Court File and Parties

Court File No.: FC-25-00000130-0000 Date: September 16, 2025

Superior Court of Justice – Ontario

Re: Cody Joshua Davies, Applicant

And: Lena Simone Adjun (nee Davies), Respondent

Before: The Honourable Justice A. Hilliard

Counsel:

• Graham Cook, for the Applicant
• Priya Ravi, for the Respondent

Endorsement

Overview

[1] This motion was initially brought by the Applicant Father, Mr. Davies, as an urgent motion. It was determined during the triage process that the motion was not sufficiently urgent so as to be scheduled for argument prior to a case conference, but an urgent case conference was scheduled instead. That case conference was conducted and then the motion was set for a long motion hearing marked to be given priority.

[2] The issues initially raised in the motion were the habitual residence of the child, the proper jurisdiction for this Application, and primary residence and parenting time for the child.

Background

[3] The parties met in 2013 and began cohabitating in 2014. They were married on March 28, 2018 in Stoney Creek, Ontario. They separated on a permanent basis in October 2024.

[4] Mr. Davies is originally from Caledonia, Ontario. Ms. Adjun is from Kugluktuk, Nunavut, where the parties met and resided together.

[5] Ms. Adjun has two children from a previous relationship: Seth (15) and Connor (13).

[6] There is one child of the marriage: Sawyer James Davies, born September 5, 2018.

[7] Throughout the relationship the parties resided in Kugluktuk, Nunavut. The residence in which they resided with the children is located in Kugluktuk and is jointly owned by the parties.

[8] Mr. Davies had been employed as a heavy equipment operator in Kugluktuk. In July 2024, there was a workplace accident in which a teenager girl was killed by a wheel loader being operated by Mr. Davies. Although cleared of any wrongdoing, Mr. Davies suffers from post-traumatic stress disorder as a result of the accident and has been off work ever since. Mr. Davies also experienced ostracization from the community after the accident.

[9] After the parties separated, Mr. Davies returned to Ontario and went to live with his parents in Caledonia. Mr. Davies and Ms. Adjun arranged for virtual contact between Mr. Davies and Sawyer. Mr. Davies also maintained contact with Seth and Connor.

[10] From February 8 to March 8, 2025, Mr. Davies returned to Kugluktuk and stayed at the family residence to care for all three children while Ms. Adjun was away.

[11] An extended parenting visit was arranged between the parties for Sawyer to visit with Mr. Davies at his home in Caledonia from June to August 2025. Arrangements were made for Mr. Davies to travel to Kugluktuk to pick up Sawyer at the commencement of his parenting time and to return him to Kugluktuk in August for the start of the new school year.

[12] On August 4, 2025, Ms. Adjun sent Mr. Davies a text message asking that the exchange location be changed from Kugluktuk to Edmonton as Ms. Adjun was relocating with the children to Edmonton. There is a dispute as to how much notice Mr. Davies received of this intended move, if any, but at least as of August 4, 2025 Mr. Davies was informed that Ms. Adjun was relocating her residence to Edmonton, Alberta.

[13] Mr. Davies chose not to return Sawyer to Ms. Adjun in Edmonton and instead kept Sawyer with him in Caledonia and commenced this application and the within motion.

[14] In response, Ms. Adjun commenced an Application in the Court of King's Bench in Edmonton, Alberta. After an in chambers determination, that Application was dismissed for wont of jurisdiction given that this Application is ongoing in Ontario.

Habitual Residence

[15] At the outset of the motion argument, Mr. Davies conceded that Sawyer's primary residence was Kugluktuk, Nunavut given that is where the parties resided as a family. That is an appropriate concession. However, I am of the view that not only was Sawyer's habitual residence in Nunavut when Ms. Adjun was residing there, but it continues to be to the present.

[16] Sawyer has not been resident in or even present in Ontario for a sufficient period of time for this to be his habitual residence. On Mr. Davies' own evidence, prior to June 2025, Sawyer had never spent more than two (2) weeks in Caledonia.

[17] Similarly, Sawyer has no connection to Edmonton except Ms. Adjun and his brothers. Sawyer has never resided in Edmonton and from the evidence before me it does not appear that Sawyer has ever even visited Edmonton.

[18] For these reasons, I find that Sawyer's habitual residence is in Kugluktuk, Nunavut.

Jurisdiction of the Court

[19] As neither parent is currently residing in Nunavut, it is neither appropriate nor convenient for the parenting issues to be determined in a court in Nunavut, despite that being Sawyer's habitual residence.

[20] I must therefore determine whether or not it is appropriate for this Court to take jurisdiction.

[21] Section 22(1)(b) of the Children's Law Reform Act sets out the circumstances in which an Ontario court may exercise its jurisdiction to make a parenting or contact order:

A court shall only exercise its jurisdiction to make a parenting order or contact order with respect to a child if,

(b) the child is not habitually resident in Ontario, the court is satisfied that,

(i) the child is physically present in Ontario at the commencement of the application for the order,

(ii) substantial evidence concerning the best interests of the child is available in Ontario,

(iii) no application respecting decision-making responsibility, parenting time or contact with respect to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,

(iv) no extra-provincial order respecting decision-making responsibility, parenting time or contact with respect to the child has been recognized by a court in Ontario,

(v) the child has a real and substantial connection with Ontario, and

(vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.

[22] In order for me to make a parenting order regarding Sawyer, all six conditions listed in s. 22(1)(b) must be met. Ojeikere v. Ojeikere, 2018 ONCA 372

[23] As of the commencement of this Application, Sawyer was physically present in Ontario, staying with Mr. Davies in Caledonia.

[24] There is substantial evidence regarding Sawyer's best interests available in Ontario as this is where Mr. Davies resides and where he has been spending his parenting time with Sawyer. Mr. Davies and his family reside in Ontario and the community in which they live are central to shaping the evidence about Mr. Davies' time and relationship with Sawyer.

[25] No other application for decision-making responsibility or parenting time had been commenced by Ms. Adjun prior to Mr. Davies' application to this Court. The application to the Court of King's Bench in Alberta was commenced after Mr. Davies applied to this court.

[26] There has never been any extra-provincial order regarding Sawyer or these parties.

[27] Sawyer has a real and substantial connection with Ontario through Mr. Davies, developing during his parenting time with Mr. Davies exercised in Ontario.

[28] Finally, given the dismissal of the application in Alberta and the parties not residing in the jurisdiction that is Sawyer's habitual residence, I find that on a balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.

Relocation

[29] As Mr. Davies and Ms. Adjun were legally married, the relocation provisions of the Divorce Act apply to either party intending to change the primary residence of a child of the marriage.

[30] Ms. Adjun's move to Edmonton is a relocation to which the provisions of the Divorce Act apply. Although there was no formal order in place, there was a parenting arrangement in place post-separation whereby Ms. Adjun had primary residence of Sawyer and Mr. Davies was exercising parenting time. Ms. Adjun was therefore obliged to comply with the notice provisions in section 16.9 of the Divorce Act prior to moving Sawyer's primary residence.

[31] On Ms. Adjun's own evidence she did not comply with the requirement to provide Mr. Davies the requisite 60 days notice of her move. Furthermore, Ms. Adjun has not, to date, provided the address of her new place of residence, as required by s. 16.9(2)(b) or a proposal as to how parenting time, decision-making responsibility or contact, as the case may be, could be exercised, as required by s. 16.9(2)(c). Even Ms. Adjun's affidavit evidence filed on the motion does not include a proposal for Mr. Davies' parenting time in the event that the Court orders Sawyer back into her care as she is requesting.

[32] Mr. Davies is opposed to the relocation. The move to Edmonton without prior notice to him is the basis for his overholding of Sawyer after the anticipated end to his parenting time in August 2025. Mr. Davies argues that Sawyer should be placed in his primary care as that is in Sawyer's best interests now that Ms. Adjun has relocated to Edmonton. It is important, however, to note that Mr. Davies' position is that he would have returned Sawyer to Ms. Adjun's care as planned at the end of his parenting time in August if Ms. Adjun was still residing in Kugluktuk.

[33] Ms. Adjun's failure to comply with the relocation provisions of the Divorce Act is of course not a basis upon which to deny her request for relocation. Mr. Davies is himself not without fault having chosen to overhold Sawyer rather than returning him as originally agreed upon, albeit I accept that Mr. Davies believed himself justified given Ms. Adjun's move.

[34] Ultimately, I must determine the relocation issue based on an assessment of what is in the best interests of Sawyer.

[35] I accept that Sawyer has a meaningful and beneficial relationship with Mr. Davies. I accept that Sawyer is bonding with and developing attachments to his extended paternal family and members of the community of which Mr. Davies is a part.

[36] However, it is undisputed by Mr. Davies that Sawyer is bonded with and attached to his mother and his brothers. I accept that Sawyer's brothers miss him and I expect that Sawyer misses his brothers.

[37] I must also consider Sawyer's connection to his Inuit heritage. Although it is laudable that Mr. Davies' mother has done some research into Inuit communities in Ontario, connections with community groups is not an adequate substitute to the daily exposure to Sawyer's Inuit heritage he will have living primarily with his Inuit mother and brothers.

[38] During argument on the motion, counsel for Ms. Adjun raised An Act respecting First Nations, Inuit and Métis children, youth and families in supporting her claim for placement of Sawyer in her care. It is important to note that that piece of federal legislation relates to the placement of Indigenous children in the context of providing child and family services in relation to a child, which is not relevant in this Application. However, it is certainly the case that Sawyer's Inuit heritage and status as an Inuit child is relevant to the determination I must make on this motion.

[39] I have also considered the evidence of Mr. Davies regarding Sawyer's ADHD diagnosis and ongoing medical needs in relation thereto. Although it was concerning to me that Ms. Adjun's affidavit did not contain even any mention of Sawyer's diagnosis, I am prepared to accept that there will be far greater community resources to support Sawyer in coping with his ADHD in Edmonton than there was in Kugluktuk. Mr. Davies' own evidence was that there is no resident pediatrician in Kugluktuk that could monitor Sawyer on an ongoing basis.

[40] Ms. Adjun's evidence is that she does have a support system in Edmonton, including cousins with children of their own who will help her and the child settle into their new home. She also deposed that she had enrolled all three children in schools in Edmonton and provided the specific name of the school where she had enrolled Sawyer. I therefore find that although Sawyer himself has no connection to Edmonton, he will have supports in the community through Ms. Adjun's extended family.

[41] I have also considered the post-separation parenting arrangement that was in place from November 2024 until August 2025 when Mr. Davies overheld Sawyer. Although I accept that Mr. Davies felt that he had little choice but to leave Kugluktuk at the end of his relationship with Ms. Adjun and return to his parents home, I am not persuaded by Mr. Davies' argument that he only agreed to leave Sawyer in Ms. Adjun's primary care under duress. A subjective belief, even honestly held, that one has no other choice does not meet the legal definition of duress. Furthermore, despite the evidence of Ms. Adjun's alleged threats to run away with Sawyer and never allow Mr. Davies to see him again, there is no evidence to indicate that Ms. Adjun even attempted to follow through on those threats. The evidence is that Ms. Adjun communicated with Mr. Davies on a regular basis, as seen in the text message exchanges attached to Mr. Davies' supplementary affidavit, and she regularly facilitated FaceTime communication between Mr. Davies and Sawyer.

[42] In assessing the argument of duress, I have also considered Mr. Davies' position that but for the move to Edmonton, he would have returned Sawyer to Ms. Adjun's care in August 2025. In my view, this is perhaps the most relevant factor in assessing Mr. Davies' acquiescence to the arrangement whereby Ms. Adjun was Sawyer's primary caregiver.

[43] Overall, when I consider all of the evidence, I am of the view that it is in Sawyer's best interests to be returned to the primary care of Ms. Adjun and to have extended parenting time with Mr. Davies in Caledonia during school holidays and breaks. The move to Edmonton does not change my assessment of whether or not it is in Sawyer's best interests to be in the primary care of Ms. Adjun and therefore I am persuaded that the relocation to Edmonton should be permitted.

Conclusion

[44] Despite Sawyer's place of habitual residence being in Kugluktuk, Nunavut, I am satisfied that this Court should exercise its jurisdiction to make parenting orders regarding Sawyer.

[45] I am also satisfied that this Application should continue in Ontario going forward until the parties agree otherwise in writing or further order of this Court.

[46] I find that it is in Sawyer's best interests to be returned to the primary care of Ms. Adjun and for the move to Edmonton to be permitted. However, I also find that it is in Sawyer's best interests to spend parenting time during his school breaks in the care of Mr. Davies, here in Ontario where Mr. Davies resides.

[47] I accept the proposal made on behalf of Ms. Adjun that the parties should share the cost of transportation at least on a temporary basis.

[48] In the event that the parties are unable to resolve the issue of costs, submissions may be filed as follows:

1. The Respondent mother may file her primary costs submissions, no longer than 3 pages in length, double-spaced, 12-point font, exclusive of Bill of Costs and Offer(s) to Settle, on or before September 26, 2025.

2. The Applicant father may file his responding costs submissions no longer than 3 pages in length, double-spaced, 12-point font, exclusive of Bill of Costs and Offer(s) to Settle, on or before October 6, 2025.

3. Reply by the Respondent mother, no longer than 2 pages in length, double-spaced, 12-point font, on or before October 14, 2025.

[49] Counsel shall contact the trial coordinator to arrange a date for a settlement conference.

Temporary Order on the Motion

[50] Temporary order to go on the motion:

1. The child, Sawyer James Davies, born September 5, 2018, shall be returned to the care of the Respondent mother no later than Saturday, September 20, 2025 and shall remain in her primary care residing in Edmonton, Alberta.

2. The Applicant father shall be responsible for arranging and paying for Sawyer's transportation back to the care of the Respondent mother.

3. The Respondent mother shall forthwith provide the Applicant father with her new address and the contact details and information for the school where Sawyer is to be enrolled and provide confirmation of his enrollment.

4. The Respondent mother may not change Sawyer's residence from where she is currently residing in Edmonton without the prior written consent of Mr. Davies or further order of the Court.

5. The Applicant father shall have FaceTime or other virtual audio/visual contact with Sawyer at a minimum of once per week commencing the week of September 22, 2025 at a date and time as is mutually agreeable to the parties. The Respondent mother shall ensure that Sawyer has an appropriate device to communicate with the Applicant father.

6. The Applicant father shall have parenting time with Sawyer during all school breaks, including Christmas holidays, March Break and the summer holidays. The parties shall share equally in the cost of transportation with the Applicant father being responsible for arranging and paying for the cost of transporting Sawyer to Ontario for the commencement of his parenting time and the Respondent mother being responsible for arranging and paying for the cost of transporting Sawyer back to Alberta at the end of the Applicant father's parenting time, unless the parties agree otherwise in writing.

A. Hilliard, J.

Date: September 16, 2025