Month: July 2025

“Retroactive awards of child support “cannot simply be regarded as exceptional orders to be made in exceptional circumstances” and “while the propriety of a retroactive award should not be presumed, it will not only be found in rare cases”: D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, at para. 5.

As noted by the trial judge, in considering whether to order retroactive child support, “[u]nreasonable delay by the recipient parent in seeking an increase in support will militate against a retroactive award, while blameworthy conduct by the payor parent will have the opposite effect”: D.B.S., at para. 5.

The trial judge noted that the court must also consider the needs and circumstances of the child, and the hardship to the payor of a retroactive award. She stated that retroactive child support must not amount to a wealth transfer, citing Walsh v. Walsh (2004), 2004 CanLII 36110 (ON CA), 69 O.R. (3d) 577 (C.A.), at para. 16. The trial judge, citing Michel v. Graydon, 2020 SCC 24, [2020] 2 S.C.R. 763, at para. 41, stated, “Child support is, of course, the right of a child and is an obligation that exists regardless of the commencement of any proceedings to enforce it.”

Amid v. Jones, 2024 ONCA 595 (CanLII) at 34-36

“The Divorce Act was amended to include s. 21.1 to address those husbands who use the Get as a “bargaining tool for child custody and access or monetary support”. This was explained by Justice Abella, writing for the majority of the Supreme Court of Canada, in the decision of Marcovitz v. Bruker, 2007 SCC 54. Justice Stevenson relied on the following passage from paras. 3-7 of Bruker and I do as well:

A get is a Jewish divorce. Only a husband can give one. A wife cannot obtain a get unless her husband agrees to give it. Under Jewish law, he does so by “releasing” his wife from the marriage and authorizing her to remarry. The process takes place before three rabbis in what is known as a Beth Din, or rabbinical court.

The husband must voluntarily give the get and the wife consent to receive it. When he does not, she is without religious recourse, retaining the status of his wife and unable to remarry until he decides, in his absolute discretion, to divorce her. She is known as an agunah or “chained wife”. Any children she would have on civil remarriage would be considered “illegitimate” under Jewish law.

For an observant Jewish woman in Canada, this presents a dichotomous scenario: under Canadian law, she is free to divorce her husband regardless of his consent; under Jewish law, however, she remains married to him unless he gives his consent. This means that while she can remarry under Canadian law, she is prevented from remarrying in accordance with her religion. The inability to do so, for many Jewish women, results in the loss of their ability to remarry at all.

The vast majority of Jewish husbands freely give their wives a get. Those who do not, however, represent a longstanding source of concern and frustration in Jewish communities (Talia Einhorn, “Jewish Divorce in the International Arena”, in J. Basedow et al., eds., Private Law in the International Arena: From National Conflict Rules Towards Harmonization and Unification: Liber Amicorum Kurt Siehr (2000), 135; H. Patrick Glenn, “Where Heavens Meet: The Compelling of Religious Divorces” (1980), 28 Am. J. Comp. L. 1; M. D. A. Freeman, “Jews and the Law of Divorce in England” (1981), 4 Jewish Law Annual 276; Bernard J. Meislin, “Pursuit of the Wife’s Right to a ‘Get’ in United States and Canadian Courts” (1981), 4 Jewish Law Annual 250; Mark Washofsky, “The Recalcitrant Husband: The Problem of Definition” (1981), 4 Jewish Law Annual 144; M. Chigier, “Ruminations Over the Agunah Problem” (1981), 4 Jewish Law Annual 207; Shlomo Riskin, A Jewish Woman’s Right to Divorce: A Halakhic History and a Solution for the Agunah (2006); Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (2001); and J. David Bleich, “Jewish Divorce: Judicial Misconceptions and Possible Means of Civil Enforcement” (1984), 16 Conn. L.R. 201).

In response to these concerns, after consultation with the leaders of 50 religious groups in Canada and with the specific agreement of the Roman Catholic, Presbyterian and Anglican churches, in 1990 the then Minister of Justice, Doug Lewis, introduced amendments to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), Bill C-61, giving a court discretionary authority to prevent a spouse from obtaining relief under the Act if that spouse refused to remove a barrier to religious remarriage (s. 21.1). At second reading, the Minister outlined the motivation for these amendments, explaining:

The bill before us today is an amendment to the Divorce Act which would provide a court with discretionary powers to preclude a spouse from obtaining relief or proceeding under the Divorce Act where that spouse refuses to remove a barrier to religious remarriage and where the power to remove the barrier to religious remarriage lies solely with that person. Where the court is satisfied that the spouse who refuses to remove the barrier has genuine grounds of a religious or conscientious nature for doing so, it need not exercise its discretion to grant the remedy provided for in this legislation.

… A spouse should not be able to refuse to participate in a Jewish religious divorce — called a Get — in order to obtain concessions in a civil divorce. The Get should not be used as a bargaining tool for child custody and access or monetary support.

… I am concerned about protecting the integrity of the Divorce Act and preventing persons from avoiding the application of the principles contained in the act. For example, a wife may feel compelled to agree to custody arrangements which are not truly in the best interests of a couple’s child in order to obtain a Get.

I want to take a few minutes to describe briefly the dilemma certain Jewish persons face because of their religious divorce procedures. In the Jewish religion divorce is accomplished by the delivery of a Get from the husband and its acceptance by the wife in the presence of a Rabbinical Court. According to the Jewish religious traditions, the procedure cannot be changed. Without a Get, a Jewish woman cannot remarry in her own faith. Children of a subsequent civil marriage suffer religious disabilities. While difficult remarriage within the Jewish faith for a man in the same circumstances is not impossible,

. . .

… the government is moving where it can and where it is brought to the government’s attention to eliminate sexism and gender bias in the law.

. . .

It is the case that in some religions, the Roman Catholic, Greek Orthodox and Islam, annulment or divorce may proceed more easily and faster if the couple agree.

However, in all these cases, the authority to grant the annulment or divorce rests with the religious tribunal, not the couple.

An un-co-operative spouse may delay a decision, but ultimately he or she cannot prevent the religious tribunal from rendering its decision.

In these religions, the spouse initiating the action can ask the religious authorities to deal with this problem.

The Jewish spouse does not have that recourse.

(House of Commons Debates, vol. VI, 2^nd Sess., 34^th Parl., February 15, 1990, at pp. 8375-77)

[Italics in original.]”

            N.S. v. A.N.S., 2021 ONSC 5283 (CanLII) at 36

“The settlement agreement is binding and enforceable.

Rule 18 of the Family Law Rules governs Offers to Settle. Rule 18(3) notes that a “party may serve an offer on any other party” while Rule 18(9) deals with what is required to validly accept an offer. Rule 18(9) notes that the only valid way of accepting an offer is by serving an acceptance on the party who made the offer, at any time before the offer is withdrawn or the court begins to give a decision that disposes of a claim dealt with in the offer.

The test is objective as to whether a contract exists: “the offer, acceptance, consideration, and terms may be inferred from the parties’ conduct and from the surrounding circumstances.” (Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, [2020] 3 S.C.R. 247).

The Mother served an offer to settle on the Father pursuant to the Family Law Rules. The Father’s acceptance of the offer to settle from the Mother was valid and clear. The Father specifically asked how to sign back the offer. After the Father clarified the signature process by email, he stated clearly, “Accept in Full”.

There was consideration supporting the settlement agreement. The Father on his own initiative sent the offer to settle to the parties’ real estate lawyer who released $50,000 to the Father pursuant to the settlement agreement. The Father argues that he did not spend any of the funds received. The law requires only an exchange of consideration to support a binding agreement.

The fact that the Father sent the offer to settle to the parties’ real estate lawyer indicates conduct that there was a binding agreement between the parties. I do not find that there was any misunderstanding, error or other irregularity during the contract formation process. The doctrines of mistake, misrepresentation, non est factum or unconscionability do not apply (Owners, Strata Plan LMS 3905).

There is also no evidence of duress on the Father. The case law has established that the threshold to prove that an agreement was made under duress is high. The Mother submits that in Ludmer v. Ludmer, 2013 ONSC 784 (varied in part 2014 ONCA 827), Justice Penny states at para 53:

^{Duress involves a coercion of the will or a situation in which one party has no realistic alternative but to submit to pressure. There can be no duress without evidence of an attempt by one party to dominate the will of the other at the time of the execution of the contract. To prove duress, the applicant must show [they were] compelled to enter into the [agreement] out of fear of actual or threatened harm of some kind. There must be something more than stress associated with a potential breakdown in familial relations. There must be credible evidence demonstrating that the complaining party was subject to intimidation or illegitimate pressure to sign the agreement.}

The Father has not shown that he was coerced or compelled to enter into the settlement agreement out of fear of actual or threatened harm or subject to intimidation or illegitimate pressure to sign. The Mother argues that the Father was not under any financial or economic duress because he submitted that he did not use the funds received from the real estate lawyer. I agree.”

Clark v. Clark, 2024 ONSC 4965 (CanLII) at 14-20

“In the Supreme Court of Canada decision, Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217,  the court made the following significant comments regarding the interpretation of s. 9 and the manner in which child support calculations should be approached in shared parenting scenarios:

1. 1. 1. 1. 1.  In shared parenting arrangements, there is no presumption in favour of the parent who has less time with the child paying the table amount of child support; rather, the court must determine the quantum of child support in accordance with the three factors listed in s. 9.
            2.  A finding that shared parenting exists does not automatically dictate a deviation from the table amount of child support. In some cases, a careful review of all the factors set out in s. 9 may lead the court to conclude that the table amount remains the appropriate figure.
            3.   In determining the appropriate quantum of support, none of the three factors listed in s. 9 prevails over the others. The court must consider the overall situation of shared custody, the cost to each parent of the arrangement, and the overall needs, resources, and situation of each parent. The weight to be afforded to each of the three factors will vary according to the particular facts of each case.
            4.   The purpose of s. 9 is to ensure a fair and reasonable amount of child support.
            5.   In adopting s.9 of the Guidelines, the legislature has made a clear choice to emphasize the need for fairness, flexibility, and the actual conditions, means, needs and circumstances of each parent and the child, even if this meant sacrificing to some degree the values of predictability, consistency, and efficiency.
            6.  The simple set-off approach may be a useful starting point (s. 9(a)). This is particularly so in cases where parties have provided limited information and the incomes of the parties are not widely divergent. However, the court emphasizes that the simple set-off approach has no presumptive value in carrying out the support calculation. It cautioned against a rigid application of the set-off approach, noting that that may not be appropriate when a careful examination of the respective financial situations of the parties and their household standards of living raise concerns about fairness of a drastic reduction in child support to the recipient.
            7.   The court held that the judge has discretion to modify the simple set-off where “considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another, something which Parliament did not intend.” The court should strive for a result that avoids the child experiencing a noticeable decline in their standard of living as they move between households.
            8.  One of the considerations in carrying out the s. 9analysis is whether one parent is actually incurring a higher standard of the child’s costs than the other, such as costs relating to clothing and activities.
            9.   Subsection 9(b) recognizes that the total global cost of raising the child in a shared custody arrangement may be higher than a primary residence arrangement. It requires the court to consider the total additional costs attributable to the situation of shared custody. In carrying out this analysis, evidence of necessary duplication of fixed costs arising due to shared parenting may be important.
            10. Not every dollar spent by a parent who has the child more than 40% of the time is a dollar saved by the recipient parent. In absence of evidence to the contrary, it is possible to presume that the recipient parent’s fixed costs have remained the same and that their variable costs have only marginally decreased by the other parent’s increase in time with the child.
            11. Financial statements and/or child expense budgets are necessary for the court to properly carry out the child support analysis pursuant to s. 9(b).  The judge should not make assumptions regarding additional costs attributable to shared parenting in the absence of any evidence relating to the issue.
            12. The court’s discretion under s. 9 is sufficiently broad to bring a parent’s claim for s. 7 expenses into the analysis under that section, taking into consideration all the factors outlined in s. 9.”

            Beaudoin v. Stevens, 2023 ONSC 4401 (CanLII) at 81

“Subsections 45(2) and 45(3) of the Arbitration Act provide that an appeal of a final family arbitration award lies to the Family Court (in those areas where it has jurisdiction) or otherwise to the Superior Court of Justice. Leave is not required.

The court raised the issue of whether leave was required to appeal the costs award, considering the decision in Flowers v. Eickmeier, 2017 ONSC 3376. Justice Di Luca held that section 133(b) of the Courts of Justice Act requires that leave be granted where an appeal is only as to costs, and section 45 of the Arbitration Act does not specifically address the issue of leave to appeal in relation to a costs award. He found that leave was required to appeal an arbitral cost award to the court.

I find that where the arbitration agreement itself does not require leave to appeal a costs award, leave is not required, largely for the reasons given by Ramsay, J. in Schickedanz v. Wagema Holdings Ltd., 2022 ONSC 5315, at paras. 12-25. Imposing a leave requirement to appeal costs amounts to judicial interference with the parties’ right to contract. It is also not consistent with the text, context, and purpose of the two governing statutes.

Section 133(b) of the Courts of Justice Act applies only to courts and requires leave where the appeal is “only as to costs that are in the discretion of the court that made the order for costs.” There is no reference to appeals from arbitrators. There are detailed appeal provisions in the Arbitration Act, which allow for appeals on questions of law, fact, and mixed fact and law, all without leave if the parties agree. There is no equivalent to the restriction set out in s. 133(b) of the Courts of Justice Act. Leave is not required for costs appeals under the Arbitration Act.”

Maxwell v. Maxwell, 2024 ONSC 4207 (CanLII) at 3-6

“I spent 3 hours preparing for the motion, scrolling through motion materials, looking for documents so that I could inform myself sufficiently to hear and decide this motion, which was set for 2.5 hours, to address 4 simple, discrete questions.  After 3 hours, I stopped reading, exasperated, and frustrated.

The materials for this Motion for Directions, on their face, suggest that they were prepared in ignorance of the requirements of the Practice Direction and uploading electronic documents to Case Center, indifference to it, and/or in ignorance of how to do what should have been done.

The materials for this Motion for Directions, on their face, suggest that they were prepared in ignorance of the concept that the materials filed should help the Court to navigate through them and to make a decision efficiently, or in indifference to the concept.

I accept both counsel’s apologies for the problems with each of their files.  The time is long past, however, for apologies for not doing what is required by the Practice Direction and good advocacy.  Most counsel are compliant.  In some quarters, however, announcements from Chief Justice’s office, Practice Directions, the availability of on-line resources, and seminars by the Adovcate’s Society, the OBA, District and County Law Associations, have had no effect.  Perhaps the Court’s refusing to hear matters will be an effective call to the bar to do what is required by Practice Direction and good advocacy.  I can only repeat the admonitions of Edwards, RSJ in Lepp v. The Regional Municipality of York, 2022 ONSC 6978.

Case Centre (and its predecessor, CaseLines) has been mandatory in Central West Region in all civil and family matters since 4 April 2022.

For the Court, the Bar, and self represented litigants, Case Centre has brought a substantial change in the way the Court does its business for the public. There have been growing pains for all users. To assist counsel and self represented litigants, Province-wide and Regional Practice Directions have been issued about how people are to upload documents to CaseLines.  They have been amended from time to time to address user issues.  Tip sheets have been published on the Court’s website to assist counsel and litigants: see https://www.ontariocourts.ca/scj/notices-and-orders-covid- 19/supplementary-notice-september-2-2020/caseline-tips/#Tip_1_Register_and_bookmark_Case_Center_Ontario.

Two of the tips address uploading for hearing purposes. One says that if you want to maintain internal hyperlinks and bookmarks you must upload one PDF document.  Alternately, you must upload the Affidavit and the attached items each as a separate PDF document.

Given that Case Centres has been mandatory for two years in Central West, counsel’s failure to comply with it is no longer acceptable.”

Seelal v. Seelal et al., 2024 ONSC 4176 (CanLII) at 6-13

“Mediation/arbitration is an important method by which family law litigants resolve their disputes. Indeed, the courts encourage parties to attempt to resolve issues cooperatively and to determine the resolution method most appropriate to their family. The mediation/arbitration process can be more informal, efficient, faster and less adversarial than judicial proceedings. These benefits are important with respect to parenting issues, which require a consideration of the best interests of children. The decision of an arbitrator, particularly in child related matters, is therefore entitled to significant deference by the courts: see Patton-Casse v. Casse, 2012 ONCA 709, 298 O.A.C. 111, at paras. 9, 11.

The essence of arbitration is that the parties decide on the best procedure for their family. Although the family law of Ontario must be applied, the procedures on an arbitration are not meant to mirror those of the court. I do not agree with the appeal judge’s criticism of the process which did not include pleadings and a record of the pre-arbitration meeting.

Here the parties decided that an appeal would only be based on a question of law. As this court stated in Alectra Utilities Commission v. Solar Power Network Inc.,2019 ONCA 254, at para. 20:

The starting point in exercising the court’s role under the Arbitration Act, 1991 is the recognition that appeals from private arbitration decisions are neither required nor routine.”

          Petersoo v. Petersoo, 2019 ONCA 624 (CanLII) at 35-37

“Diana seeks an order that Pasquale pay her $26,450 in occupation rent. This represents half of the market rent for the matrimonial home from the date of separation until the date the sale of the home closed. This order is allowed. The reasons follow.

In Non Chhom v. Green, 2023 ONCA 692, at para. 8, the court confirmed that “[w]hile it is settled law in Ontario that an order for occupation rent be reasonable, it need not be exceptional: Griffiths v. Zambosco, (2001) 2001 CanLII 24097 (ON CA), 54 O.R. (3d) 397.”

Occupation rent is “discretionary relief that can be considered to address the equities of a case”: Guziolek v. Guziolek, [2006] O.T.C. 329 (S.C.), at para. 21. The appropriate method of calculating occupation rent is one half of the rent that could have been earned if neither party lived in the property and it had been rented out: Doyle v. De Sousa, 2023 ONSC 3163, at para. 40.

The factors to consider when deciding if occupation rent should be awarded include the following, per Higgins v. Higgins (2001), 2001 CanLII 28223 (ON SC), 19 R.F.L. (5th) 300 (Ont. S.C.), at para. 53:

a.    The conduct of the non-occupying spouse, including a failure to pay support;

b.    The conduct of the occupying spouse, including a failure to pay support;

c.    The extent to which the non-occupying spouse was prevented from having access to his or her property in the home; and

d.    Whether the occupying spouse paid the mortgage and other carrying charges of the property.

The facts show that this is a clear case for awarding occupation rent.

Diana left the matrimonial home on July 12, 2022, on the advice of Pasquale’s nurse and because of his erratic behaviour. She intended to leave the home on a temporary basis and return when it was safe for her and the children. However, the following day, Pasquale had Diana charged with assault. Pasquale altered the video of the garage incident to leave the impression that there was no reason for Diana to grab him. As a result of her criminal undertakings, Pasquale and Diana were prohibited from communicating directly, and Diana could not return to the matrimonial home.

In August 2022, Diana’s counsel suggested a nesting arrangement so she and the children could continue to use the home. Pasquale refused. That month the parties agreed through counsel that the house had to be sold. Pasquale said that he wanted it sold “as soon as possible”. Initially Pasquale cooperated. The property was listed for sale and showings of the home started. However, his unreasonable behaviour interfered with the listing and sale of the home.”

Cirota v. Cirota, 2024 ONSC 4117 (CanLII) at 182-188

“On October 1, 2017, the applicant and his then wife returned to their native country, India, to visit relatives.  Two days later, the wife, the respondent Onam Vaid, decided not to return to Canada.  The applicant did return.  In 2019, they were divorced.  The applicant is now remarried and has a young child.  For years, the respondent has failed or refused to answer the applicant’s attempts to reach her, to refinance the mortgage on the home they bought as joint tenants.  The absence of the respondent’s co-signature on real estate financing documents has caused the applicant untold misery, not to mention economic strain on his new family.

Citing the Absentees Act, R.S.O. 1990, c. A.3, the applicant requested a declaration that he is the sole owner.  In order for a joint tenancy to devolve into sole ownership, one of the owners must die or be deemed to have died.  Absenteeism is not the same as de jure death, pursuant to the Declarations of Death Act, 2002, S.O. 2002, c 14, Sch.  There is no need to embark on that legal analysis, because there is no evidence before the court that the respondent has died or has even been suspected to have died.  The evidentiary requirements leading to a declaration of death are quite onerous, and the respondent’s decision to disappear into the Indian populace is not the same as someone missing and suspected of an untimely demise.  Survivorship leading to sole ownership is therefore not a remedy available to the applicant.  I will, instead, declare the respondent an absentee. The remedy under the Absentees Act is to appoint the applicant the committee of the absentee’s joint interest in the property.  I will first introduce the legislation, and then I will deal with the two substantive issues the court must consider to declare the respondent an absentee.

Most of the jurisprudence regarding the legal status of absentees arises from the courts’ reluctance to declare people dead under common-law principles.  The fear is that people who are alive can return from legal death, to cause havoc to innocent parties who have organized their affairs based on the declaration.  See Wasylyk v. Wasylyk, 2012 ONSC 7029, [2012] O.J. No. 5884 (S.C.J.), para. 8.  Absenteeism is a statutory invention of a status betwixt the quick and the living.  Under s. 2, any person is entitled to bring the application for the order under the Act.

In 1920, the Ontario legislature enacted the original Absentee Act in 1920 to deal with a Toronto man of considerable wealth who disappeared without any evidence to suspect his death: Re Taylor (1925), O.W.N. 497, cited in Kamboj v. Kamboj Estate, 2007 CanLII 14932, [2007] O.J. No. 1732, at para. 8.  The legislative purpose, consistent with a reading of this short statute in its entirety, is not the creation of a third class of vital statistic other than birth and death.  Nor is it to create some kind of transfer of property interests to joint tenants or to escheat property of missing persons to the Crown.  Rather, the purpose of the statute is to allow stakeholders in the missing person’s property to control, manage and dispose of it.”

Grover v Vaid, 2023 ONSC 5931 (CanLII) at 1-4

“The jurisprudence requires the court to conduct a stringent analysis before permitting a party to relocate a child on a temporary basis: N.P. v. D.H., 2022 ONCJ 535, para 53.

The leading case for determining if a relocation should be permitted on a temporary motion is Plumley v. Plumley 1999 CanLII 13990 (ON SC), [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.

The following are additional principles regarding temporary relocation cases (See: Boudreault v. Charles, 2014 ONCJ 273):

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. McMaster2003 CanLII 53670 (ON CJ), [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-Fair2004 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).

Although it was a final relocation decision, the Supreme Court of Canada in Barendregt v. Grebliunis, 2022 SCC 22, set out the following relocation considerations:

a.    The difficulties inherent to the best interests principle are amplified in the relocation context. Untangling family relationships may have profound consequences, especially when children are involved. A child’s welfare remains at the heart of the relocation inquiry, but many traditional considerations do not readily apply in the same way (par. 98)

b.    Even where there is an existing parenting order, relocation will typically constitute a material change in circumstances and therefore satisfy the first stage of the Gordonframework (par. 113).

c.     The so-called second stage of the Gordonframework is often the sole issue when determining a relocation issue. The crucial question is whether relocation is in the best interests of the child (par. 115).

d.     In all cases, the history of caregiving will be relevant. And while it may not be useful to label the attention courts pay to the views of the parent as a separate “great respect” principle, the history of caregiving will sometimes warrant a burden of proof in favour of one parent (par. 123).

e.     The court should avoid casting judgment on a parent’s reasons for moving. A moving parent need not prove the move is justified. And a lack of a compelling reason for the move, in and of itself, should not count against a parent, unless it reflects adversely on a parent’s ability to meet the needs of the child. Ultimately, the moving parent’s reasons for relocating must not deflect from the focus of relocation applications — they must be considered only to the extent they are relevant to the best interests of the child (pars. 129-130).

f.     Relocation that provides a parent with more education, employment opportunities, and economic stability can contribute to a child’s wellbeing. These considerations all have direct or indirect bearing on the best‑interests‑of‑the‑child assessment (par. 171).”

Shapovalov v. Pantelousis, 2023 ONCJ 323 (CanLII) at 49-52