Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: W.S, Applicant
AND:
P.A., Respondent
BEFORE: C. Leach, J.
COUNSEL: Ryan Aalto, Counsel, for the Applicant
Michael Stangarone, Counsel, for the Respondent
HEARD: December 29, 2025
ENDORSEMENT
1This is an urgent motion brought by the Respondent mother, who seeks an order prohibiting the Applicant father from removing the parties’ children from Toronto without the Respondent’s written consent or court order, an order stipulating that the children shall continue to attend Roselands Public School in Toronto, and an order for a Voice of the Child Report. The Applicant seeks an order either dismissing the Respondent’s motion or adjourning it to a date in late January, as counsel with primary carriage of the file, Gary Gottlieb, is out of the country until January 12.
2The Applicant’s request for an adjournment was dismissed. The outcome of this motion will determine whether the children will continue to attend school in Toronto or will instead begin a new school in Markham. School resumes on Monday January 5, following the winter break. The children are now 9 and 12 years old. They need a decision to be made immediately about which school they will attend on Monday. Mr. Gottlieb’s associate Mr. Aalto was able to prepare a comprehensive affidavit and factum in response to the motion, which have been reviewed by the court, thereby addressing concerns about prejudice to the Applicant.
Background
3The parties were married on October 9, 2011, and separated on July 19, 2016. They have two children together: L (now twelve years old) and A (now nine years old).
4Following their separation, the parties were unable to reach agreement on parenting arrangements for the children. Between May 10 and July 26, 2021, a 39 day trial focused solely on parenting issues was heard by the Honourable Justice McGee in Brampton. At the time of the trial, L and A were 7 and 5 years old, living primarily with their mother, and spending limited time with their father. Justice McGee’s Reasons for Decision were released on September 9, 2021: S. v. A., 2021 ONSC 5976, 61 R.F.L. (8th) 45. She found that this was “an extreme case of resist and refusal dynamics with a complicated caregiver profile”: at para. 306. She determined that “[d]espite the very best of therapeutic and court interventions, L and A remain unable to spend as much time with each parent as is consistent with their best interests while they are in their mother’s primary care”: at para. 306. Finally, she found that the children had been emotionally harmed as a result.
5After considering the options available, Justice McGee made an order transferring primary care of the boys to their father and granting him responsibility for decision making. To affect this transfer, the Order provided for a 90 day period of non-contact to allow the boys time to become established in their father’s care and to settle into a therapeutic relationship with a counsellor. Alternatively, the mother was given the option of retaining a skilled therapist who could supervise up to 10 hours of weekly parenting time during this 90-day period. After the initial 90 days of no contact or supervised parenting, the mother’s parenting time was to progress to an alternate weekend, one overnight per week schedule. After a further 90 days, the parenting schedule was to step up to an alternating week schedule with one overnight per week with the other parent.
6The final order provides the father with sole decision-making responsibility for the children. Paragraph 6 of the final order sets out a process for the father to solicit the mother’s input on specified decisions before making a decision. It states:
At least three days prior to enrolling or registering a child in school, an activity or engaging a service provider including a physician or dentist, the applicant father shall propose the engagement to the respondent mother in writing and seek her views on the proposal and, if available, any other options. Before making the proposal, he will consider the children’s views and preferences if they can be ascertained. The mother shall have three days to respond. The parties are to work towards an agreement, but if they cannot agree, the applicant father shall make the final decision no sooner than the seventh day after his proposal.
7Paragraph 14 of Justice McGee’s order addresses changes to the children’s primary residence. It states:
The children’s primary residence with their father shall remain in the Greater Toronto Area and it may not be moved absent both parents’ written consent or court Order, pursuant to section 16.2 of the Divorce Act.
8At paragraph 330 of her reasons for decision, Justice McGee notes:
The transition also assumes that the mother can find suitable housing. For a shared parenting schedule to work, the parents will need to live within a reasonable distance of one another and the children’s school. The parents agreed in their May 10, 2021, Minutes of Settlement that the Brampton home is to be sold, and the Minutes provide for the distribution of sale proceeds of this proceeding will have to be paid. The mother’s profession may yet take her elsewhere, or ultimately, she may remain unwilling or unable to support the boys’ relationship with their father. If any of these issues prove insurmountable, it will constitute a material change in circumstances that will require the Court to reconsider a progression to shared parenting.
9To protect the children’s privacy. Justice McGee directed that her reasons and any published copies of the final Orders were to initialize the parties’ and the children’s and shall not state their birthdates. To maintain that privacy, these reasons will do the same. Further, any published copies of this Order are to initialize the parties’ and the children’s names and shall not state their birthdates.
10At the time of Justice McGee’s decision, L was seven and A was five. The boys are now 12 and nine years old. It appears that the step-up parenting schedule contemplated by Justice McGee was successfully implemented, which is a credit to both parties. Accordingly, the children now spend equal time with their parents on an alternating weekly schedule, subject to a mid-week overnight visit with the non-residential parent from Thursday after school to Friday before school. Since September 2021, they have attended Roselands Public School, which is located near the Toronto home owned by the father and his mother. Most transfers in parenting time take place at the school. The children reside with the father and their grandmother at this home during the father’s parenting time with them. Until very recently, during the mother’s parenting time, the children resided with her in Brampton and commuted back and forth to their school. On October 31, 2025, the mother moved to a rental apartment close to Roselands Public School.
11The father has remarried, is expecting another child in May, and has purchased a home in Markham. The purchase closed on October 31, 2025. After closing, the father split his time between the Markham home and the Toronto home he co-owns with his mother, as the children continued to live at the Toronto home and attend Roselands Public School. At the start of the Christmas Break, the children moved with the father to the Markham house. He plans for them to start at a new school in Markham on January 5, 2026.
12The mother seeks a temporary order prohibiting the removal of the children from Toronto and requiring their continued attendance at Roselands, pending the final determination of the Motion to Change that she filed in December 2025.
Issue One: Is the father’s move a “relocation” or a “change in residence”?
13The threshold issue to be determined is whether the father’s move constitutes a “relocation” or merely a “change in residence.” If the former, then the notification requirements and scheme set out in sections 16.9 through 16.96 of the Divorce Act are triggered: R.S.C., 1985, c. 3 (2nd Supp.). If the latter, then the father is only obliged to comply with the notice requirements in s. 16.8 of the Divorce Act, which he has done.
14Under the Divorce Act, a “relocation” is defined as a change in the place of residence of a child that is likely to have a significant impact on the child’s relationship with a person who has parenting time or decision-making responsibility in respect of the child. The Divorce Act does not define “change in residence;” however, case law has clarified that whether a move is a “change in residence” or a “relocation” turns on whether the move would have a significant impact on the child’s relationship with the other parent. This is a child-focused, not a parent-focused, analysis. The use of the qualification “significant” acknowledges that there will be some impact from a move but limits the court’s involvement to those moves that will have a significant impact on the child’s relationship with the non-moving parent: D.T.D. v. T.A.J., 2022 SKCA 34, 71 R.F.L. (8th), at para. 44; Berry v. Berry, 2013 BCSC 1095, 34 R.F.L. (7th) 141, at para. 32.
15In D.T.D. v. T.A.J., the Saskatchewan Court of Appeal provided guidance on how to assess the root question of whether a proposed move will have a significant impact on the child’s relationship with the non-moving parent:
[47] …a court must take into account more than just the commuting distances between residences. A contextual analysis is called for that would include considerations such as the following:
(a) whether and how a move would change the amount and frequency of parenting time for the non-moving parent;
(b) whether and how the move would affect the degree of involvement of the non-moving parent in the child’s activities, schooling and so forth;
(c) whether the moving parent is willing to bear the burden of any increase in the commuting time;
(d) how the distance of commuting time between the two residences would affect the quality of the child’s relationship with the non-moving parent; and
(e) whether the non-moving parent has the ability – financial or otherwise – to commute to and from the child’s proposed place of residence or an intermediate location.
[48] Of course, the above is not an exhaustive list and the factors are not prioritized in any way. The facts of each case will vary. Much will depend on the parenting order in place, the age of the children, the scope of parental involvement (e.g., shared parenting), etc.
16Ontario courts have also considered this issue and applied similar criteria. In Apa v. Vagadia, 2022 ONSC 2095, at para. 85, the court was guided by the following considerations:
a. The question of whether a particular move is a “relocation” is a question to be determined on the facts of each case.
b. The distance that a party is moving with the children is a relevant factor to consider in whether the move is a relocation as is the change in the length of commute for the parents.
c. The amount of parenting time that is lost by a moving party as a result of the move must be considered both in absolute terms and as a proportion of that parent’s total parenting time.
d. The age of the children is a factor to be considered. Older children are more easily able to maintain a long-distance relationship than young children.
e. Whether the parenting time that is envisioned by the existing arrangements is actually being exercised must also be considered.
17The mother’s position is that the proposed move to Markham would substantially impact her relationship with the children. Currently, she lives within walking distance of the children’s school and the father’s home. If the children move to Markham, she will be required to drive them to and from school, a commute that she estimates will take as much as 90 minutes one way from her home in Toronto. She will no longer be available to them before and after school during her parenting time and will be unable to continue her involvement in their school and extra curricular activities. Additionally, the mother suffers from fibromyalgia and her symptoms will be exacerbated by a long commute. Finally, the added commuting time would interfere with her core working hours and thus make it impossible to maintain her employment, particularly as she is required at times to be in the office at her workplace in Brampton. In summary, the mother argues that the financial and logistical burden created by the move would significantly diminish the children’s quality of life and their relationship with her.
18The difficulty with the mother’s argument is that she is comparing a possible scenario under a move to Markham with arrangements for her parenting time that have been in place only a few weeks. The mother took possession of her new Toronto residence on October 31, 2025, approximately 4 weeks after she learned of the father’s plans to move to Markham. (This timeline will be discussed further below.) Up until that date, she lived in Brampton. During her parenting time, she transported the children back and forth from Brampton to school. As such, in assessing whether the proposed move is a relocation, the appropriate comparator is the structure of the mother’s parenting time prior to October 31, 2025.
19However, I find that even when compared to the pre-October 31, 2025, arrangements, the move to Markham would substantially impact the children’s relationship with their mother and thus would constitute a relocation. In making this finding, I have considered the following factors:
a. Even if the mother had not relocated to Toronto, her commuting distance and travel time from Brampton to Markham would be significantly longer than the distance and travel time from Brampton to the children’s Toronto school. I base this conclusion on the Waze app route planner printouts supplied by the father, which indicate that the distance between the centre of Brampton and the children’s proposed Markham school (36.1 miles) is more than twice the distance between Brampton and the children’s Toronto school (17.3 miles). The father’s evidence is that the travel time for both scenarios would be roughly equivalent, but this is premised on the mother using the 407-toll highway. The mother states that she is unable to afford daily use of the 407. I have insufficient information to assess whether this is the case, but I accept that this would be a relatively substantial daily expense. I also accept that it would take substantially longer than 45 minutes during rush hour to travel between Brampton and Markham without using the 407, although perhaps not as long as the 120 minutes that the mother estimates in her materials. [Although the father urges the court not to consider the mother’s current living arrangements as a valid status quo, he also argues that her travel time from her Toronto home to the Markham school would be the same as her previous travel time from her Brampton home to the Toronto school. The mother disputes this. Again, the father’s time estimate is premised on the mother using the 407. I accept that the commute will be longer.]
b. While I acknowledge that the commute to Markham would be burdensome for the mother, especially in light of her employment in Brampton, my primary concern is the impact of a longer commute for the children. The mother’s evidence is that the children were often fatigued and carsick during commutes from Brampton to Toronto, and that they experienced stress and anxiety about being involved in an accident or, when she was late for pick up because of traffic, worried that something had happened to her. The children were sometimes late for school or missed school. When one child was sick both had to stay home, or when one had to be picked up from school because of an illness, the other had to miss school because the mother could not drive back and forth. I accept that these issues will be exacerbated by an even longer commute.
c. I also accept that the increased distance and commuting time will negatively impact the quality of the children’s relationship with their mother. The mother’s evidence is that her relationship with the children was strained by the stress of commuting between Toronto and Brampton. She expresses concern that requiring the children to commute such a long distance during her parenting time will eventually lead to the children no longer wanting to spend time with her, as it would be exhausting and incompatible with their routines and wellbeing. In my view, this is a reasonable concern particularly given the fact that the children are growing older, and their peers and social activities will soon assume more importance in their lives.
d. When compared to the pre-October 31 arrangements, the proposed move would not significantly affect the degree of the mother’s involvement in the children’s activities and schooling. Before she moved to Toronto, the mother was not able to participate meaningfully in their education, volunteer at school activities, or facilitate the children’s social relationships and extracurricular activities. This would not be changed by the move to Brampton. The one exception is the mother’s involvement in the children’s flag football leagues in Mississauga, which she began shortly prior to her move to Toronto. The mother states that her involvement as an assistant coach strengthened her relationship with the children and losing this bonding opportunity as a result of the move would be detrimental to that relationship. Given the recency of the mother’s involvement in this activity, I do not weigh this factor highly.
e. It is reasonable to expect that the move could potentially change the amount and frequency of the mother’s parenting time with the children. As noted above, as the children grow older, they may begin to resist a schedule that demands such lengthy commutes. Further, the mother will not have the same supports available to her in Markham as she does in Toronto. The mother’s evidence is her brother, and her close friend live near the children’s Toronto school and that she and the children were able to access their residences for respite space between commitments as required. She also relied on her brother for assistance in transporting the children to and from school. These supports allowed the equal parenting schedule to function. Without similar supports in Markham, the mother is concerned that she will not be able to sustain the shared parenting arrangement. I find this to be a reasonable concern.
f. Finally, as an overarching consideration, the shared parenting schedule has been in place since March 2022. After hearing 39 days of evidence, Justice McGee found that this schedule would be in the children’s best interests. Neither parent disputes that this schedule continues to be in the children’s best interests, nor have either raised significant concerns about how it has functioned over the past 4 years. A move that could potentially disrupt this arrangement, as set out above, must be viewed as a relocation rather than a change in residence.
20The father’s position is that the mother’s move to Toronto was a contrived attempt to try and prevent his move to Markham. The timing of communications between the parties in regard to the move does raise some red flags:
a. On September 25, 2025, the father informed the mother through Our Family Wizard (OFW) that he and the children would be moving to a new home in Markham in November but that the children would continue to attend Roselands until Christmas. He advised that, after Christmas, they were planning for the children’s attendance at a Markham elementary school near the new home.
b. On September 26, 2025, the mother re-signed a lease agreement for a rental property in Toronto, due to an error in the original lease. The mother’s evidence is that she had not yet seen the father’s OFW message about the move.
c. The mother’s evidence is that she logged into OFW on September 30, 2025, which is when she read the father’s message about the move for the first time. She responded to advise him that she did not consent to the move or to the change in the children’s school. She also advised him at that time that she would be moving into the Roselands neighborhood effective November 1, 2025. The father responded the same day to state that he was acting within the parameters of Justice McGee’s court order and was providing her three months’ notice, as a courtesy, to assist her in any plans she chose to make.
d. There was no further communication between the parties about this move until October 25, 2025, when the father served the mother with a Notice of Relocation using the prescribed form under the Divorce Act. The Notice states that the father proposes no changes to the existing parenting schedule as a result of the move.
e. On November 13, 2025, the father sent the mother an OFW message to advise her of the Markham school he was considering for the children and to obtain her opinion.
f. The mother responded on November 16, 2025, confirming that she did not consent to a proposed relocation.
g. On November 19, 2025, the mother served with the father with her Objection to Relocation.
h. On November 24, 2025, the father’s counsel wrote to the mother to advise of his position that the move was a “change of residence” rather than a relocation. As a result, the mother initiated a Motion to Change.
21The father maintains that the mother moved at the 11th hour in an attempt to manufacture a false status quo of her living near the children’s school to try to thwart his move. The mother, in response, states that she had been looking for rental accommodation in Toronto for several months dating back to May 2024. It is not possible to assess the mother’s true intentions based on affidavit evidence. However, it is questionable why the mother would charge ahead with her plans to move to Toronto once she became aware of the father’s intentions or why she did not attempt to engage him in discussions (potentially supported by counsel) about possible options to resolve the issue.
22I note, however, that the father himself deposed that he and the children had been talking about the move since May 2025. If the father had also spoken with the mother about his plans at the same time, this may have avoided a situation where the mother planned for her move to Toronto apparently in ignorance of the father’s plans.
23No doubt, each parent has their own reasons for not being forthcoming with the other about their plans to move at an earlier stage. Unfortunately, this approach is not child-focused, nor does it reflect the positive co-parenting relationship that their children deserve and require. The lack of transparency on both sides has led to a situation where the children do not know what school they will be attending in a few days’ time. This is manifestly unfair.
24In order to account for this issue, I have used the pre-October 31 parenting arrangements as the comparator for the purposes of assessing whether the proposed move is a relocation. As set out above, I have determined that it is. Accordingly, the next step is to determine whether the father should nonetheless be permitted to move with the children and/or change their school placement pending the final disposition of the mother’s Motion to Change.
Issue Two: Should the father be permitted to relocate with the children to Markham and change their school on a temporary basis?
25As the parties were married, the relocation scheme in the Divorce Act applies.
26Section 16.93 of the Divorce Act sets out which parent has the burden of proof in a relocation case. Given that the children spend substantially equal time in the care of both parents, the father has the burden of proving that the relocation would be in the best interests of the children: s. 16.93(1). Under s. 16.94 of the Divorce Act, the court may decline to impose the burden of proof if the order being sought is an interim one, and I decline to do so in this case. I agree with the reasoning of Justice Kraft in Louafi v. Schneider, 2025 ONSC 3687 wherein she opined that when a parent seeks to relocate with the children on an interim basis, that parent must instead demonstrate why he/she believes a relocation should be permitted before a trial. This is because the court is being asked to make such a determination without the benefit of a complete record, viva voce evidence, or the opportunity for the evidence to be tested.
27Prior to the amendments to the Divorce Act in 2021, courts routinely relied upon the decision in Plumley v. Plumley, 1999 13990(Ont. S.C.J.) whenever a temporary motion for relocation was brought. In Plumley, at para. 7, the court identified three important factors to consider in deciding whether to permit relocation on an interim basis:
a. A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.
b. There can be compelling circumstances that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial, or the best interests of the children might dictate that they commence school at a new location.
c. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at a trial.
28The Divisional Court in Diallo v. Bah, 2025 ONSC 2106, 18 R.F.L. (9th) 206 has recently confirmed that the Plumley factors have been overtaken by the amendments to the Divorce Act, and that Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517, has made it clear that the only question the court is to answer on a relocation motion is whether the relocation is in the best interests of the child. Accordingly, I have applied only the best interests factors set out in ss. 16(3) and 16.92 of the Divorce Act in reaching a decision on whether the temporary relocation should be permitted before trial.
29For the reasons set out below, I have concluded that it is in the children’s best interests that they continue to attend Roseland Public School until a full hearing of the motion to change takes place or, preferably, their parents are able to reach an agreement about their living arrangements.
30Applying the best interests factors set out in s. 16(3) of the Divorce Act, I make the following findings:
The child’s needs, given the child’s age and stage of development, such as the child’s need for stability
a. As noted above, at nine and 12 years old, A. and L. are at an age where their peers and social activities are becoming more important to them. Like all children, they undoubtedly benefit from stability and consistency. In my view, it is in their best interests to continue at their current school in Toronto until a trial of the motion to change is held. This temporary arrangement will keep them with their friends and community. Further, it is likely that this arrangement will result in less commuting time for them. The father has an option available to him in Toronto that the mother does not have in Markham; namely, the ability to stay with the children at his mother’s home near the children’s school during the week.
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
b. From the evidence, the children have positive relationships with both parents. The mother also acknowledges that the children appreciate the care that their paternal grandmother provides for them. Neither parent has raised current concerns about the quality of these relationships.
The father has expressed concern that the mother has been manipulating the children and giving them derogatory feedback about the move, and points to the history of manipulative and damaging behaviour that led to Justice McGee’s decision to transfer the children to his care. There is no question that this history will need to be considered by the court when the mother’s motion to change is tried, along with current information about how the children have managed under the equal shared parenting schedule. However, this is not something that can properly be assessed at this interim stage.
In my view, maintaining the children’s school placement for now is the best way to preserve their good relationships with both parents while more permanent arrangements are developed.
Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse
c. Both parents appear to support the children’s relationships with the other parent. Although both suspect the other of taking steps to undermine these relationships, neither is seeking to restrict the other’s contact with the children.
The history of care of the child
d. The children have resided with both parents on an equal parenting time schedule since March 2022. Until very recently, they resided in Brampton during their mother’s parenting time and commuted to their Toronto school. The mother reports that her move to Toronto has been highly beneficial to the children, as she now resides in the same community as their father, can be more actively involved in their school and other activities, and is more available to them during her parenting time. She also points to the absence of a long commute to and from school. As noted above, this is a very new development and does not reflect a long-standing status quo.
It is undoubtedly beneficial for the children that their parents reside in the same community, as this greatly supports the functioning of the equal shared parenting regime. The fundamental question is whether that community must necessarily be their current community in Toronto or whether it could be the father’s new community in Markham or indeed another location. This question cannot be determined with certainty on the basis of a conflicted written record. In the meantime, preserving the child’s current school placement is, in my view, the best way to support the current equal parenting schedule until a more permanent arrangement is developed.
The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained
e. There is no independent evidence of the children’s views and preferences. The mother’s evidence is that the children do not wish to move to Markham; the father’s evidence is that they have adjusted well to the new house and that any negative views they hold are the result of their mother’s manipulation. I cannot determine this issue on the basis of this conflicting evidence. The children have a right to have their views heard and considered before their school placement is changed, given the potential impact on their parenting arrangements.
The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage
f. This is not a determinative factor in this case.
Any plans for the child’s care
g. The mother proposes that the children continue to live at the Toronto home during their father’s parenting time and that they continue to attend Roselands Public School. She argues that this will offer the children continuity and stability and maintain their ties to the community, school, and friends while this matter is being determined. Further, as set out above, she argues that permitting the move and change of school will substantially and negatively impact the children’s relationship with her and their quality of life. Ultimately, the mother is seeking an order granting her primary residence of the children in Toronto.
The father proposes that the children reside with him and his new wife at the Markham home during the father’s parenting time and attend a nearby Markham school starting January 5, 2026. His evidence is that the Toronto home (a three-bedroom bungalow) is not large enough for his growing family, and that his new home has ample room for everyone – including separate bedrooms for the children, separate washrooms, areas for study and recreation, a swimming pool, and access to parks and facilities in the community. He also deposes that the paternal grandmother now has difficulty supervising the children for more than a few hours due to her age and recovery from cancer surgeries.
I am satisfied that maintaining the children’s school placement is the best way to support the equal shared parenting arrangement until a final determination can be made of the mother’s motion to change. In my view, it is not necessary to also prevent the father from moving the children’s home to Markham during his parenting time. I recognize that the children’s continued attendance at Roselands will impose hardship on the father, as he will likely be required to continue to share his time between the Markham home and the Toronto home unless he opts instead to drive the children to and from Markham every day.
To reduce travel for the children, the parties may wish to consider agreeing to shift the parenting schedule to a week about schedule uninterrupted by a mid-week overnight visit. I note Justice McGee’s view in her reasons that a week was too long for a five and seven year old to be without the other parent during the school year. The children are older now and this may be less of a concern.
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.
h. Neither party has raised current concerns about the other’s ability to meet the needs of the children.
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
i. Based on the record before me, I have concerns about the ability and willingness of both parents to communicate and cooperate. There appears to be virtually no communication between the two of them about critical matters affecting the children, including the parents’ respective plans to move, the father’s re-marriage, and the upcoming birth of the children’s new sibling. However, this situation has likely been ongoing for some time and thus I do not consider this factor to be determinative of the interim arrangements for the children. It will be for a trial judge to determine whether the patterns evident in these motion materials reflect the parties’ general communication/cooperation around the children’s needs and need to be considered when developing parenting arrangements going forward.
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.
j. The mother previously alleged that the father was violent and abusive during and after the marriage. These issues were fully explored at the 2021 trial and addressed in Justice McGee’s reasons for decision. There is no evidence on the record before me about family violence since that time.
31Using the additional best interests factors set out in 16.92 of the Divorce Act and applying them to the facts of this case, I make the following findings:
Reasons for the relocation
a. The father states that the reason for the move is because the Toronto home that he co-owns with his mother is not large enough for his growing family. As noted, he has remarried and is expecting a new baby in May. He has purchased a new home in Markham that he says will better meet the needs of his family. His evidence is that the children will be living in a much larger house in Markham (with their own individual bedrooms, a play/study area, and a private pool), in a much better neighborhood, and will be able to attend significantly better schools. The father further states that changing schools after Christmas is a logical breakpoint in the year, which will allow the children to continue their studies at a better school, acclimate to their new environment, and make new friends for the remainder of the school year going into the summer. In his view, delaying the move will cause unnecessary churn in the children’s lives and only cause confusion, resistance, and discomfort. I share the father’s concern that not permitting the move (or change in school placement) will create confusion and stress for the children. They will certainly be held in limbo while they await a final decision about their living and schooling arrangements.
However, on balance, I am not persuaded that the benefits that the father has identified support permitting the relocation prior to trial. These may all be excellent reasons to permit relocation on a final basis, but these factors will need to be considered by a trial judge alongside other factors pertinent to the children’s best interests. It is also not yet clear that this is a matter of “delaying” the move as the father states; it may be that a trial judge determines that the children should not be moved from their Toronto community.
The impact of the relocation on the child
b. The most immediate impact of the relocation on the children would be they would be required to spend several hours in alternate weeks commuting between their mother’s home in Toronto and their new school in Markham.
Naturally, there would also be disruptions associated with their adjustment to a new school, community, and activities; however, the mother’s evidence is that the children are thriving in their current school and there is no evidence of either child having any special need or issues. This suggests that they will likely adapt well to a new environment, although this may be more challenging for them if they are tired and stressed as a result of a long commute. I consider these factors to be secondary to the fact that the relocation may make the equal parenting schedule unsustainable.
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
c. The children spend equal time with each parent under the current schedule. In September 2021, Justice McGee concluded that it was in their best interests to have an equal parenting time schedule. There is no information in the record before me to suggest that this does not continue to be in their best interests. In my view, maintaining the children’s current school placement pending a final determination of the motion to change is the best way to sustain the equal parenting arrangement for the short term.
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
d. Section 16.9(1) of the Divorce Act requires a parent who intends to undertake a relocation to notify the other parent at least 60 days before the proposed relocation, using the prescribed form. The father served the mother with his Notice of Relocation on October 25, 2025, slightly less than 60 days before he moved the children to Markham at the beginning of the winter holiday break. (The last day of school was December 19, 2025.) I note that the father later clarified that, with the benefit of legal advice, he considered the move to be a change in residence rather than a relocation and that he had served the Notice in error. This is not a situation where the father surreptitiously moved with the children without providing advance notice to the mother, or knowingly disregarded a court order.
The existence of an order, arbitral award or agreement that specifies the geographic area in which the child is to reside
e. The September 9, 2021, order of Justice McGee states that the children’s primary residence with their father shall remain in the Greater Toronto Area and it may not be moved absent both parents’ written consent or court Order, pursuant to section 16.2 of the Divorce Act. The father’s position is that he did not require the mother’s consent or a court order to move to Markham, as Markham falls within the Greater Toronto Area. The mother’s position is that this interpretation would render the Divorce Act relocation scheme meaningless.
In my view, the only reasonable interpretation of this clause is that the father’s initial choice of residence was required to be in the Greater Toronto Area but that subsequent moves (inside or outside the GTA) would require either the mother’s consent or a court order. Justice McGee contemplated that the mother would be moving to live in the children’s school community shortly after the order was made. She also noted that in order for the shared parenting schedule to work, the parent would need to live within close proximity of one another and the children’s school. Accordingly, it does not make sense that the father would be entitled to move to a different community within the GTA without input from the mother. Further, the reference to s. 16.2 is unclear. I query whether Justice McGee intended to reference s. 16.9; if I am correct, then it appears that she intended that the relocation scheme in the Divorce Act would be triggered.
In the end, the order requires that the children remain in the GTA and Markham is in the GTA. However, I do not weight this factor heavily in the analysis, given my findings about the impact of an interim relocation on the children.
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
f. The father states that the move does not require changes to the existing parenting schedule and proposes that it continue. In my view, this proposal is not reasonable as it does not account for the increased commuting time, the impact on the mother’s ability to work, and the overall sustainability of the shared parenting plan. To some extent, the father seems to recognize this in his affidavit, which includes the following statement: “Should Ms A. require any interim assistance as she adjusts to the new school and location I can assist with taking care of the children before and after school and work out some future adjustments in her time with the children to make up for any differences.”
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.
g. There is no information in the record before me to suggest that either parent has failed to comply with the parenting time schedule. The mother suggests that the father has not complied with his obligations to consult with her about decisions related to the children; however, I am unable to make any findings on this issue on the basis of the written evidence alone.
32As noted by Justice Kraft in Louafi v. Schneider, although the Plumley factors do not necessarily apply any longer to relocation motions, a party seeking to relocate with a child on an interim motion must explain to the court why it is necessary for the move to take place on a temporary motion as opposed to after a complete trial. In this case, the real issue is where the children will attend school. For the reasons outlined above, I am not persuaded that it is in the children’s best interests to change schools before the trial of this matter.
33However, I do not see the need to prohibit the father from relocating the children’s residence for his parenting time. I presume that the father will make use of his Toronto home on weekdays to facilitate the children’s attendance at school, but I will not constrain him from commuting with the children from Markham if that is what he wishes to do, nor will I constrain him from bringing the children to spend weekends at the Markham home. Ultimately, it will be the father’s burden to prove at trial that a relocation to Markham (including a change in school) will be in the children’s best interests. At trial, the judge will have the benefit of viva voce evidence and a full record before making this very important decision.
Issue Three: Should a Voice of the Child Report be ordered?
34I turn now to the mother’s request for a Voice of the Child Report. Given the very complex history of this matter, my view is that this report will not be sufficient to assist the parties and the court in devising a new plan for the children’s care.
35In addition to the children’s current views and preferences, up to date information is required about how the children have managed under the current arrangements, the children’s mental health and overall wellbeing, their relationships with each parent and with other significant family members, and each parent’s ability to meet the children’s needs and to support the children’s relationships with the other parent. In my view, an updated section 30 assessment is required.
36Alternatively, the parties could consider a request for legal representation for the children through the Office of the Children’s Lawyer, who may be persuaded to appoint both a lawyer and clinician to this file.
37If the parties are able to agree to an order to this effect, they may bring a 14B motion seeking this relief (to my attention).
Final comments
38Unlike many relocation cases, this is not an all or nothing scenario. There are many, many different ways in which this matter could be resolved, provided that both parties are willing to be flexible. The father must be willing to accommodate the important role that the mother plays in the boys’ lives, notwithstanding the poor decisions she has made in the past. The mother, for her part, must recognize that remaining in Toronto for the next nine years is not the only viable option for the children and that they may in fact benefit from aspects of the plan their father has developed (including meaningful time with their new sibling). The parties are encouraged to fully explore all options with the assistance of their counsel, rather than proceeding to trial. As they both well know, litigation carries significant risks as well as emotional and financial burdens. Their boys will benefit most from a solution that is developed by the two people who know and love them best.
Orders
39This court makes the following orders:
a. The Respondent’s motion for an Order prohibiting the Applicant from removing the children from Toronto is dismissed;
b. The Respondent’s motion for an Order that the parties shall jointly retain a professional to prepare a Voice of the Child Report as it relates to the proposed relocation is dismissed;
c. The children shall continue to attend Roselands Public School located at 990 Jane Street, York, Ontario until the parties agree or the court orders otherwise.
Costs
40As the mother has been largely successful on this motion, she is presumptively entitled to her costs on a partial indemnity basis. The parties are strongly encouraged to reach an agreement on costs. If they are unable to do so, the mother shall serve and file written submissions on or before January 19, 2026. The father shall serve and file responding submissions on or before February 2, 2026. Written submissions shall comply with the requirements set out in r. 24(19) of the Family Law Rules.
Judge
Date: January 2, 2026