• (a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
• (b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
• (c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
• (d) the history of care of the child;
• (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
• (f) the child’s cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
• (g) any plans for the child’s care;
• (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
• (i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
• (j) any family violence and its impact on, among other things,
  • (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
  • (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
• (k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child.

[9] These best interest factors also apply to the determination of relocation: S. 16.92(1) DA.

[10] As stated by the Supreme Court of Canada in Gordon v. Goertz, [1996] 2 SCR 27 and reiterated in Barendregt v. Grebliunas, 2022 SCC 22, the crucial question is whether relocation is in the best interests of the child, having regard to the child’s physical, emotional, and psychological safety, security and well-being: at para 152.

[11] This inquiry is highly fact-specific and discretionary: Barendregt at para 100. There is no presumption in favour of a custodial parent: Barendregt at para 118. Rather, the court must primarily consider the best interests factors listed above.

[12] However, given the unique challenges posed in relocation cases, the court is to also consider the following factors set out in s. 16.92 DA and jurisprudence governing relocation: Barendregt at para 154. These factors are:

• 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 relocating person complied with notice provisions as per s. 16.9;
• 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.

B. Application of the Law to the Facts

Brief History of Parenting

[13] The parties were married on May 12, 2016. They have two children O.R.H. age 7 and C.L.H. age 3. In 2021, the mother filed for divorce. Following separation, the parties continued to live together in the same residence for a period, but the situation became intolerable for the mother. On September 23, 2024, following a case conference before Associate Justice Perron, the parties entered into a consent agreement whereby the father would live elsewhere but continue to have his parenting time at the mother’s residence (“Interim Parenting Order”).

[14] The father is in his final year of a co-op program in cyber security at Algonquin College. He presently lives in student housing where he cannot have the children. Consequently, the parties agreed, as per the Interim Parenting Order, that the father would have shared and daily parenting time with the children at the mother’s residence in the mornings and evenings as well as for one day on the weekend outside the mother’s residence.

[15] In addition, the parties agreed that the father would pay monthly child support of $396.21 based on his part-time and co-op earnings for 2023 of $36,017.38. While Table support is $546.21, it is reduced by $150 per month for the father’s overpayment of s. 7 expenses, in particular day care costs.

[16] While the mother supports the development of the father’s relationship with the children and has been generous in allowing the father to use her home to exercise his parenting time, this interim parenting arrangement has become intolerable. She submits that because of the parties’ challenges in communication and the father’s disrespectful attitude towards her, she spends her time in her bedroom when the father is over and has become to feel like “a prisoner in her own home.” Irrespective of this Court’s decision on relocation, the mother requests a new parenting arrangement whereby the father is ordered to exercise his parenting time outside of her home.

[17] The father is from Ghana. He has no family supports where he can exercise his parenting time. On the weekends when he is not in school, he takes the children to public places like the library or programmed activities. However, during the week, given the young age of the children, he argues it is not in the children’s best interests to be continually in public places. Furthermore, since the children were born and even after separation, he has been involved in children’s daily morning and evening routines. He would like to continue in this fashion.

[18] While the father is agreeable to moving into a suitable home where he can have the children, he requires a few more months to be able to do so. Even though he has funds from his part-time employment, it is difficult to secure a lease for a two-bedroom residence without proof of consistent income. He claims he has tried but has been unsuccessful. The father is about to graduate and expects to secure a co-op placement which he hopes will result in indeterminate employment. Once he has secured employment, he anticipates he will be able to obtain a suitable home so that he can exercise shared parenting time with the children in his own home.

[19] Upon hearing the father’s submissions at the motion hearing, the mother agreed to a modified parenting schedule that would limit the father’s presence in the home in the evenings but allow him to continue to exercise parenting time some weekday mornings. The father’s assistance in dressing, feeding, and taking the children to school some weekday mornings allows him to remain involved in their daily routine and provides the mother some reprieve and to get to work early. Following the motion hearing on April 8, 2025, the parties agreed to the following interim parenting schedule pending my motion decision:

• The father will have parenting time with the parties’ children O.R.H and C.L.H. as follows:
  • a. At the mother’s residence on Mondays and Thursdays from 6:30 to 9 am.
  • b. Outside the mother’s residence one weeknight per week as agreed to by the parties.
  • c. Outside the mother’s residence every Saturday from 10 am to 1 pm.

The father’s parenting time may be revised or extended upon mutual agreement by the parties.

Notice and Reason for Relocation

[20] The mother informed the father in October 2024 that she seeks to relocate in September 2025 to New Brunswick to complete her schooling. The mother indicates that she has an uncle with whom she can reside out East, though it is not clear from the filings that the father was provided this information regarding residency as required by the legislation: s. 16.9(2)(b) DA.

[21] The mother seeks to relocate to New Brunswick to obtain an undergraduate university degree. The mother commenced a college diploma in Criminal Justice from NBCC Miramichi, New Brunswick. St. Thomas University in Fredericton has now offered her that with her college accreditation, she can obtain a Bachelor of Applied Arts in Criminal Justice after two years of study in their undergraduate program. The mother would commence in September 2025 and complete her program in May 2027.

[22] The mother presently works at the Court Registry of the Federal Court in Ottawa earning approximately $79,000 a year. As an indeterminate employee, her employer can potentially transfer her position to the Fredericton Registry. The mother has not explained, however, how she would balance full-time undergraduate university studies with a full-time job in addition to raising two young children.

[23] The mother supports the father’s relationship with the children and consequently, her expectation was, as gleaned from the correspondence between the parties, that the father would also relocate to Fredericton because his work skills in cyber security are transferable and there are many employment opportunities in his field in New Brunswick. When the father refused and the parties came to an impasse, she brought the present motion before the court.

[24] The father explained that he was surprised by the mother’s announcement to relocate to New Brunswick. He supports the mother’s continuing education. He states that he had personally recommended to the mother in previous years that she attend law school. She was not interested at the time and indicated that she might consider pursuing a degree in Human Resources at Algonquin College in Ottawa. He was therefore surprised when the mother announced to him in the fall of 2024 that she had an offer to attend St. Thomas University and had accepted the offer. The father states that the mother informed him that while she could obtain the same university degree at Carleton University in Ottawa and some other Canadian universities in other provinces, these programs would require three years of study as opposed to two. For this reason, she preferred to attend St. Thomas University.

[25] The father disagrees with the mother’s claim that he can easily find a job in Fredericton. He has yet to complete his schooling and secure an indeterminate job in his own field. While he has no objection to the mother travelling outside the province for further studies and relocating with her, he needs to complete his studies first and assess his job prospects before entering any such commitment. He opposes the mother’s request to relocate with the children as well as her request, if allowed to do so, for sole decision-making responsibility.

[26] While I find that the mother provided notice of the timing and place of relocation, she did not provide adequate notice of how parenting time and decision-making responsibility would be exercised by the father upon her relocation with the children: s. 16.9(2)(c). The father has limited financial means. After three years of schooling, his funds are low. He is paying child support and acknowledges his responsibility in financially and emotionally supporting his kids. However, he has not secured indeterminate employment. He is unwilling to risk moving to another province without a job which would undermine his ability to financially support his children.

[27] Furthermore, there was nothing in the mother’s notice for relocation as to how the father would exercise his parenting time (i.e. on statutory or school holidays), what arrangements would be made to facilitate that parenting time, how the father would afford the travel and accommodation costs, and whether the mother would share in such costs for the father to exercise his parenting time. In relocation cases, the court is entitled to consider the impact of the costs of travel for a parent to exercise their parenting time and make orders as to how such travel and accommodation costs will be apportioned: Yasein v. Alnaqeeb, 2024 ONSC 3590 at para 99.

The Impact of the Relocation on the Children

[28] The children are young and would likely be able to adapt to their new environment. However, I find the absence of their father in their daily lives would likely have an adverse emotional impact on them given he has been an integral part of their daily lives since birth. Even after separation, the father attended the mother’s home almost daily to get the children ready for daycare and school. In the evening, he would return to play with the children, bathe them, and prepare them for bed. He spent one full day each weekend with them. While the father’s continued attendance at the mother’s home for his parenting time has been a source of conflict and must come to an end, it is not disputed that the father has been significantly involved in raising the children.

Amount of Time Each Parent Has Had with the Child

[29] The children reside primarily with the mother in her home, but the parties have and continue to share parenting responsibilities.

The Existence of an Order, Family Arbitration Award or Agreement that Specifies the Geographic Area in which the Child is to Reside

[30] The Interim Parenting Order does not specify a geographic area for children’s residency.

The Reasonableness of the Proposal of the Person Who Intends to Relocate

[31] The mother’s pursuit of further education is respected and encouraged. However, I find the proposal to relocate for continuing education at this moment in time to be unreasonable. The mother is aware of the father’s need to finish school and launch his career. Given the father is agreeable to the possibility of relocation, the mother could consider deferring attendance at St. Thomas University for a year or more when the father is in a better position to relocate with her.

[32] Furthermore, there are options available to the mother to continue with her schooling in Ottawa. While I appreciate that attending Carleton University would require a further year of study which is not the mother’s preference, this must be weighed against the fact that the mother’s relocation would sever the children from the presence of their father in their daily lives, and furthermore, there is no clear plan how he could afford to exercise his parenting time on an even periodic basis over the next two years.

Past and Future Compliance with Court Ordered Obligations

[33] While the correspondence between the parties is acrimonious and suggests that they could benefit from communication and co-parenting courses, I find that both parents respect and support the role of the other parent in their children’s lives.

[34] Both parents understand their legal obligations to support their children and the importance of complying with the agreements and court orders that have been put in place.

s. 16(3) Best Interest Factors

[35] While I have considered all the best interest factors in arriving at my decision on both relocation and interim parenting, I focus below on those factors which I find are highly relevant to this motion and sometimes collectively.

[36] The children are three and seven and require stability in their early childhood development: ss. 16(3)(a) DA. The history of care demonstrates that both parents have been involved in their children’s care and continue to be committed to their children’s emotional, mental, and physical development since birth: s.16(3)(d) DA. I find that the presence of both parents in the children’s daily lives is important for the children’s ongoing development.

[37] The mother highlights some incidents where she found the father to be neglectful in the care of the children (i.e. he left the stove on, he left a child unattended while talking on the phone, he was texting while driving), but fortunately these incidents did not result in any harm to the children. These concerns can be addressed by both parents attending parenting and co-parenting courses so that they see eye-to-eye on how best to raise their children. Notwithstanding these incidents identified by the mother, I find both parents are able to care for and meet the needs of the children: s. 16(3)(h) DA.

[38] Given the amount of time that the children spend with their father, the evidence suggests that the father has been involved in caring for their children since birth and they have a close bond with their father. Similarly, the mother has been fully involved in the care of the children and has a close relationship with them: s. 16(3)(b) DA.

[39] It is unclear what relationship, if any, the children have with the extended families and what impact relocation would have on those relationships. The father’s family is in Ghana. Some of the mother’s family is in Toronto and other members appear to be out East, but the father indicates that the mother has become estranged from her family. He states that after he was first introduced to her family in April 2017, the parties regularly attended family celebrations at the mother’s family home. Since that time, conflicts have developed, and the mother appears to have less contact with the maternal family. I find this best interest factor to be neutral: s. 16(3)(b) DA.

[40] While the mother points out that the father has not filed a plan of care, I do not find this factor determinative: s. 16(3)(g) DA. Until he finishes school and secures employment, the father’s situation is in flux. He hopes to have a suitable residence as soon as he has a full-time job at which time the parties will be in a better position to determine a shared parenting arrangement that does not rely on the mother’s residence to facilitate the father’s parenting time.

[41] The children are too young to meaningfully express their views on relocation and neither parent has addressed this as a factor impacting relocation or parenting time: s. 16(3)(e) DA.

[42] The parties have not addressed the potential impact of relocation on the children’s cultural, linguistic, religious, and spiritual upbringing and heritage: s. 16(3)(j) DA.

[43] The mother argues that the father has been emotionally and psychologically abusive and this, along with infidelity, was the primary reason she sought a divorce. She takes issue with the father’s communication with her which has been disrespectful and a significant source of conflict. The father denies her claims. Rather, he argues that the mother has anger issues, that she became involved with a spiritual cult for a time which was destabilizing, and that their divorce was precipitated by these issues along with the fact that he contacted her family for assistance which upset her. The mother denies these claims.

[44] The parties’ allegations against one another involve claims of emotional family violence which is a factor for consideration: s. 16(3)(f); see also Barendregt at para 9. However, the allegations are controverted. I am not able to make factual findings based on the limited evidence filed in this motion. In my view, these issues are best left for trial where the evidence can be tested in cross-examination. Furthermore, most of the materials filed by the parties relate to inter-personal conflicts between them and there is little reference to issues relating to the children except that on a few occasions, the children were exposed to the parties’ heated arguments.

[45] Finally, and as already noted, both parents support the development and maintenance of the children’s relationship with the other parent and appear to largely cooperate with one another on matters affecting their children including decisions around schooling and activities: s. 16(3)(c) and (i) DA. While it is clear from the pleadings that the parties have been engaged in a high level of conflict on personal issues, I am satisfied that they can communicate, consult, and make joint decisions related to the children.

[46] Having said this, I would recommend that the parties jointly attend a course on how they can better communicate and co-parent. In addition, I would recommend the parties communicate using My Family Wizard or a similar communications app.

Conclusion

[47] While the mother’s continuing education is to be encouraged, I find the mother’s relocation in September 2025 would sever the children’s relationship with their father and have an adverse emotional impact on them given the extent of his involvement in their daily lives since birth. In addition, the mother’s relocation plan is not fully developed, and it is unclear what residency and care arrangements are being made for the children while she works and studies full time. The education plan can potentially be exercised at a later date including with the cooperation of the father. Upon consideration of all the above factors, I find that on balance, it is in the children’s best interests to remain in Ottawa. The mother’s application to relocate is denied.

[48] I also find it is in the best interests of the children for the parents to continue until August 1, 2025, with the interim parenting schedule agreed to at the motion hearing. Thereafter, the father will not be permitted to exercise his parenting time at the mother’s home. I find the mother has been generous with allowing the father to exercise his parenting time at her residence given his present personal and financial circumstances, but it is unsustainable to continue in this manner. Over the next three months, the father has sufficient time to secure a two-bedroom residence where he can exercise his parenting time with the children including for overnight visits. There will be an order that the parties will meet with a mediator by July 15, 2025, to work out a new parenting schedule to go into effect on August 1, 2025, and a schedule that moves towards equal parenting. That parenting schedule, including for overnight stays, should be gradual to allow for the children to adjust to the father’s new residence.

[49] There will be a Temporary Order as follows.

1. The mother’s application to relocate is denied.
2. The parties will have joint decision-making responsibility for O.R.H. and C.L.H.
3. The father will have parenting time with O.R.H and C.L.H. in accordance with the following schedule until August 1, 2025:
   • i. At the mother’s home on Mondays and Thursdays from 6:30 am to 9 am.
   • ii. Outside the mother’s home one weeknight per week as agreed to by the parties.
   • iii. Outside the mother’s home every Saturday from 10 am to 1 pm.
4. The parties may modify the schedule upon written agreement of both parties.
5. The parties will meet by July 15, 2025, with a mediator to determine a new parenting schedule effective August 1, 2025, that gradually moves towards equal parenting time.
6. The father shall not exercise any parenting time at the mother’s home after August 1, 2025, unless with her written consent.
7. The father will keep the mother reasonably informed of his graduation date, his job prospects, and his progress in finding a new residence.
8. The parties will always speak to one another in a respectful manner when in the presence of the children. The parties will refrain from speaking ill of one another to the children.
9. The terms of the consent Order of September 23, 2024, continue to apply with respect to child support and the parties shall make necessary adjustments to child support as per the terms of that Order.

[50] The parties will contact the Trial Coordinator to schedule a settlement conference in the late fall of 2025 or early winter of 2026. By that time, the parties will be in a better position to determine the father’s financial and residential situation. Should they be unable to resolve the Application on a final basis, this matter will proceed to trial on the September 2026 trial list. Trial Coordination will contact the parties to schedule a Trial Management Conference 30 to 60 days prior to trial.

Costs

[51] There was divided success. The parties are responsible for their own costs.

Somji J.
Released: April 29, 2025