Superior Court of Justice – Ontario

Court File No.: FC1192/23
Date: May 16, 2025
Family Court

Re: Winston George Gilman, Applicant
And: Patrice Tissan Campbell, Respondent

Before: Victor Mitrow
Attendance: Applicant, in person
Samalie Nsubuga, for the Respondent
Heard: April 4, 2025

Endorsement

Introduction

[1] Each party brings a motion for interim relief. The central issue in the motions is the respondent mother’s (“the mother”) request to relocate the child on an interim basis from London, Ontario to the Turks and Caicos Islands (“Turks and Caicos”).

[2] The parties’ child was born in April 2020 and recently turned age five. The child resides currently with the applicant father (“the father”) in London, Ontario. The mother resides currently in Turks and Caicos.

[3] Although the father was self-represented at the hearing of the motions, his motion material and factum were prepared while he was represented by counsel.

[4] The mother’s request to relocate the child is opposed by the father. The father’s motion includes requests for orders for primary care of the child, and for the child to have liberal and generous parenting time with the mother during holidays and the child’s summer break.

[5] In her motion, the mother’s requests for a parenting order include sole decision-making responsibility, immediate return of the child to her care and that the father have parenting time in accordance with a schedule to which “the parties are agreeable”.

[6] In her motion, the mother also seeks child support. That claim is dismissed given the result on the mobility issue. The father did not claim child support. He deposed that he was not seeking child support, but instead, his motion requests an order that he be permitted to claim the “Child Tax Credit” through the Canada Revenue Agency. This appears to be a reference to the “Canada Child Benefit” (CCB). That claim is dismissed as the court has no jurisdiction to make orders directing the Canada Revenue Agency how to allocate or pay the CCB. The father fails to explain whether he has applied for the CCB; if not, it would be up to him to do so.

[7] At the outset of the hearing of the motions, the affidavits that were filed comprising the evidentiary record for the motions were confirmed with the parties. [1]

[8] For reasons that follow, the order below includes that the child shall remain with the father pending trial scheduled for November 2025, the child shall spend most of the upcoming 2025 school summer vacation with the mother and each party shall have decision-making responsibility on an interim basis as specified in the order.

Brief Background

[9] The parties were married in Jamaica. The marriage was in 2015 according to the mother, and in 2014 according to the father. Nothing turns on this discrepancy.

[10] The parties agree that they separated in August 2022.

[11] The mother describes the father as aggressive, controlling, manipulative and physically abusive towards her. The father disputes this evidence and deposes that he was sometimes hit or pushed physically. There is also other evidence discussed later relating to family violence. The conflicting evidence on this issue precludes the court from making a thorough and meaningful assessment of the nature, extent and effect of any family violence in this case.

[12] The father has worked abroad at various times during the parties’ relationship. The mother agrees with the father’s evidence that shortly after they were married, that the father moved to Saudi Arabia for employment purposes; that the mother relocated to Selkirk, Manitoba, for her employment; and that when the father’s contract ended in Saudi Arabia, that he moved to Selkirk, Manitoba to be with the mother, following which the parties moved to Winnipeg.

[13] The child was born when the parties were living in Winnipeg. The parties agree that the mother opened a restaurant business in Winnipeg.

[14] The parties have put forth conflicting evidence as to their respective caregiving roles following the child’s birth. For her part, the mother deposes that she was on maternity leave for 12 months until the end of April 2021. It is her evidence that the parties raised the child together during that one year. The mother deposes that she opened the restaurant in May 2021. She then adds that while on maternity leave, that she was caring for, and raising, the child.

[15] The mother deposes that in April 2022, the parties were together in Winnipeg until the father decided to “take on a new role” in British Columbia until October 2022. The mother adds that the father was absent from the child’s life for six months, from April until October 2022. Then, in October 2022, the father moved to Saudi Arabia and thereafter relocated to Ontario in June 2023.

[16] The father’s narrative is that the mother opened the restaurant in 2020, after the child was born; that she worked 12 to 16-hour days; that the child was placed in day care; that the father transported the child to and from day care, as his work schedule permitted more flexibility. The mother disputes that she worked long hours as alleged.

[17] The father describes himself as the child’s primary caregiver from “2020 until 2022” when he accepted a job in British Columbia and then a job in Saudi Arabia. The father’s evidence is that he needed to work abroad as those jobs paid more money. The father deposes that the mother was incurring significant debt in her restaurant business, requiring the father to increase his income to better support the family including paying the restaurant debt. While the mother agrees that she incurred debts relating to the restaurant, she denies that the father assisted in paying those debts; it is her evidence that she received financial assistance from family and friends.

[18] While the father agrees that he went to British Columbia in 2022, he does not indicate when he left other than deposing that the parties disagree on the “timeline of events”. The father, however, does not dispute the mother’s specific evidence that he was away from April to October 2022, and that in October 2022 he left for Saudi Arabia.

[19] The father agrees that after his employment was finished in Saudi Arabia, that he relocated to London, Ontario. Although the father does not state when he moved to London, Ontario, he does not dispute the mother’s evidence mentioned earlier that this occurred in June 2023.

[20] The father makes allegations, denied by the mother, that the mother was refusing to arrange for the father to have parenting time with the child while the father was in British Columbia and Saudi Arabia.

[21] The parties do agree that, eventually, arrangements were made for the child to stay with the father for a three-week period commencing September 16, 2023 until October 7, 2023. The parties also agree that the child was never returned to the mother’s care afterwards, and that the child has remained since that time in the father’s care in London.

[22] Not surprisingly, the parties have markedly different explanations as to why the child remained with the father.

[23] On picking up the child from Winnipeg for the three-week visit in Ontario, the father alleges that the child was not properly cared for, and that the child suffered from severe constipation and appeared unwell. The father brought the child to emergency in London. He was advised that the child had an untreated hernia; also, various appointments were scheduled by the father with specialists regarding the child’s constipation and hernia. The various appointments extended beyond the planned three-week visit.

[24] Additionally, the father deposed that the mother’s restaurant had closed due to outstanding debt. When it was time to return the child to Winnipeg, the father indicates that the mother advised him that she was relocating for employment to Turks and Caicos. The father deposes that he was not comfortable returning the child because he was worried that the mother would take the child to Turks and Caicos without his consent. The father claims that he was “vindicated” as to his concerns because the mother soon thereafter moved to Turks and Caicos.

[25] Further, while in Winnipeg, the mother did commence a divorce application. She deposes that the father contacted her via email claiming that he did not have any money to file for a divorce and that he was not contesting “any custody or divorce”. In response, the father deposes that he did not contest the divorce or custody of the child because there was no indication at the time that the mother would be relocating the child to Turks and Caicos.

[26] The mother’s Manitoba divorce application was not included in the motion material; however, the evidence suggests that the divorce proceeding in Manitoba included claims for corollary relief for a parenting order.

[27] The mother denies the allegations of neglecting the child’s care; her evidence is that the child maintained doctor visits while in her care; that the child has struggled with constipation since birth; that the child’s pediatrician was managing the child’s treatment; and that the child was improving until his treatment was disrupted when the father failed to return the child to Winnipeg.

[28] The mother is employed in Turks and Caicos as a manager in the restaurant industry. A letter from the mother’s employer confirms her employment commenced December 21, 2023 at a salary of $92,700 USD.

[29] In her material, the mother does not respond to the father’s concerns that she was planning to take the child with her to Turks and Caicos without his consent. As noted earlier, those concerns surfaced in October 2023 when the father was to return the child. Also, there is no detail or any evidence from the mother as to what steps, legal or otherwise, she had taken in anticipation of relocating the child to Turks and Caicos, including any steps she had taken to obtain the father’s consent. The mother’s evidence also does not indicate when she accepted her current employment position or when she moved to Turks and Caicos.

[30] The mother deposes that after the father failed to return the child in October 2023, that she was blocked by the father on all social media and was only able to arrange parenting time through counsel. The mother did not have in-person parenting time with the child until April 2024, when she attended in London for a case conference.

[31] The father disputes the allegations of failing to promote parenting time. His evidence is that he facilitated contact “almost daily”.

Litigation History

[32] The father commenced the current application on October 27, 2023. The application was handwritten and included claims for decision-making responsibility and parenting time. Those claims were made pursuant to both the Children's Law Reform Act, RSO 1990, c C.12 (the “CLRA”), and the Divorce Act, RSC 1985, c 3 (2nd Supp). However, the application contains no claim for divorce. The application does not contain any narrative as to the facts.

[33] The respondent filed an answer signed February 26, 2024 that included claims for decision-making responsibility and parenting time. The parenting orders were sought both pursuant to the Divorce Act and the CLRA. The answer did include a claim for divorce.

[34] The father then retained counsel and filed an amended application that included a claim for divorce. The amended application was signed by the father and his counsel on April 22, 2024. The mother subsequently filed an amended answer. [2]

[35] During the hearing of the motions, the mother submitted that she had withdrawn the Manitoba divorce application. At the case conference held in London on April 30, 2024, Hassan J. made an order that included the requirement for the mother to provide proof of the withdrawal of the Manitoba divorce application by May 17, 2024. The reasons contained in Hassan J.’s endorsement indicate that the mother had commenced a divorce proceeding in Manitoba, and that she was in agreement at the case conference to withdraw that application.

[36] As proof of the withdrawal of the divorce application, the mother filed at the hearing of the motions a document titled “Notice withdrawing opposition” [3]. This document states that “the Applicant hereby withdraws all opposition to the divorce claimed in the petition for divorce”. Although the term “Applicant” is used, the mother is described in the title of the proceeding as the “petitioner” and the father is shown as the “respondent”. The document includes an electronic signature of the “respondent or respondent’s lawyer” as consenting to the notice withdrawing opposition.

[37] This document is not a withdrawal of the petition. The use of this form by the mother is questionable. Rule 70.12 of the King’s Bench Rules deals with determination of uncontested petitions and provides that where a respondent is noted in default or files “a notice withdrawing opposition”, that the petitioner may set the petition down for determination by a judge solely on affidavit evidence. [4] This form is designed to be filed by a respondent to allow a petition to proceed on an undefended basis.

[38] The aforesaid document filed at the hearing of the motions does not comply with Hassan J.’s order. The order below includes a requirement for the mother to provide proof that the Manitoba divorce application has been withdrawn or discontinued.

[39] This court raised with the parties at the beginning of the hearing of the motions the issue as to what legislation was applicable. It was agreed that the motions are proceeding pursuant to the CLRA in relation to the parenting issues.

[40] The foregoing agreement is reasonable as the jurisdiction to commence a divorce proceeding in London is significantly in doubt.

[41] Pursuant to s. 3(1) of the Divorce Act, a court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been habitually resident in the province for at least one year immediately preceding the commencement of the proceeding.

[42] In the present case, although the mother has claimed a divorce in her answer, there is no evidence that she has ever resided in Ontario. As noted earlier, the evidence on the motions indicates that the father relocated to Ontario from Saudi Arabia in June 2023. Although the father’s application did not claim a divorce, the divorce claim was made by way of an amended application, and as noted earlier, that amended application was signed in April 2024 by the father and his counsel. At that time, the father had only been in Ontario for 10 months.

[43] Accordingly, the evidence suggests that the father was not habitually resident in Ontario for one year immediately preceding his claim for divorce being made in the amended application; further, the mother cannot rely on the fact that the father was habitually resident in Ontario for at least one year before commencing her divorce proceeding, because the mother’s answer containing a divorce claim was signed February 26, 2024, which was only eight months after the father arrived in Ontario.

[44] Also, the parties’ rights in the present case to commence a divorce proceeding in Ontario assume that the divorce proceeding commenced earlier in Manitoba has been withdrawn. If not, then pursuant to s. 3(2) of the Divorce Act, the current Ontario divorce proceeding would be deemed to be discontinued and Manitoba would have exclusive jurisdiction to determine the divorce proceeding. [5]

[45] The order of Hassan J. dated April 30, 2024 also dealt with the mother’s parenting time and included a provision, made on an interim without prejudice basis, that the mother shall have virtual contact with the child a minimum of four times per week, with the mother to advise the father via a parenting app by noon, London time, as to the time and day that she will be making contact.

[46] The issue of the court-ordered virtual contact has been a contentious matter. The mother deposes that the father has not responded to most of her phone calls. She attaches an exhibit with numerous phone logs that contain messages stating “unanswered video call”.

[47] The father responds that the parties agreed to have virtual calls from Sunday to Wednesday to better plan for the calls. He claims that he facilitated the calls and that the mother would not give him notice as required by the order. He claimed that at times the mother called when the child was in school or the father was at work. The father claims that the issues could be resolved if there was a set time for the calls.

[48] The mother adds that the father never initiated any calls and has only returned a few calls. As to a set time, the mother deposes that the parties had agreed to have the calls at 6 p.m. in advance of the child’s bedtime, but that those calls also were not answered.

[49] I would add that, on March 26, 2025, Henderson J. heard a motion by the mother to enforce her virtual parenting time contained in the order of Hassan J. The endorsement of Henderson J. dated March 26, 2025 includes the following:

• That the father did not file any responding material;
• That in his submissions, the father provided a variety of excuses why parenting time had not happened;
• That Henderson J. did not believe that the father was taking his responsibility to comply with the order “seriously enough”;
• The motion was ordered adjourned with deadlines to file responding and reply material; and
• Henderson J. warned the father about the potential of contempt for non-compliance in the event “… the Applicant does not continue to comply with the order.”

[50] Further, the interim order of Hassan J. also included a provision that neither party shall remove the child from Ontario without the consent of both parties or a court order.

Relevant Statutory Provisions

[51] Although each party’s factum referred to the provisions of the Divorce Act in relation to relocation, it is noted that the relevant statutory provisions in the CLRA are very similar to the Divorce Act in relation to relocation.

[52] As discussed earlier, the CLRA applies to the motions. The relevant statutory provisions are reproduced below:

See full text of sections 18(1), 24(1)-(3), 39.3(1), 39.4(1)-(3) as set out in the original document.

Discussion

[53] Both parties refer to Plumley v. Plumley, 1999 CarswellOnt. 3503 (Ont. S.C.J.), an often-cited case dealing with interim mobility. The court sets out factors to be considered at para. 7:

[7] It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis:

1. 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.
2. 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.
3. 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.

[54] In another mobility case, cited by the father, the court in Boudreault v. Charles, 2014 ONCJ 273, referred to Plumley v. Plumley, supra, and at para. 26 listed additional principles regarding interim mobility which I have considered.

[55] Both parties refer to a recent decision of the Supreme Court of Canada, in a mobility case, in Barendregt v. Grebliunas, 2022 SCC 22. The court explains the process for determining the child’s best interests in mobility cases in paras. 8 and 9:

[8] Determining the best interests of the child is a heavy responsibility, with profound impacts on children, families and society. In many cases, the answer is difficult — the court must choose between competing and often compelling visions of how to best advance the needs and interests of the child. The challenge is even greater in mobility cases. Geographic distance reduces flexibility, disrupts established patterns, and inevitably impacts the relationship between a parent and a child. The forward-looking nature of relocation cases requires judges to craft a disposition at a fixed point in time that is both sensitive to that child’s present circumstances and can withstand the test of time and adversity.

[9] The law relating to the best interests of the child has long emphasized the need for individualized and discretionary decision making. But children also need predictability and certainty. To balance these competing interests, the law provides a framework and factors to structure a judge’s discretion. This case calls on the Court to examine how some of those considerations apply in mobility cases. In particular, I clarify that a moving parent’s reasons for relocation and the “maximum contact factor” are relevant only to the extent they bear upon the best interests of the child; a parent’s testimony about whether they will move regardless of the outcome of the relocation application should not be considered; and family violence is a significant factor impacting the best interests of the child. [My emphasis]

[56] The court is required to consider the best interest factors listed in s. 24(3). In considering those factors in the context of the evidentiary record in this case consisting of untested affidavit evidence, I find as follows:

a. The child’s needs for stability, at this stage, should take into account the disruption that would result if the relocation to Turks and Caicos was permitted and then the child was ordered to be returned to Ontario after the trial (factor (a));

b. The evidence establishes that the child has a strong relationship with each parent; and that each parent has acknowledged in his or her evidence the importance of the child’s relationship with the other parent (factors (b) and (c));

c. In relation to the history of child care, until 2022, the child resided with both parents, but the evidence conflicts as to whether either parent was the child’s primary caregiver. From April 2022 until September 16, 2023, the child was in the mother’s sole primary care, as during this time the father worked in British Columbia and then Saudi Arabia and afterwards relocated to Ontario. The parties also separated during this time period. Since September 16, 2023, the child has remained in the father’s sole primary care (factor (d));

d. There was no evidence directed towards factor (e); in relation to factor (f), see the discussion below related to factor (g);

e. Regarding the plans for the child’s care (factor (g)), the mother’s evidence indicates that she has arranged for the child’s school in Turks and Caicos. She has had discussions with the school principal. Her employment allows her sufficient flexibility to do the pickup and drop-off at school. If the child is placed in her care, the mother deposes that the child will be “endorsed” on her work permit; and the child would have access to insurance and also scholarships that are awarded to employees of the company;

f. The mother describes the proposed school as one of the best schools on the island, and she explained that Turks and Caicos are a British Territory, with a “high level education system”. The mother deposes that the child will be closer to his “Caribbean roots” and will have more access to extended family who will visit. The mother refers specifically to having visits from her mother, father and brother. Although the mother does not indicate where those persons reside, the father’s evidence indicates that both parties were born in Jamaica, which suggests that the mother’s family members may reside in Jamaica;

g. For his part, the father’s evidence is that all of the child’s current needs are being met. The child attends a French first-language school; the child’s extracurricular activities include swimming and karate. The weekly routine also includes the father and the child attending church. The father deposes that the church community has been a support for the father and child. The father claims that he has “strong family support”. However, the mother disputes this evidence, stating that the father has an estranged sister in Ontario with whom he does not have a relationship. The father does not dispute that evidence;

h. Both parties have proposed reasonable parenting time arrangements for the other party;

i. Regarding factors (h) and (i), the evidence demonstrates that each parent is able to care for and meet the child’s needs. But the willingness of the parties to communicate and cooperate, as discussed earlier, has been an issue in relation to virtual parenting time. In addition, at this stage it is difficult to assess the effect of family violence on the parties’ ability to cooperate given the conflicting evidence;

j. Regarding factors (j) and (k) (family violence and any civil or criminal proceedings or orders relevant to safety, security and wellbeing of a child), the issue of conflicting allegations of family violence has been discussed earlier. In addition, the father deposes that the parties have both phoned the police for assistance in “various domestic disputes”. The father adds that the mother blocked his cellphone number after advising him that she had obtained “a peace bond” that was in place before he left for Saudi Arabia, and that if he tried to contact the mother, that he would be arrested;

k. In her reply, the mother deposes that the father’s evidence is not “fully true”. She denies calling the police “during the marriage”, stating she did not report the father’s abuse as she feared for his immigration status. The mother describes an incident in August 2022 (being the month that the parties separated) when the father was visiting briefly in Winnipeg. The mother deposes that the father became angry, broke plates in the presence of the child, and that he “stormed” out of the home with various family documents including the mother’s passport. After this incident, the mother deposes that a “protection order” was placed against the father. This document was not produced; it is unclear whether this was a civil restraining order or whether this was a process initiated under the Criminal Code. The father claims in his form 35.1 affidavit that he was never served with this document.

[57] The additional best interests factors to be considered in s. 39.4(3) in relocation cases are taken into account in the discussion below.

[58] The reality is that this case involves two “relocations”. First, the mother clearly was planning to take the child to Turks and Caicos due to her employment there. While evidence suggests that the mother had no previous connection with Turks and Caicos, and that she is there on a work permit, the mother’s evidence is that this location is closer to her extended family than Winnipeg, Manitoba.

[59] Effective April 2022, the child remained in the mother’s care, and more specifically, the father chose to leave the child in the mother’s care when he left to work in British Columbia and Saudi Arabia. The issue from the father’s perspective in October 2023 was that he objected to the removal of the child from Canada.

[60] Until the Ontario proceeding, there was no court order or separation agreement or any other agreement dealing with parenting. However, when the child went for a three-week visit with the father on September 16, 2023, the situation at that point, from the perspective of the CLRA, was that the father’s right to exercise decision-making responsibility to the child was suspended because the parties were separated and the child had been living with the mother with the “consent, implied consent or acquiescence” of the father: CLRA, s. 20(4).

[61] The father then took matters into his own hands and refused to return the child. This was an obvious self-help remedy—behaviour that is criticized in the jurisprudence, including some cases relied on by the mother. [6] The father’s claim that he refused to return the child based on medical reasons is less than convincing.

[62] Instead of going to court and seeking an immediate order, on notice to the mother, to allow the child to remain in London, Ontario, the father simply refused to return the child. At that time, given that the Manitoba divorce proceeding was still active, the father should have considered a motion in Winnipeg for an interim parenting order under s. 16.1(2) of the Divorce Act.

[63] Both parties failed to comply with their respective obligations to provide written notice of at least 60 days regarding the proposed relocations as required by s. 39.3(1) of the CLRA. The notice provisions apply even though there was no court order or agreement dealing with parenting. Both parties, in their respective facta, discuss the requirements of written notice, although as noted earlier, the references are to the analogous provisions in the Divorce Act.

[64] Although the father quickly did issue an application in London, in October 2023, he did little else. Even in the London proceeding, he did not seek an immediate court order to keep the child in London. As matters unfolded, the Winnipeg divorce application became moot given the mother’s relocation to Turks and Caicos, and this resulted in the mother’s agreement to deal with the proceeding in London and to withdraw the Manitoba divorce application.

[65] The first court order in any jurisdiction dealing with parenting is the aforementioned interim order of Hassan J. dated April 30, 2024 relating to the mother’s virtual parenting time. As noted earlier, that order also contained a provision preventing the child’s removal from Ontario except on the consent of both parties or a court order.

[66] The factual matrix of this case can be distilled into the following:

a. The evidence suggests that the mother was about to engage in self-help by relocating the child to Turks and Caicos. There is no evidence from the mother that she was contemplating bringing a motion on notice in the Manitoba divorce proceeding for an order allowing her to do so. There is no indication that the mother was unaware of the father’s opposition to the relocation;

b. The father justifies his self-help in keeping the child in Ontario primarily on the basis that the mother was about to relocate the child to Turks and Caicos;

c. The mother’s plan for self-help was thwarted because the child was physically in the father’s care in Ontario, which the father used to his advantage to pursue his self-help behaviour.

[67] I find that neither party’s conduct in relation to self-help was focused on the child’s best interests.

[68] It is necessary to consider the child’s best interests in deciding the motions. From the child’s perspective, he has been with the father since mid-September 2023, a period of approximately 19 months at the time of the hearing of the motions when the child was just turning age five. That is the child’s reality.

[69] In considering the factors in Plumley, I find that there is a genuine issue for trial. This is not a case where the child should be relocated to Turks and Caicos on an interim basis, notwithstanding that in September 2023 the father’s right of decision-making responsibility was suspended as discussed earlier.

[70] The reasons for my conclusion include:

a. There is conflicting affidavit evidence untested by cross-examination that requires a trial, in particular the evidence relating to family violence, the allegations of both parties that the other was frustrating virtual parenting time, and whether either party was the child’s primary caregiver when the parties were living together;

b. Focusing on family violence will be an important consideration at trial. The Supreme Court of Canada in Barendregt v. Grebliunas, supra, emphasized that findings of family violence are critical considerations in the best interests analysis, stating at para. 146:

[146] The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interests analysis: s. 16(3)(j) and (4). The Divorce Act broadly defines family violence in s. 2(1) to include any violent or threatening conduct, ranging from physical abuse to psychological and financial abuse. Courts must consider family violence and its impact on the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child.

c. Earlier in these reasons, family violence was described as a significant factor impacting the best interests of the child: Barendregt, at para. 9. The analysis required by Barendregt in relation to family violence cannot be conducted on the conflicting affidavit material. Findings of fact to be made by the trial judge in relation to family violence, and its impact, will be an important consideration in the best interests analysis;

d. A relocation order at this interim stage risks the prospect that the child will be disrupted in having to move to Turks and Caicos, and then being disrupted again having to return to London should that be ordered by the trial judge;

e. There is insufficient evidence as to the mother’s permanency in Turks and Caicos. While the mother has a work permit, there was no evidence as to the mother’s plans or any steps that she has taken to make Turks and Caicos a permanent residence;

f. There was no evidence from the mother regarding attempts to pursue local employment opportunities, and why it was necessary for her to relocate to Turks and Caicos for employment;

g. There was no evidence from the father as to his current status in Canada; and

h. A trial will provide a more complete and reliable evidentiary record, including evidence on cross-examination.

[71] I would add that the father should not take any comfort or solace from the fact that the mother’s request to relocate at this interim stage has been denied. The allegations of family violence raised by the mother, if true, are most concerning. It will be up to the trial judge to make findings of fact regarding family violence and to ascribe a proper weight to any family violence in relation to the best interests analysis. Further, the apparent extent of the father’s non-compliance with the order for virtual parenting time, including the findings of Henderson J., raises legitimate concerns about the father’s behaviour that will require findings of fact to be made by the trial judge.

[72] The motions were heard in person. Both parties were present along with some of the mother’s family. During the hearing of the motions, the court was advised by the parties that the child was scheduled for a surgical procedure to take place within days of the hearing of the motions. This was one of the reasons why the mother was in London.

[73] The court canvassed with the parties whether any order could be made on consent to avoid any issues regarding parental consent to the surgical procedure. This was important because there was no current court order or written agreement for decision-making responsibility.

[74] To the credit of both parties, they consented to an order which I made on April 4, 2025 at the conclusion of the hearing of the motions. That order included a provision that until the court releases its decision regarding the mother’s request to relocate the child to the Turks and Caicos, that:

a. All major decisions regarding decision-making responsibility for the child shall be shared jointly by the parties;

b. For routine day-to-day matters, the party having physical care and control of the child shall have decision-making responsibility; and

c. Paragraphs (a) and (b) are made on an interim without prejudice basis pursuant to the Children's Law Reform Act.

[75] That order also fixed the dates for the settlement conference and the trial management conference and placed this case on the November 2025 trial list.

[76] Section 27 of the CLRA stays an outstanding proceeding under the CLRA when an action for divorce is commenced, except by leave of the court. [7]

[77] Given that the present case constitutes a divorce proceeding with questionable jurisdiction, and given the apparent lack of clarity whether the Manitoba divorce application has been discontinued or withdrawn, the order below removes the stay of the CLRA proceeding. Also, given the similar provision in the Family Law Act [8], the order below removes the stay for the Family Law Act child support claim contained in the pleadings.

[78] Neither party addressed the “burden of proof” provisions in ss. 39.4(5) and (6) [9]. I would note that there is no final “order, family arbitration award or agreement” that deals with parenting. The only order dealing with parenting is the interim order of Hassan J. dated April 30, 2024 and pursuant to s. 39.4(8) [10], I would not apply any burdens that may otherwise exist pursuant to ss. 39.4(5) and (6).

[79] In relation to the costs of the motions, the issues of family violence and the extent, if any, of the father’s breach of the interim order providing for virtual parenting time for the mother, would constitute important factors in fixing costs. Accordingly, costs are best assessed once findings are made regarding those issues, and therefore, the order below reserves costs of the motions to the trial judge.

Interim Order

[80] For reasons above, I make the following interim order:

1. The child shall remain in the primary care of the applicant, in London, Ontario, pending trial, except as otherwise provided in this order.

2. The child shall be in the primary care of the respondent during the 2025 school summer vacation as follows:

   a) The child shall be in the primary care of the respondent in Turks and Caicos Islands for a period of seven weeks (the “summer vacation period”), commencing Saturday, July 5, 2025 and ending on Saturday, August 23, 2025;

   b) The respondent shall pick up the child from the applicant’s residence in London, Ontario at the beginning of the summer vacation period, and the applicant shall pick up the child from the respondent’s residence in Turks and Caicos Islands at the conclusion of the summer vacation period;

   c) Rather than having the exchange of the child at the parties’ respective residences, the parties may agree to a different exchange location within a reasonable proximity of a party’s residence; and

   d) Each party shall provide to the other party all of the child’s documents in that party’s possession that are required to facilitate the international travel during the summer vacation period.

3. All major decisions regarding decision-making responsibility for the child shall be shared jointly by the parties.

4. For all routine day-to-day decisions, the party having physical care and control of the child shall have decision-making responsibility for the child.

5. If the respondent has plans to travel to London, Ontario, the respondent shall provide the applicant with at least seven days’ written notice, and the parties shall make arrangements for the respondent to have in-person parenting time with the child. This paragraph is intended to apply to occasions other than when the respondent travels to London, Ontario to pick up the child for the summer vacation in accordance with paragraph 2 of this order.

6. The respondent shall have virtual parenting time with the child when the child is in the applicant’s care, as follows:

   a) The virtual parenting time shall be by video call. The video call shall occur every week, on every Monday, Tuesday, Wednesday, Thursday and Saturday at 6:30 p.m. local time for the child;

   b) The respondent shall initiate the call, and the applicant shall have the child ready and available for the call. There shall be no requirement for the respondent to call ahead of time to confirm the upcoming video call. The parties and child shall be ready for the call, unless it has been rescheduled as provided in subparagraph (c);

   c) The parties shall act reasonably if it becomes necessary to reschedule the virtual parenting-time visit to a different time, or to a different day. A visit shall only be rescheduled if either party or the child is not available due to an emergency or other unexpected circumstance beyond the parties’ control. When a visit is rescheduled, then priority shall be given to reschedule the visit for the same day, failing which the visit shall be rescheduled for Friday or Sunday of the same week; and

   d) All communications between the parties to reschedule virtual parenting time shall occur at least 24 hours prior to the scheduled virtual parenting time.

7. During the child’s summer vacation period with the respondent, the applicant shall have virtual parenting time with the child on the same terms and conditions as specified in paragraph 6, except that the applicant shall initiate the call, and the respondent shall have the child ready and available for the call.

8. All communications regarding the child shall occur by way of a parenting app. If within 10 days the parties are not able to agree on the parenting app to be used, then the respondent shall choose the parenting app and both parties shall use that app.

9. Other than as provided in paragraph 2 of this order, the child shall not be removed from the province of Ontario except on the written agreement of both parties or on order of this court.

10. The respondent shall have such other parenting time with the child as may be agreed to by the parties.

11. Paragraphs 4(b), (c) and (d), and paragraph 5, of the temporary order of Hassan J. dated April 30, 2024 are vacated effective on the date of this order, and are replaced by paragraphs 2, 8, 9 and 10 of this order.

12. The following provisions apply for the trial of this case, which has been placed on the November 2025 trial list:

a) This case shall be given priority to ensure that it is tried during the November 2025 trial sittings;

b) The Trial Coordinator shall provide the parties with a fixed date for the trial to commence; and,

c) The trial date is peremptory on both parties.

13. The respondent, within 30 days, shall obtain and provide written confirmation from the Court (being the King’s Bench (Family Division)) in Winnipeg, Manitoba that the divorce proceeding commenced by the respondent, file number 22-01-30250, has been either withdrawn or discontinued.

14. The stays under s. 27 of the Children's Law Reform Act and s. 36 of the Family Law Act are removed, and all claims made in this proceeding under the Children's Law Reform Act and Family Law Act may proceed.

15. The parenting provisions in this order are made pursuant to the Children's Law Reform Act.

16. Except for costs, all other claims made by each party in his or her motion are dismissed.

17. The costs of both motions are reserved to the trial judge.

Justice Victor Mitrow
Date: May 16, 2025

Endnotes

[1] The following are the affidavits served and filed on the motions: affidavit of respondent sworn October 11, 2024 (Although the affidavit is sworn October 11, 2024, the exhibits are sworn October 16, 2024. It appears that the latter is an error.); affidavit of applicant sworn October 31, 2024; affidavit of respondent sworn November 21, 2024; affidavit of applicant sworn January 14, 2025; and each party filed a form 35.1 affidavit and a form 35.1A affidavit.

[2] The answer was amended on June 6, 2024.

[3] Exhibit 1.

[4] Rule 70.12 of the King’s Bench Rules in Manitoba provides as follows:

Determination of uncontested petitions
70.12 Where a respondent
(a) is noted in default under rule 70.11; or
(b) files a notice withdrawing opposition (Form 70L);
the petitioner may, by filing a requisition, set the petition down for determination by a judge solely on affidavit evidence, without an oral hearing and without an appearance by the parties or their lawyers. If the judge determines that an oral hearing is required in order to make a proper determination, the judge may set a date for the parties to appear before that judge for an oral determination.

[5] Section 3(2) of the Divorce Act states:

Jurisdiction if two proceedings commenced on different days
(2) If divorce proceedings between the same spouses are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on different days, and the proceeding that was commenced first is not discontinued, the court in which a divorce proceeding was commenced first has exclusive jurisdiction to hear and determine any divorce proceeding then pending between the spouses and the second divorce proceeding is deemed to be discontinued.

[6] The cases relied on by the mother in relation to parties improperly resorting to self-help include Arbitman v. Lee, 2021 ONSC 315, at para. 39; and Rifai v. Green, 2014 ONSC 1377, at paras. 21–24.

[7] Section of the CLRA states:

Effect of divorce proceedings
27 If an action for divorce is commenced under the Divorce Act (Canada), any application under this Part in relation to decision-making responsibility, parenting time or contact with respect to a child that has not been determined is stayed except by leave of the court.

[8] Section 36 of the Family Law Act states:

Effect of divorce proceeding
36 (1) When a divorce proceeding is commenced under the Divorce Act (Canada), an application for support under this Part that has not been adjudicated is stayed, unless the court orders otherwise.

[9] Sections 39.4(5) and (6) state:

Burden of proof
(5) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.
(6) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend the vast majority of time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.

[10] Section 39.4(8) states:

Burden of proof, exception
(8) If an order referred to in subsection (5) or (6) is an interim order, the court may determine that the subsection does not apply.