Superior Court of Justice – Ontario

Court File No.: FS-24-00045066-0000
Date: 2025-06-20

Between:
Hamida Louafi, Applicant
and
Raphael Peter Schneider, Respondent

Before: M. Kraft
Counsel:
Diana Vasilescu, for the Applicant
Zahra Tasser, for the Respondent
Heard: 2025-06-12

Endorsement

Nature of the Motion

1The applicant, Hamida Louafi (“the mother”), brings a motion seeking to relocate with the parties’ two children, ages 11 and 8, to Montreal on a temporary basis prior to a trial. The mother argues that she is the children’s primary caregiver; there is no genuine issue for trial; and it is in the best interests of the children to relocate with her to Montreal now prior to the 2025/2026 school year.

2The respondent, Raphael Peter Schneider (“the father”), seeks an order dismissing the mother’s motion. He argues that a decision about whether it is in the best interests of the children to relocate to Montreal ought to take place at trial and not at an interim motion, since there is a pending s.30 parenting assessment which the mother agreed to in November 2024; and the parties have agreed for the children and father to engage in reunification therapy which has not yet begun.

3Both parties brought procedural motions as follows:

• The mother sought leave to amend her Application to include a claim for relocation;
• The father sought to strike various paragraphs in the mother’s initial affidavit and her reply affidavit that contained inadmissible hearsay regarding statements the children allegedly made to her;
• The father sought to strike an affidavit the mother filed from the child’s therapist sworn on June 3, 2025, given that the therapist was retained on a closed basis; and
• Both parties sought to strike surreptitious recordings he/she attached as Exhibits to his/her affidavits.

4The main substantive issue for me to determine on this motion is whether the mother should be permitted to relocate with the children to Montreal prior to a trial on a temporary motion.

5I reserved my decision at the conclusion of the motion. The mother’s motion to relocate with the children to Montreal temporarily, prior to a trial, is hereby dismissed. My reasons are set out below.

Background

6The parties were married on July 24, 2010 in Montreal. According to the father, they separated on October 15, 2023, when the mother told him she wanted to separate. The mother claims they separated on May 21, 2024, after attempting marriage counselling.

7The parties have two children, both boys: A., age 11, and E., age 8. A. will be starting Grade 7 in September 2025 and E. will be starting Grade 4. The children are both francophone and attend French Immersion schools in Toronto.

8In January 2024, prior to the separation, A. obtained a psycho-educational assessment which identifies him as gifted. Both children have ADHD.

9The mother is a dentist. Since 2022, she has been working with the Federal Government as a Claims Adjuster for the Department of Veteran Affairs. She works remotely and has flexibility with her hours. During the marriage, the mother either ran or worked in a private dental practice. The mother was raised in Montreal and her extended family resides there.

10The father is a staff neurologist at St. Michael’s Hospital. He is also an assistant professor of medicine at the Department of Medicine at the University of Toronto. The father is originally from Germany and his extended family resides there.

11The parties moved to Toronto in 2011 for the father’s residency at St. Michael’s Hospital. Since then, the parties have lived and worked in Toronto. Both children were born in Toronto and have only ever lived in Toronto.

12According to the mother, she has always been the primary caregiver to A. and E. and the father did not spend significant time with the children. This is disputed by the father, who submits that the parties both worked full time during the marriage and shared parenting responsibilities. He describes a loving and bonded relationship with the boys during the marriage. He acknowledges that his relationship with the oldest child, A., is fractured.

13The parties lived separate and apart in the matrimonial home until August 1, 2024, when the father was charged with assaulting the mother and forced to leave the matrimonial home.

14On September 27, 2024, the father was charged with failing to comply with his undertaking.

15On November 14, 2024, the parties agreed to a section 30 parenting assessment. They could not agree on an assessor until May 20, 2025, when the mother agreed to engage Shely Polak.

16On November 22, 2024, the father was charged with uttering death threats, assaulting and harassing A. The father’s bail conditions prevent him from having direct or indirect contact with the mother or A.

17The father has since been engaged in regular counselling with Howard Hurwitz, a social worker with experience dealing with high conflict families managing family breakdown.

18The father claims that during an argument, the mother threatened to make the separation very difficult for him. He is highly concerned that she will move with the children to Montreal, and he will not have a relationship with them, given the distance and given that there is currently a fracture in his relationship with A.

19The mother describes a relationship where the father engaged in family violence against her by verbally and physically abusing her and the children. She deposes that the father struck her under her eye in April 2023 and there has been a great deal of conflict between them in front of the children.

20On October 15, 2024, the parties agreed to an alternating week parenting schedule when they were at a To Be Spoken to Attendance before Nakonechny, J.

21On November 14, 2024, the parties attended an urgent case conference before Vella, J. at which they signed temporary Minutes of Settlement agreeing, among other things, to therapy for the children, child support, an exchange of CAS records and an equal time-sharing schedule for the children. In terms of the children’s therapy, the Minutes of Settlement state that both parents shall be entitled to receive information about the children’s progress in therapy as per the therapists’ discretion and pursuant to the children’s consent; neither party shall be entitled to the counselling notes or to subpoena the counsellor without a court order or agreement between the parties; and the purpose of counselling is therapeutic and confidential and any information the children share in counselling shall not be used in these proceedings without a court order or agreement between the parties. The parties also agreed to jointly retain a parenting assessor to do a comprehensive s.30 parenting assessment, the cost of which is to be paid by the father.

22In October and November, a number of incidents allegedly occurred when the children were with the father. According to the mother:

• In October 2024, A. describes being held over a cliff by the father in an effort to get A. and E. to stop fighting. This is denied by the father.
• In November, A. describes not being allowed to go to sleep unless he told the father that he wanted to live with him, with the father telling A. he would keep switching the light on and off and not let him sleep until he told him he wanted to live with him. This is denied by the father.
• On November 21, 2024, the father sent A. two surreptitiously recorded voice recordings of an argument he and the mother had in December 2023.

23The father does acknowledge sending A. the audio recording of a fight. He expresses remorse for having done so and acknowledges his poor judgment. The father deposes that he is working with Howard Hurwitz in therapy on these issues and hopes to be able to repair his relationship with A., if given the opportunity to do so.

24It is agreed that since November 22, 2024, the children have been residing primarily with the mother.

25According to the mother, she told the father that she wished to relocate with the children to Montreal in December 2024.

26The parties sold the matrimonial home in December 2024.

27The father has been seeking reunification therapy with the boys to rebuild his relationship with them, in particular A. The mother agreed on May 20, 2025 to reunification therapy. There is no agreement yet on the choice of therapist.

28The Office of the Children’s Lawyer (“OCL”) produced a Voice of the Child Report (“VoC report”) at the request of Vella, J. on January 24, 2025 which addressed the parenting schedule only. The VoC report sets out that the children are afraid of their father and do not wish to reside with him. There has been no report of the children’s views and preferences regarding the relocation.

29The father did not see the children from the end of November 2024 to February 2025 to give them some space and to protect himself from further allegations.

30On February 7, 2025, the parties signed temporary Minutes of Settlement providing the mother with primary care of the children and the father with parenting time as agreed upon by the parties in advance. The terms of the Minutes were incorporated into the Order of Ramsay, J. on March 7, 2025.

31In February 2025, the father resumed his parenting time with E. under supervision through Brayden. The father chose to have supervised parenting time given his charges. Since April 2025, the father has had parenting time with E. one to two times a week for 3-4 hours at a time.

32The mother served a Notice of Intention to Relocate on the father on April 4, 2025. The father served an objection to the Relocation on April 24, 2025.

33The parties attended a case conference before Shin Doi, J. on April 30, 2025, at which the mother was granted leave to bring this long motion on the issue of relocation, which was scheduled for June 12, 2025. If the parties were not able to agree on the appointment of a s.30 parenting assessor, the father was granted leave to bring a motion on May 15, 2025. A combined Settlement Conference/Trial Management Conference was scheduled for October 3, 2025.

34On May 20, 2025, the parties signed Minutes of Settlement which were incorporated into an Order, dated June 13, 2025, which provides that the father’s parenting time with A. shall resume and take place every Saturday from 2-7 p.m. and his parenting with E. shall take place every Saturday from 2-7 p.m. and Thursday, from 4-7 p.m. The Order also sets out that Shely Polak is to be jointly retained to proceed with the s.30 parenting assessment pursuant to the parties’ Minutes of Settlement, dated November 14, 2024, and that the parties shall retain a mutually agreed upon reunification therapist within 14 days to commencing reunification therapy for the children and the father. The Order also sets out the child support arrangements starting May 1, 2025, providing that the father is to pay the mother $3,397 a month, being the Table child support for an approximate income of $260,000 a year. Section 7 expenses are also provided for in the Order.

35According to the mother, A. has expressed to her and his therapist that he does not feel challenged in his current French Immersion school. The mother unilaterally applied for A. to attend College St-Anne de Dorval and Brebuef, two schools in Montreal, for the 2025/2026 academic year. A. was admitted into both schools. The schools offer a gifted program for A. in French and technology. The compelling reason that the mother seeks to move to Montreal prior to a trial is to meet A.’s academic needs since there are no gifted Francophone school programs in Toronto.

36There was no viva voce evidence on the long motion. The parties filed affidavit evidence. The affidavits are highly conflicting in terms of the parenting roles each party played prior to separation. There were no cross-examinations of the parties on the affidavits he/she filed in support of the motion.

Procedural Motions

1. Amendment of Application to Include Relocation

37According to the wife, she began discussing her desire to relocate with the children to Montreal to the father in December 2024. She argues that there is no prejudice to the father if she amends her Application since he is aware of her intention to relocate and has been, since the latest, April 1, 2025, when she served her Notice of Relocation. The father did not consent to the amendment.

38Pursuant to Rule 11(3) of the Family Law Rules, O. Reg. 114/99 (“FLRs”), on a motion, the court shall give permission to a party to amend an application, unless the amendment would disadvantage another party in a way for which costs could not compensate.

39Given that the husband was aware that the wife wished to relocate once she served the Notice of Relocation, I find there is no prejudice to the wife being granted leave to amend her Application to include a claim for relocation.

2. Admissibility of Mr. Betito’s Affidavit

40Mr. Betito is a bilingual Registered social worker, psychotherapist and mental health therapist for children and youth. He has been A.’s therapist since December 24, 2024.

41It is agreed that on November 14, 2024, the parties engaged the services of Mr. Betito to provide closed counselling services to the children. The parties specifically agreed in their Minutes of Settlement, the terms of which were incorporated into the Order of Vella, J., dated November 14, 2024, that neither party would use any information from the counselling sessions in this litigation.

42Nonetheless, Mr. Betito has filed an affidavit in support of the mother’s motion, sworn on June 3, 2025. He attaches a letter he wrote regarding his treatment of A. and relays statements that A. has made to him expressing A.’s views about his current school. The mother, who submitted Mr. Betito’s affidavit as a third-party affidavit, argues that she agreed to a closed process with the therapist before the husband was charged with harassing and threatening A. on November 24, 2025. She submits that the father being arrested in connection with an assault against A. is a material change in circumstances, which justifies her asking the therapist to provide an affidavit for the court. I do not agree. The Order is clear that neither party would use any information provided by the children to a therapist in these proceedings. The mother has breached this Order and the terms of the Minutes.

43The mother argues that Mr. Betito’s affidavit is relevant to the issue of A. feeling unchallenged at his current French Immersion school and the trauma he has experienced by the father’s treatment of him. I accept that the evidence from Mr. Betito may be relevant and material to the issue of A.’s views and preferences regarding the relocation, which is otherwise not before the court. The husband argues that the prejudicial effect of allowing this affidavit into the record outweighs its probative value.

44Firstly, the parties retained Mr. Betito with the understanding that he would not be a compellable witness. On that basis, alone, I am not inclined to admit Mr. Betito’s affidavit into the record. Secondly, Mr. Betito’s evidence is not being advanced for expert opinion. Rather, Mr. Betito is a participant witness treating A. There are potential issues in terms of the conclusions he has reached about trauma A. has experienced, referred to in his letter, when, as a social worker, Mr. Betito is not qualified to diagnose whether or not A. has experienced trauma. These threshold issues cannot be addressed since the evidence from Mr. Betito has been submitted in writing.

45Given that the parties agreed to a closed process with Mr. Betito, I am not inclined to consider his affidavit in making a determination about the relocation on an interim basis. If the father had an opportunity to cross-examine Mr. Betito prior to the motion, then I may have allowed it into the record, subject to weight. However, this is not the case.

46If at trial, the mother wishes to call Mr. Betito as a participant witness, then the trial judge will have to determine whether he is a compellable witness given the existing Court order. If Mr. Betito is a witness at trial, then the father will then have the opportunity to test his evidence in cross-examination and the trial judge will have the opportunity to have observed Mr. Betito and weigh his credibility regarding his evidence.

47If the mother submitted Mr. Betito’s affidavit to provide the court with A.’s views and preferences about the proposed relocation, she ought to have done so through an independent VoC report by asking the OCL to do so, or by retaining an independent, arms-length mental health professional to provide a synopsis of A.’s views and preferences specifically with respect to the relocation being proposed, as opposed to compromising Mr. Betito’s role as A.’s therapist and having him disclose confidential information A. has shared with him, particularly, when both parents retained him specifically on a “closed basis.”

3. Surreptitious Recordings

48The father seeks to admit three audio recordings from the parties’ interactions that took place on December 25, 2023, December 26, 2023, and February 6, 2024, all of which took place prior to these proceedings being commenced and prior to the wife’s date of separation.

49The father argues that the probative value of these recordings outweigh the prejudicial value because they challenge the mother’s credibility in terms of her rendition of the relationship dynamic. Specifically, the father submits that the recordings show the mother making specific threats to move away with the children and manipulate them against him, and demonstrate why this family needs to have a s.30 parenting assessment completed before a determination about the relocation is made.

50Similarly, the mother seeks to admit two audio recordings which she attached as Exhibit “B” and Exhibit “H” to her affidavit, sworn on June 3, 2025.

51Surreptitious recordings by litigants in family law matters should be strongly discouraged. A party seeking admission of such evidence would have to show “a compelling reason” to overcome the policy considerations of not admitting such evidence: Hameed v. Hameed, 2006 ONSC 274.

52The starting point of this analysis is to exclude surreptitiously obtained evidence, such as secret audio recordings. The “compelling reason” the father puts forward is to demonstrate that the mother planned to move with the children to Montreal from the outset in an effort to minimize or diminish the father’s role in the children’s life.

53I am not inclined to admit the surreptitious recordings put forward by either party. Any probative value, in my view, is outweighed by the prejudicial value when the Court is being asked to make an interim determination on a written record only. There is no opportunity for the statements to be tested in cross-examination and no opportunity for the court to observe the witness and obtain the context within which these statements were made. Accordingly, I will not consider the surreptitious recordings in making this determination.

4. Hearsay and Double Hearsay in Affidavits

54The father seeks to strike various paragraphs from the mother’s affidavit sworn on May 16, 2025, and her reply affidavit sworn on June 3, 2025, on the grounds that these paragraphs contain statements made by one of the children to the mother and are hearsay, as follows:

• Paragraph 27 – contains opinion;
• Paragraph 33(a) – hearsay – statement by child;
• Paragraph 33(b) – hearsay and double hearsay – statement by children;
• Paragraph 33(c) – hearsay – statement by child;
• Paragraph 33(d) – hearsay – statement by child;
• Paragraph 35 – hearsay – statement by child;
• Paragraph 36 – hearsay – statement by child allegedly made to CAS and OCL;
• Paragraph 37 – baseless statements – hearsay;
• Paragraph 47 – Letter from Dr. Bierstone, dated May 6, 2025;
• Paragraph 11 of June 3, 2025 affidavit – Letter from Dr. Bowry – not proper reply; and
• Paragraph 17 – hearsay – statement attributed to children.

55Hearsay evidence is presumptively inadmissible because of the difficulties inherent in testing the reliability of the declarant’s assertion. Apart from the inability of the trier of fact to assess the declarant’s demeanour in making the assertion, courts and commentators have identified four specific concerns. They relate to the declarant’s perception, memory, narration and sincerity: R. v. Baldtree, 2013 SCC 25, at para. 31; and R. v. Starr, 2000 SCC 40, at para. 159.

56First, the declarant may have misperceived the facts to which the hearsay statement relates; second, even if correctly perceived, the relevant facts may have been wrongly remembered; third, the declarant may have narrated the relevant facts in an unintentionally misleading manner; and finally, the declarant may have knowingly made a false assertion. The opportunity to fully probe these potential sources of error arises only if the declarant is present in court and subject to cross-examination. R. v. Baldtree, 2013 SCC 35.

57In N.P. v. D.B., 2019 ONCJ 291, Zisman, J. was tasked with determining the admissibility of children’s statements as set out in the mother’s affidavit, on which the mother relied heavily, being statements of their daughter with respect to her wishes about a parenting plan, choice of school and allegations about mistreatment and neglect by the father and his wife. In that case, both counsels agreed that the alleged statements made by the children to either parent were not being admitted for their truth but only being admitted showing the children’s state of mind.

58In N.P. v. D.B., Zisman, J. considered that the children’s statements regarding views and preferences about where they wished to live and what school they wish to attend, statements made regarding fear of the father and his wife, statements regarding conflict between the parents and any statements regarding their fears, anxiety and worries would fit into the category of the state of mind exception to hearsay evidence.

59In this case, the mother’s counsel did not make submissions about the state of mind exception to the hearsay statements contained in the mother’s affidavit. I have nonetheless considered whether any of the children’s statements can be admitted under the state of mind exception to the hearsay rule.

60I make the following findings about the specific paragraphs objected to:

Mother’s Affidavit sworn on May 16, 2025:

• Paragraph 27: This is a statement made by the mother about both children having been deeply impacted by the father’s angry and violent outbursts and how they fear the father. I give no weight to these statements as they are the opinion of the mother.
• Paragraphs 33(a), (b): These subparagraphs are admissible not for the truth of their contents but for the stateof mind of the children at the time they were made, under the state of mind exception to the hearsay rule.
• Paragraphs 33(c) and (d): These subparagraphs are not admissible as they do not reference the children’s state of mind.
• Paragraph 35: This is admissible not for the truth of its contents but for A.’s state of mind at the time the statements were made, under the state of mind exception to the hearsay rule.
• Paragraph 36: This is inadmissible because the father has had no opportunity to cross-examine the OCL or the CAS worker to whom the children made statements, nor does he have these notes. If these were presented at trial, the statements would be admissible.
• Paragraph 37: This is not admissible as this is a statement made by the mother about things the father allegedly said to the children that contain her opinion and I give no weight to this paragraph.
• Paragraph 47: This is admissible as this is from a letter from the children’s paediatrician, as a participant witness, subject to weight.

Mother’s Reply Affidavit sworn on June 3, 2025:

• Paragraph 11 and Exhibit “D”: In M.M.D. v. J.A.H., 2019 ONSC 2208, Nakonechny, J. was tasked with determining whether the letter of a doctor attached as an Exhibit to the mother’s affidavit was admissible. She held that it was admissible as evidence, subject to the weight given to it. I find that paragraph 11 is admissible, but for the sentence that links Dr. Bowry having withdrawn from the children’s care being caused by the father. This is not information within the mother’s personal knowledge as required by Rule 14(18) of the FLRs. If the mother included this sentence under Rule 14(19), as information she learned from Dr. Bowry, her Reply affidavit does not contain a sentence that she learned this information from Dr. Bowry and believes it to be true, even in the introductory paragraph. In terms of the letter from Dr. Bowry, dated September 18, 2024, this is a letter from a participant witness. It is admissible, however, the weight given to it is limited given that the evidence has not been tested.
• Paragraph 17: This is admissible but for the last sentence which is hearsay and to which I give no weight.

Substantive Issue on the Motion: Should the Court Permit the Mother to Relocate with the Children to Montreal on a Temporary Basis?

61Since the parties are married, the applicable statute that governs parenting is the Divorce Act, RSC 1985, c 3 (2nd Supp.). Section 16.93 of the Divorce Act sets out which parent has the burden of proof in a relocation case. Given that the children spend the vast majority of their time in the care of the mother, who intends to relocate with the children, the father has the burden of proving that the relocation would not be in the best interest of the children; s. 16.93(2) of the Divorce Act.

62However, s.16.94 of the Divorce Act sets out that the Court may decide not to apply subsections 16.93(1) or (2) if the order being sought is an interim order.

63The parties’ most recent agreement in terms of parenting arose from Minutes of Settlement signed on May 20, 2025, which were incorporated into a Court order dated June 13, 2025. It sets out the parenting time for the father and it is clear from this Order that the children spend the vast majority of their time with the mother.

64Even though the Divorce Act does not differentiate the burden of proof if the relocation is being sought on an interim or final basis, I have decided not to apply s.16.93(2) given that this is an interim order for relocation in accordance with s.16.94. In my view, when a parent seeks to relocate with the children on an interim basis, that parent must demonstrate why he/she believes a relocation should be permitted before a trial, since the relocating parent asks the Court to make such a determination without the benefit of a complete record, viva voce evidence or the opportunity for the evidence to be tested.

65Prior to the amendments to the Divorce Act in 2021, Plumley v. Plumley was routinely relied on whenever a temporary motion for relocation was brought. In Plumley, the court identified three important factors to consider in deciding whether to permit relocation on an interim basis:

a. 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.
b. 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.
c. 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.

66Recently, the Divisional Court, in Diallo v. Bah, 2025 ONSC 2106, confirmed that the Plumley factors have been overtaken by the amendments to the Divorce Act, and that Barendregt v. Grebliunas, 2022 SCC 22 made it clear that the only question the court is to consider on a relocation motion is whether the relocation is in the best interests of the child.

67There are, however, a multitude of decisions of this Court where temporary motions have been brought to relocate that continue to refer to the Plumley factors in reaching a determination. In light of the recent comments in Diallo v. Bah, I will not use the Plumley factors in reaching a decision on whether the temporary relocation should be permitted prior to trial. Having said that, the reason for the move is the first “best interests” factor set out in s.16.92 of the Divorce Act and, in my view, on a temporary motion that “reason” should be compelling since it is being requested to take place before trial.

68In Gordon v. Goertz, para 49, writing for the majority, McLachlin J. (as she then was) indicated that the following factors should guide the assessment of a child’s best interest in mobility cases:

a. The existing custody arrangement and relationship between the child and the custodial parent.
b. The existing access arrangement and the relationship between the child and the access parent.
c. The desirability of maximizing contact between the child and both parents.
d. The views of the child.
e. The custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child.
f. Disruption to the child of a change in custody.
g. Disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

69Although Gordon v. Goertz long predates the 2021 amendments to the Divorce Act regarding relocation, it remains the leading case. In Barendregt v. Grebliunas, 2022 SCC 22, para 105, Karakatsanis J. confirmed that: “[f]or over 25 years, Gordon has been the governing authority for mobility applications.”

70And while Gordon v. Goertz was a variation proceeding, as Finlayson J. noted in Neshkiwe v. Hare, 2020 ONCJ 149, para 282:

“[i]ts guiding principles also apply at an original hearing, where no final order as to custody or access has yet been made.”

71As stated in paragraph 8 of Barendregt:

“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.”

72Only a trial judge is the fact finder and has the benefit of the intangible impact of conducting the trial: Barendregt, at para 101 and R. v. G.F., 2021 SCC 20, para 81. After hearing from the parties directly, weighing the evidence and making factual determinations, the trial court is best positioned to determine the best parenting arrangement: Barendregt, at para 101.

73The mother, however, is asking the court to make this determination at a motion, where the court does not have the benefit of hearing from the parties directly, weighing the evidence or making factual determinations.

74Concerns about parenting time with the child will inevitably be engaged in relocation cases: the crux of the dispute is whether it is in the child’s best interests to move notwithstanding the impact on their relationship with the other parent. In other words, this concern is folded into the central inquiry before the court: Barendregt, at para 132.

75The mother argued that the test for me to determine whether or not she and the children should be permitted to temporarily relocate to Montreal is whether there is a genuine issue for trial. In other words, she framed this interim motion to relocate as a summary judgment motion. On May 28, 2025, the Divisional Court in Diallo v. Bah held that “the ‘no genuine issue for trial’ test is a summary judgment test and not the test on an interim motion for relocation”; at para. 44.

76The basis on which the mother submits that there is no genuine issue for trial is as follows:

• The father is estranged from A. since he was arrested for assaulting him, at age 11;
• Both children’s relationship with the father is fraught with difficulties;
• The father blames the mother entirely for his issues with the children;
• A. is not being challenged at his current school. The Voice of the Children’s Report (“VoC report”) from January 2025, which was not to obtain the views of the children on the relocation, reports that A. told the OCL clinician that school was really easy for him, including the gifted math competitions;
• Starting in September 2025, A. will be moving schools in any event if he stays in Toronto as he will be starting Grade 7. If he is not allowed to move to Montreal on a temporary motion but then is permitted to do so at trial, A. will have lost the year to bond with his cohort in Montreal;
• A move to Montreal will not sever his relationship with the husband because the wife supports the children’s relationship with him. She consented to a s.30 parenting assessment in November 2024. Relocation came up in December 2024. She agreed to use Shely Polak as the assessor and she made submissions that she will drive A. to the appointments with Dr. Polak and for reunification therapy from Montreal to Toronto; and
• The father fails to take any accountability for his actions.

77As I stated above, I do not agree that the test to determine this motion is whether there is a genuine issue for trial. If I am wrong, I am not persuaded by the mother’s arguments that there is no genuine issue for trial. There has been no determination as to which decision-making model is in the best interests of the children. Further, there is a s.30 parenting assessment about to begin and given the conflicting evidence and potential clinical issues at play, the court requires some independent evidence from an individual who has the technical, professional skills to assess and report on the needs of both children and the ability and willingness of both parents and their respective ability to satisfy these needs. Making a determination at this stage in the proceeding is premature in my view.

78The mother then goes on to argue that it is in the children’s best interest to relocate with her to Montreal now, and prior to a trial for the following reasons:

• It will provide the mother and children with more opportunities and supports than they have in Toronto.
• The children are familiar with Montreal and have expressed their desire to reside and attend school there.
• The mother’s income remains unchanged if she moves to Montreal or stays in Toronto and she will be able to continue to work remotely for Veteran Affairs Canada.
• The cost of childcare will decrease as the mother will have the benefit of her mother, the children’s maternal grandmother, to assist with the transportation of and childcare of the children.
• The mother will continue to support the children’s relationship with the father.
• The mother will drive to Toronto from Montreal one weekend a month to facilitate the father’s parenting time. The father can travel to Montreal on a one-hour flight one weekend a month. The wife is also committed to driving A. to Toronto for reunification therapy and for appointments connected to the s.30 parenting assessment.
• The father’s request for a shared parenting schedule is unrealistic and ignores the children’s emotional needs and general well-being. She submits that the inevitable result at trial will be the mother having primary residence of the children.
• It is not necessary for the court to wait for a s.30 parenting assessment to be concluded because the evidence from A. confirms he has not been challenged at his current school; he is passionate about robotics.
• The mother has always supported the children’s relationship with the father.

79The mother argues that if she and the children are permitted to move to Montreal, the father can still work on repairing his relationship with the children because she will support the children’s relationship with him. Finally, she argues that if the move to Montreal is not permitted, A. will see his father as impeding his wishes to move there.

80The father argues that it is not in the children’s best interests to be permitted to move to Montreal prior to a trial for the following reasons:

• There is no court order in place for decision-making responsibility. He is seeking joint decision-making responsibility for both children regardless of the parenting time schedule;
• While there was a break in the father’s parenting time with both children from November 22, 2024, to February 2025, the father’s relationship with E. has resumed and he is taking steps to improve and repair his relationship with A. Although the parties have agreed to the reunification counselling, the mother has not consented to the therapist;
• A move to Montreal now would impair the father’s ability to repair his relationship with A. and would further diminish his relationship with both children. This is not in their best interests;
• A VoC report which asks for the children’s views and preferences about the relocation should be conducted or updated since the existing VoC Report pertained to parenting time;
• The s.30 parenting assessment is important for the Court to obtain a full picture of the family dynamic and assess the children’s needs and ability of both parents’ ability to meet those needs. If the relocation is permitted now, the assessment will be limited;
• The children have only ever lived in Toronto. Their friends and schools are in Toronto. A. is at a French Immersion school and will be starting Grade 7 in September. The school can be asked to accommodate A.’s giftedness; and
• Removing the children from their friends and community is not in their best interests.

Application of the Best Interests Factors

81Applying the best interests’ factors set out in s.16(3) of the Divorce Act, I make the following findings:

The child’s needs, given the child’s age and stage of development, such as the child’s need for stability:
Both A. and E. are at an age where they can benefit from stability and consistency. They are coming off a year with a lot of turmoil and conflict. Keeping A. and E. in their current French Immersion school system in Toronto, with their friends and the only community they have known in Toronto is in my view, in their best interests, until a trial of the issue about relocation can take place.

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:
From the evidence on record, the children are strongly connected with the mother and have a closer relationship with her than with the father. However, both parents have committed to reunification therapy for the boys with the father. They need to be given a true opportunity to work with a reunification therapist to try and repair and build on their relationship with the father for those relationships to improve and for trust to begin to rebuild. The children will continue to have their bonds with the maternal grandmother in Montreal if they remain in Toronto, as this has been the case for their entire lives. The current rupture in the boys’ relationship with the father is not a sufficient reason to allow this move to Montreal on an interim basis, particularly, when the mother agreed to reunification therapy on May 20, 2025.

Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse:
The mother does appear to support the children’s relationship with the father since the Minutes of Settlement indicate her willingness to resume parenting time between A. and the father and her agreement for reunification therapy to begin. However, for the boys’ relationship with the father to be repaired and then maintained, there needs to be an opportunity for the reunification therapy process to take place when the boys and father are living in the same city and the father can take part in their daily lives.

The history of care of the child:
The history of care of the children is conflicted on the record. The mother’s evidence is that she has always been the primary parent to the boys. The father’s evidence is that prior to separation, he was very involved with the boys. A determination as to the respective parenting roles and history of care cannot be made on a conflicted written record with certainty.

The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained:
The children’s views were imparted to the OCL in January 2025 and confirm that the children wish to live primarily with the mother, fear the father, and do not wish to live with him. However, there has not been a VoC report to ascertain the boys’ views and preferences regarding the relocation, further these views and preferences were obtained after a number of incidents had taken place with the father and children. Since then, the father has had consistent parenting time with E. and is about to resume parenting time with A. The Court would benefit from having views and preferences from the boys once the reunification therapy process is underway. As stated above, I have not considered the affidavit of Dr. Betito. I have considered the hearsay statements made by A. to the mother, as to the state of his mind when they were made. In any event, these views and preferences are one factor and not determinative of what is in the children’s best interests. It may well be that the relocation to Montreal is determined to be in the children’s best interests after a trial, but the issue before me is whether it is in their best interests to relocate to Montreal now, before a trial, and before the reunification therapy process begins and the s.30 parenting assessment is completed, both of which were consented to by the mother.

The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage:
This does not appear to be a determinative factor whether the children are in Toronto or Montreal.

Any plans for the child’s care:
While the mother has proposed the children will continue to have parenting time with the father on alternate weekends and she will drive the children to Toronto one weekend a month, her proposal does not consider many things. For example, the mother proposes to reduce her monthly child support by $200 to consider the travel costs the father will incur. The mother’s proposal does not, however, consider the fact that the father will have to find alternate housing for himself and the children when he is in Montreal that feels like a secondary home and is not a hotel. The mother proposes to drive A. to Toronto for his reunification therapy appointments and for the s.30 parenting assessment appointments, but that does not seem to be realistic if the appointments are during the school day. The mother does propose a joint decision-making regime, which is reasonable in my view as it keeps the father involved in the important decisions that impact the children. There was no fleshing out as to how joint consultation will transpire.

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:
Again, there is conflicting evidence about this factor on the record. The completion of a s.30 parenting assessment will report on this factor for the benefit of the Court and be available at trial.

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:
The Minutes of Settlement signed by the parties sets out that they are to communicate on a coparenting app. There was no evidence on the record about the parents’ inability to communicate or cooperate with one another on matters affecting the children.

Any family violence and its impact on, among other things:

• the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
• 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;

Again, there is conflicting evidence on the record about the family violence. The Court is required to consider family violence and its impact on the children. The statements made by the children to the mother and the OCL, as reflected in her affidavit and the VoC report, demonstrate from their state of mind at that time the statements were made, that they have both been significantly impacted by the conflict between the parents and by the father’s actions. And, at the same time, the mother consented to a reunification therapy process on May 20, 2025, in an effort to see if the children and father can repair the rupture and the father can demonstrate to the children that he has changed. For that to take place, the children and father need to be in the same jurisdiction, and they need time to work together and separately. Only after that process is underway, will the Court and s.30 parenting assessor be able to determine whether the father has the ability to care for and meet the needs of the children.

Additional Best Interests Factors and Relocation

82Using the additional best interests factors set out in s.16.92 of the Divorce Act, which includes additional relocation factors, and applying them to the facts of this case, I make the following findings:

Reasons for the Relocation:
The mother has stated the reason for the relocation is to ensure that A.’s academic needs are met by having him attend a school in Montreal that can address his giftedness and interest in robotics. I am not persuaded that this reason is sufficient to allow the relocation prior to a trial. If A. has a strong interest in robotics, there are many extra-curricular clubs and programs that will allow him to explore this interest and develop his skills. In terms of A.’s expressed feelings about his current school, A. will be starting Grade 7 in September 2025, which will bring about new challenges socially and emotionally. As well, the Middle School curriculum is different than primary school. There is no reason to conclude that A.’s new school will continue to be not challenging for him. Furthermore, there is no evidence on the record that a move to Montreal to one of the two schools to which A. has been admitted can guarantee that A.’s academic needs will be met. The mother led no evidence about either school in Montreal or how either of them are better suited to meet A.’s academic needs than his current school. In addition, the mother led no evidence that she has taken steps to meet with or arrange a meeting with the school administration at A.’s new school to have an Independent Educational Plan (“IEP”) set up to address and accommodate A.’s giftedness. The Court has nothing on record about whether A.’s new school is better suited, equally suited, or less suited than the two schools in Montreal to address A.’s giftedness. As is the case with all schools, A.’s new school can be asked to accommodate his needs based on the psycho-educational assessment recommendations while the other matters in this case are sorted out. The two schools into which A. has gained entry will be there in September 2026 if the move is permitted at trial. In terms of the mother being close to her family and friends in Montreal, those relationships can continue to be nurtured while the parenting assessment is underway.

The impact of the relocation on the child:
The impact of the relocation, in my view, could be very significant to both children’s relationships with the father. Given the fragility of A.’s current relationship with the father, if the children are permitted to move to Montreal now, efforts for reunification therapy may well be stunted if the father does not have an opportunity to put new skills into practice with regular, consistent and meaningful parenting time which cannot happen if the children move prior to September 2025. I am concerned that the reunification therapy process will be thwarted if the children are permitted to move prior to a trial.

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:
It is clear that the mother has primary care of the children and has had this primary care of them since November 22, 2024. It is not clear, however, that the father’s parenting involvement with the children was minimal as the mother suggested during the marriage. The evidence regarding the level of involvement the father had in the children’s lives is conflicted and cannot be determined on a written record alone.

Whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement:
The mother has complied with the notice requirement under s.16.9.

The existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside:
There is no such order or agreement in this case.

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:
This was answered above under “any plans of care” in paragraph 81 above.

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:
This is a non-issue in this case, as both parties are complying with their obligations. For example, the mother is ensuring that E. has his scheduled parenting time with the father and she has agreed to A. starting to have parenting time with the father.

Conclusion

83Although the Plumley factors do not necessarily apply any longer, as stated above, I find that the party seeking to relocate with a child on an interim motion must explain to the court why it is necessary for the move to take place on a temporary motion as opposed to after a complete trial. The compelling reason that the mother seeks to relocate now, prior to a trial, is that A.’s educational needs cannot be met by the French Immersion schools in Toronto and will be better met by the schools in Montreal into which A. was accepted. Additionally, the mother argues that A. will be able to explore and expand his interest in Robotics at one of these two schools in Montreal. It is noteworthy that the mother did not make any submissions as to why the relocation to Montreal would be in E.’s best interests now.

84I am not persuaded that it is in the children’s best interests to relocate to Montreal now, prior to a trial. In fact, I believe such a move could be detrimental and permanently damaging to the children in terms of their relationship with the father. A.’s academic needs can be met at the French Immersion school he is slated to attend in Toronto for Grade 7, as well E.’s academic needs. If A. requires a further extension of curriculum to address his giftedness, the new school should be able to accommodate him. If A. wants to pursue his interest in Robotics, he can find a multitude of programs in Toronto to address this.

85In the meantime, the children are still adjusting to the separation. The reunification therapy for the father and children ought to start promptly. Similarly, the s.30 parenting assessment ought to begin with Shely Polak immediately. Throughout the s.30 assessment, the children’s views and preferences can be obtained in terms of the relocation proposal. Having agreed to a s.30 parenting assessment in November of 2024, that process should have begun earlier. However, the mother did not agree to the assessor until May 20, 2025. Now, a month later, the mother seeks to relocate on an interim basis. If the children’s relationship with the father is to repair and become normalized, the children and father require the time to engage in reunification therapy together and spend meaningful time together to put the new skills into practice. That will not be possible in the same way it can be if they are living in different cities. If the mother moves with the children to Montreal on a temporary basis, the children will lose this important opportunity with their father and this could have long term impacts on them.

86To suggest that the mother can drive the children back and forth from Montreal to Toronto for their reunification therapy appointments and s.30 assessment appointments, ignores what is in the children’s best interests as this will take significant time away from them trying to settle into a new community in Montreal and could very well likely result in the children resenting the father for having to continually be brought to Toronto.

87It will ultimately be the father’s burden of proof to demonstrate that the relocation to Montreal is not in the best interests of the children at trial. At trial, the judge will have the benefit of viva voce evidence, a full record and observe the parties and various witnesses in making this very important decision. To allow this relocation now without the benefit of a full record will be premature.

Order

88This court makes the following order:

a. The Applicant’s motion to relocate with the children, on an interim basis, to Montreal, Quebec, is hereby dismissed.

b. The Applicant has leave to amend her Application to include a claim for relocation.

M. Kraft