CITATION:, Dion v. Etel, 2026 ONSC 2048

COURT FILE NO.: FS-25-45

DATE: 2026/04/09

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DENIS DION

Applicant

– and –

STEPHANIE ETEL

Respondent

Casandra Gravel, for the Applicant

J. Richard Forget, for the Respondent

HEARD: March 19, 2026

The Honourable Mr. Justice David J. Nadeau

DECISION ON MOTIONS

1The Respondent brought a Motion dated September 23, 2025 seeking:

1. An order permitting mother respondent, Stephanie Etel, to relocate Clarke Dion born April 10, 2025, from Kirkland Lake, Ontario to Rouyn, Québec;

2. An order that the parents shall have parenting time with the said child on week on – week off basis until the said child is three years of age (April 10, 2028);

3. An order that each parent split the transportation costs for exchanging the said child between Kirkland Lake and Rouyn, Québec;

4. An order that the said child’s health records remain in Québec;

5. An order unsealing the court documents for the general public.

2The Applicant then brought their own Motion dated November 4, 2025 seeking:

1. An interim and temporary Order that the Respondent mother have parenting time with the child, Clarke Dion, born 10 April 2025, every second weekend, from Friday at 2:00 p.m. until Sunday at 5:00 p.m., as agreed between the parties in writing, until further agreement or Order of the Court;

2. An Order that the Applicant father, Denis Dion, shall make decisions with respect to the child Clarke Dion, born 10 April 2025, and make all decisions with respect to the child’s welfare, including decisions about the child’s;

a. health, including major non-emergency health care, as well as emergency health care;

b. education;

c. culture, language, religion and spirituality, and

d. significant extra-curricular activities.

3. An Order that the child, Clarke Dion, born 10 April 2025, shall not be permitted to travel outside of Ontario or Québec.

4. An Order that the police shall enforce any and all Orders for parenting time relating to the child namely Clarke Dion, born 10 April 2025, specifically as follows;

a. An Order that pursuant to s.36 of the Children’s Law Reform Act, all police forces in Canada, not limited to the Ontario Provincial Police, Royal Canadian Mounted Police, and the Sûreté du Québec be directed and authorized as follows;

a. to do all things reasonably able to be done to locate, apprehend and deliver the child, namely, Clarke Dion, born 10 April 2025 to the parent having care and control of the child;

b. granted for the purpose of locating and apprehending the child, namely Clarke Dion, born 10 April 2025, the right to enter and search, at any time of the day or night, and with such assistance and such force as are reasonable in the circumstances, any place where there are reasonable and probable grounds for believing that the namely, Clarke Dion, born 10 April 2025 may be;

c. directed that these apprehension duties and search powers be executed as often as needed as provided in s.36 of the Children’s Law Reform Act; and

d. That this Order shall not expire.

3Upon my request at the conclusion of hearing both Motions, I was presented by Counsel for each party with a Draft Order detailing the specific relief being sought in these circumstances from my hearing both Motions together.

4Counsel for the Respondent is now requesting a Final Order as follows:

1. The applicant father, Denis Dion, is to release immediately his daughter, Clarke Diane Margaret Dion born April 10, 2025 to the respondent mother, Stephanie Etel;

2. The respondent mother, Stephanie Etel, is authorized to relocate Clarke Diane Margaret Dion born April 10, 2025 to Rouyn-Noranda, Québec;

3. The Superior Court of Justice, Ontario, declines jurisdiction of Clarke Diane Margaret Dion born April 10, 2025 for jurisdiction to the courts in the Province of Québec.

5Counsel for the Applicant is now requesting a Temporary Order as follows:

1. An Order that Applicant father shall have primary residence of the child, Clarke Dion, born 10 April 2025.

2. An Order that the Respondent mother shall have parenting time with the child, Clarke Dion, born 10 April 2025 as follows:

(a) Friday at 4:00 p.m. to Sunday at 4:00 p.m. every other weekend commencing immediately;

(b) Additional parenting time as agreed in writing between the parties.

3. The exchange of the child, Clarke Dion, born 10 April 2025, shall occur at the Ontario Provincial Police Detachment, located at 26 Duncan Avenue North, Kirkland Lake, Ontario, P2N 3H7.

4. An Order that the Applicant father, Denis Dion, shall have sole decision-making authority with respect to the child Clarke Dion, born 10 April 2025 after meaningful consultation with the Respondent mother, including decisions about the child’s;

a. health, including major non-emergency health care, as well as emergency health care;

b. education;

c. culture, language, religion and spirituality; and

d. significant extra-curricular activities.

5. An Order that the child, Clarke Dion, born 10 April 2025, shall not be permitted to travel outside of Ontario or Québec;

6. An Order that the parties shall deposit their passport with the Superior Court of Justice in Haileybury and this shall be a precondition for parenting time to commence as per Section 2 of this Order.

7. An Order that the police shall enforce any and all Orders for parenting time relating to the child namely Clarke Dion, born 10 April 2025 specifically as follows;

(a) An Order that pursuant to s.36 of the Children’s Law Reform Act, all police forces in Canada, not limited to the Ontario Provincial Police, Royal Canadian Mounted Police, and the Sûreté du Québec be directed and authorized as follows;

(a) to do all things reasonably able to be done to locate, apprehend and deliver the child, namely Clarke Dion, born 10 April 2025 to the parent having care and control of the child;

(b) granted for the purpose of locating and apprehending the child, namely, Clarke Dion, born 10 April 2025, the right to enter and search, at any time of the day or night, and with such assistance and such force as are reasonable in the circumstances, any place where there are reasonable and probable grounds for believing that the namely, Clarke Dion, born 10 April 2025 may be;

(c) directed that these apprehension duties and search powers be executed as often as needed as provided in s. 36 of the Children’s Law Reform Act; and

(d) that this Order shall not expire.

6Clarke Dion was born in Rouyn-Noranda, Québec on April 10, 2025. Unfortunately for her, Clarke’s parents have been embroiled in high-conflict litigation since July 17, 2025, resulting in the fact that Clarke has not had parenting time with her mother since early August, 2025. Although Clarke’s Applicant father Denis Dion and her Respondent mother Stephanie Etel have filed a number of Affidavits for these Motions, often contradictory which make it difficult for this Court to ascertain reliable facts upon which to support the appropriate determination here in the best interests of Clarke, still not having had her first birthday.

7The Respondent mother entered Canada and was issued a Work Permit for Rouyn on September 16, 2023. She is a citizen of Lebanon, and she was issued a further Work Permit on November 18, 2025, with an expiry date of November 18, 2027, and conditions which include that she “MUST LEAVE CANADA BY” November 18, 2027. Her Passport was issued at Beirut with a 2031 expiry date indicating that she is a “VISITOR”. It appears on the evidence provided by the Respondent mother that she is presently a non-permanent resident visiting Canada on a temporary work permit, and there is no confirmation whether she has applied or intends to apply for permanent residence status. Her Form 35.1 Affidavit sworn August 2, 2025 confirms that she lived in Ontario at the time, that she does not work full-time or part-time and that she is “a stay-at-home parent”.

8These parties began dating soon after the Respondent mother arrived in Canada, at a time when the Applicant father resided at his home in Kirkland Lake, Ontario while the Respondent mother maintained an apartment in Rouyn, Québec, approximately a one-hour drive apart. It appears that the Respondent mother moved into his home in late 2024 or early 2025 when she was pregnant with their child. This was to be their “future home”, so she left her apartment in Rouyn at the end of June 2025. As indicated by her brother Christian from his visit on July 10, 2025, he “observed the extensive renovations she was carrying out while pregnant to prepare the residence for herself and Clarke. She devoted considerable effort to cleaning, repairing and improving the space. I also reviewed photographs of the work, which confirmed the scale of her efforts and reflected her determination to create a safe and welcoming environment for her daughter.”

9Shortly thereafter, on July 14, 2025, the Respondent mother left their home with 3-month-old Clarke and the Applicant father responded by bringing this Application dated July 17, 2025. At the ensuing urgent Videoconference on July 25, 2025, Justice MacDonald of this Court endorsed the following;

“The respondent is hoping to retain counsel. The parties have agreed to work on reconciliation. They could not agree on what will happen if their attempts fail. A motion will therefore be required in the event that the situation deteriorates. I have encouraged them to obtain counselling. The parties agree that the child’s habitual residence is in Kirkland Lake, Ontario.”

10By August 2, 2025, the Respondent mother retained present Counsel and filed her Answer with this Court in Haileybury, Ontario, claiming that Clarke should reside full-time with her and “a relocation order to either Rouyn or Gatineau, QC”. The Respondent mother then, without her present Counsel, filed a claim in the Superior Court of Québec at Rouyn-Noranda on August 26, 2025, and obtained a hearing date there on September 10, 2025. The Applicant father appeared on that date with local Counsel and for oral reasons delivered the Québec Judge noted Justice MacDonald’s Endorsement dated July 25, 2025 and that with her present Counsel in Ontario the Respondent mother has recognized that Clarke was resident and domiciled in Ontario, and that she had an obligation to request in Ontario for a relocation order to Québec with respect to Clarke. Therefore, the Québec Judge decided there was an absence of jurisdiction for her claim brought in Québec.

11On September 19, 2025, Justice MacDonald held another Videoconference with the parties and their present Counsel and made the following Endorsement;

“1. This case involves the parenting of an infant.

2. The infant was born in Rouyn, Québec. The father alleges that two days following her birth, the parties returned to their home in Kirkland Lake, where they lived as a family before and after the child was born, until the parties had an argument and the mother left the home with the child, leading to the urgent proceedings.

3. An urgent case conference was scheduled in this matter for July 25, 2025. A settlement conference was held. The parties did not reach an agreement at that time but were working on reconciliation and it appeared that the respondent would be remaining in the applicant’s home in Kirkland Lake.

4. At that conference, the mother agreed that the baby’s habitual residence had been Kirkland Lake, Ontario, prior to the commencement of the proceedings.

5.The mother was not represented at the conference. She has counsel now and argues that the child’s habitual residence is Rouyn, Québec. Although the endorsement reflects her agreement about where the child had been residing, the child was only about three months of age at the time of the conference and that issue, therefore, remains in dispute.

6. It appears that the attempt at reconciliation failed, and the mother has not seen the child in about six weeks. There is a dispute about whether reasonable offers were made for parenting time which were rejected by the mother and whether the father locked the mother out of the house. In any event, the mother is now applying for housing in Rouyn, Québec.

7. I made recommendations regarding a temporary arrangement with respect to parenting time and preventative measures regarding flight concerns.

8. There is a dispute about whether or not the mother has ever threatened to flee with the child.

9. It seems unlikely that this matter will resolve. Counsel were provided with the next three regular motion dates.

10. Regarding the sealing order, the parties agreed to have the order continue, on a temporary basis, subject to reconsideration at either party’s request.”

12Despite the recommendations made by Justice MacDonald, and for reasons for which I have determined that both parties and their Counsel all share some responsibility, Clarke unfortunately has not had parenting time with her mother for over eight months.

13The parties have engaged in high conflict litigation since the commencement of the Application. Each party alleges withholding and bad behaviour on the part of the other. Neither party acknowledges the impact of the conflict on their young child. Both parties appear to be using time with the child as a tool to achieve other goals. There has been frequent involvement of the Children's Aid Society and the police. Each party has made various complaints. All investigations have closed. The parties' approach to one another and to the conflict resembles high stakes poker: It is an all or nothing, no holds barred, take no prisoners game. For parents who clearly love Clarke, it is unfathomable that the Court needs to advise them that this is not a game: their daughter's emotional and developmental well-being is at stake, and they are holding their child prisoner to their conflict.

14The respective positions submitted by the parties in these two Motions raises the question of whether the decision-making responsibility and parenting time issues should be adjudicated before the relocation issue requested by the Respondent mother.

15From Nouri v. Watters, [2022] O.J. No. 4143;

“33 In their submissions, both counsel addressed whether decision-making responsibility and parenting time needed to be addressed before relocation. Each supported their submissions by referring to cases on this issue decided before the 2021 amendments to the Children's Law Reform Act (CLRA) which deal with requests for permission to relocate with a child.

34 Counsel for Mr. Watters asserted that, before determining whether a parent can relocate with a child, the court must determine who has decision-making responsibility for the child and what the parenting arrangements are to be for that child. In making that submission he relied upon the Ontario Court of Appeal decision in Bjornson v. Creighton, [2002] O.J. No. 4364.

35 Counsel for Ms. Nouri asserted that such a requirement does not exist.

Analysis

36 For reasons which I will explain later, I am of the view that, to some extent, this question has been rendered moot by the 2021 amendments found in ss. 39.1 through 39.4 of the CLRA. Before I do so, however, I will address the submissions of counsel on this issue.

42 As I read the 2021 amendments to the CLRA pertaining to relocation, I am driven to the conclusion that they provide a nearly stand-alone framework4 for addressing relocation requests apart from any claims for decision-making responsibility, although claims relating to both heads of relief are likely to be brought together. If they are, there is nothing in the CLRA which says that one issue must be decided before the other.

43 I find support for my view in the decision of Justice P.J. Monahan in Credland v. Cymbalisty, [2022] O.J. No. 572. Although that was a trial decision, Justice Monahan approached the issues in the sequence permitted by the Ontario Court of Appeal in Moreton v. Inthavixay but, in doing so, he had regard to the recently enacted sections of the CLRA writing, at paragraph 23:

23 Recent amendments to the Children's Law Reform Act, described in detail below, now provide a comprehensive statutory framework governing relocation cases, one which significantly amends the principles set out in Gordon v. Goertz. The new framework also specifically defines the circumstances in which one parent or the other will bear the burden of proof on relocation issues. The views of the primary caregiver to the child are certainly a relevant and important consideration in that analysis. But the CLRA mandates a holistic analysis of the relocation issue based on the best interests of the child, guided by the primary consideration of the child's safety, security and well-being. In my view, it would be inconsistent with this statutory framework to embark on a preliminary inquiry into which parent is or has been the primary caregiver to the child, prior to or separate from the holistic analysis contemplated by the Act. Moreover, in determining what parenting orders would be in PC's best interests, the logically prior issue is where she should primarily reside. Only after that matter is settled will it be practical to consider what other parenting orders might be appropriate in the circumstances of this case.”

16Relocation" is defined in s. 18(1) of the CLRA as meaning "a change in residence of a child, or of a person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child, that is likely to have a significant impact on the child's relationship with;

(a) another person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child. (Emphasis added).

17At this point, each party seeks some form of order for parenting time and decision-making responsibility. A discussion about their current entitlement to decision-making responsibility will follow my examination of the Respondent mother’s request for relocation.

18Without deciding that issue, however, it is clear that both parents have applied for a parenting order in respect of Clarke.

19It is equally clear and undisputed that a change in Clarke's residence is likely to have a significant impact on her relationship with the other parent. Thus, I am satisfied that the prerequisites to making this a relocation case under the CLRA are in place.

20Section 24 of the CLRA sets out the following;

“Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.

Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Factors

(3) Factors related to the circumstances of a child include,

(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 parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(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 co-operate, 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 co-operate 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 clause (3) (j), the court shall take 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 the person’s ability to care for and meet the needs of the child; and

(h) any other relevant factor.

Past conduct

(5) 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 the person’s decision-making responsibility, parenting time or contact with respect to the child.

Allocation of parenting time

(6) In allocating parenting time, the court 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.

Application to related orders

(7) This section applies with respect to interim parenting orders and contact orders, and to variations of parenting orders and contact orders or interim parenting orders and contact orders.”

21Subsection 33.1 (2) of the Act addresses the importance of the parties protecting children from conflict. It reads as follows:

“33. 1 Protection of children from conflict

(2) A party to a proceeding under this Part shall, to the best of the party's ability, protect any child from conflict arising from the proceeding.”

22Sections 39.3 and 39.4 of the Act set out additional considerations when a parent intends a relocation. These sections read as follows:

“Relocation

39.3(1) A person who has decision-making responsibility or parenting time with respect to a child and who intends a relocation shall, at least 60 days before the expected date of the proposed relocation, notify any other person who has decision-making responsibility, parenting time or contact under a contact order with respect to the child of the intention.

Notice requirements

(2) The notice shall be in the form prescribed by the regulations or, if no form is prescribed, shall be in writing and shall set out,

(a) the expected date of the proposed relocation;

(b) the address of the new residence and contact information of the person or child, as the case may be;

(c) a proposal as to how decision-making responsibility, parenting time or contact, as the case may be, could be exercised; and

(d) any other information that may be prescribed by the regulations.

Exception

(3) On application, the court may in any circumstance provide that subsections (1) and (2) or anything prescribed by the regulations for the purposes of subsection (2) do not apply, or apply with any changes the court specifies, if the court is of the opinion that it is appropriate to do so, including if there is a risk of family violence

Same

(4) An application under subsection (3) may be made without notice to any other party.

Objection

(5) A person with decision-making responsibility or parenting time who receives notice of the proposed relocation under subsection (1) may, no later than 30 days after receiving the notice, object to the

relocation by,

(a) notifying the person who gave the notice of proposed relocation of the objection to the relocation; or

(b) making an application under section 21.

Notice requirements

(6) A notice under clause (5) (a) shall be in writing and shall set out,

(a) a statement that the person objects to the relocation;

(b) the reasons for the objection;

(c) the person's views on the proposal referred to in clause (2) (c); and

(d) any other information that may be prescribed by the regulations.

Regulations

(7) The Attorney General may make regulations,

(a) prescribing anything in this section that may be prescribed by the regulations;

(b) requiring that a notice under this section be given in a manner specified by the regulations.

Authorization of relocation

39.4 (1) In this section"family arbitration award" has the same meaning as in the Arbitration Act, 1991.

Same

(2) A person who has given notice of a proposed relocation in accordance with section 39.3 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) no objection to the relocation is made in accordance with subsection 39.3 (5) and there is no order prohibiting the relocation.

Best interests of the child

(3) In determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with section 24, as well as,

(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 is an applicant for a parenting order with respect to the child, 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 has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement;

(e) the existence of an order, family arbitration 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 decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses; and

(g) whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance.

Factor not to be considered

(4) In determining whether to authorize a relocation of the child, the court shall not consider whether, if the child's relocation were to be prohibited, the person who intends to relocate the child would relocate without the child or not relocate.

Burden of proof

(5) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.

Same

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

Same

(7) 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.

Burden of proof, exception

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

Costs of relocation

(9) If a court authorizes the relocation of a child, it may provide for the apportionment of costs relating to the exercise of parenting time by a person who is not relocating between that person and the

person who is relocating the child.”

23In N.P. v. D.H. [2022] O.J. No. 5108, Justice Sheer outlined the following;

“53 The jurisprudence also requires the court to conduct a stringent analysis before permitting a party to relocate a child on a temporary basis.

54 The leading case for determining if a relocation should be permitted on a temporary motion is Plumley v. Plumley, [1999] O.J. No. 3234 (S.C.J.), where the court set out the following principles:

a) A court will be more reluctant to upset the status quo on an interim motion and permit the move when there is a genuine issue for trial.

b) There can be compelling circumstances which might dictate that a justice 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 of the best interests of the children 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 possibility that the custodial parent's position will prevail at trial.

55 The following are additional principles regarding temporary relocation cases:

a) The burden is on the parent seeking the change to prove compelling circumstances exist that are sufficient to justify the move. See: Mackenzie v. Newby, [2013] O.J. No. 4613 (OCJ).

b) Courts are generally reluctant to permit relocation on a temporary basis. The decision will often have a strong influence on the final outcome of the case, particularly if the order permits relocation. The reality is that courts do not like to create disruptions in the lives of children by making an order that may have to cause further disruption later if the order has to be reversed. See: Goodship v. McMaster, [2003] O.J. No. 4255 (OCJ).

c) Courts will be more cautious about permitting a temporary relocation where there are material facts in dispute that would likely impact on the final outcome. See: Fair v. Rutherford-Fair 2004 CarswellOnt 1705 (Ont. S.C.J.). In such cases, the court requires a full testing of the evidence. See: Kennedy v. Hull, 2005 ONCJ 275.

d) Courts will be even more cautious in permitting a temporary relocation when the proposed move involves a long distance. It is unlikely that the move will be permitted unless the court is certain that it will be the final result. See: Boudreault v. Charles, 2014 ONCJ 273.

e) Where one parent moves to another city or community with the child without notice to the other parent, the other parent may apply to have the child returned to the home community. See: Hazelwood v. Hazelwood, 2012 ONSC 5069; Jennings v. Cormier, 2022 ONCJ 338, per Justice Melanie Sager.

f) There is a difference in a temporary relocation analysis between permitting a temporary move and sanctioning a move that has already happened, particularly when the move is contrary to a temporary non-removal order. A court cannot sanction the latter. See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 68. This is applicable by analogy when the move is in the face of a written objection to the move. See: Jennings v. Cormier, supra.

g) Courts will permit temporary relocation where there is no genuine issue for trial (see: Yousuf v. Shoaib, [2007] O.J. No. 747 (OCJ)), or where the result would be inevitable after a trial (see: Mackenzie v. Newby, supra, where the court observed that the importance of the father's contact with the child could not override the benefits that the move would have on the child).”

…

“64 A notice of relocation must be meaningful to be given any effect. It is insufficient to inform the other party that you are relocating without specifying where you are relocating to or when that relocation will take place. The mother provided none of this information, even when requested to do so by the father. This denied him pertinent information that he required to assess his position on the proposed move.

65 Subsection 39.3 (2) of the Act sets out what should have been provided in the notice of relocation by the mother. The court finds that this subsection applies to this case. At a minimum, the mother should have provided the father with the expected date of relocation and the address of her new residence.

66 The court's authority to not apply, or to apply with changes it specifies, the relocation provisions in the Act, is limited to subsections 39.3 (1) and (2), as set out in subsection 39.3 (3). The court is required to apply the rest of the Act's relocation provisions.

67 Notwithstanding the deficient notice of relocation, the father objected to the relocation within the 30 day time frame set out in clause 39.3 (5) (a) of the Act.

68 The father's opposition to the relocation triggered clause 39.4 (2) (a) of the Act requiring the mother to obtain authorization from the court prior to relocating to Owen Sound with the child. She did not do this.

Part Seven - Onus on this motion

69 Subsection 39.4 (6) of the Act creates an onus on the person opposing the relocation if the child spends the vast majority of their time with the other person. The onus set out in this subsection does not apply here. First, the subsection contains a pre-condition that the mother must have substantially complied with the parenting order for the presumption to apply. She did not do this. Secondly, the child only spent the vast majority of his time with the mother because she unilaterally frustrated the child's parenting time with the father. A party should not be allowed to use self-help to establish this status.

70 Subsection 39.4 (8) of the Act also permits the court to disregard the onus provisions in 39.4 (5) and (6) of the Act on a temporary relocation motion.

71 The court finds that both parties bear the onus of proving whether temporary relocation is in the child's best interests. See: Aspden v. Blinn, 2022 ONCJ 507.”

24Section 39.4(3) sets out factors that I must take into account in determining whether to authorize Clarke’s relocation with her mother. These include the factors set out in s. 24 of the CLRA, together with seven additional factors enumerated in s. 39.4(3). I am also directed, in s. 39.4(4), not to consider "whether, if the child's relocation were to be prohibited, the person who intends to relocate the child would relocate without the child or not relocate."

25While I am to consider all of the factors relating to Clarke's best interests set out in ss.24(3) and 39.4(3) of the CLRA, I am mandated by s. 24(2) of the CLRA to give "primary consideration to [her] physical, emotional and psychological safety, security and well-being."

26As Justice Monahan observed in Credland v. Cymbalisty at para. 174, while "[i]t is evident that there are a significant number of factors relevant to the determination of the best interests of a child, particularly in cases involving the relocation of the child" Justice M. Kurz had earlier noted in Phillips v. Phillips, 2021 ONSC 2027, at para.47 that "[t]he list of best interests factors is not a checklist to be tabulated with the highest score winning. Rather it calls for the court to take a holistic look at the child, her needs and the people around her."

27With these cautionary principles in mind, I turn now to a consideration of the factors relating to Clarke’s best interests set out in sections 24 and 39.4(3) of the CLRA.

28Like all children, she requires stability. Like all children of separated parents, instability has been introduced into her life by the separation of her parents. However, she has now had over eight months with her parents being apart and that state of affairs has become somewhat normalized for her. Should Clarke be relocated from Kirkland Lake to Rouyn, it stands to reason that she will experience some instability in that she will no longer be residing in the home where she has lived since her birth. Moderating that instability, however, will be the fact that she will be with her mother.

29The parties’ evidence conflicts about the nature and strength of Clarke’s relationship with the other parent. Who did what for Clarke and when they did it cannot be decided at this point. What I can discern from the evidence is that each of the parties contributed to some degree to Clarke’s care while they cohabited and that the care that each provided to her contributed to the development of a parent/child relationship of sufficient strength that, subsequent to their separation, she transitions without negative effect between their care. I can infer from this that, whatever the allocation and undertaking of parental tasks prior to separation, sufficient time was dedicated to Clarke by each of the parties that she has a reasonably strong relationship with each of them.

30The evidence is clear, though, that these parents do not agree to a shared equal-parenting time schedule. The evidence suggests that a request may have been made by the father for such a schedule before he first knew that the mother would be looking to leave Kirkland Lake with the child.

31The father does not oppose the mother living in Rouyn. His objection is Clarke going with her. According to the father, his plan would simply continue the routine and lifestyle that Clarke had been experiencing since her birth. His plan, assuming that the mother does not obtain an order allowing her and Clarke to relocate to Rouyn, is for Clarke to be with her mother every second weekend and for Clarke to reside primarily with him in his care in the family residence.

32Under my consideration of the factor which requires that I consider “each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent”, the tone of the mother’s evidence might impact her willingness to support the development and maintenance of Clarke’s relationship with her father.

33I am unable to do draw any conclusions on this conflicting evidence with respect to the existence of family violence at this point. The evidence would need to be developed at a trial if either party was inclined to do so.

34With respect to the section 39.4(3) factors, the mother submits that the reasons she is seeking to relocate with Clarke to Rouyn, Québec is, as indicated in the written submission of her Counsel, as follows:

“Clarke is better off in Rouyn because Ms. Etel has access to professional $10/day daycare. Clarke will have better access to medical services since her own uncle is a doctor at a hospital. Ms. Etel will have access to proper lodging for her and Clarke. The Quٞebec could would be able to hear Ms. Etel quickly once Clarke is in Quebec. In Rouyn, Clarke will be immersed in French to later become bilingual. How can we deny her that opportunity? How can anyone ignore the benefits that Clarke will have in Rouyn? Eventually, both parents will work and stop paternity and maturnity leave? Then what? Day care becomes essential. Day care is far more advance in Quebec at $10/day.”

35Beyond the obvious reduction in the time that Clarke would spend in the care of her father, which is not an insignificant impact, I cannot determine what other impact relocation will have on Clarke. Although Clarke obviously also has extended family in Rouyn, both the father and this Court have not been provided yet with even an address or any specifics of where the mother would be residing, and in what circumstances. I note that her reason for not disclosing her address is, in the mother’s own words, “because if he is capable of harming Clarke by withholding her from me, then I do not trust that Mr. Dion has my, or Clarke’s, well-being or safety ever in his mind.”

36As I have already noted, the parties have very different positions about the degree to which the other was involved in Clarke’s life, both prior to and following separation. This is a triable issue. The evidence also establishes that, since the date of separation, Clarke has spent much more of her time in the care of her father. However, I have found that it did not arise by agreement of the parties.

37The significance of this finding was reviewed by Justice Chappel in Batsinda v. Batsinda, 2013 ONSC 7899, [2013] O.J. No. 6120:

“25 … I rely on the principles which the Ontario Court of Appeal set out in Papp v. Papp, [1970] 1 O.R. 331 (C.A.) respecting the weight to be accorded to de facto custodial and access arrangements in the context of motions for temporary custody and access. In that case, the court recognized that the existing arrangements, and how well they are working for the child, are relevant factors in deciding such motions. It stated that as a working rule, a disturbance of the status quo at the interim stage requires more cogent evidence than may be required to disrupt the status quo after trial.

28 … In my view, for the purposes of applying the principles set out in Papp v. Papp regarding the strength of the evidence required to disrupt the status quo arrangement, the status quo that is relevant is that which existed just prior to the parties’ separation, except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation. A status quo created by one party unilaterally taking matters into their own hands, without any consent from the other party, does not fall within the principles established in Papp v. Papp.”

38With respect to whether the mother has complied with the notice requirement under section 39.3(2), it remains clear that the mother has yet to provide “the address of the new residence and contact information of the person or child.”

39With respect to “the location of the new residence and the travel expenses” from section 39.4(3)(f), as indicated in the written submissions of her Counsel;

“Mr. Dion does not want to drive to Rouyn to do half the transportation. He is the one that kicked out Ms. Etel knowing she had her family in Rouyn not Kirkland Lake. Parents share the transportation costs in Ontario.”

40Bearing in mind that the factors to be considered when assessing Clarke’s best interests in the context of her mother’s request to relocate with her are not to be considered as a mere checklist and that I am, instead, to take a holistic approach to all of the information in my making my assessment about what order to make in Clarke’s best interests. I am also cognisant of the lack of confirmation by the mother of her present immigration status. How long and under which conditions that the mother remains in Canada appear uncertain on this evidence presented.

41I am, however, familiar with the legal principles emanating from Ffrench v. Williams 2011 ONCJ 406, [2011] O.J. No. 3910, where Justice Sheer outlined in that case the following;

“122 In Canabate v. Ayala, 2010 ONCJ 54, 193 A.C.W.S. (3d) 515, [2010] O.J. No. 4156, 2010 CarswellOnt 7374 (Ont. C.J.), I heard a case with many similarities to the case before me. The mother was subject to deportation to Argentina and both parents sought custody and, in the alternative, specified access and non-removal orders. The Minister participated in Canabate v. Ayala and opposed the making of specified access and non-removal orders. In my decision, I reviewed the law that has developed in this area in paragraphs [51]-[53]. I rely again on this law. The law can be summarized as follows:

(a) There must be a genuine lis for the court to exercise its jurisdiction to make a custody or access order.

(b) There must be a genuine lis for the court to exercise its jurisdiction to make a non-removal order.

(c) The family law process should not be used for the sole purpose of frustrating the deportation of persons who have been ordered removed from Canada pursuant to the relevant immigration legislation.

(d) Non-removal orders are not to be made lightly.

(e) Each case must be carefully examined on its facts.

123 In Canabate v. Ayala, I found that there was a genuine lis with respect to both the custody-and-access and non-removal issues. I found it to be in the children's best interests to order custody to the mother, specified access to the father and a non-removal order, which the mother could apply to remove on 48 hours notice, if her deportation was about to be executed. I also made the following statements in paragraphs [58]-[60] that apply equally to this case:

58The Court of Appeal decision in J.H. v. F.A., 2009 ONCA 17, [2009] O.J. No. 88, supra, makes it clear that it is not this court's function to deal with the applicant's immigration issues. This court's sole focus is on Joshua's best interests. The issues raised by the Minister are factors to be considered by immigration officials and, if necessary, the Federal Court of Canada.

59The orders that will follow are not made with the intent of frustrating the deportation process, but rather to comply with this court's mandate under the Children's Law Reform Act to determine what orders are in Joshua's best interests in the context of a legitimately contested custody and access dispute. It would be an abrogation of this court's responsibility to do otherwise.

60Whether or not the applicant will be deported will be determined according to immigration legislation. The appropriate decision makers will have the benefit of this decision, which reflects findings regarding Joshua's best interests in the family law context after a contested hearing, in which the Minister fully participated. The Minister may decide to defer the removal of the applicant pending the determination of her humanitarian and compassionate application. It may or may not be determined that a family court decision, where there is a genuine lis with respect to issues of access and non-removal of a child, will invoke the operation of paragraph 50(a) of the Immigration and Refugee Protection Act. The deportation may still proceed. These issues are for others to decide. This court is not interfering with this process.”

42With respect to the non-removal order, Justice Sheer concluded as follows;

“129 The Minister argues that there is not a genuine lis about non-removal.

130 I agree with the Minister that no genuine lis exists with respect to the mother's claim for a non-removal order against the father. There was no evidence that the father would ever remove the children from Ontario.

131 However, I do find that there is a lis with respect to the possibility of the mother's removing the children from Ontario, separate from her request to take the children to Jamaica if she is deported.

132 I find that there is a risk that the mother would remove the children from Ontario if she feels that she is at risk of being deported without them. This risk warrants the making of a non-removal order in the best interests of children. The mother has already demonstrated that she will act above the law if she feels that it is in her interests to do so and that she will do whatever she feels is necessary to survive in Canada with her children. She is very resourceful. She remained illegally in Canada for thirteen years, was able to work under the table and support herself. She has worked the system to maximize her income.

134 I have seriously considered the pending deportation order in making my decision -- see paragraph [24] of Wozniak v. Brunton and Minister of Citizenship and Immigration (No. 2), 1 R.F.L. (6th) 429, [2004] O.J. No. 939, [2004] O.T.C. 240, 2004 CarswellOnt 943 (Ont. Fam. Ct.) -- but this cannot be the court's dominant consideration when a child's best interests are at stake. It is in the children's best interests to have a relationship with both parents. The children's relationship with the father and extended paternal family could be seriously damaged if the mother removed the children from Ontario. It would be unconscionable and a dereliction of my responsibility to these children if the mother removed the children from Ontario and I had not made a nonremoval

order only because there is the possibility that it would interfere with the mother's deportation. Whether this order has the effect of interfering with her deportation will be up to others to decide. My focus has to be on the best interests of these children.

135 I wish to emphasize that I am not finding that the mother is likely to remove the children from Ontario, otherwise I would not be granting her equal time with the children. I only find that it is a risk that merits the granting of a non-removal order in the best interests of the children.”

43Upon my review of the evidence presented by these parents here, I have been satisfied that there is a risk that merits the granting of a non-removal order in the best interests of Clarke. Therefore, until this Court orders otherwise, Clarke shall not be permitted to travel outside of Ontario or Québec.

44In M.H.S. v. M.R. [2021] O.J. No. 7212, in making an order that the father shall deposit with the Court all of his and his children’s passports, that Court outlined the following;

“48 Ultimately, the court must determine if a joint decision-making responsibility order, or an order allocating any decision-making responsibility between the parties, is in the child's best interests. The court also has the option, if it is in the child's best interests, to leave some or all aspects of decision-making responsibility silent. See: M. v. F., 2015 ONCA 277.

49 Subsection 24 (6) of the Act states that in allocating parenting time, the court 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.

50 In Knapp v. Knapp, 2021 ONCA 305, the court set out that there is no presumption that maximum parenting time equates with equal-parenting time. Every family, it wrote, is different and the court must focus on the child's best interests in determining the appropriate parenting time order.

51 Subsection 24 (6) of the Act does not override the best interests test contained in section 24. Rather, it means that a child should have as much time as possible with each parent consistent with the child's best interests. The principle is subject to what is in the best interests of the children, given their ages, temperaments and stages of development. See: Ammar v. Smith, 2021 ONSC 3204.

54 Section 28 of the Act sets out the different types of parenting orders that a court can make. The court's powers under the Act are broad and purposive. It can allocate parenting time and decision-making authority between the parents, impose a schedule, provide for the means of communication to be used by the parents, and make any other orders that it considers appropriate to secure the children's best interests. See: S.S. v. R.S., 2021 ONSC 2137.”

45Section 28(1)(c)(v) of the CLRA permits the court to require a party to deposit with the Court their passport or the child’s passport in the child’s best interests. This was also ordered upon there being a risk that a parent would remove a child from the jurisdiction of the Court in Singh v. Singh [2006] O.J. No. 2350 and Rubatto v. Sandoval 2017 ONCJ 921, [2017] O.J. No. 6994.

46I am also mindful of what this Court expresses as indicated in Milne v. Milne [2023] O.J. No. 154 regarding police enforcement since the Applicant father is requesting such an order here;

“56 Brian has also requested that police enforcement be ordered in this case. The statutory authority for police enforcement is set out in section 36 of the Children's Law Reform Act (the "CLRA"), which provides:

(1) Where a court is satisfied upon application by a person in whose favour a parenting order or contact order has been made with respect to a child that there are reasonable and probably grounds for believing that any person is unlawfully withholding the child from the applicant, the court by order may authorize the applicant or someone on his or her behalf to apprehend the child for the purpose of giving effect to the rights of the applicant to decision-making responsibility, parenting time or contact, as the case may be.

(2) Where a court is satisfied upon application that there are reasonable and probably grounds for believing,

a. That any person is unlawfully withholding a child from a person entitled to decision-making responsibility, parenting time or contact with respect to the child;

b. That a person who is prohibited by court order or separation agreement from removing a child from Ontario proposes to remove the child or have the child removed from Ontario; or

c. That a person who is entitled to parenting time or contact with respect to a child proposes to remove the child or to have the child removed from Ontario and that the child is not likely to return,

the court by order may direct a police force, having jurisdiction in any area where it appears to the court that the child may be, to locate, apprehend and deliver the child to the person named in the order.

57 The court has noted that police enforcement may be needed "for a one time retrieval of a child from a dangerous or inappropriate situation, where time is of the essence": Patterson v. Powell, 2014 ONSC 1419, at para. 23. The court in Patterson further stated at para. 24:

But when ongoing police enforcement clauses are requested as a long-term compliance strategy in temporary or final orders, courts should insist that parties take available time to fully canvass less destructive and more creative (perhaps even therapeutic) alternatives. Before considering a long-term or permanent police enforcement clause (presuming the latter is even available as an option) courts should require evidence of the potential positive and negative impact of police intervention on each member of the family unit -- most particularly, the children themselves:

58 This is not a case where Jessie prevented Brian from picking up the children. As noted above, Jessie made multiple attempts to arrange for Brian to pick up the children without her, meet at public places and have third parties facilitate the exchanges. Police enforcement may be needed for a one-time retrieval of a child from a dangerous situation. However, that is not the case here. Ongoing police enforcement is not appropriate in this case.”

47I am very concerned for the potential negative impact on Clarke if police intervention was required here. Instead, I insist that these parents, in Clarke’s best interests, canvass less destructive and more creative therapeutic alternatives with her. Ongoing police enforcement is not yet appropriate here.

48The mother’s relocation with Clarke needs to be considered within the context of her historical frustration of the father’s relationship with the child. The evidence indicates that this is part of a continuing pattern of conduct. It is conduct that is not in the child’s best interests and cannot be condoned. The Court finds that the mother is not meeting her responsibility as a parent to facilitate the father’s relationship with Clarke.

49The Court is very concerned that if it permits the relocation prior to a trial of the issue, the likely outcome will be that the child’s relationship with the father will be inappropriately diminished, if not totally frustrated by the mother. This is not in Clarke’s best interests. The trial judge will be in the best position to ascertain, after all the evidence is tested, whether it is in the child’s best interests to relocate to Rouyn. The mother may be able to persuade the trial judge that the relocation will not be a barrier that she will use to marginalize the father from Clarke’s life.

50The Court does not discount the father’s allegation that the mother has relocated to escape the jurisdiction of this Court which has provided oversight and made orders to ensure that the child has a relationship with her father. This theory can be explored further at trial. The Court finds that the mother has not provided a compelling reason for Clarke’s relocation to Rouyn on a temporary basis. The Court finds that there is not a strong likelihood that the mother will succeed in her relocation request at trial. Unless she changes her attitude towards the father’s relationship with Clarke, she will likely face considerable hurdles at trial.

51The Court finds that there are genuine issues requiring a trial. The Court finds that it is in Clarke’s best interests to primarily reside in Kirkland Lake pending this determination.

52With respect to parenting time and decision-making responsibility, I find that neither party’s proposal is child-focused enough or developmentally appropriate, particularly given the level of conflict between the parties. I note that Ontario does not have a presumption of 50/50 parenting. The parenting time schedule must follow Clarke’s best interests and account for her age and stage of development, routines and other relevant factors.

53An equal-parenting time plan requires a high level of communication and coordination between the parties, particularly when the child is very young. The parents will have to coordinate schooling, medical appointments and extra-curricular activities for the child. This should not be ordered where the evidence indicates that implementing such a plan, given the dynamics between the parties, would be an invitation to conflict and chaos, and would be destabilizing for Clarke.

54The Court has taken all of these factors into consideration, where relevant, in determining what parenting orders are in Clarke’s best interests. I find that it is in Clarke’s best interests to continue to have one primary home base which, in this case, is the father’s residence into which Clarke was born.

55Given the evidence that is before me on these motions, I do not believe that an equal-parenting time schedule is best for Clarke. This type of schedule is best suited to parents who have cooperative relationships. The required transitions between the homes (and the two sets of routines, parenting styles, etc.) can be very stressful for young children, particularly when they do not communicate productively and seem unable to put their child’s needs before the conflict.

56The Court finds that it is in the child’s best interests on a temporary basis that she have her primary residence with the father and that he be granted sole decision-making responsibility for Clarke. In consideration of the animosity between the parties, transitioning to a schedule that provides for pick ups and drops off at the Kirkland Lake Police Detachment is one way to protect Clarke from further conflict.

57Upon reviewing the Motion records and from the submissions by Counsel, I am satisfied that there is evidence to support the following Temporary Orders:

1. An Order that Applicant father shall have primary residence of the child, Clarke Dion, born 10 April 2025.

2. An Order that the Respondent mother shall have parenting time with the child, Clarke Dion, born 10 April 2025 as follows:

(a) Friday at 4:00 p.m. to Sunday at 4:00 p.m. every other weekend commencing immediately;

(b) Additional parenting time as agreed in writing between the parents.

3. The exchange of the child, Clarke Dion, born 10 April 2025, shall occur at the Ontario Provincial Police Detachment, located at 26 Duncan Avenue North, Kirkland Lake, Ontario, P2N 3H7, and the parents shall equally share the reasonable transportation costs for the exchanges.

4. An Order that the Applicant father, Denis Dion, shall have sole decision-making responsibility with respect to the child Clarke Dion, born 10 April 2025 after meaningful consultation with the Respondent mother, however the father shall have final say after considering the mother’s input including all decisions about the child's:

a. health, including major non-emergency health care, as well as emergency health care;

b. education;

c. culture, language, religion and spirituality; and

d. significant extra-curricular activities.

5. An Order that the child, Clarke Dion, born 10 April 2025, shall not be permitted to travel outside of Ontario or Quebec until this Court orders otherwise.

6. An Order that the parents shall deposit their passport with the Superior Court of Justice Family Registrar in Haileybury, ON, and upon this being done by the Respondent mother shall be a precondition for her parenting time to commence as per Section 2 of this Order. Said passports shall not be returned to the parents until this Court orders otherwise. Neither parent is to make a passport application for the child, Clarke Dion, without a prior Court order.

7. If the parties cannot agree on the issue of costs for these two Motions, Court will entertain written submissions dealing with all aspects of the award of costs. Any party claiming costs shall serve and file written submissions and a bill of costs no later than 20 days from the date of this Order. Any responding submissions shall be served and filed within 15 days thereafter.

D. J. Nadeau J.

Released: April 9, 2026

CITATION:, Dion v. Etel, 2026 ONSC 2048