CITATION: Noguera v. Richardson, 2026 ONSC 4292
COURT FILE NO.: FC948/25 DATE: July 22, 2026
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Fiamma Noguera, Applicant
AND:
Eric Richardson, Respondent
BEFORE: OUELLETTE J.
COUNSEL: Brenda Barr, for the Applicant
Respondent, self-representing
HEARD: July 15, 2026
ENDORSEMENT
[1] This motion originally returnable on July 8, 2026 was brought by the Applicant, Fiamma Noguera (“the mother”), seeking a temporary order permitting her to relocate with the child from London to Stoney Creek and requesting the involvement of the Office of the Children's Lawyer ("OCL"). The Respondent, Eric Richardson (“the father”), opposes the motion.
[2] The father also brought a motion to vary his parenting time and remove the requirement of supervision. That motion was heard and dismissed by Justice Tobin on July 8, 2026. Justice Tobin granted the Applicant's request for the involvement of the OCL and adjourned the balance of the Applicant's motion to July 13, 2026.
Summary of Decision
[3] Relocation or mobility cases, where one parent wants to take a child and move some distance away from the other parent, are among the most difficult cases in family law. If the custodial parent is permitted to move with the child, inevitably the relationship between the non-custodial parent and the child will be affected and may suffer. Typically, the court must balance the custodial parent's legitimate interest in relocating with the non-custodial parent's legitimate interest in maintaining a relationship with the child. But in every case, the ultimate question is what is in the best interests of the child. See Reeves v. Brand, 2018 ONCA 263, at para. 17.
[4] In Konkin v. Aguilera, 2010 ONSC 4808, at para. 27, Justice Corbett addressed the concerns courts have in allowing an interim relocation, as follows:
Finally, I acknowledge some of the cases consider that it is unwise to make interim orders on mobility issues, when the matter may remain contested at trial. That is a fine ideal, but the court process does not follow the same rhythm as real life. The goal of an interim order here, as in other contexts, is to preserve a reasonable state of affairs that accords with the best interests of the child pending trial. As I indicated to the parties orally, I would have preferred to have heard this issue as a trial, to have listened to the various family members testify, and to have more time to reflect on the matter. But a decision must be made now, rather than months or years from now, and a legitimate and timely request to move should not be thwarted by the inevitable effluxion of time inherent in the litigation process.
[5] I agree with these comments and find them applicable to this case. Unfortunately, it will be many months before this matter could reasonably be expected to proceed to trial in this jurisdiction. The next procedural step is a settlement conference scheduled for September 2026.
[6] For the following reasons, I find the mother’s proposal for her relocation with the child to Stoney Creek to be in the child’s best interests.
Background
[7] The parties are the parents of the subject child, Antonella Michelle Richardson, born September 12, 2023 (“Antonella”).
[8] The Respondent claims the parties separated on September 17, 2025. At separation, the mother relocated with Antonella to Stoney Creek without providing notice to the father. The father continued to reside in the matrimonial home. The father brought a motion seeking the child’s return to London and a fixed parenting schedule. The motion was heard by Justice Campbell on October 22, 2025. His decision was released on November 6, 2025.
[9] Justice Campbell made an order requiring the mother to return with the child to London within 30 days, primarily because the mother had not provided notice of the relocation to the father.
[10] Justice Campbell ordered that the father have supervised parenting time every Saturday and Sunday from 10:00 a.m. to 5:00 p.m., and that at all other times, the child be in the care of the mother. That parenting order has remained in place since October 22, 2025, although it was subsequently varied on consent by order of Justice Walters, dated March 2, 2026, to permit the father to take the child into the community, provided that he does not transport the child in a motor vehicle unless an ignition interlock device is installed.
The Law
[11] Because there is a pre-existing parenting order, the court must first consider whether there is a material change in circumstances: Barendregt v. Grebliunas, 2022 SCC 22, at para. 112.
[12] The relocation provisions in the Divorce Act are meant to provide a framework for judicial decision-making in relocation cases. The Divorce Act does not provide specific guidance as to the process or test to be followed for temporary relocation motions; however, it is clear from the scheme of the Divorce Act that the court must consider the burden of proof applicable to the case, and whether the relocation is in the best interests of the child. See: N.M. v. M.M., 2026 ONSC 2766, at para. 21.
[13] The relevant relocation provisions are set out at ss. 16.92 to 16.94 of the Divorce Act.
[14] Prior to the amendments to the Divorce Act in 2021, the leading test applicable to temporary motions for relocation was Plumley v. Plumley, 1999 CanLII 13990 (Ont. S.C.). More recently, in Diallo v. Bah, the Divisional Court held that the factors set out in Plumley are now overtaken by the amendments to the Divorce Act. See: Diallo v. Bah, 2025 ONSC 2106 (Div. Ct.), at para. 44.
[15] Relocation decisions must be based on a child’s best interests: see Gomez v. Isaza, 2025 ONCJ 324, at para. 81.
[16] These best interest factors include the relevant considerations at s. 16 and the additional relocation considerations at s. 16.92 of the Divorce Act.
[17] In this case, the father has the burden of proving that the relocation is not in the best interests of the child. This is because s. 16.93(2) applies as the parties are substantially complying with a court order, and he is the party opposing the relocation.
Discussion
[18] Since the temporary order of Justice Campbell was made in November 2025, a number of significant events have occurred.
[19] On November 24, 2025, the mother served a Notice of Relocation on the father. The Notice did not specify the reasons underlying her proposed relocation.
[20] On December 22, 2025, the father served an Objection to Relocation. His objection focused primarily on the fact that the issue had already been considered by the court.
[21] The mother subsequently obtained a one-bedroom basement apartment in London, where she resides with the child.
[22] The mother continues to be employed by United Rentals. For several years she worked in a sales position serving the London market. In April 2026, she was advised that she was not meeting her sales targets and was encouraged to consider an internal position located at the company's Stoney Creek head office. The new position does not involve sales quotas and no comparable position was available in London. Concerned about the security of her employment, the mother accepted the position and commenced her new role on May 1, 2026. Since that date, she has commuted to Stoney Creek for work.
[23] Because Antonella is presently required to be in London, the maternal grandmother resides with the mother during the work week in order to care for the child. The mother leaves for work between 5:00 a.m. and 5:30 a.m. and returns home between 5:30 p.m. and 6:00 p.m. She works remotely one day per week. As Antonella's bedtime is approximately 7:30 p.m., the child spends relatively few waking hours in the care of her mother during the work week.
[24] The father has not been making regular child support payments. His last payment was in the amount of $841.00 on March 2, 2026, which represented support owing for January 2026. The support order is not yet being enforced by the Family Responsibility Office.
[25] The matrimonial home is at risk of foreclosure as the father has not made any mortgage payments since October 2025.
[26] The mother's housing options have been limited as a result of damage to her credit rating caused by the mortgage enforcement proceedings relating to the matrimonial home.
[27] Communication between the parties has deteriorated. The mother is in the process of seeking a peace bond against the father.
[28] In her Form 35.1 affidavit, the mother alleges that the father is facing criminal charges, including allegations of theft and extortion arising from his former employment. These allegations were neither denied by the father nor addressed through the filing of an updated Form 35.1 affidavit.
[29] Based on the foregoing, I find there has been a material change in circumstances since the making of the previous order.
[30] I now turn to the burden of proof applicable to the case.
[31] As noted above, because he opposes the relocation, the father bears the burden of establishing that the proposed relocation is not in the child's best interests.
[32] His position is that the issue of the relocation has already been decided by the court and should not be revisited. In his submissions, he argued that the mother has failed to comply with the order of Justice Campbell and that the proposed relocation would impede the natural progression of his parenting relationship with the child. The father did not file any sworn or affirmed evidence in response to the mother's motion. I have considered his submissions insofar as they relate to the prior orders made in these proceedings and the evidence properly before the court, including the mother's sworn affidavit evidence.
[33] The mother submits that the relocation is in the child’s best interests. Her plan is to reside with the maternal grandmother in Stoney Creek and to facilitate the father's parenting time by transporting the child to London each weekend. She submits that the father's current parenting schedule will be preserved, that he will not incur additional travel time or expense as a result of the relocation, and that eliminating her lengthy daily commute will reduce her stress, improve her overall well-being, and allow her to be more available to meet the child's day-to-day needs.
[34] In assessing the best interest factors referred to in s. 16(3), I must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
[35] Antonella is not yet three years of age. During the past ten months, she has resided in at least four different residences. Given her young age and the transitory nature of her circumstances, I am unable to conclude that she has developed a meaningful attachment to any particular geographic location.
[36] At her age, stability for Antonella can be achieved by ensuring stability for her primary caregiver. Permitting the mother to reside in close proximity to her place of employment will allow Antonella to spend substantially more time in the care of her parent rather than a third party.
[37] The mother’s plan is to reside with the maternal grandmother in her four-bedroom townhome. The residence is familiar to Antonella and is located approximately fifteen minutes from the mother's workplace. Under this arrangement, the mother would leave for work at approximately 6:45 a.m. and return home by approximately 4:15 p.m.
[38] The proposed relocation would eliminate the mother's three-hour daily commute and the associated fatigue, stress, and financial burden. The resulting improvement in the mother's well-being will also benefit Antonella's emotional security and overall welfare.
[39] The maternal grandmother has also played a significant role in the child’s life since her birth and is also a support for the mother. Under the mother’s proposal, the maternal grandmother will continue to provide childcare while the mother is working and has committed to doing so until Antonella begins school.
[40] The mother is responsible for Antonella's day-to-day care, including attending medical appointments and arranging childcare when she is working. She is also the primary source of financial support for the child, as the father has been in arrears of child support since February 2026. The mother's evidence is that it is financially unsustainable for her to continue commuting between London and Stoney Creek on a daily basis.
[41] The father submits that the mother should not have accepted a lower-paying position in Stoney Creek, notwithstanding the increased job security associated with that position. That submission would carry greater weight if the father were making meaningful financial contributions toward the child's support. However, he has not only failed to pay ongoing child support but has also failed to contribute to the preservation of the family's principal asset. The mother's unchallenged evidence is that she was required to contribute approximately $5,000 toward the mortgage to prevent foreclosure proceedings. She further deposes that little or no equity remains in the property. In these circumstances, the mother's pursuit of stable employment is both understandable and reasonable.
[42] The mother further submits that relocation will improve her financial circumstances because she will be able to reside with the maternal grandmother without paying rent and will avoid the significant costs associated with the daily commute.
[43] The father submits that the proposal primarily benefits the mother and operates to his detriment. The father submits that the relocation may impede the natural progression of his parenting relationship with Antonella. He hopes to have expanded parenting time in the future and argues that relocation may limit his ability to participate in aspects of the child's life, including medical appointments and school-related activities.
[44] The father's motion seeking expanded parenting time and the removal of the supervision requirement was dismissed by Justice Tobin on July 8, 2026. As a result, it may be some time before the father's parenting arrangement expands beyond the current weekend daytime schedule. At present, the father's circumstances remain uncertain. His residence is at risk of foreclosure and the mother's uncontradicted evidence is that he has lost his employment and is facing criminal charges arising from allegations involving his former employer.
[45] The father does not adequately address the more immediate concern arising from the child's current circumstances, namely that Antonella spends a substantial portion of each weekday in the care of a third party due to the mother's lengthy commute. Given that the father already exercises parenting time on both Saturdays and Sundays for seven hours each day, the current arrangement leaves relatively limited opportunity for Antonella to spend meaningful waking hours with her primary caregiver during the work week.
[46] This court has previously found that the mother is capable of meeting Antonella's needs. While the father has been consistent in exercising his parenting time, he is not presently in a position to assume the role of primary caregiver. In reaching this conclusion, I rely on the findings previously made by Campbell J. and Tobin J.
[47] The parties are unable to communicate effectively. The mother is currently pursuing a peace bond against the father. There is no evidence before the court that the parties are capable of working cooperatively on matters affecting the child. The father's focus has been directed primarily toward the mother's alleged non-compliance with Justice Campbell's order rather than developing practical solutions to the child's present childcare needs.
[48] When this matter was previously before the court, Justice Campell did not preclude the mother from bringing the issue of relocation again, on proper notice to the father. Her previous request to relocate was without notice and it was on that basis that the relocation was denied. I am satisfied that the mother complied with the statutory notice requirements respecting her intention to relocate.
Conclusion
[49] I find that the relocation is in Antonella’s best interests.
[50] What makes the proposed relocation particularly compelling at this time is that it would significantly increase the mother's availability to provide direct care to the child. Previous orders of this court have recognized that it is in Antonella's best interests to reside primarily in the mother's care. Under the current arrangement, however, the mother's lengthy daily commute substantially limits the amount of waking time she is able to spend with the child during the work week. The proposed relocation would allow the child to spend considerably more time in the care of her primary caregiver and less time in the care of third parties. In my view, this is a significant factor supporting the conclusion that the relocation is in Antonella's best interests.
[51] Not only will the mother’s plan permit Antonella to spend more time with her mother, it will reduce the family's financial burden. The mother's proposal also seeks to preserve the father's relationship with Antonella by maintaining his parenting time with minimal disruption. The mother proposes to remain in London overnight on Saturdays in order to reduce the transportation burden associated with facilitating the father's parenting time.
Order:
[52] I make the following orders:
The mother shall amend her pleadings to include a claim for relocation to Stoney Creek within 14 days of the date of this Order.
The father shall have 30 days to file an amended answer, if any.
The mother shall be permitted to relocate with the child to Stoney Creek, Ontario.
Costs
[53] The parties are encouraged to agree upon appropriate costs. If the parties cannot agree on costs, the Applicant may submit a bill of costs, any offers to settle and three-page submissions, double-spaced using 12-point font, by August 7, 2026. The Respondent may serve his reply by August 21, 2026, and the Applicant shall have a further 7 days for reply, if any. Submissions shall be directed to my attention by email to LondonUFCAdmin@ontario.ca. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
“Justice Stephanie J. Ouellette”
Justice Stephanie J. Ouellette
Date: July 22, 2026