Court File and Parties
Citation: Bennett v. Neil, 2025 ONSC 5060
Court File No.: FS-25-120-00
Date: 2025-09-04
Ontario Superior Court of Justice
Between:
Adam Ted Bennett, Applicant
– and –
Miriam Clara Louisa Neil, Respondent
Before: Wilcox, J.
Counsel:
- J. Wagner, for the Applicant
- G. Nadeau, for the Respondent
Heard: September 2, 2025
Reasons for Decision
Introduction
[1] We are dealing here with cross-motions for interim relief in the context of a motion to change.
Background
[2] The parties commenced cohabitation in or about July, 2009, were married on February 13, 2010, and separated around October, 2016.
[3] They have five children:
- Daniel Antoine Bennett, born August 28, 2010 (15)
- Malcolm James Bennett, born July 20, 2011 (14)
- Isaac Roch Bennett, born August 26, 2012 (13)
- Owen Elijah Bennett, born January 5, 2014 (11)
- Corbin Andrew Bennett, born June 20, 2015 (10)
[4] It appears from the documents filed that the family lived in various locations in Southwestern Ontario. At the time of the final order in this matter, the title of proceedings shows the respondent living in Stratford and the applicant in Waterloo. The applicant now lives in Mount Elgin, in Oxford County, Ontario.
[5] It also appears that, over the years, the family has been involved with the authorities, including police and the CAS. The details and relevance of this are not clear at this time. However, the indication is that North Eastern Ontario Family and Children's Services (NEOFACS) in Kapuskasing (i.e., the CAS there) has an open file regarding the respondent's care and feeding of the children. This was referred to in MacDonald J.'s order of August 26, as noted below.
[6] The consent final order of D.J. Gordon J. of February 20, 2020, in the Superior Court of Justice in Kitchener, Ontario provided that the parties have joint custody and that the respondent have primary residency of the children subject to the applicant's access. It also required the parties to live within 80 kilometres of each other.
[7] The parties entered into an agreement in 2023 which provided, among other things, for the lifting of the 80-kilometer restriction and that the children would be with the applicant during the summers. This was apparently to allow the respondent to move and, indeed, the applicant's documents indicate that the children have lived with the respondent in Kapuskasing, in the Cochrane District, Ontario since 2023. That was said to be a 10-hour drive from the applicant's. That agreement was never made into a court order.
[8] In the summer of 2025, while the children were with him for the summer, the applicant obtained counsel who wrote on July 15 and again on August 6 to the respondent, stating that two of the children Owen (age 11) and Isaac (now age 13) requested that their primary residence be changed so that they could reside with the applicant in Mount Elgin and attend school there. The respondent's consent to this change was sought, failing which the applicant would bring a motion to change.
[9] It appears that the respondent had been indicating an intention to bring a motion to change regarding child support, and did so. Her motion to change, dated August 14, 2025, also seeks to formalize the change in the distance restriction, to change the applicant's access, and to change joint custody to her sole decision-making authority. The applicant responded with a Response to Motion to Change dated August 21, 2025. It disagrees with the respondent's requests and seeks changes from joint custody to joint decision-making responsibility, interim and final primary care of Isaac and Owen and associated changes to the parties' respective access (secondary parenting time).
[10] Isaac and Owen were not returned to the respondent at the end of the summer holidays.
[11] The applicant brought a motion returnable August 26, 2025, in Cochrane, Ontario for various orders including that he be granted interim primary care of Isaac and Owen.
[12] The respondent brought a motion returnable August 28 seeking orders including that Isaac and Owen be returned immediately to her care and custody.
[13] The matter was case conferenced by MacDonald J on August 26. Unfortunately, the parties were not able to resolve their differences fully. A motion date was required but no motion dates were available in Cochrane until the next regular motions list on September 18. MacDonald J endorsed that, in the circumstances, she would allow the motion to go on the next regular motions list in Timmins, on September 11.
[14] However, due to the alleged urgency, the matter was scheduled to be heard by me by Zoom on September 2. MacDonald J's endorsement indicated that she had cautioned counsel that the first issue for argument will be whether the motions are urgent. If it was decided that they are not, they must go to the regular motions list.
[15] On consent, MacDonald J made orders for oral questioning, requesting that the OCL appoint a representative for the five children, urgently requesting a Voice of the Child Report from the OCL regarding Isaac and Owen, and that the respondent provide to the applicant the closing letter from the Children's Aid Society with respect to their current investigation immediately upon receipt.
Law
[16] The Divorce Act (the Act) was extensively amended effective March 1, 2021. The expressions decision-making responsibility and parenting time replaced custody and access. Relevant sections of the revised Act are set out here for ease of reference.
[17] Section 2 includes the following defined terms: decision-making responsibility, parenting order, parenting time, relocation.
decision-making responsibility means the responsibility for making significant decisions about a child's well-being, including in respect of
(a) health;
(b) education;
(c) culture, language, religion and spirituality; and
(d) significant extra-curricular activities;
parenting order means an order made under subsection 16.1(1);
parenting time means the time that a child of the marriage spends in the care of a person referred to in subsection 16.1(1), whether or not the child is physically with that person during that entire time;
relocation means a change in the place of residence of a child of the marriage or a person who has parenting time or decision-making responsibility — or who has a pending application for a parenting order — that is likely to have a significant impact on the child's relationship with
(a) a person who has parenting time, decision-making responsibility or an application for a parenting order in respect of that child pending; or
(b) a person who has contact with the child under a contact order;
[18] Parenting orders are provided for in sections 16.1 through 16.4:
16.1 (1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by
(a) either or both spouses; or
(b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.
Contents of parenting order
(4) The court may, in the order,
(a) allocate parenting time in accordance with section 16.2;
(b) allocate decision-making responsibility in accordance with section 16.3;
(c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and
(d) provide for any other matter that the court considers appropriate.
Terms and conditions
(5) The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.
Family dispute resolution process
(6) Subject to provincial law, the order may direct the parties to attend a family dispute resolution process.
Relocation
(7) The order may authorize or prohibit the relocation of the child.
Supervision
(8) The order may require that parenting time or the transfer of the child from one person to another be supervised.
Prohibition on removal of child
(9) The order may prohibit the removal of a child from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal.
Parenting time — schedule
16.2 (1) Parenting time may be allocated by way of a schedule.
Day-to-day decisions
(2) Unless the court orders otherwise, a person to whom parenting time is allocated under paragraph 16.1(4)(a) has exclusive authority to make, during that time, day-to-day decisions affecting the child.
Allocation of decision-making responsibility
16.3 Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons.
Entitlement to information
16.4 Unless the court orders otherwise, any person to whom parenting time or decision-making responsibility has been allocated is entitled to request from another person to whom parenting time or decision-making responsibility has been allocated information about the child's well-being, including in respect of their health and education, or from any other person who is likely to have such information, and to be given such information by those persons subject to any applicable laws.
[19] The considerations in making parenting orders are set out in subsections 16(1) through 16(6):
16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
Primary consideration
(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child's physical, emotional and psychological safety, security and well-being.
Factors to be considered
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(a) the child's needs, given the child's age and stage of development, such as the child's need for stability;
(b) the nature and strength of the child's relationship with each spouse, each of the child's siblings and grandparents and any other person who plays an important role in the child's life;
(c) each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse;
(d) the history of care of the child;
(e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;
(f) the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child's care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
Factors relating to family violence
(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
(h) any other relevant factor.
(5) Past Conduct – In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
(6) Maximum Parenting Time – In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
(7) Parenting Order and Contact Order – In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.
[20] Provisions regarding relocation are set out in sections 16.9, 16.91, 16.92 and 16.93:
16.9 (1) A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to undertake a relocation shall notify, at least 60 days before the expected date of the proposed relocation and in the form prescribed by the regulations, any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention.
Content of notice
(2) The notice must set out
(a) the expected date of the relocation;
(b) the address of the new place of residence and contact information of the person or child, as the case may be;
(c) a proposal as to how parenting time, decision-making responsibility or contact, as the case may be, could be exercised; and
(d) any other information prescribed by the regulations.
Exception
(3) Despite subsections (1) and (2), the court may, on application, provide that the requirements in those subsections, or in the regulations made for the purposes of those subsections, do not apply or may modify them, including where there is a risk of family violence.
Application without notice
(4) An application referred to in subsection (3) may be made without notice to any other party.
Relocation authorized
16.91 (1) A person who has given notice under section 16.9 and who intends to relocate a child may do so as of the date referred to in the notice if
(a) the relocation is authorized by a court; or
(b) the following conditions are satisfied:
(i) the person with parenting time or decision-making responsibility in respect of the child who has received a notice under subsection 16.9(1) does not object to the relocation within 30 days after the day on which the notice is received, by setting out their objection in
(A) a form prescribed by the regulations, or
(B) an application made under subsection 16.1(1) or paragraph 17(1)(b), and
(ii) there is no order prohibiting the relocation.
Content of form
(2) The form must set out
(a) a statement that the person objects to the proposed relocation;
(b) the reasons for the objection;
(c) the person's views on the proposal for the exercise of parenting time, decision-making responsibility or contact, as the case may be, that is set out in the notice referred to in subsection 16.9(1); and
(d) any other information prescribed by the regulations.
Best interests of child — additional factors to be considered
16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,
(a) the reasons for the relocation;
(b) the impact of the relocation on the child;
(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child's life of each of those persons;
(d) whether the 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;
(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.
Factor not to be considered
(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child's relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.
Burden of proof — person who intends to relocate child
16.93 (1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage 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.
Burden of proof — person who objects to relocation
(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their 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.
Burden of proof — other cases
(3) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.
[21] Section 17 provides for the variation of parenting orders. Of particular note here are sub-sections (1), (5), (5.2):
(17) VARIATION ORDER – (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively,
(a) a support order or any provision of one, on application by either or both former spouses;
(b) a parenting order or any provision of one, on application by
(i) either or both former spouses, or
(ii) a person, other than a former spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent; or
(c) a contact order or any provision of one, on application by a person to whom the order relates.
(5) FACTORS FOR PARENTING ORDER OR CONTACT ORDER - Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, or of an order made under subsection 16.5(9).
(5.2) RELOCATION – CHANGE IN CIRCUMSTANCES – The relocation of a child is deemed to constitute a change in the circumstances of the child for the purposes of subsection (5).
[22] The Supreme Court of Canada in Barendregt v. Grebliunas, the reasons in which were released on May 20, 2022, set out the framework for determining whether relocation is in the best interests of a child in light of the developments in the case law and legislation since Gordon v. Goertz was decided. Karakatsanis J, writing for the majority, provided this summary:
[148] More than two decades ago, this Court set out a framework for relocation applications in Gordon: paras. 49-50. It applies to relocation issues that arise at first instance and in the context of applications to vary existing parenting orders.
[149] Since then, our jurisprudence has refined the Gordon framework, and, subject to two notable exceptions, the Divorce Act has largely codified it. Where the Divorce Act departs from Gordon, the changes reflect the collective judicial experience of applying the Gordon factors. While Gordon rejected a legal presumption in favour of either party, the Divorce Act now contains a burden of proof where there is a pre‑existing parenting order, award or agreement: s. 16.93. And although Gordon restricted whether courts could consider a moving party's reasons for relocating, this is now an express consideration in the best-interests-of-the-child analysis: s. 16.92(1)(a).
[150] The new Divorce Act amendments also respond to issues identified in the case law over the past few decades, which did not arise in Gordon. Section 16.92(2) now provides that trial judges shall not consider a parent's testimony that they would move with or without the child. Furthermore, ss. 16(3)(j) and 16(4) of the Divorce Act now instruct courts to consider any form of family violence and its impact on the perpetrator's ability to care for the child.
[151] In light of the jurisprudential and legislative refinements, the common law relocation framework can be restated as follows.
[152] The crucial question is whether relocation is in the best interests of the child, having regard to the child's physical, emotional and psychological safety, security and well-being. This inquiry is highly fact-specific and discretionary.
[153] Our jurisprudence and statutes provide a rich foundation for such an inquiry: see, for example, s. 16 of the Divorce Act. A court shall consider all factors related to the circumstances of the child, which may include the child's views and preferences, the history of caregiving, any incidents of family violence, or a child's cultural, linguistic, religious and spiritual upbringing and heritage. A court shall also consider each parent's willingness to support the development and maintenance of the child's relationship with the other parent, and shall give effect to the principle that a child should have as much time with each parent, as is consistent with the best interests of the child. These examples are illustrative, not exhaustive. While some of these factors were specifically noted under Gordon, they have broad application to the best interests of the child.
[154] However, traditional considerations bearing on the best interests of the child must be considered in the context of the unique challenges posed by relocation cases. In addition to the factors that a court will generally consider when determining the best interests of the child and any applicable notice requirements, a court should also consider:
• the reasons for the relocation;
• the impact of the relocation on the child;
• 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;
• the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
• the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
• 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.
The court should not consider how the outcome of an application would affect either party's relocation plans — for example, whether the person who intends to move with the child would relocate without the child or not relocate. These factors are drawn from s. 16.92(1) and (2) of the Divorce Act and largely reflect the evolution of the common law for over 25 years.
[155] As I have explained, several pillars underlying the Court's reasoning in Gordon have shifted over time, leading courts and now legislatures to refine, modify, and supplement the Gordon factors. These refinements leave us with a clear framework going forward.
[23] The legal principles (first set out in Plumley v. Plumley, [1999] O.J. 3234 at para. 7) applicable to interim motions regarding mobility are:
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.
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.
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.
[24] The importance of maintaining the status quo in interim matters was explained by J. Wright J. in Kimpton v. Kimpton, as follows:
There is a golden rule which implacably governs motions for interim custody: stability is a primary need for children caught in the throes of matrimonial dispute and the de facto custody of children ought not to be disturbed pendente lite, unless there is some compelling reason why in the interests of the children, the parent having de facto custody should be deprived thereof. On this consideration hangs all other considerations. On motions for interim custody the most important factor in considering the best interests of the child has traditionally been the maintenance of the legal status quo. This golden rule was enunciated by Senior Master Roger in Dyment v. Dyment, [1969] 2 O.R. 631, (aff'd by Laskin J.A. at [1969] 2 O.R. 748), by Laskin J.A. again in Papp v. Papp, [1970] 1 O.R. 331 at pp. 344-5 and by the Nova Scotia Court of Appeal in Lancaster v. Lancaster, 38 R.F.L. (3d) 373. By status quo is meant the primary or legal status quo, not a short lived status quo created to gain tactical advantage. See on this issue Irwin v. Irwin, 3 R.F.L. (3d) 403 and the annotation of J.G. McLeod to Moggey v. Moggey, 28 R.F.L. (3d) 416.
Unless the courts insist that they will not disturb the existing arrangements for children on interim motions except in those cases where it is clear that the children are being exposed to danger or there is some other compelling reason, the courts will continue to be confronted with litigants demanding that the court embark upon the impossible task of attempting to assess the relative merits of parties who have filed numerous affidavits contradicting the affidavits of the other.
This passage continues to be referred to in the case law.
[25] This was explained further by MGJ Quigley J. in Datars v. Graham:
The problem that this court faces on this motion [mobility]…is that it is difficult if not impossible in most cases to complete the extensive child-focused inquiry required under Gordon v. Goertz on the typically conflicting and incomplete affidavit evidence that is often available to the court on interim motions.
Discussion
[26] In the terms of the Divorce Act, what the applicant is seeking in his motion is an interim variation of the existing final parenting order (albeit amended by the parties' written agreement regarding where the respondent could reside and the applicant's access) to allow for the relocation of two of the children.
[27] At the hearing of the motions, counsel for the applicant argued that the matter was not urgent for several reasons. The present order is for joint decision-making responsibility. The applicant had returned the other children to the respondent. He had put her on notice in July that Isaac and Owen's views and preferences were to stay in his care. They were said to be safe there. There was not enough evidence on which to argue the motions; that should wait for the OCL and the CAS's report. The trauma of police enforcement of a return to the respondent should be avoided.
[28] The respondent's counsel submitted that the motions should be heard and the two children returned to the respondent, again for a list of reasons. She had been the primary caregiver. Isaac and Owen's views and preferences were not consistently in favour of relocation. The applicant had withheld the two when the respondent did not consent to his proposal. It was unknown if the OCL would provide a timely Voice of the Child Report or get involved at all, and the OCL could face practical difficulties dealing with family members living so far apart. The applicant was unable to enroll the children in school in Oxford County because the respondent had not consented to their relocation. The applicant was creating a new status quo by self-help. The respondent added that she and the children are Metis and the children are involved with the Kapuskasing Friendship Centre which offers Metis-related activities.
[29] I find that, as the children's school year is beginning, the matter is sufficiently urgent to be dealt with without delay.
[30] The burden of proof in interim mobility motions lies on both parties.
[31] The focus must be on the best interests of the children. As seen above, there are a number of factors to consider in determining what the best interests of the children are. The children's views and preferences constitute only one factor. As is typical at an interim stage, the evidence on point is limited and disputed such that definitive conclusions cannot be drawn.
[32] The applicant seeks to upset the status quo. The reasons for the general reluctance of the courts to do so on an interim basis have been noted above. In particular, with reference to the Plumley principles as well as the passages from Kimpton, there are genuine issues for trial, which supports keeping the status quo, but no compelling reason to upset it at this juncture. There is by no means a strong probability that the applicant's position would succeed at trial.
[33] I note as well that the Divorce Act was amended to provide a clear procedure for parties to follow when seeking court orders allowing relocation. This was, no doubt, at least partly a response to the chaos that resulted from the use of self-help remedies. In the present case, the applicant's explanation for not employing the prescribed procedure, that he was hoping for a positive response to his relocation proposal, is neither convincing nor sufficient. In Schul v. Schmidt, Paul J. commented at para. 47 that:
A parent who engages in self-help tactics despite the best interests of the child will generally raise serious questions about their own parenting skills and judgment. In many cases, courts conclude manipulative, selfish or spiteful parents simply can't be entrusted with custodial authority they would likely abuse. Clement v. Clement.
Conclusion
[34] In conclusion, I find that the applicant has not met the burden of demonstrating that, on an interim basis, it would be in the best interests of Isaac and Owen to relocate them 10 hours from their mother who has had primary custody of them and from their siblings and their community on an interim basis while the issues in the motion to change are resolved on a final basis. I dismiss the applicant's motion apart from the request in paragraph (d) for the involvement of the OCL and a Voice of the Child Report which MacDonald J. has already ordered. I hereby make an order in the terms of requests for relief numbers 1, 2, and 3 in the respondent's notice of motion.
Costs
[35] Costs are reserved to the judge in the motion to change.
Wilcox, J.
Released: September 4, 2025