Background

The parties were married in May 2003 and separated in October 2009. They had two children – aged 14 and 16 at the time of the proceedings, of whom the parties shared joint decision-making responsibility. The children’s primary residence was that of their mother, while the father had periodic parenting time.

Post-separation, each parent experienced a breakdown of their relationship with one of the children. The youngest child, who had a strained relationship with the father, came out to the mother as transgender in December 2020.

The mother was re-partnered with a same-sex spouse, and the couple considered moving to Springhill, Nova Scotia, due to its inclusivity and resources available for transgender children. The mother told the father of her plans. According to her, the father consented and, over the course of several weeks, gave no indication that he was opposed to the move. Six days before the relocation date however, the youngest child informed the mother that his father had changed his mind and would not allow him to move with the mother.

Consequently, the mother left for Springhill with the youngest child, on a temporary basis, as her newly purchased home was to close. Both mother and child returned to London on September 6, 2021 and they were forced to reside with the mother’s parents since the mother had given up her rental accommodations in London when it had seemed as though the father was on board the relocation plan.

The situation at the mother’s parents’ home was not ideal, as per the mother. Her parents were not accepting of her sexuality, and the youngest child did not come out to his grandparents, for fear that they would not be supportive.

In order to escape this “toxic” environment, mother and child relocated to Springhill permanently in December 2021.

Issue

The father sought a temporary Court Order to have the child returned to Ontario. The mother brought a cross-motion for a temporary order allowing the child to remain with her in Nova Scotia and for the youngest child to reside primarily with her, and for the older child to reside primarily with the father.

Analysis

As per their Separation Agreement, the mother had complied with the notice requirement regarding the relocation. During the notice period, the father made no attempt to obtain a court order preventing the relocation, and, in fact, led the mother to believe he was not opposed to the move.

The judge considered the legislative notice requirement, in case he was incorrect about the separation agreement supporting the mother’s position: though the Children’s Law Reform Act (the CLRA) requires written notice of relocation, this could be waived for the mother in these circumstances, as per the exception in s 39.3 (3) of the CLRA. Moreover, part of the reason for the relocation was to enhance and secure the safety of the younger child by relocating him to a more inclusive community – i.e. this was in the child’s best interests.

The Court took judicial notice of the fact that the child came out to the mother at the young age of 13, and that the mother had been unconditionally supportive since then. The relocation addressed the child’s unique needs, and requiring him to return to Ontario pending trial, while estranged from the father, would not be in his best interests.

There were additional compelling circumstances supporting an order allowing the relocation on an interim basis before trial: the mother had nowhere to go if ordered to return to London, as she had given up her rental accommodation in London and purchased a home in Nova Scotia; the child had adjusted well to his new high school and community; and, as the primary caregiver since separation, there was a strong possibility that the mother’s position would prevail at trial.

Conclusion