Introduction
In S.C. v. J.C., the essential question the court had to determine was the difference between a “change of residence” and a “relocation”. To answer this question, the court examined the context of the case, as well as the legal definition of both terms to come to a decision.
Background
In this case, the Applicant mother and Respondent father shared two children. Per a final consent Order, the parties agreed to share parenting time of their two children. More specifically, the mother had parenting time from Monday to Friday, while the father had parenting time from Friday to Monday. This arrangement was made possible because the parents lived near one another. The mother lived in Orillia while the father lived in Barrie.
However, four years after the final Order was released, the mother planned to move to Midland, Ontario with the children. In response, the father brought an urgent motion to prevent the mother from moving. The father also sought to flip the parenting schedule, giving himself parenting time from Monday to Friday.
Analysis
The father characterized this matter as an urgent relocation motion. As such, the father argued that the mother failed to comply with notice requirements for relocation set out in the Children’s Law Reform Act (CLRA). Similarly, he argued that the mother had the burden of proving the relocation was in the best interests of the children. On the other hand, the mother argued that the move was not a relocation, and instead a change in residence.
As a result, the central issue of the motion was whether the move was a relocation or a change in residence.
To begin her analysis, Justice Jain first examined the CLRA for its definition of the two terms. Relocation is defined under Section 18 as a change in residence that is likely to have a significant impact on the children’s relationship with another person who has parenting time. The party intending to relocate must give at least 60 days notice before the expected date of the proposed relocation and has the burden of proving that the relocation is in the best interests of the child. Under Section 39.1, a change in residenceonly requires written notice of when the party intends to move, as well as the new address and contact information.
Next, Justice Jain examined the final Order that governed the parties’ current parenting arrangement. In the Order, there was no mention of any terms limiting or restricting the mobility of the parties. The only reference to mobility was that the parties shall keep each other informed of their residential addresses.
The father argued that the move was a relocation, and that it violated a section of the Order about consulting him when the children were to change schools. He argued that if successful on his motion, he would move to Orillia and that the children should remain with him Monday to Friday, flipping the long-standing schedule. The father believed the move was not in the children’s best interests because the older child did not want to leave his school and friends. Likewise, because the children would be moving away from their extended family that lived in Orillia, and that the drive to exercise his parenting time would be longer.
Despite such arguments, the father acknowledged that if the children moved to Midland, he could continue to exercise his regular parenting time. Thus, the father ultimately admitted that the motion was not about contesting mobility as he initially argued, but an issue of the best interests of the children.
As the Order was silent on issues of relocation, Justice Jain looked at the facts to determine if the situation met the definition of a relocation under the CLRA. The mother noted that the change makes very little difference in the father’s parenting time. Similarly, the father himself acknowledged that the move would not make a significant change to his parenting time. In fact, the move would only add 12 minutes to his drive. Thus, the court determined the move to be a change in residence because under the CLRA, the move did not significantly impact the father’s relationship with the children. As such, the mother also did not breach any notice requirements associated with a relocation.
Based on the above, the nature of the motion was never truly urgent. Justice Jain determined that the father brought the motion to bypass the rules and procedures required for a Motion to Change. Justice Jain considered the father’s actions to be inappropriate and not in accordance with the law or the best interests of the children.
Conclusion
In conclusion, the court dismissed the father’s urgent motion. The court was strict in categorizing the motion. The context of the motion was never urgent, but rather a method employed by the father to bypass stricter rules needed for a Motion to Change. As a result, the court found the father’s actions to be inappropriate. Regarding the central issue of relocation, the court was also strict in its application of the law to find that in the circumstances, the move was actually a change in residence.