The parties were married on November 29, 2017, and separated on June 21, 2022, after the Father was charged with assault causing bodily harm to the Mother.
The parties have a three-year-old son together. Since the separation, the Mother and son have lived in a shelter in Brampton. The Mother is on social assistance, and the Father is employed, earning $30,000 per year and paying table child support.
The Father has parenting time and exchange following a temporary, without prejudice agreement that complies with the terms of his recognizance.
On February 27, 2023, the Mother informed the Father via email exchanges between counsel that she was relocating to Scarborough as she had been approved for subsidized housing. She had been on the waitlist for subsidized housing since separation and had declined two offers previously since they were located further away. The Mother had overstayed her time allowed at the shelter and needed to accept the placement for subsidized housing in Scarborough.
Once the Father was made aware about this move, the Mother offered to work out terms for the daycare pick up and drop off exchanges.
On March 17, 2023, the Father instructed his counsel to bring an Urgent Motion before a Case Conference and before he filed an Answer. His counsel accepted his request, and the Urgent Motion requested the return of the child to Brampton, that the Mother not be allowed to relocate outside of Brampton without the Father’s consent, that the child continue to attend the Brampton daycare, and for the police to enforce the terms.
The main issue in his case was whether the Father had met the test for an Urgent Motion to be heard before a Case Conference and before he filed an Answer.
The court reiterated that the test for a motion to be heard prior to a Case Conference, as set out in Rosen v Rosen, 2005 CanLII 480, requires there to be either urgency or hardship, such as threats of harm, abduction, or dire financial circumstances. Further, the test requires that the moving party first inquire whether a Case Conference date is available, and second, the moving party must have already attempted settlement discussions with the opposing party.
The court found the Father did not meet these requirements in this case. The Father’s affidavit outlined that he was not made aware the Mother had changed her residence and accused the Mother’s actions as being part of a larger plan to alienate the child from him. However, the Father’s affidavit failed to mention the housing situation the Mother was facing.
Since the terms of the Father’s recognizance do not allow the Father to communicate with the Mother directly, the court accepted that he may not have known that the Mother had moved as he did not receive any communication regarding this from a third party or counsel. However, once the Father was made aware of this relocation and expressed his concern, the Mother immediately proposed an Early Case Conference date for March 14, 2023. Instead of responding to this, the Father proceeded by way of bringing an Urgent Motion.
Although there was a Court Order that prevented the child’s residence from being changed out of the Peel Region without the Father’s consent, the court found the Father’s refusal to proceed with an Early Case Conference date or canvasing the issues with the Mother as disqualifying him from meeting the test pursuant to Rosen. The court mentioned it would have been desirable for the Mother to have sought an Order permitting her move. However, the Mother’s breach did not create an urgency. The court reiterated that the Mother had no more housing options as she had overstayed her time at the shelter and required a solution to address her housing circumstances. The Father did not propose any solution for his son’s housing situation, nor did he propose being his primary caregiver.
The court assessed costs on a full recovery basis since the Father’s actions of bringing a motion before a Case Conference when it was not urgent was considered unreasonable litigation conduct.
The Father’s parenting motion was dismissed. The court found the Father did not meet the test for motion to be heard before a Case Conference since the matter did not contemplate issues constituting hardship or urgency.