Court File and Parties

Court File No.: FS-25-0145-00

Date: 2025-09-12

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

J.J.

F. Pottinger, for the Applicant (respondent on Motion)

Applicant

- and -

H.J.

M. Cupello, for the Respondent (Moving Party)

Respondent

HEARD: September 4, 2025 at Thunder Bay, Ontario

Mr. Justice F. Bruce Fitzpatrick

Reasons On Motion for Order for Relocation

Introduction

[1] On September 4, 2025, I released an interim endorsement in this matter. It permitted the Respondent H.J. ("H") to immediately relocate from Thunder Bay to Kenora with the child W.D.J. (DOB XXX) ("W"). It gave H sole decision-making authority for W. It permitted H to enroll W in school in Kenora. It suspended the obligation of the Respondent J.J. ("J") from making any ongoing child support payments for W pending mutual agreement or further court order. It directed the parties to schedule a case conference if they could not come to an agreement for ongoing parenting time for J. It awarded costs payable by J to H in the amount of $4,000.00, payable on or before July 1, 2026.

[2] The endorsement set out that reasons for this decision would follow. Here are those reasons.

Background

[3] J and H were married on July 23, 2017 in Calgary, Alberta. They share one child of the marriage, W, and are his biological parents. The parties originally lived in Alberta, where J is from. In 2018, they moved back to H's hometown, Thunder Bay. W was born in Thunder Bay. The parties separated May 6, 2021.

[4] The parties entered into a separation agreement dated August 26, 2021 ("the Agreement"). Both parties were represented by counsel and received independent legal advice concerning the Agreement. Among other things, the Agreement provided that H would have sole decision-making responsibility for W. Section 8 of the Agreement provided:

8.3 J shall have reasonable parenting time with the Child, which time shall be liberally interpreted and shall include a right to obtain all educational, medical and religious records of the Child, as well as the right to discuss the welfare of the Child with the Child's doctor, teacher or priest or others who are involved with the Child.

8.4 While J has parenting time with the Child for a period exceeding five (5) days, child support will not be payable to [ sic ] H for the period in which J is exercising parenting time.

8.5 The Parties agree to the following Holiday Schedule:

a) H shall have parenting time during all Holiday's and J shall have parenting time jointly with H and the Child wherever such celebrations are taking place.

[5] J has generally exercised parenting time with W every Friday from 4:30 p.m. until Sunday at around 5:00 p.m. J has accepted extra parenting time when offered by H.

[6] In May 2025, H informed J of her desire to relocate W to Kenora. On June 4, 2025, J commenced an application, seeking among other things, a divorce and a final order prohibiting removal of W from the City of Thunder Bay without J's written consent, or an order of the court pursuant to s. 16.1(9) of the Divorce Act, R.S.C. 1985, c. 3. On July 30, 2025, H signed a Notice of Relocation pursuant to the Divorce Act. On August 12, 2025, H brought a motion seeking, among other things, a temporary order allowing her to relocate W to Kenora, Ontario.

[7] H enrolled W in an elementary school in Kenora for him to start school as soon as possible in September 2025. The affidavit material filed on this motion indicated on Monday September 8, 2025, she was to start a full-time job as an MRI operator with the Lake of the Woods District Hospital ("LWDH") in Kenora. It is a job with regular 9 a.m. to 5 p.m. type hours, with full benefits, health insurance, and paid vacation. LWDH is paying H's relocation costs, the first three months of housing and living expenses, as well as offering to assist in paying off $10,000.00 of H's student loans.

The Law

Onus on this Motion

[8] At the outset of argument, I asked the parties for their submissions on the burden of proof for this motion. J relied on the decision of the Ontario Court of Justice in M.B. v. D.A.C., 2014 ONCJ 273, to argue that H bore the burden of proof on the motion as she had to prove compelling circumstances exist that are sufficient to justify the move. Further, J relied on the holding in M.B. that courts are generally reluctant to permit relocation on a temporary basis and that courts will be more cautious about permitting temporary relocation where there are material facts in dispute that would likely impact the final outcome: see M.B., at para. 26.

[9] H argued that as this motion was being brought in a divorce action, the provisions of the Divorce Act should govern. H relied on s. 16.93(2) of the Divorce Act which states:

(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.

[10] At that point in the hearing, I had the benefit of reviewing the affidavit material of the parties. I appreciated J's position that she wants to spend more time with W, and she alleges that desire was regularly frustrated by H. On the other hand, I had evidence that H had sole decision-making authority for W and he has been primarily resident with her since birth. I was also referred to the relatively recent decision of the Divisional Court in Diallo v. Bah, 2025 ONSC 2106. This decision was important because it noted that the amendments to the Divorce Act in 2021, such as s. 16.93(2), had overborne prior jurisprudence on temporary relocation. The Divisional Court in Diallo, at para. 44, specifically stated that the leading decision in Ontario for interim relocation, Plumley v. Plumley, [1999] O.J. No. 3234 (Ont. S.C.), had been overtaken by the 2021 amendments to the Divorce Act. This is in turn significant as the factors in Plumley were relied upon to come to the determination in M.B.

[11] Despite the provisions of s. 16.94 of the Divorce Act, giving a motions judge discretion to not apply the burden of proof provisions of s. 16.93 on temporary motions, in my view, the plain reading of s. 16.93(2) demonstrates Parliament's intentions for the burden of proof where the relocating parent is the primary care parent.

[12] For these reasons, I asked counsel for J to proceed first with the argument.

Best Interests of W

[13] Sections 16(2) and (3) of the Divorce Act provides:

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.

[14] Section 16.92(1) of the Divorce Act enumerates additional factors to be considered in a relocation case as follows:

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.

Positions of the Parties

[15] J submits relocation is not in W's best interests. J argued that the evidentiary record in this matter is far from fulsome. She submits there is a clear dispute about how much time she spends with W. On this basis, the court should be guided by the jurisprudence that indicates a reluctance to upset the status quo without a full inquiry into the evidence.

[16] J submits that it is not certain that relocation will ultimately be found to be in W's best interest at a trial. She argues that the relocation is the culmination of a lengthy campaign by H to exclude W from J's life. W's views and preferences have not been properly put before the Court. J argues these must be taken into account in order to determine W's best interests. W has many members of his extended family in Thunder Bay—moving to Kenora will make it difficult for them to be actively involved in his life.

[17] J relied on the factors set out in Plumley and further submitted there were no compelling circumstances for the relocation and commented on H's lack of evidence of seeking alternative work opportunities that would allow her to remain in Thunder Bay.

[18] H argued that the move is in W's best interest for a variety of reasons. H taking a new position will allow her to provide a better life for W with more financial security and stability in his home life. She is prepared to accommodate J's parenting time by returning to Thunder Bay on a monthly basis. She will make further accommodations for J when W has school holidays. She has been the primary care parent for W since birth. She has sole decision-making authority for him. She is confident that W will continue to enjoy frequent contact with extended family both from Thunder Bay and Winnipeg.

Analysis

[19] I was persuaded by the evidence received on this motion that it is in W's best interest to relocate to Kenora. This has not been determined on the basis that J failed to prove it is not in W's best interests to relocate. Rather, I see this move as a very positive turn of events for W and clearly in his best interests. I was persuaded by the analysis of the circumstances of the matter by counsel for H. I agree with H's submission that the focus of J's submissions was the impact on her, and not on what was in W's best interests.

[20] I did not agree with counsel for J that the record in this matter is less than fulsome. While W's views and preferences were not available to the court, he is relatively young. In Decaen v. Decaen, 2013 ONCA 218, a mobility case, the Ontario Court of Appeal agreed with the trial's judge's comments about the views and preferences of six-year-old twins, considering them "only to a limited extent", saying at para. 41:

… It is thought that the expressed preferences of young children are more likely to be fleeting, subject to external influence, and inconsistent with their actual best interests. A child's request to dine on candy alone is likely inconsistent with her best interests.

[21] Recently in the Northwest Region, I have noticed a tendency for the Office of the Children's Lawyer ("OCL") to only become involved in relatively high conflict cases. This is not a high conflict case. I have surmised this trend relates to the OCL being extremely stretched due to limited resources and the increasingly complicated reality of family law litigation in Ontario. There is a reasonable possibility the OCL would decline to become involved in this case. In my view, seeking their involvement to obtain the views and preferences of W would unnecessarily delay the matter.

[22] I was persuaded by the approach of H, that in considering the various factors set out in ss. 16(3) and 16.92, on a balance of probabilities, the evidence on this motion convincingly demonstrates that it is W's best interest to relocate to Kenora. I will now consider these various factors in turn.

Section 16(3)(a): The child's needs, given the child's age and stage of development, such as the child's needs for stability

[23] I agree with H's submission that H having sole decision-making authority for W since soon after separation is an important consideration in assessing his need for stability. It is clear from the evidence that H has been the primary care parent for all of W's life. J's complaints about interference with her parenting time strike me as on the lesser side of a scale concerning W's stability. She cites examples of interrupted opportunities on Easter and for trick-or-treating. These in my view, do not assist the court in determining if a relocation to Kenora will interrupt the stability of W's life.

[24] W is relatively young, and I expect he will quickly adapt to his new school and can make new friends.

[25] In particular, H has indicated she will make special accommodations for holidays in terms of J's parenting time. In my view, it is important not to interrupt the primary role H has had in W's life.

Section 16(3)(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

[26] I am persuaded by H's evidence that W has a close relationship with his extended family who live both in Thunder Bay and Winnipeg. Kenora is not "close by" relying on Southern Ontario standards, but in Northwest Ontario terms, it is a reasonable drive. No doubt difficult in winter, as is all travel in this part of Ontario. Nevertheless, a six to eight-hour drive is something that people in this region just have to do if they need to reach any other major settlement areas like Sault Ste Marie or Minneapolis or Winnipeg or Kenora. In my view, the relocation is not so far away as to place insurmountable barriers to J's continued relationship with W.

Section 16(3)(c): Each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse

[27] I am persuaded on the evidence that H is supportive of and willing to foster an ongoing and positive relationship between J and W. However, I thought her post-relocation parenting proposal for J lacked particularity. This is the reason I directed the parties to obtain a date for a case conference before the end of October 2025, if they could not work out the details for J's parenting time going forward. However, the lack of particularity does not create a corresponding suspicion that the relocation is, as J has characterized it, "the culmination of a lengthy campaign of exclusion from her child's life".

[28] I am persuaded by H's view of recent events, that any perceived deficiencies in the amount of J's parenting time comes from her choices, and not any roadblocks put in the way by H.

[29] I am concerned that the apparent bitterness in J's perceptions—that attempts have been made to exclude W from her life—will colour her relationship with both W and H. It seems to me the evidence is very strong that ultimately the benefits that will inure to the relationship between W and H from the relocation will long term serve to also benefit J's relationship with W. I will discuss this in greater detail in the section dealing with the factors set out in s. 16.92.

Section 16(3)(d): History of care of the child

[30] H has been the sole decision maker for W since separation. H has been the primary care parent. It is important that this relationship be enhanced as I agree with the submissions of H that W is safe, secure and comfortable with H and looks to her for the majority of his needs.

Section 16(3)(e): The child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained

[31] As discussed above, W's views and preferences were not available to the Court on this motion. I am sure he will adjust well to the move given his young age.

Section 16(3)(f): The child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage

[32] This was not a factor that was addressed by either party on this motion. I agree with the submissions of H that this factor does not have much bearing on the consideration of W's best interests.

Section 16(3)(g): Any plans for the child's care

[33] As discussed above, both H and J will have to work out the details of J's parenting time. However, H is clearly willing to facilitate and maximize J's parenting time given the new distance between J and W. I see the benefits that will be offered to H by her new employer with regard to finding childcare if necessary and a willingness to facilitate school pick up and drop off to further demonstrate how the relocation will be in W's best interests.

Section 16(3)(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

[34] Both J and H have demonstrated the willingness to care for W. I am concerned about some issues J has had in the past. However, those are now well past. Nonetheless, H's primary role in W's life to date cannot be ignored in assessing how a relocation would benefit W. In my view, the economic and work-related benefits will eliminate stress from H's life, which will have a corresponding benefit to her abilities to care for and meet W's needs. The status quo does not provide such enhanced benefits for W's care and needs. This is a very important factor in obtaining a result which is in W's best interests.

Section 16(3)(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

[35] This is not a significant issue for this matter. The personal difficulties J has had in the past have been overcome. I did not see her present complaints about H, as being persuasive that H is doing anything to interfere with J's parenting and W's best interest. The parties have been able to communicate effectively in the past. I do not see it as an issue that would adversely affect W's best interest in future.

Section 16(3)(j): Family violence

[36] This factor has no application to this matter.

Section 16(3)(k): Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child

[37] This factor has no application to this matter.

Section 16.92 Factors

[38] I will now discuss the factors in s. 16.92 of the Divorce Act.

Section 16.92(a): The reasons for the relocation

[39] H has gone to great lengths to obtain the retraining and education necessary to take the new job in Kenora. The benefits at the new job are substantial. In my view, H's economic prospects are greatly enhanced by this relocation. The corresponding benefit to W is obvious.

[40] I do not accept the submissions of J that H is required to demonstrate the relocation is the only way she can obtain a better economic situation. It is tough enough trying to make the difficult, but necessary choice to relocate, let alone scour the economic landscape in an area as large as Northwest Ontario to demonstrate that there are no better alternatives. J's arguments against relocation do not address the obvious benefits that W will have from his primary care parent making more money, in a more secure full-time job, with benefits including relocation benefits from an employer anxious to obtain her services. In my view, H's reasons for relocation are intertwined with a desire to better W's life as well.

Section 16.92(b): The impact of the relocation on the child

[41] The relocation will cut down on W's time with J. However, it will not be irreversibly terminated or significantly damaged in my view. For reasons stated previously, the distances are manageable in Northwest Ontario terms. No doubt there will be the opportunity for enhanced parenting time during school and summer breaks which is not available or was requested in the current status quo arrangement. Given W's age and the fact that he is just entering elementary school, like all of his classmates, I see his adjustment to a new situation as being much easier at this age then it would be if the matter was allowed to be delayed until a trial could be organized. In this jurisdiction, there are currently no slots left for trials in 2025 or 2026.

Section 16.92(c): The amount of time spent with the child by each parent who has parenting time and the level of involvement in the child's life of each of those persons

[42] This aspect of the matter has been discussed earlier in these reasons. Essentially, H is the primary care parent. I accept her submissions that J's parenting time, while regular, has been at times inconsistent and not consistent with W's best interests.

Section 16.92(d): Compliance with notice requirements under s. 16.9

[43] In my view, H has complied with the notice provisions under the Divorce Act s. 16.9. She advised J of her intentions in May 2025. It was enough lead time for J to commence the within application and for H to bring this motion. Rarely are these matters easy when it comes to timing. In this case, both parties have done their best to bring the matter before this court for adjudication.

Section 16.92(e): The existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside

[44] The separation agreement of August 2021 does not make any stipulations about W's residence other than he is to primarily reside with H.

Section 16.92(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 in to consideration, among other things, the location of the place of residence and the travel expenses

[45] Decision making responsibility for W is unaltered by the relocation. Parenting time for J is. However, for reasons noted earlier, I am persuaded that H's willingness to maximize parenting time for J in light of the distances from Thunder Bay to Kenora indicates that W's best interest will be best served by the relocation. I have suspended child support obligations until further agreement or court order, to recognize J may be facing additional expenses to exercise parenting time. However, H has proposed to return W to Thunder Bay at least once a month which would be most beneficial for W in terms of spending time with J.

Section 16.92(g): Compliance with existing legal obligations

[46] There was no evidence that the parties have not complied with their separation agreement from August 2021. Otherwise, there are no other orders or agreements that bear on this matter. I am confident both parties will comply with the terms of this order and any orders made in future with respect to W.

Conclusion

[47] In my view, the benefits to H from relocation, which will flow to W, outweigh the difficulties J may now have in exercising parenting time with W in terms an overall assessment of W's bests interests. H is the sole decision maker for W. H is the primary care parent. J's parenting time has been regular but inconsistent at times. W's young age makes him a good candidate to be flexible and easily accept the social changes he will encounter with the relocation. W will be remaining in the Northwest Region. The social conditions in Kenora are somewhat different than in Thunder Bay. However, H has demonstrated a willingness to facilitate J's continuing important role in W's life. Extended family remain available to W.

[48] I was not reluctant to make a temporary decision in this matter based on the evidence. I am not convinced the evidence would get much better if the matter was left to a trial. The economic opportunities for H appeared time limited. Employers, particularly in the public sector, cannot wait around forever. W will benefit from the better working conditions to be experienced by H. J may get different, but focused and therefore enhanced, parenting time from a new arrangement.

[49] For all these reasons, I find on this motion it is in W's best interest to be allowed to relocate from Thunder Bay to Kenora.

[50] Costs as per my earlier endorsement.

The Hon. Mr. Justice F. Bruce Fitzpatrick

Released: September 12, 2025