ONTARIO COURT OF JUSTICE

DATE: April 9, 2018

COURT FILE NO.: Toronto DFO-12-11030 B1

BETWEEN:

MARIA CHRISTINA CHOUDRY

Applicant

— AND —

TRISTAN PATRICK CATER

Respondent

Before: Justice Alex Finlayson

Heard on: January 9, 12, 17, and February 2, 5 and 6, 2018

Reasons for Judgment released on: April 9, 2018

Maria Christina Choudry — on her own behalf

Tristan Patrick Cater — on his own behalf

ALEX FINLAYSON J.:

PART I: NATURE OF THIS PROCEEDING

[1] This is my judgment following a trial concerning the Applicant mother's claims to relocate with the parties' two children to Newcastle, England and for retroactive and prospective child support and section 7 expenses. It also deals with the Respondent father's cross-claims respecting custody, access and child support. The father asks the Court to change the governing custody and access order irrespective of whether the mother's request to move is granted or denied.

[2] The Applicant is Maria Christina Choudry and the Respondent is Tristan Patrick Cater. They are the parents of two children, Brooklynn Doreen Amari Cater, born June 17, 2009 (age 8) and Bryden Avery Cater, born October 7, 2011 (age 6). Pursuant to the governing Order of Justice Murray dated November 6, 2013, the mother has sole custody of the children. The children reside primarily with her and they see their father on alternate weekends, at Christmas and for two weeks in the summer.

[3] Each parent has re-partnered and each has a new child of that new relationship. The mother is re-married to Adnan Choudry, who lives in Newcastle. They have a new child together, Zain Choudry, born June 23, 2017. Pending the outcome of this trial, the mother remains in Toronto and is parenting Zain child largely on her own.

[4] The father is re-married to Shonelle Maria Ramserran. They have a new child together, Cole John Patrick Cater, born February 15, 2016.

[5] The parties were both self-represented at trial. Despite that, they each presented sufficiently comprehensive evidence, they were organized and they were efficient in their presentation. This enabled the Court to consider fully the merits of the competing plans.

[6] The mother seeks permission to move with Brooklynn and Bryden because:

(a) She has been the children's primary parent;

(b) She is re-married to Adnan;

(c) The children have a good relationship with Adnan;

(d) She now has Zain too, whom she is parenting on her own. Brooklynn and Bryden are closely bonded to Zain and she wants the children to be able to move with her and live under the same roof;

(e) She was laid off from her previous job in 2016 and has been unable to obtain employment in Toronto, despite "extensive" efforts;

(f) She has an offer of employment for a job in Newcastle, and will earn the equivalent of $64,000 CAD there;

(g) The father has not paid child support in accordance with his income, nor has he even complied with the governing child support order. He did not provide updated financial disclosure as he ought to have; and

(h) Despite the distance between Toronto and Newcastle, if the move is allowed, the father's contact with the children can be preserved.

[7] The issues in this case call upon the Court to make a very difficult decision. The mother has put forward a plan in which she highlights benefits of the move for the children. She says those benefits are financial, educational and emotional. Concerning child support, while she asks for an order for retroactive and prospective child support, she is also prepared to forgo some of the support in recognition of the increased travel costs under her plan.

[8] On one hand, the proposed move, if allowed, will materially impact the children's relationship with their father, and with their extended family in the Greater Toronto Area by extension. Contact right now happens regularly and it is beneficial. But it is not only regular contact that the father is concerned about. The father raises concerns about the mother's plan generally, and about the parties' finances. He challenges the parties' ability to fund travel between Toronto and Newcastle, and he questions how the logistics of that travel (and also telephone contact), will work post-move.

[9] The father is also worried about how any Order of this Court will be enforced if the mother is allowed to leave with the children and then chooses not to comply with the Order. He argues that the mother has a poor track record of facilitating his relationship with the children and she has a poor track record respecting compliance with court orders.

[10] The father is concerned about the children's stability if the move is permitted. The father says the mother's relationship with Adnan is not yet tried and tested. It will be destabilizing for the children if they are allowed to move, and then the mother's relationship with Adnan ends.

[11] Finally, the father argues the mother is not trustworthy. He says she was not truthful with the Court during the trial, and that she has withheld vital information from him as to the nature of her relationship and the state of affairs in the United Kingdom. He says her job search was not very extensive. Because of her lack of credibility, he questions the veracity of the job offer she presented and he invites me to find that there is no job in Newcastle.

[12] The father disagrees with the mother's request for retroactive child support. He argues that he paid pursuant to the governing Order (although he admits he did not always do so in full or on time), and he argues that the mother knew of his increased income, but neither pursued disclosure nor additional support from him.

[13] On the other hand, if the move is denied, the mother will either chose to remain in Toronto, or she may choose to move to the UK to pursue her marriage, without the children. In the former scenario, she will continue being the children's primary parent in Toronto along with Zain. Currently, she has limited financial resources and debt. She will likely remain dependant on her new spouse.

[14] Or perhaps she will choose to move to the United Kingdom without the children. I did not allow the father to ask the mother whether she would move without the children if the Court denies the move. This is an unfair question, which has little evidentiary value. The question if answered would have put the mother in a "classic double bind".

[15] However, the evidence concerning the children, which I will detail, revealed that if the mother moved without them, such an outcome would be distressing to the children, particularly Brooklynn.

[16] For the reasons that follow, I am allowing the mother to move with the children to Newcastle, England. Despite a significant adverse credibility finding that I am making against the mother, my overall assessment of the evidence is that the move is in the children's best interests. However, I am attaching a number of conditions to the move to ensure that the father's close and positive relationship with the children will continue and be preserved, and to ensure that the children will benefit from spending generous time with him (and their extended family) in Ontario.

[17] In my view, the parenting schedule can be adjusted to provide that the children will be with the father on holidays throughout the year, such that the quantity and quality of the children's relationships with their father, and with their extended family relationships here may be maintained.

[18] Concerning child support, for the reasons that follow, I find that the father failed to meet his child support obligations. He has engaged in blameworthy conduct. He neither paid in full in accordance with the governing Order, nor on time, nor did he provide disclosure as he ought to have, nor did he increase the support in accordance with increased income. However, I also find that the mother delayed pursuing support and her delay was unreasonable. In crafting both the retroactive and prospective child support order that I am making, I am taking into account the travel costs to be incurred as a result of the move.

PART II: FACTS

[19] The mother is 31 years old and the father is 33 years old. The parties were never married. They started dating in about October 2007 and lived together in an 'on again, off again' relationship from October 2008 until June 2010 according to the mother, and until 2012 according to the father.

[20] As set out above, they have two children, Brooklynn, age 8, and Bryden, age 6. The children currently attend Winchester Public School. In this 2017-2018 school year, Brooklynn is in grade 3 and Bryden is in grade 1.

[21] The mother enrolled the children at the Winchester Public School in September 2016. Previously they attended Our Lady of Peace Catholic School in Etobicoke. According to the father, the manner in which the mother changed the children's school is an example of the mother not following a court order.

[22] By all accounts, Brooklynn is a bright, gifted child and she is excelling in her current school. The father says that a move would entail another school change and it is risky to permit this change given Brooklynn's performance here. He argues that the mother failed to produce evidence that the school she wishes Brooklynn to attend, Hilton Academy, will meet her academic needs, or that she will thrive in the United Kingdom.

[23] I decline to make this finding. The mother tendered some documentary evidence about the rating and other aspects of Hilton Academy. But more importantly, I accept the mother's evidence that Brooklynn is excelling, due in large part to the mother's efforts and involvement in the children's education. I am confident that the mother will continue to be involved in the children's education and ensure their educational needs are met as she has to date. Incidentally, I also note that the father's alternative plan would involve a school change too.

[24] The mother and her new partner, Adnan, met online in 2015. Adnan is of the Islamic faith. The mother has converted and is now a practicing Muslim also.

[25] The mother and Adnan were married in a religious ceremony in the United Kingdom in October 2016. They later married in a civil ceremony in Toronto on January 23, 2017.

[26] Although it was not specifically stated during the trial, the father's not so subtle suggestion was that in 2016, the mother changed the children's school from the Catholic school system to the public school system, because of her religious conversion. The father also said that the mother's exposing the children to Islamic teachings and practices is a violation of the governing Court Order.

[27] The father's evidence on this point was inconsistent. He wants the children to choose what religion they will practice when they are older, but he also says they should be raised Catholic in the mean time. He told the Court that Brooklynn had been baptized but the mother would not allow Bryden to be baptized.

[28] The mother pointed out that the father is a non-practicing Catholic and suggested he was being hypocritical. She also denied both that the school change was due to her conversion or that she breached this Court's Order in changing the school. I will deal with this allegation in more detail below.

[29] The mother was laid off from her previous job on April 28, 2016. Currently, her income consists of child tax benefits of $1,751.78 per month. To supplement that, Adnan sends her about 1000 pounds (GBP) per month, which I estimate to be approximately $1,720 CAD per month.

[30] The mother produced a job offer for a sales manager role for a company in Newcastle. This is a job that Adnan helped her source by leveraging one of his business contacts. The mother intends to work as a sales manager for MI Traders Limited, a wireless warehouse, if she is permitted to move. She says that the job will pay her about 40,000 GBP and that she will have job flexibility and will be able to sometimes work from home. She testified that her new home will be only 5 minutes from work. Her plan will enhance the family's finances.

[31] The mother's current annual budget for her household of four is modest. She is doing her best but is barely making ends meet on the resources she has. While her budget balances, she has almost no savings and she has debts of $23,404.07, that she cannot afford to pay. The father asked me to find that the mother's failure to pay her debts is irresponsible and that I should consider this when deciding the relocation issue. His submissions in this regard ignore the fact that he has failed to meet his child support obligations, which has contributed to the mother's financial troubles.

[32] Adnan owns and operates retail stores in the mobile phone industry in England. He testified that his income is between 50,000 and 65,000 pounds per year (approximately between $86,000 and $111,800 CAD per year) from which he sends money to the mother.

[33] Adnan's income also funds his and the mother's travel back and forth between Toronto and Newcastle. The evidence was that they took between 7 to 8 trips back and forth (either Adnan coming here or the mother going there) since they have met. Although the mother and Adnan have not yet lived together with the children as a family in Newcastle, the mother testified that she and Adnan have cumulatively lived together for the equivalent of several months as a result of these trips.

[34] Adnan has two children from his previous relationship, Aafia, age 2 and Aleena, age 2. They live with their mother primarily in the United Kingdom and see their father weekly on Saturdays overnight to Sundays. Adnan testified that he and his former spouse maintain flexibility as to the parenting arrangements for Aafia and Aleena. There are no ongoing family law proceedings between them in the United Kingdom.

[35] The father and Shonelle have been in a relationship since the fall of 2013. As set out above, they have a son, Cole (age 2). The father and Shonelle were married on November 18, 2017.

[36] The governing child support Order is that of Justice Murray dated April 25, 2014. When that Order was made, the father was unemployed. He then secured employment at some point in 2014. He did not increase his child support or provide financial disclosure respecting this however.

[37] Then, from June 2017 until the middle of this trial, the father was unemployed again.

[38] On January 22, 2018, the father secured a job as a sales representative for Metroland Media Group commencing January 29, 2018. In this new role, he will receive a salary of $350 per week, plus guaranteed commissions each week. His commission income will then be reconciled according to formulae that are set out in his employment contract. He is also entitled to extended health, dental, disability and life insurance benefits and a taxable auto allowance.

[39] The father testified that he will be working Monday to Friday from 9 am to 5 pm. He testified that based on the contract, his "guaranteed" income will be $47,000.00.

[40] Since October 31, 2016, Shonelle works full time as a Digital Marketing Specialist for the Home Depot Canada. She earns approximately $68,000 per year after bonuses.

[41] At the moment, the combined incomes of the two couples are similar. However, the mother and Adnan are running two households. If the move is permitted, the evidence is that the mother's and Adnan's combined incomes will increase above the father's and Shonelle's household income, in view of the mother's job offer. Before the issue of travel is factored in, their expenses will also decrease, as they will no longer be running two households.

[42] Based on my review of all of the financial considerations in this case, which I explain later in these reasons, I find that both parties can afford the cost of travel between Newcastle and Toronto post-move. For the reasons that will follow, I find that the mother should bear the greater burden of the travel costs.

PART III: THE PARTIES' COMPETING PLANS

[43] Again, the mother offered a number of reasons for the move, which she said will benefit the children. She gave details about her proposed new job. She provided the address at which she and the family will live. Again, she testified that she plans to enrol the children in Hilton Primary Academy, which she says has an outstanding rating. The school is approximately 6 minutes away from her proposed new home. She also provided specifics of extra-curricular activities in which she intends to enrol the children.

[44] The mother testified that she is prepared to facilitate telephone access and communication by Skype. She is prepared to have the children travel to Toronto during the school's spring holidays, for part of the summer holidays, and over the Christmas holidays, but in alternate years only. She is also prepared to allow the father to have additional time with the children in the United Kingdom on adequate notice. According to the mother's primary plan, all of the father's and the children's travel to and from the United Kingdom should be at the father's expense.

[45] The mother testified that the move will benefit the children in several respects. First, she argues that there will be an economic benefit. The mother will be able to thrive with her new employment opportunity. The children will benefit from remaining with her. They will also have the benefit of another adult parental figure, Adnan, involved in parenting them on a daily basis. The children will be able to develop relationships with extended family in the United Kingdom, and they will continue to enjoy the mother's support academically.

[46] The father's plan, in a scenario where the mother and the children remain in Toronto, is that the governing Order should be varied such that the children will reside with the parents on a 50-50 basis. The father testified that he and Shonelle have been structuring their lives in anticipation of a request that the children move to a 50-50 schedule. Alternatively, if the mother decides to move to the United Kingdom, then he wants the children to remain in his care primarily. He would change the children's school next year in this scenario to a school closer to his home.

[47] For the purposes of either scenario, the father tendered photographs of his house and he says he is able to accommodate the children. He submits the children will continue to have contact with their extended family in the Greater Toronto Area. He will be able to meet the children's educational needs. He testified about the level of education of various members of his family, and he told the Court that education is an important value for him.

[48] In a scenario where the mother goes and the children stay behind, the children will spend time with their mother in the United Kingdom according to his plan. He says that telephone calls will work better in this scenario, given the time difference. I will explain his logic later in these reasons. Finally, in the scenario where the children reside with him primarily, he seeks child support from the mother.

PART IV: PRIOR LEGAL PROCEEDINGS

[49] The governing orders which each party seeks to vary are the Orders of Justice Murray dated November 6, 2013 and April 25, 2014. The November 6, 2013 Order provides that the mother shall have final custody of the children and they shall reside with her primarily. There is a duty on the mother to consult with the father "in advance about any important decisions about the children".

[50] Pursuant to that Order, the father has access to the children on alternate weekends from Friday at 7:00 pm to Sunday at 10:00 am. He is supposed to confirm each visit at least 72 hours in advance by text, otherwise the visit is cancelled. Apparently the parties stopped following this notice provision for a while at some point after the Order was made, and then adhered to it again, at least in part, while this proceeding has been underway.

[51] The Order also divides the Christmas holiday and provides that each party is entitled to a summer holiday with the children for two weeks on reasonable notice to the other party.

[52] The Order does not address child support.

[53] The parties later settled child support on April 25, 2014. That Order provides that the father shall pay child support of $337 per month commencing January 1, 2014 based on his annual income of $22,300.00. The father is also to pay 34% of Brooklynn's ballet costs and of any other expense for sports, extracurricular activities, agreed to in advance in writing. The mother's income is stated in the Order to be $43,415.00 for the purposes of determining the percentage sharing of the cost of the extracurricular activities.

[54] As set out above, the father was not working at the time this Order was made but he started working at some point in 2014. Meanwhile, the mother lost her job on April 23, 2016.

[55] The mother launched her Motion to Change both Orders on March 13, 2017.

[56] This Court has made the following interim Orders leading up to this trial:

(a) On May 3, 2017, Justice O'Connell vacated the first appearance scheduled in this matter and scheduled a case conference before her on June 22, 2017;

(b) On June 22, 2017, O'Connell J. made a temporary consent order requiring the parties to exchange disclosure and plans of care, she extended the father's weekend access to end on Sundays at 5:00 pm rather than 10:00 am, and she made an order for summer access. The parties' consent, drafted by their former counsel, also states that on a temporary basis, the "children habitually reside in the Province of Ontario and that the Ontario Court of Justice or Superior Court of Justice of Ontario shall have jurisdiction relating to the issues of custody/access of the children";

(c) On September 20, 2017, O'Connell J. made a referral to the Office of the Children's Lawyer and requested a focused, expedited investigation on the issues of mobility and the children's views and preferences;

(d) By October 18, 2017, the Children's Lawyer's report had been filed. On that date, O'Connell J. scheduled a Trial Management Conference before me for December 14, 2017, and she scheduled trial dates before me on January 9 and 12, 2018; and

(e) On December 14, 2017, I conducted a Trial Management Conference. Based on my discussions with the parties, I provided specific directions regarding how the parties were to organize documents briefs and their evidence.

[57] The trial in this matter commenced on January 9, 2018.

PART V: APPLICABLE LEGAL PRINCIPLES, ANALYSIS AND ADDITIONAL FINDINGS OF FACT RESPECTING THE PARENTING ISSUES

A. Statutory Provisions Respecting the Mobility Claims

[58] Various sections of the Children's Law Reform Act, R.S.O. 1990, c. 12, as amended, govern this proceeding:

Application for custody or access

21 (1) A parent of a child or any other person, including a grandparent, may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child.

Merits of application for custody or access

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

Best interests of child

(2) The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application.

Past conduct

(3) A person's past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent.

Violence and abuse

(4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person's household; or

(d) any child.

Powers of court

28 (1) The court to which an application is made under section 21,

(a) by order may grant the custody of or access to the child to one or more persons;

(b) by order may determine any aspect of the incidents of the right to custody or access; and

(c) may make such additional order as the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

(iii) prohibiting a party from changing the child's residence, school or day care facility without the consent of another party or an order of the court,

(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a person or body specified by the court, of the child's passport, the child's health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

(vi) requiring a party to give information or to consent to the release of information respecting the health, education and welfare of the child to another party or other person specified by the court, or

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

Order varying an order

29 A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

Child entitled to be heard

64 (1) In considering an application under this Part, a court where possible shall take into consideration the views and preferences of the child to the extent that the child is able to express them.

B. The Test in Mobility Cases

[59] It is the Order of Murray J. dated November 6, 2013 that currently governs the custody and access arrangements between the parties. Pursuant to section 29 of the Act, this Court may not make an Order that varies Murray J.'s Order unless "there has been a material change in circumstances that affects or is likely to affect the best interests of the child." Therefore, before I may consider the merits of the proposed move, I must first determine whether there has been a material change in circumstances that affects or is likely to affect the best interests of the child. The mother bears this initial burden of demonstrating that there has been a material change in circumstances.

(1) Material Change In Circumstances

[60] The leading case, both as to the requisite material change threshold that the Court must apply, and then the analysis that follows if a material change is found, is Gordon v. Goertz. Gordon v. Goertz concerned a parent's request to vary a previous custody order and to relocate from Saskatchewan to Australia. Although Gordon v. Goertz was decided as a variation pursuant to section 17 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), its principles apply to cases decided under the Children's Law Reform Act.

[61] At ¶ 10-16, McLaughlin J. defined what will amount to a material change. She wrote, "[c]hange alone is not enough; the change must have altered the child's needs of the ability of the parents to meet those needs in a fundamental way". While relocation will always be a "change" it may not always be a material one. For example, a move to a town nearby, or a move in the case where the child lacks a positive relationship with the other parent or extended family may not affect the child sufficiently. "The question is whether the previous order might have been different had the circumstances now existing prevailed earlier". And, "…the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order."

(2) The Best Interests of the Children

[62] Once a material change in circumstances is found, a number of principles are engaged.

[63] Concerning the scope of the inquiry, at ¶ 17, McLaughlin J. wrote, "once a material change is found, the Court should consider the matter afresh without defaulting to the existing arrangement". If the Court finds there is a material change, then it must consider all factors relevant to the children's best interests in light of the new circumstances. As McLaughlin J. held at ¶ 47, "There is neither need nor place to begin this inquiry with a general rule that one of the parties will be unsuccessful if he or she fails to satisfy a specified burden of proof".

[64] In considering the children's best interests if a material change is found, the Court must be guided by the statutory criteria set out in section 24(2) of the Act. In accordance with Van de Perre v. Edwards, 2001 SCC 60 at ¶ 10, the Court should consider the applicable statutory factors in light of the evidence before it.

[65] There is a considerable discussion at ¶ 26-48 of Gordon v. Goertz as to whether the Court should begin the best interests' analysis with a "presumption in favour of the custodial parent". After canvassing the history of this notion and considering arguments for and against such a presumption, the Court held that no such presumption exists.

[66] However, at ¶ 48, McLaughlin J. stated, "[w]hile a legal presumption in favour of the custodial parent must be rejected, the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent's parenting ability". See also Rushinko v. Rushinko, 2002 CarswellOnt 1997 (C.A.) at ¶ 5-6 and most recently Porter v. Bryan, 2017 ONCA 677 at ¶ 12 for subsequent restatements of this principle.

[67] Related to this concept are the custodial parent's reasons for the move and how to weigh these. The Court held at ¶ 23 that a custodial parent's reasons for the move are relevant only if they impact the parents' ability to meet the child's needs.

[68] Lastly, the Court held that it should try to maximize contact with both parents as is consistent with the children's best interests. See Gordon v. Goertz at ¶ 24-25. The maximum contact principle may be at odds with a move in many cases. However, the Court gave guidance about how to weigh this factor.

(3) Summary of these Principles

[69] Paragraphs 49 and 50 of Gordon v. Goertz contains a summary of the aforementioned principles. I quote from it verbatim as follows:

49 The law can be summarized as follows:

1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.

5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.

6. The focus is on the best interests of the child, not the interests and rights of the parents.

7. More particularly the judge should consider, inter alia :

(a) the existing custody arrangement and relationship between the child and the custodial parent;

(b) the existing access arrangement and the relationship between the child and the access parent;

(c) the desirability of maximizing contact between the child and both parents;

(d) the views of the child;

(e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;

(f) disruption to the child of a change in custody;

(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?

C. There Have Been Material Changes In Circumstances Since Murray J.'s November 6, 2013 Order

[70] It is not seriously disputed that there have been material changes in circumstances in this case. The children have frequent and meaningful contact with their father and their extended family by extension. The proposed move will curtail that contact. This amounts to a sufficient change and there is a sufficient connection between the degree of change and the circumstances of the children in this case.

[71] The custody and access Order of Murray J. dated November 6, 2013 was a consent Order, premised on both parents residing in the Greater Toronto Area. A move to Newcastle was not forseen, nor could it have been reasonably contemplated by Murray J. when she made the Order. I add that it was not forseen or reasonably contemplated by the by the parties either. See L.M.P. v. L.S., 2011 SCC 64.

[72] It is not just the proposed move that amounts to a material change in circumstances since Murray J.'s Order of November 6, 2013. I find that the mother's job loss, her new relationship, her new child and her financial circumstances are all material changes which are sufficiently connected to the circumstances of the children in this case. These changes were not forseen nor reasonably contemplated by either the Court or the parties at the time of the November 6, 2013 Order.

D. The Mother is the Children's Primary Parent and Her Views are Entitled to "Great Respect and the Most Serious Consideration"

[73] I find that the mother is and has always been the children's primary parent. In accordance with Gordon v. Goertz, the mother's views are entitled to great respect and the most serious consideration. Likewise, her views about where she wants to live and work are also entitled to respect.

[74] My finding that the mother was the primary parent is based on the following.

[75] First, that the mother is the primary parent is reflected as such in the wording of the governing order of Justice Murray dated November 6, 2013. By virtue of that order, the mother has custody and the children reside primarily with her. I am not persuaded by the father's argument that the mother does not have sole custody because of the duty imposed on the mother by the Order to consult with him about major decisions.

[76] Moreover, there is overwhelming evidence that the mother has been the children's de facto primary parent since their births. The evidence is:

(a) She is responsible for their day to day care;

(b) She has been the parent who has made the majority of the decisions respecting the children;

(c) She has enrolled the children in day care, school and activities;

(d) She takes the children to school and to their health appointments;

(e) The father has done some of the school pick-ups and drop offs, but this has mostly centered around his access or when the children have been in his care when the mother was abroad on a few occasions. The father also did some pick-ups on an ad hoc basis when the mother was working between 2014 and 2016 if something came up at work and she could not get the children on time;

(f) The mother's evidence, that the father did not challenge, was that the father took the Bryden to the doctor only twice. Both times were in response to incidents that occurred when the child was in the father's care;

(g) She is a member of the children's Parent-Teacher Committee with their school. She attends the parent-teacher meetings. The father has only attended three parent teacher interviews, two of which were in the three months leading up to this trial;

(h) She also volunteers in the classroom when additional assistance is required;

(i) She has invested in additional educational programs for Brooklynn and Bryden;

(j) She is the parent primarily responsible for working with the children on their nightly homework and projects. The mother testified that the children often came home from visits with their father with their homework incomplete;

(k) In cross-examination, the father was unable to name the children's teachers from prior years. He was aware of the names of the children's current teachers only;

(l) The mother is giving the children a broader exposure to other religions and cultures and is teaching the children to be open minded;

(m) Until April 2016, the mother primarily parented the children while working. Then after that, she has been a stay at home parent; and

(n) As I will explain below, there is evidence that Brooklynn's primary attachment is to her mother.

[77] To challenge the suggestion that the mother has been the primary parent, the father testified that looked after the children on a few occasions when the mother travelled abroad. As well, during the trial, the mother credited her heavy involvement in the children's education as being one of the main reasons for Brooklynn's academic performance. Simultaneously, she said the father was largely uninvolved in the children's educational lives. To refute the mother's allegation in this respect, the father testified about taking the children to the Science Center. He also told the Court that Shonelle plays with the children in the park, and reads to Brooklynn nightly when she is in the father's care.

[78] While both parents played a role in Brooklynn's development, this evidence does not alter the finding that the mother was the primary parent of both children. In particular respecting the care the father provided when the mother wished to travel, I note that on some occasions, the mother wanted to take the children with her but the father refused travel consent. While I do not necessarily fault him for withholding consent (I address this below), the care that the father provided for the children during certain extended periods was temporary care only for a specific reason, and it does not alter the state of affairs respecting parenting and who was the primary parent.

[79] I find that the father has been the fun, access parent, whereas the mother has been the parent responsible for the care of these children on a day to day basis.

E. The Mother's Reasons for the Move are Relevant

[80] In a nutshell, the mother's reasons for the move are that she is in a new relationship and has a new child. She wishes to improve her financial circumstances and avail herself of the emotional and financial support from her new partner. She seeks to improve her family's well-being. I find that these reasons for the move are relevant to the analysis that I must apply.

[81] In Maynard v. Arruda, 2006 CarswellOnt 7561 (S.C.J.), the Court permitted the mother, who was the custodial parent, to move from Orillia, Ontario to Maine. Unlike in this case, the mother had an existing job in Ontario. However, she met her new partner on the internet and planned to marry him. Regarding her reasons for the proposed move, at ¶ 19-21, Wood J. held that the move would result in the children living in a dual income household, as opposed to the single income household and having improved living circumstances in the new home in Maine. Although the proposed move was motivated in large part by the mother's desire to pursue her new relationship and her "wish to have his support and affection", the move benefitted the children because of the consequent ability of the mother to provide a "better lifestyle for the children as part of this new family".

[82] In Rushinko v. Rushinko, the Ontario Court of Appeal reversed the lower Court's refusal to permit the mother's proposed move from Delhi, Ontario to Tecumseth, Ontario, to pursue new employment. The mother was the custodial parent. The potential new job offered the mother more flexible hours, increased income, the ability to spend more time with the children, and it eliminated the necessity of a babysitter for the children on school days.

[83] Likewise, in Trisolino v. De Marzi, 2013 ONCA 135, the trial judge permitted the mother to move with the children, from Ontario back to Italy, where the parties had lived during the children's early years. The mother was a lawyer who could only practice her profession in Italy. The trial judge found that the reasons for the move had a "direct bearing on the children's best interests, both emotionally and financially". At ¶ 4, the Court of Appeal agreed that the reasons for the move were relevant, holding that "the mother's reasons for the move reflect her perception of the needs of the children, and her judgment about how those needs may best be fulfilled."

[84] A number of cases have considered the consequent benefits of the move for the children flowing from the primary parent being able to relocate to an environment where she or he will be fully functioning and happy. See for example Chakraborty v. Chakroborty, 2008 CarswellOnt 6597 (S.C.J.) at ¶ 16 (affirmed by Chakraborty v. Chakroborty, 2010 ONCA 123), where the Court recognized the "good health of the applicant and the social, psychological and emotional aspects of her desire to move" as being significant factors impacting the child's best interests.

[85] Another such case is Sferruzzi v. Allan, 2013 ONCA 496. Although a case concerning a child with special needs, in reversing the motion judge's decision to deny the move, the Court of Appeal relied on the fact that the move would enable to father to have his new partner's support in looking after the child and "in sharing the associated financial and emotional burdens". The child would have "the benefit of a healthy, happy parent who is better equipped physically, emotionally and financially to care for him". The Court discusses these benefits in a number of paragraphs in the judgment. See ¶ 23-31, 49 and 56.

[86] Similarly, in Bjornson v. Creighton, 62 O.R. 3d 236 (C.A.) at ¶ 30, the Court of Appeal reversed the trial judge's denial of the move. In part, the Court of Appeal held that the trial judge "failed to appreciate the multi-faceted nature of the mother's desire to return to Alberta with the child and the concomitant positive effects on the child's best interests in being cared for by a well-functioning and happy custodial parent".

[87] Finally, see also Zanewycz v. Manryk, 2010 ONSC 726 ¶ 116 for another case on this point.

[88] In this case, the mother believes that the proposed move will benefit Brooklynn and Bryden. The move will also benefit the mother's well-being, which will enhance her ability to care for the children with the support of her spouse. I find that the mother's reasons for the move to be relevant to her ability to parent. Further, as I will explain below, I do not find that the mother wishes to move for an improper motive, such as to restrict the father's access.

F. The Mother's Credibility Respecting Her Proposed New Home in England

[89] One area of the mother's and Adnan's testimony caused the Court considerable concern. Both the mother and Adnan testified about the home in which the children will reside if the move is permitted. At the outset of the trial, Adnan was in the process of entering into a lease for a home in Newcastle in preparation for the mother and the children to arrive if permitted. The mother testified that they secured a new rented home just as the trial was starting.

[90] The mother tendered various photographs, purportedly of the new rental accommodations. She explained to the Court that the photographs depict the home in which she and the children would be living. The photographs of the interior of the home depict a modern kitchen, a modern bathroom, and nicely decorated bedrooms.

[91] In cross-examination, the father produced a real estate listing that he discovered on the internet respecting the address that the mother said she and Adnan had rented. The listing describes the house as a semi-detached, three bedroom home. However, the listing contains different photographs. There is a photograph of the exterior of the home depicting a semi-detached, red brick house but the interior photographs are very different from those tendered by the mother. The interior photographs are of more basic accommodations; as if it were a house that had not been renovated.

[92] When confronted with these pictures, the mother changed her story about the rental. She testified that she made a mistake, and the set of pictures that she originally tendered were intended to be examples of how she would decorate the home in the future. She said had mixed up the photographs. I do not believe this explanation, which appeared to have been made up in the middle of cross-examination.

[93] Adnan testified soon after the mother gave this evidence. I did not take a break in between the mother's evidence on this point and Adnan's evidence knowing that the father would also question Adnan on the photographs. In cross-examination, Adnan confirmed the mother's original set of photographs to be an accurate depiction of the house. The father did not then confront Adnan with the accurate rental listing. Nevertheless, I interrupted the cross-examination and specifically asked Adnan whether he had actually been inside the home that the parties had just rented. He confirmed that he had.

[94] Later in both her cross-examination of the father and in submissions, the mother attempted to correct this evidence by suggesting that humans make errors. For example, the father omitted the employment insurance income he earned in 2017 from his sworn financial statement for the trial (although he simultaneously provided documentary proof the employment insurance income in his exhibit book). The mother suggested to the father that this omission on his financial statement was "human error", which the father readily admitted. The mother then asked the father to accept more generally that human errors can occur. The not so subtle message was that her switching the photographs was "human error".

[95] The mother never acknowledged that she had misled the Court nor did she apologize for that. At the end of the trial, the mother asked me to find that the photograph switch was a mistake. I do not accept this. I find that the mother deliberately filed misleading photographs of the home in Newcastle and I find that she and Adnan attempted to mislead the Court about their housing. What I do not understand is why they would do this. Granted the false photographs that the mother submitted were nicer, but the actual photographs that the father retrieved from the internet depict housing that is perfectly appropriate.

[96] Based on the mother's conduct on this point, the father asks the Court to find that the mother is not credible and that I should not trust her other evidence. He relies on this in support of his request that I deny permission for the move.

[97] While the Court in no way condones the mother's and Adnan's misleading conduct, I decline to deny the move on this basis. Just because I have made an adverse finding about her credibility and conduct in relation to this piece of evidence does not mean that I must reject all of the mother's evidence. See Baker-Warren v. Denault, 2009 NSSC 59.

[98] Although the mother and Adnan misled the Court, ultimately I must be guided by what is in the children's best interests. Despite their serious lack of judgment respecting this evidence, I nevertheless find the move to be in the children's best interests when considering the totality of the evidence. I note that the Court followed this approach in Johnston v. Brighton, 2004 CarswellOnt 3420 (S.C.J.) at ¶ 41-46 and rejected an argument that the move should be denied based on the mother's past lies under oath. In that case, the Court sanctioned the mother through an award of costs for her conduct. In this case, I find the mother's and Adnan's misrepresentation to be relevant to a question I have about whether to order the mother to post security.

G. The Mother's Employment History and Prospects

[99] I agree with the mother that if the move is allowed, she will be able to pursue an employment opportunity in the United Kingdom which will enhance the family's finances and ultimately it will benefit the children.

[100] The mother testified that she has a job in the United Kingdom. She tendered a one page "Offer of Employment" for a Sales Manager job for MI Traders Ltd. The document states that the mother will be paid "40K" with the possibility of a yearly bonus. She is required to work 37.5 hours (flexible) between the hours of 9 am to 8 pm.

[101] MI Traders Ltd. is a company that also is in the mobile phone business. The mother explained that her role in this new job will be to oversee the other sales representatives for the company, monitor sales targets and report to the director of sales.

[102] Regarding her qualifications for this job, the mother testified that she has a high school education and that she studied theater at Humber College after that for about one year. Several years later, she took a night course in project management at Ryerson University that she completed in 2013. She testified that it took her two years to complete because of her parenting responsibilities.

[103] The mother's first job was at Telus beginning in 2008. She started out working in a call center, switched to work for Telus' loyalty and retention program and then took some leadership training and became a trainer.

[104] After about 5 years at Telus, she went to work for Auto Trader. She worked as a performance manager there. She was laid off on April 28, 2016.

[105] Towards the end of her time at the Auto Trader, she was offered the opportunity to become a financial advisor for Sunlife. After she was laid off from Auto Trader, to pursue the opportunity at Sunlife, she started a licensing course in about May of 2016, which she completed in October 2016.

[106] In May 2016, she also simultaneously applied for four jobs. In cross-examination, she testified that she did not apply for additional jobs because she had put her "heart and soul" into getting the job at Sunlife. Despite passing the licensing exam, the mother then discovered that she was ineligible to work as a financial planner because of her debts. She was led to believe this would not be a problem when she was studying, but discovered otherwise months later.

[107] Then, in about November of 2016, she discovered she was pregnant with Zain. The mother candidly admitted that she wasn't focused on looking for another job after she became pregnant.

[108] I do not fault her for focusing on retraining for a job at Sunlife for several months in 2016, and then changing her focus when the job at Sunlife did not materialize and when she discovered her pregnancy.

[109] The mother testified that she and Adnan initially discussed Adnan moving to Canada. However, Adnan has business ties in the United Kingdom and was then financially supporting the mother (he still does), their soon to be born child (he still does), and Brooklynn and Brayden to some extent through his payments to the mother. He also supports his children from his first marriage.

[110] They agreed that Adnan moving to Toronto was not an option.

[111] In anticipation of a move, Adnan introduced the mother to one of his colleagues, the owner of MI Trading Ltd., who later offered the mother the job in his business. The mother had discussions with him in December 2017 and January 2017, but before committing, she wanted to first have a discussion with the father about a possible move. This discussion then happened in February 2017 at the father's home. How that meeting unfolded is dealt with below, but needless to say, the father did not consent to the move.

[112] The mother participated in a telephone interview for a job at MI Trading Ltd. in May of 2017. Her prospective employer was prepared to hire her, given her experience working for Telus. She testified that she told her new prospective employer about this court case as she could not commit to a start date. She also testified though that she thought this case would be over by the time the trial started, and that she would have a decision by now. Based on that understanding about timing, she had hoped to already be in her new job when this trial was proceeding.

[113] Nevertheless, the mother maintained that there is flexibility as to the start date for this new position despite her inaccurate time estimate for the move. I accept this given that the new employer is a contact of Adnan's.

[114] The father challenged this evidence in two main respects. First, he suggested that the mother did not look hard enough for a job in Toronto. Second, he suggested through his cross-examination that the mother's employment offer is not real. He questioned her stated job flexibility, he suggested that the contract provides that she will be paid more than market rates (based on his own internet research), and he suggested that the mother has no managerial experience.

[115] I am not prepared to find that the mother's job offer is not real as the father argued. Neither parent called the new prospective employer to testify. Despite the father attempting to challenge the mother's rate of pay, I received no admissible evidence concerning market rates of compensation in the United Kingdom to contradict the reasonableness of the compensation the mother says she will receive. The father's questioning of the mother on this point armed with his own internet research is not evidence.

[116] Moreover, the mother's evidence about the sequence of events leading to this job, and the information she provided about her discussions with the potential employer, and about this job itself, was detailed. For the mother to mislead the Court about this job as the father suggested, she would have had to tell multiple lies to the Court. I am not prepared to find that she did this. Incidentally, it is also makes sense that Adnan, who works in the mobile phone industry, would reach out to a contact in the same industry, to get the mother a job. The evidence is that a move to Newcastle will enable the mother to pursue this job, increase her income and to have the job flexibility to better parent the children.

H. The Maximum Contact Principle

[117] As Gordon v. Goertz and other cases direct, I must take into account the "maximum contact principle". The maximum contact principle is the notion that the children should have as much contact with both parents that is in their best interests. The focus is on meaningful contact.

[118] Although this principle is enshrined in the Divorce Act but not in the Children's Law Reform Act, it has been nevertheless been applied in cases decided under Ontario's provincial legislation (see for example Cavannah v. Johnne, 2008 CarswellOnt 7455 (S.C.J.) ¶ 38), and it is a relevant consideration in mobility cases.

[119] The parties have raised the maximum contact principle in three different ways in this case.

[120] The first is whether or not the travel plan(s) will, either from a monetary point of view or from the point of view of logistics, permit the children to have contact with their father, and by extension, their extended family here in the Greater Toronto Area.

[121] The second is whether the time zones between Toronto and Newcastle will interfere with telephone and other contact, such as via Skype. Embedded in this second argument is the father's submission that telephone and Skype access only work in the scenario where the children remain here in Toronto with him and the mother moves to Newcastle without them, but not in the reverse scenario where the children are in England.

[122] And third, the father has squarely raised the question of whether the mother's move is designed to frustrate his access.

[123] On its face, the maximum contact principle could be said to be completely inconsistent with a move. However, that is not how the principle has been interpreted and applied. As McLaughlin J. held at ¶ 24 of Gordon v. Goertz, and previously at ¶212-219 of Young v. Young, 1993 CarswellBC 264 (S.C.C.), the maximum contact principle is mandatory, but not absolute. The Court must respect it to the extent that such contact is consistent with the children's best interests.

[124] Further at ¶ 217 of Young v. Young, McLaughlin J. said the maximum contact does not mean daily contact. Nor does it mean that a custodial parent may not move. "Optimum access may simply not be in the best interests of the child for a variety of circumstances."

[125] And at ¶ 25 of Gordon v. Goertz, she said, "[t]he reduction of beneficial contact between the child and the access parent does not always dictate a change of custody or an order which restricts moving the child". The benefits served by remaining with the custodial parent and permitting the move may very well offset the reduction of contact.

[126] I will now address the three arguments about contact raised by the parents.

(1) The Various Travel Plan(s)

[127] Although I am permitting the move, I do not find the specifics of either party's travel plans to be in the children's best interests. However, the parents each made concessions during their evidence which will permit the Court to craft a suitable alternative.

[128] The mother's plan is that the children would travel to Toronto twice per year, for the school spring holiday and part of the summer school holiday, and over Christmas in alternating years. She states that this plan provides the father with 52 days per year, which she says approximates the current access he has right now. She also says he can travel to Newcastle if he wants and he can see the children there on appropriate notice.

[129] The mother initially presented a travel budget in a spreadsheet format that she prepared, without providing any supporting documentation. The budget claims that the cost of travel for the father and the two children for the spring holidays is approximately $2,800, and the cost for the summer and winter holiday travel ranges between $3,600 and $3,900.

[130] According to her proposal, the total annual cost of travel would be about $6,706.49 in years where the father does not have the children for Christmas under her plan, or $10,373.87 in years where he has Christmas.

[131] The mother's initial travel plan focuses more on her own interests than those of the children. She argued that the father should not only pay retroactive and prospective child support and fund 100% of the cost of his and the children's travel to and from Newcastle, but she wanted the father, exclusively, to be the parent who will accompany the children on the plane back and forth between Toronto and Newcastle.

[132] Until the children are old enough to travel on their own, each of the children's trips for access, according to the mother's plan, would require multiple return flights and hotel stays as follows:

(a) The father bears the cost of ground transportation to get to Toronto Pearson Airport. This cost of this is not reflected in the mother's travel budget;

(b) The father travels to Newcastle from Toronto. He must purchase a round trip ticket and uses the first leg of that ticket to get to Newcastle;

(c) The father stays overnight in hotel;

(d) The father brings the children back to Toronto. He must purchase three round trip tickets for himself and the children and uses the first leg of those tickets to get from Newcastle to Toronto;

(e) The father and the children travel from the Toronto Pearson Airport to his home. The cost of this ground transportation is not reflected in the mother's travel budget;

(f) The father and the children travel to the Toronto Pearson Airport from his home. The cost of this ground transportation is not reflected in the mother's travel budget;

(g) The father returns the children to Newcastle after his visit and uses the return portion of the three round trip tickets;

(h) The father stays overnight in a hotel;

(i) The father travels back to Toronto on the return portion of original round trip ticket referred to in paragraph (a) above; and

(j) The father returns from Toronto Pearson Airport to his home. The cost of this ground transportation is not reflected in the mother's travel budget.

[133] In response, the father tendered a proposed itinerary that Shonelle created using British Airways' website. The father's/Shonelle's itinerary purports to depict what the cost of travel between Toronto and Newcastle will be. Shonelle's internet search assumes random travel dates in March and April 2018.

[134] Shonelle testified that she used British Airways because it offered the most direct routing between Toronto and Newcastle. According to Shonelle's research, the cost of airfare for one access visit only, exclusive of hotels and ground transportation, was $6,582.01 CAD. This was almost equivalent to the mother's total annual travel costs in certain years.

[135] Shonelle's airfare costs were broken down as follows:

(a) The father's trip from Toronto to Newcastle on British Airways costs $1,679.64 CAD. I note that Shonelle searched for this leg as a one way ticket, which inflates the cost of a ticket;

(b) The cost of three roundtrip tickets from Newcastle to Toronto, and then returning from Toronto to Newcastle is 1,466.82 GBP (or approximately $2,522.93 CAD using the conversion rate of 1.72 that I used above); and

(c) The cost of the father's trip from Newcastle to Toronto is 1,385.14 GBP (or approximately $2,382.44 CAD using the conversion rate of 1.72 that I used above). Again, I note that Shonelle searched for this leg as a one way ticket.

[136] To respond to this evidence, the mother suggested through questions in cross-examination, and then in her own reply evidence, that the father's and Shonelle's searches were too narrow. She tendered an internet search from the Google Flights search engine that showed the cost of round trip flights to be much lower. Shonelle argued with the mother that the mother's Google Flights' search produced routes with multiple stops or long lay overs, including in one instance, an overnight in Amsterdam. Indeed, in some instances the mother had the children and the father flying in and out of Manchester. I was then told that Manchester and Newcastle are a driveable distance, but I received no evidence about the cost of that ground transportation between Newcastle and Manchester.

[137] Through this evidence, one parent or the other tried to persuade the Court the other's travel plan was either inaccurate, incomplete, understated or overstated in terms of cost, or that it didn't make sense logistically. The Court finds that both parties' evidence and submissions on this point are inaccurate. To some degree such evidence will always be somewhat inaccurate because it is evidence of projected future travel costs. Both parties necessarily had to search on random dates to come up with estimates of airfare. The parties will not have the actual costs until such time as travel actually happens and the parties sit down to actually book a trip.

[138] However, in the mother's case, she didn't present any documentation to support her travel plan, at least initially. I also note that she had an interest in persuading the Court the father could afford the cost of travel, and so lower travel costs would support her plan. Yet even then, her plan omits the cost of certain travel items, and it places on the father an unreasonable burden respecting paying for the travel and accompanying the children on their flights.

[139] Conversely, it was in the father's interest to inflate the cost of travel as much as possible to support his argument that travel will not happen post-move. His evidence is not reliable in that Shonelle's searches included two one way tickets for himself at the start of the journey and at the end of the journey, rather than searching for a return trip that may have lowered the cost. He also didn't provide the cost of ground transportation either, nor proof of the cost of hotels. Finally, Shonelle only searched on a single airline when cheaper, convenient options may be available.

[140] I am not prepared to conclude that British Airways is the only airline that is in the children's best interests to use. It is not necessarily true that all other airlines' travel times and layovers are too long for these children to tolerate. For example, one of the mother's proposed routes that she depicted in her reply evidence provides that the total travel time, one way, would be 11 hours and 30 minutes, versus 8 hours and 50 minutes that Shonelle's British Airways itinerary depicts. The cost of a return trip for that itinerary dropped significantly to $902 round trip, almost half of the cost of the one way ticket that Shonelle's search revealed.

[141] Regardless, the mother's plan that the father bear all of this burden is not a financially viable option, nor is it reasonable. If I were to order her plan as presented, I find it would risk impairing the father's relationship to the children, because I do not believe that the access the mother proposes should happen will actually happen. I say this due to a lack of finances on the father's part to fund all of this travel, and also because I recognize the father has other work and family commitments. I also find that the mother's proposal that the father could spend extra time with the children in Newcastle on adequate notice is not realistic for the same reasons. It is not in the best interests of the children to have their father's financial resources diminished to fund the full cost of all this travel, nor to have the father exhausted from travel, when they are supposed to be enjoying visits together. The mother's initial travel plan also fails to acknowledge that it is the mother, not the father, who has come to the Court seeking permission to move.

[142] If the Court were to order the mother's initial travel plan, the Court would not be giving due weight to the maximum contact principle.

[143] But on the other hand, despite the deficiencies respecting the travel evidence, the father's proposal that the move be denied and that the children should reside with both parents equally is not in the children's best interests either. Nor is it in the children's best interests for the move to be denied and for the children to reside with him primarily should the mother choose to go to Newcastle anyway. I make this finding based on my overall assessment of all of the evidence and the factors that must be weighed.

[144] In coming to this conclusion, I have specifically considered and rejected the father's argument that Adnan could move here as an alternative that militates in favour of not allowing the move. I do not find this to be reasonable or realistic. Again, he has a business in the United Kingdom and other obligations. His income is the source of support for two families.

[145] Although the mother's initial travel plan is not acceptable to the Court, in my view, there are alternatives available. During the trial, I asked the parties a number of questions about different alternatives in a scenario where the move is permitted, or where a move is denied, to ensure I had both parties' complete positions respecting the obligation to fund and facilitate the travel.

[146] In response, both the mother (and Adnan) said they would make financial concessions. The mother suggested that the father be given some child support relief, and she and Adnan are "open" to sharing the financial and logistical burden of travel in some fashion. I was not given a number and they essentially left it to the Court to decide.

[147] Specifically, Adnan said he would contribute financially to the cost of travel if that what is required. I note that he testified that if the mother was ordered to pay for travel and she couldn't afford it, he would pay the shortfall. While he does not have direct liability to do this and the Court is not ordering him to do this, I have considered the mother's finances in this context and Adnan's promise of continued financial support for travel costs post-move.

[148] In response to my questions, the father said that in either scenario, the mother should be responsible for the cost and logistics of travel, including accompanying the children on their flights. Alternatively, he is prepared to accompany the children one way, but the mother should accompany the children the other way, the cost of the children's flights should be entirely at the mother's expense, and he will pay for his own travel.

[149] Shonelle said she is prepared to help out with the costs if necessary to support her husband, but she cannot contribute in a significant way. She has a child of her own. Shonelle has no responsibility to contribute anything to this. She may choose to do so as a supportive spouse, but that is up to her.

[150] I intend to craft an Order that takes these and other considerations into account. I provide specifics later in these reasons.

(2) The Arguments Respecting Telephone and Skype Access

[151] The mother proposes that the father may also have telephone and Skype access with the children if the children are permitted to move. The father submits that the mother's plan in this respect is unworkable.

[152] The father tendered telephone records from August 6, 2016 to December 6, 2017 to show that he had regular telephone access with the children when they were not in his care for access visits. In cross-examination, the mother admitted that the father speaks to the children either daily or every other day, although she said the calls were short.

[153] According to the father, telephone and Skype access will not work in a scenario where the children are allowed to move given that Newcastle is 5 hours ahead of Toronto. If he tries to telephone the children before they go to school in the morning, it will be in the middle of the night here. On the other hand, if he waits until the end of his work day, it will be too late in the evening and the children will already be in bed.

[154] However, he says that telephone and Skype access will work in a scenario if the mother moves and the children stay behind. She can telephone the children in the evening from the United Kingdom when it will be after school here. Apparently this has already been done during the mother's previous trips to the United Kingdom when the children remained behind.

[155] I did not find this argument to be persuasive. The father does not need to wait until he gets home from work to telephone the children. He can certainly take a break during the afternoon of his work day and telephone the children when it will be evening time in Newcastle. As well, he does not necessarily have to have daily telephone or Skype contact for that contact to be meaningful. If he cannot make day time calls work, he can telephone and Skype on weekends for longer periods of time.

(3) The Parties' Compliance With Court Orders

[156] Each party accuses the other of failing to comply with Court Orders and asks that I take this into account. Again, in the father's case, he argues that the Court should be suspect that the mother will not facilitate his relationship with the children or comply with any Order I make if I permit the move and he makes this argument with reference to the mother's past conduct.

[157] I am considering this evidence pursuant to section 24(3) of the Children's Law Reform Act. However, I am also mindful of the backdrop of the litigation when I consider these allegations. I find there has been some positioning by both parties with a view to their desired outcomes in the litigation. In the result, I am not prepared to find that the mother's desire to move is motivated by a desire to curtail the father's parenting time. Nor am I prepared to find that she has engaged in a pattern of frustrating the father's contact in the past.

(i) The Mother Changed the Children's School in 2016

[158] Firstly, the father complains, with hindsight, that the mother did not respect the duty to consult him about important decisions respecting the children as she was required to do by Murray J.'s November 6, 2013 Order. He says this with specific reference to the mother's decision to change the children's school. As set out above, for the school year commencing 2016-2017, the mother changed the children's school from Our Lady of Peace Catholic School to the Winchester Public School.

[159] The mother explained that she did so because she was previously living in Etobicoke but moved within Toronto. Therefore, she moved the children to a school within the new school district.

[160] She testified that she did discuss it with the father. She refuted the father's allegation that religion was a motivating factor for the school change; rather she changed schools due to convenience/geography. Moreover, she selected the specific school within her new area, because it offered French Immersion.

[161] The father testified that the mother did not consult with him, rather she just told him. The father tried to suggest to the mother in his cross-examination of her that she only told him about the school change in the summer of 2016, after the registration had already been done. The mother maintained that she told him just as she was about the change the registration, but beforehand. She was firm under cross-examination that the father did not object to her plan to change the school. The father even agreed with this proposition in his questioning of the mother, by responding in commentary to her that he didn't object because he didn't want to make it difficult for the children.

[162] I prefer the mother's evidence on this point. I find her evidence to be credible respecting the school change. Incidentally, the manner in which the evidence unfolded and the content of that evidence is consistent with the evidence that the mother was primarily responsible for the children's education, which I have dealt with above.

[163] I am not prepared to find that the mother breached the Order of Murray J. dated November 6, 2013 in this respect. The evidence is that she told the father about the school change before she effected it, thereby giving him an opportunity to dispute it. Even if the issue was disputed, the mother had custodial authority to change the school. Her reasons for the school change were perfectly reasonable, which the father seemed to acknowledge in his cross-examination of the mother. Even if a broader exposure to other religions was a motivating factor for the mother, there is nothing inappropriate about that.

(ii) The Father's Introduction to Adnan and the Initial Discussion of the Proposed Move

[164] The balance of the allegations by both parties primarily relate to the other's willingness to facilitate a relationship with the other parent. In my view, the unfortunate manner in which the father was introduced to Adnan and the timing of the mother's announcement that she intended to move to the United Kingdom have created some rigidity on the part of the parents, which is unfortunate. However, the mother has not attempted to frustrate the children's relationship with the father.

[165] I will first provide context.

[166] Although he was aware of the mother's new relationship previously, the father first met Adnan in February 2017 during one of Adnan's trips to Toronto. During this particular trip, the mother and Adnan asked for a meeting with the father and Shonelle. At this first introductory meeting, they announced the mother's intention to move to the United Kingdom. Understandably, the conversation did not go well. It ended without any specifics discussed. Both parties agreed in their evidence that the father was unwilling to consider the move. The mother testified that the father said that she could move, but not with the children.

[167] I understand why the father found this first meeting to be off-putting. Adnan acknowledged that the timing of the conversation was not ideal. However, he expected the father to be open to the idea, particularly given the various benefits that he said he could offer the children.

[168] Interestingly, notwithstanding this rocky introduction, the father and Adnan developed a cordial relationship with each other. In his evidence, Adnan described himself as a "man of dialogue". The father agreed with Adnan's characterization about himself. The father and Adnan seem to like each other. In his evidence in chief, the father described Adnan as "extremely respectful", although he testified that he didn't know enough about Adnan as he would like. The father and Adnan were incredibly polite to one another during the father's cross-examination of Adnan.

[169] There is evidence that the two men respect one another. As I will explain below, this relationship of respect, and Adnan's intervention, later operated to diffuse a difficult situation between the parents in September of 2017 at the children's school. In my view, despite the tension that has developed, both parents' and their spouses' mature attitudes towards one another are factors that militate in favour of the move because they all understand the importance of the children's relationships with both families.

(iii) Whether Each Parent Supports a Relationship Between the Children and the Other Parent

[170] Justice Murray's Order of November 6, 2013 provides that the father is to confirm that each of his visits is proceeding at least 72 hours in advance by text, otherwise the visit is cancelled. The mother testified that the parties included this provision in their consent order because the father was then inconsistently seeing the children. She testified that after the Order, the father didn't follow this term, but she didn't cancel his visits for the "sake of the children".

[171] Both parties agreed that since the mother commenced this proceeding, the father is providing the 72 hours' notice once again.

[172] The father's version is that after Murray J.'s Order of November 6, 2013, the parties came to an understanding that he need not give the notice. However, his perception is that the mother started requiring the notice after the February 2017 meeting about the proposed move.

[173] The father testified that the mother has cancelled or attempted to cancel his visits. He gave only three examples.

[174] First, he testified that she cancelled his access for several weeks in 2013. However, this evidence was vague. The evidence was also clear that these visits, if they were in fact cancelled, would have been cancelled prior to Justice Murray's November 6, 2013 Order and so this is both historical and it is not evidence of a breach of the Final Court Order. I cannot find that she breached an interim order either based on the evidence.

[175] The second example is of an exchange that occurred in June of 2017. The father pointed to a text message that the mother sent saying that she was changing the schedule "due to Brooks birthday and other plans". The father told the mother that she was not at liberty to change the Court Order unilaterally but that he would "accommodate" her request. The mother responded "incorrect" and then the balance of their exchange is cut off from the text message.

[176] The portion of the mother's text message that was supplied is somewhat dictatorial. But the parties were able to come to an accord respecting the schedule change. Based on the father's response, this is not a breach either. I also note that I was not given the balance of the text message.

[177] The third example relates to an incident in September 2017 at the children's school. Murray J.'s Order provides that the father is to pick the children up at the mother's home on Fridays at 7:00 pm. Although there was evidence that the parties had maintained some flexibility respecting the children's pick-ups and drop-offs, on short notice one Friday in September, the father announced by text that he wanted to pick the children up from their school. The mother said no because she had prepared dinner. She was prepared to have the father pick the children up at her home early, at 5:00 pm, but she wanted them to eat the food she had prepared first. Despite this, the father showed up at the school at the end of the day and a conflict between the parties ensued.

[178] The mother described the scene as "embarrassing" and said she felt intimidated. She said the father told her that he could pick up the children "whenever he likes".

[179] The mother telephoned Adnan for assistance during this interaction with the father. She put Adnan on the phone with the father. As set out above, Adnan served as a calming influence to the situation. After saying that he felt the parties should follow the Order, he ultimately persuaded the mother to simply let the children go with the father and de-escalated the situation.

[180] Adnan's cooler head prevailed in the situation.

[181] What triggered this incident was the father's arrival at the school. Although it was unfortunate and both parents were involved in a power struggle, this school incident is not an example of the mother withholding access contrary to the Court Order.

[182] I do not find that the mother has cancelled the father's access.

(iv) The Status Quo Respecting the Father's Parenting Time

[183] Moreover, the evidence is that the mother agreed that the father could have more time with the children, not less.

[184] First, I note that the mother consented to extend the children's return time on Sundays by 7 hours pursuant to the Order of O'Connell J. dated June 22, 2017. She also permitted the father to have extra time with the children beyond what was provided for in the Order (such as during the March Break in 2017) or when the father got married to Shonelle in November 2017. This is reflected in a calendar of the father's 2017 access that he prepared and submitted with this evidence.

[185] In fact, apart from those more minor extensions, the father's evidence is that in the last year he had much more access with the children than that which was provided for in the Order. The father's calendar depicts the days the children were in his care between January 1, 2017 to January 3, 2018. His evidence was that he had the children for approximately 120 days. This time includes his alternate weekends, two extra days during the March break, one week in July, two weeks in August, three weeks and two days in October, 2017 when the mother travelled to the United Kingdom to be with Adnan who had to have surgery, and 11 days between December 24 and January 3, 2018.

[186] The father tendered this calendar to demonstrate what he says is the status quo and how the proposed move will curtail his parenting time. He says he parented the children for almost one-third of the year (2017), and that the mother's proposal in a post-move scenario would significantly reduce the time he spends with the children to only 63 days.

[187] The difficulty with this argument is that the extra time the father spent with the children in 2017 is largely on account of the mother's travel to the United Kingdom without the children. The evidence, detailed below, is that either the father would not consent to the mother taking the children, or in the case of the longer trip she took in October, 2017, because of an unforeseen circumstance (Adnan's surgery). The father has been somewhat restrictive in his refusal to the mother taking the children to the United Kingdom on trips, on which he relies to show increased access in 2017.

[188] I am not prepared to compare the time the father spent with the children in 2017 versus the time that the mother is proposing he spends with the children going forward when considering the merits of the mother's plan. 2017 was an anomaly. Neither party prepared a calendar comparing the father's actual parenting time to that provided for by the November 6, 2013 Court Order for any of the years prior to 2017.

[189] As set out above, the November 6, 2013 Court Order provides that the father sees the children on approximately 75 full or part days in a calendar year. If in the post-move scenario, the children are with the father each year for the Christmas holiday, then the mother's plan post-move substantially preserves the status quo, but adjusted. It rearranges his time and provides that the father will have visits with the children it in larger blocks of time around holidays.

[190] In any event, a mobility case is not a simple exercise of adding up the time the father spends with the children now versus what he will spend with the children in the future. Rather the Order I am making takes into account all of the children's circumstances in light of the proposed move, and maximizes the father's time to the extent it is in the children's best interests.

(v) The Father's Compliance with Child Support

[191] The father on the other hand has failed to comply with an Order of this Court. Later in these reasons, I explain why I find that the father failed to comply with the child support Order.

I. The Father's Argument that the Mother's Relationship is Not Tried and Tested and that the Children Have Not Yet Spent Time in the United Kingdom

[192] The father argues that the mother's track record with relationships is a factor that I should take into account. He told the Court that she was in a previous relationship that did not work out. He is concerned that the mother and the children will move to the United Kingdom and then her relationship with Adnan will end. He pointed out, and the evidence was that the mother and Adnan have not yet lived together as an intact family, nor have the children ever been to the United Kingdom.

[193] The mother and Adnan testified that despite their living situation, they have spent considerable amounts of time together. The mother and Adnan estimated that in view of their 7 to 8 trips back and forth, they have cumulatively spent a total of several months of time together since meeting in 2015.

[194] There is some merit to the father's concern that the mother and Adnan have not lived together with the children as an intact family under the same roof. They have spent time with the children when Adnan has visited Canada, but they have not done this in the United Kingdom.

[195] However, it is impossible for the mother to respond to this argument and she is in a difficult situation. She cannot live with her new spouse as an intact family within the same household unless the Court grants permission for the move, but the father's argument, in part, is that the move should be denied because the relationship is not tried and tested.

[196] I note that Courts have permitted moves in cases where the second marriages were relatively new and the parent and her new spouse had not yet lived together. See Maynard v. Arruda, 2006 CarswellOnt 7561 (S.C.J.); see Sparks v. Johnston, 2007 CarswellOnt 2112 (C.J.).

[197] Inherent in any new relationship is a risk that the relationship will not work out, but in this case I find that the benefits of the move for the children inform the result. I also note that while they have not lived together in the United Kingdom, the mother and Adnan have done the best they could under the circumstances through frequent trips back and forth. I will discuss in more detail the warm nature of their relationship below and its impact on the children.

[198] I also add that the father's argument on this point is somewhat disingenuous as the father bears some of the responsibility for the children not having been able to spend time with the mother, Adnan, Adnan's other children and Adnan's extended family in the United Kingdom. Again, the father did not consent to the mother traveling with the children to the United Kingdom when asked.

[199] The evidence is that the mother took some trips without the children. Things did not always go well when the mother was away. The evidence, which I find compelling, is that Brooklynn in particular was upset when her mother travelled without her.

(1) The Mother's Trip to Dubai

[200] The mother's first trip that I heard about was in late 2015 into the new year in 2016. The mother went on a trip to Dubai. She testified that her plan was to leave the children with her mother but the father wanted the children to remain in his care so she agreed. The mother testified that her return to Canada was delayed because she was flying standby on account of her having a friend who worked for Qatar Airlines. When she tried to return home on the standby ticket there was no available seat. She eventually telephoned the paternal grandmother, Venice Davis, who offered to loan her money to purchase a ticket. Ms. Davis testified that the mother repaid her.

[201] Both the grandmother and the father were somewhat critical of the mother for failing to return on time, even though it was a circumstance beyond her control.

[202] After her return from this trip, the mother learned that Bryden had disclosed to his teacher that the father had used physical discipline while she was away. The teacher reported it to the Catholic Children's Aid Society and there was an investigation.

[203] The mother attempted to introduce an unsworn letter from a child protection worker and a supervisor dated February 24, 2016 to confirm that the father used physical discipline. I did not receive the letter for the truth of its contents. After this disclosure, the mother's evidence was that she spoke to the father about using other methods of discipline and he seemed amenable.

[204] Then, in cross-examination, the father readily admitted that he "spanks" the children as a form of discipline and he testified that he believes it to be an effective means of discipline. He did not deny that he used this method of discipline while the mother was away in Dubai. Incidentally, the paternal grandmother also added, completely spontaneously in her evidence in chief in response to a question about another topic, that she gives the children "discipline" when they need it (without elaborating about exactly what that means).

(2) The Mother's Request to Travel to the United Kingdom During Her Pregnancy With Zain

[205] The mother asked the father for permission to travel with the children to the United Kingdom between April and June, 2017 during the latter stages of her pregnancy with Zain. She testified that she wanted the support of Adnan. The father withheld his consent because he did not want the children missing school for three months. Adnan instead came to Toronto for part of the time. Consequently, the mother did not have the consistent support of her partner during her pregnancy.

(3) The Mother's Travel to the United Kingdom in the Fall of 2017

[206] The children were in the father's care again when the mother travelled to the United Kingdom in October of 2017, although this time, there was no request by the mother to take the children. The mother had to travel because Adnan had to have surgery and she went to be with him during his recovery. This was unforeseen.

[207] I do not fault the mother for wanting to be with her partner during her pregnancy, nor do I fault the father for failing to provide his travel consent for prolonged periods of time during the school year. However, shorter trips with the children or travel during the summer could have occurred. The uncontested evidence is that the father was opposed to the mother taking the children to the United Kingdom at all. Refusing even a vacation was not reasonable.

J. The Importance of the Family Relationships for the Children

[208] I have considered the importance of the parents' relationships with their partners, how those relationships benefit the children, the nature of the parents' partners' relationships with the children, the importance of the sibling relationships in this case, and the importance of the children's relationships with their extended family.

[209] According to the mother, one of the benefits of the move is that the children will be raised in a warm and loving two parent household in England. The father's concerns about the length of their relationship notwithstanding, the evidence is that the mother and Adnan have a loving and supportive relationship and I do find that this benefits the children.

[210] The mother testified that she grew fond of Adnan when they first met. She described him as calm, collected and understanding. He is open minded. They have an open dynamic, a relationship of trust and they are best friends. She testified that it is "corny" but they are "lovers". They have similar thoughts, goals and drives and she thinks their relationship is positive for the children. She likes that Adnan is willing to accept the children as his own.

[211] Adnan described his relationship with the mother as strong. Their relationship combines friendship, love and trust. They have a good level of communication and they create a good atmosphere for the children together.

[212] Adnan described the mother as a model parent. He testified that he looks up to the mother as a parent. He observes that the children respect her. She is patient with them.

[213] The children and Adnan also have a good relationship with each other. The evidence is that he speaks to the children daily. He helps them with their homework, brings them gifts when he visits and takes them on outings. The children refer to Adnan as "baba" which he described is a term of respect for an elder.

[214] The father acknowledged that the children like Adnan. The father candidly told the Court that Adnan makes their mother happy, and so that makes the children happy. He has never felt the children are in danger when Adnan is around.

[215] I have considered the positive nature of the relationship between the children and Adnan as a relevant factor when considering the move. I note this was a relevant consideration that the Court took into account in Chakraborty v. Chakroborty, 2008 CarswellOnt 6597 (S.C.J.) at ¶ 17 (affirmed by Chakraborty v. Chakroborty, 2010 ONCA 123).

[216] Likewise, I have considered the children's relationships here in Toronto, not only with their father, but with other members of their family. For example, the children have a positive relationship with Shonelle. The father testified that Shonelle has been involved with the children for more than half of their lives. She is active with the children on weekends. She takes them to the park, makes them breakfast and plays games and engages in activities with the children. The positive nature of these relationships was a factor that the father considered when deciding to marry Shonelle.

[217] The father described the sibling relationship between Brooklyn, Bryden and Cole as "extremely close and loving". He said that Brooklyn and Bryden were excited when Shonelle was pregnant. They were the first people to come to see Cole in the hospital after Shonelle gave birth.

[218] The father testified that the children have a strong bond with their extended family here in Ontario. I accept this evidence. As set out above, the paternal grand­mother, Venice Davis, testified as to this also. In describing her relationship with the children, she said that she considers the children as "her own".

[219] She said she loves the children to death. When describing the children, she referred to Brooklyn as "jolly", and she described a funny story about how Bryden played a trick on her once.

[220] The adults all have close, loving relationships with the children in this case. Remarkably, with the exception of part of the parental grandmother's evidence on this point, the adults, two of whose positions are adverse to the other two, are for the most part respectful and civil towards one another, despite the tension that the proposed move has created.

[221] For example, as I set out above, the interaction between Adnan and the father is respectful. Adnan testified only positively about the father's relationship with the children. He described that relationship as positive. Adnan testified that Bryden had at one point asked to refer to him as "dad". Understanding his role, Adnan would not let Bryden do this. Out of respect for the father, he told the children to call him "Baba".

[222] Shonelle testified that she tries to keep her interaction with the mother civil. She testified that she does not want the children to experience conflict between the adults. She feels it is good for the children to observe positive interactions between her and their mother. She only speaks positively of the mother to the children. By way of a concrete example, which I will address below, when Brooklynn was upset because her mother was away traveling, Shonelle reassured Brooklynn that her mother had not left her, and would always come back.

[223] By contrast, I found the paternal grandmother's evidence to be overly critical and unnecessarily judgmental of the mother. While she testified that the mother is "at times" a "good mother", she says that she also "does things that aren't right". While she said that she "loves Maria because she is the mother of her grandchildren" and she demonstrated a willingness to help out the mother in a times of need (when the mother was stuck in Dubai), the grandmother also added that the mother is moody. She testified that the mother "makes up stories". She criticized the mother for allegedly withholding the children from their father in the past. She testified that she told the mother she should have put the children first. She also criticized the mother for failing to allow her to take the children on a trip.

[224] It is unfortunate that the grandmother holds these views and felt the need to express those views in strong terms during the trial. The evidence is overwhelmingly that the mother is a good mother. The grandmother would only acknowledge this "at times".

[225] Apart from this evidence, which did not assist me with the decision I have to make, I find that the level of maturity between the parents and their partners in this case is a factor that militates in favour of permitting the move. As a result, I expect them to act responsibly in implementing the terms that I am ordering.

[226] I am mindful of the sibling and extended family relationships but despite those, I am permitting the move. The move will entail disruption to those relationships. However, in making the Order that the father have generous parenting time, it is the Court's expectation that such parenting time will enable the children to maintain and continue to develop their relationship with Cole and their extended family here.

[227] And in the case of the sibling relationships (between Brooklynn and Bryden, and Cole), this is not a case where the children all lived in the same household. This is not a case strictly speaking where the Court is being asked to separate siblings per se. Even if it were, this would not change the outcome in my view.

K. The Children's Wishes

[228] I am required by section 24(2)(b) and 64(1) of the Act and by Gordon v. Goertz to consider the children's views and preferences. In this case, the evidence respecting the children's wishes is conflicting.

[229] As set out above, prior to this trial, O'Connell J. appointed the Office of the Children's Lawyer and requested a focused report concerning the children's views. The report of Shari Burrows, M.S.W., R.S.W. dated October 16, 2017 is qualified. Given the focused nature of the Court's referral, Ms. Burrows did not interview either parent, nor did she contact collaterals nor did she make recommendations. She interviewed the children individually twice at their school in October 2017.

[230] The referral was made pursuant to the standard form Order appointing the children's lawyer pursuant to sections 89(3.1) and 112 of the Courts of Justice Act, R.S.O. 1990, c. C 43 as amended. Neither party called the clinical investigator to testify. Both parties agreed that the report should be admitted pursuant to section 112 of the Courts of Justice Act.

[231] Each parent highlighted aspects of the report upon which they wished me to rely. To Ms. Burrows, Brooklynn presented as an articulate, bright 8 year old. She likes her teacher and her school. She told Ms. Burrows that her parents divorced "a long time ago" and that she sees her father on weekends. She said that her parents do not argue in front of her. She celebrates Christmas and Halloween with her father and Muslim holidays with her mother. She described living with her mother and brother. She described her mother as "really nice" and said that her mother is a "happy person".

[232] She talked about her relationship with Adnan (Baba) and said that it is fun when he visits. She described him as "really really fair" and that when she fights with Bryden, Baba is "strict in a nice way". She notices that her mother is sad when Baba leaves.

[233] Brooklynn described visits with her father as "fun" and said that her father does "a lot of fun stuff". She described a trip to the Science Center. She described weekend birthday parties, watching movies and visiting the paternal grandmother. She also said that the father "slaps" Bryden sometimes when he gets in trouble, which is consistent with the evidence of the father's use of physical discipline.

[234] Brooklynn confirmed that Shonelle reads to her and talked about Cole briefly.

[235] Ms. Burrows described Brooklynn's statements across both interviews as "consistent", but the content of her statements reveals that Brooklynn is torn.

[236] I find that both parents have also tried to influence Brooklynn's wishes.

[237] Brooklynn told Ms. Burrows that it would be fun to move to the United Kingdom but that she would also miss her dad. Specifically, she said it would be "tricky" if she moves because she would miss her dad. She would also miss both grandmothers and her cousin here. But it would be a "little upsetting" because she would be excited to go visit her other family in England, but she is also a bit shy.

[238] She said that if her mother went to England without her she would really miss her. Despite her young age, she had enough insight to know that it would be hard for the mother, if she did not get to move to the United Kingdom. She said that her mother would be sad and then she would feel sad.

[239] To Ms. Burrows, Bryden presented as a bright, articulate 6 year old child. He likes his teacher and his school. He described his blended family. He described Adnan (Baba) as "really really nice". He also described Shonelle in similar terms. He described a loving relationship with both parents.

[240] Ms. Burrows described Bryden's wishes as "consistent" that he does not want to move. However, as I will set out below, the reliability of this statement is questionable.

[241] In their evidence, both parents accused the other of having promoted or discouraged the move to the children in different ways. It is clear from the report, and from the uncontested evidence at trial, that both parents did this.

[242] The Report makes it clear that the children were aware of the details of each other's plans to a considerable degree. For example, Brooklynn told Ms. Burrows that her mother talked about fun shopping in England, that people are nice and that there would be new family for her to meet. The mother told Brooklynn about the flight times between the United Kingdom and Toronto. Brooklynn also seemed to understand that the mother's plan involved her spending longer periods of time with her father around holidays and in the summer.

[243] She said she would miss her mother during those times.

[244] Brooklynn was aware that her father did not want her to go. She told Ms. Burrows that her father would miss her if she moved. She suggested that perhaps Baba would move here if the mother did not go (an argument the father made at trial).

[245] Bryden told Ms. Burrows that his mother told him it is hard to have three children without a husband. He also seemed to think that Baba might either move here, or perhaps the mother could simply visit the United Kingdom.

[246] Bryden said he was scared of planes. He told Ms. Burrows that his father told him that if he goes to England, he will never come back. Bryden said his father would then miss him, and would be sad and cry.

[247] In response, Bryden told his father that he was not going to stay there (referring to the United Kingdom).

[248] I heard evidence from the mother, that was not disputed, that Brooklynn came back scared after a visit with her father. Apparently, the paternal grandmother discussed a recent incident of terrorism in London with Brooklynn. The mother had to explain to Brooklynn that she would protect her.

[249] The father chose not to ask the paternal grandmother about this when she testified.

[250] In the result, I am not placing much weight on the children's statements to Ms. Burrows. Brooklynn's views were consistently conflicted, and Bryden's statements were influenced by his concern for the father, and his perception that Baba might move here or the mother not going is an option.

[251] I find that the parents each attempted to influence the children respecting the move. I find that the mother promoted the positive aspects of the move to the children, and the father and his mother engaged in some scare tactics with the children. This was inappropriate on all accounts.

[252] Even if I had found otherwise respecting the children's wishes, the children are both very young and their wishes are in general entitled to less weight in the overall assessment of the evidence than would be the case if I were dealing with older children.

[253] That being said, what the Report does confirm is that the mother is the primary parent, whereas the children view the father as the fun parent. The children's main concern is preserving relationships with all family members. The mother's isolation from her spouse is noticeable to and is impacting Brooklynn. The children want their parents to be happy.

[254] I specifically note that Ms. Burrows recorded Brooklynn's statement that she would be "very sad" if she was separated from her mother on a permanent basis. This is consistent with the uncontested evidence that I heard from the father and Shonelle during the trial. I find this evidence to be compelling.

[255] The father agreed that Brooklynn is sad and upset when her mother leaves. He testified that Brooklynn has on cried on "several occasions" when her mother is not there. He described Bryden as less emotional, although he will say he misses his mother.

[256] Shonelle's description of Brooklynn's upset was more extreme. She testified that in a recent instance Brooklynn was "inconsolable", she was "balling" and asking why the mother was leaving her. Apparently this continued from the time Shonelle came home from work and the father and Shonelle eventually had to take Brooklynn out of the house to distract her. Appropriately, Shonelle and the father comforted Brooklynn, telling her that the mother would always come back.

[257] The severity of this particular outburst may be due to the fact that Brooklynn seems to think that her mother leaving without her is a possibility. The mother cried and was visibly upset in the court room when she heard this evidence.

[258] This conflicted evidence concerning the children's wishes militates in favour of permitting the move. I have also considered this evidence, with all of the other evidence, in concluding that the father's proposed custody reversal is not in the children's best interests.

L. The Father's Access Post-Move

[259] The significant school holidays in England are about two weeks at Christmas time, two weeks in the spring (in April), and about 6 weeks in the summer, from about mid-July to the end of August. There are other long weekends during the year. In granting permission for the mother to move with the children, I find that these larger blocks of time off school must be used in full to facilitate the father's access.

[260] I do not agree that the Christmas holiday should be alternated as the mother proposed. While alternating Christmases may make sense in a scenario where the parents are in the same jurisdiction and the other parent will see the child around Christmas, it does not make sense in this context. I also heard no evidence respecting the mother's and Adnan's traditions or plans respecting Christmas, if any.

[261] If I am mistaken and the summer holiday in England is over 2 months as it is in Ontario, then I would divide the summer with the father having 6 weeks and the mother having the balance of the time. But if the school summer holiday in England is in fact only 6 weeks as I believe it is, then the children will spend that time with the father here in Ontario.

[262] The mother can spend the other shorter holidays throughout the school year with the children in Newcastle.

[263] This results in the children spending blocks of time with their father, amounting to approximately 70 days under this arrangement.

PART VI: APPLICABLE LEGAL PRINCIPLES, ANALYSIS AND ADDITIONAL FINDINGS OF FACT RESPECTING THE FINANCIAL ISSUES

M. The Applicable Statutory Provisions Respecting Child Support

[264] Regarding child support, the mother seeks to change the consent child support Order of Justice Murray dated April 25, 2014. This is a variation proceeding governed by section 37 of the Family Law Act, R.S.O. 1990, c. F.3, as amended (the "FLA").

[265] The applicable sections of the FLA are:

Definitions

29 In this Part,

"dependant" means a person to whom another has an obligation to provide support under this Part;

Obligation of parent to support child

31 (1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who,

(a) is a minor;

(b) is enrolled in a full-time program of education; or

(c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents.

Purposes of order for support of child

33 (7) An order for the support of a child should,

(a) recognize that each parent has an obligation to provide support for the child;

(b) apportion the obligation according to the child support guidelines.

Powers of court

34 (1) In an application under section 33, the court may make an interim or final order,

(a) requiring that an amount be paid periodically, whether annually or otherwise and whether for an indefinite or limited period, or until the happening of a specified event;

(f) requiring that support be paid in respect of any period before the date of the order;

Application for variation

37 (1) An application to the court for variation of an order made or confirmed under this Part may be made by,

(a) a dependant or respondent named in the order;

(b) a parent of a dependant referred to in clause (a);

(c) the personal representative of a respondent referred to in clause (a); or

(d) an agency referred to in subsection 33 (3).

Powers of court: child support

(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order for the support of a child that the court could make on an application under section 33.

Application of child support guidelines

(2.2) A court making an order under subsection (2.1) shall do so in accordance with the child support guidelines.

[266] The applicable sections of the Child Support Guidelines, O.Reg. 391/97, as amended are:

Most current information

2(3) Where, for the purposes of the child support guidelines, any amount is determined on the basis of specified information, the most current information must be used.

Presumptive rule

3. (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is,

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

Special or extraordinary expenses

7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

Definition, "extraordinary expenses"

(1.1) For the purposes of clauses (1) (d) and (f),

"extraordinary expenses" means

(a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent's or spouse's income and the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, or

(b) where clause (a) is not applicable, expenses that the court considers are extraordinary taking into account,

(i) the amount of the expense in relation to the income of the parent or spouse requesting the amount, including the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child,

(iv) the overall cost of the programs and activities, and

(v) any other similar factors that the court considers relevant.

Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

Subsidies, tax deductions, etc.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

Universal child care benefit

(4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit.

Undue hardship

10. (1) On the application of either spouse or an applicant under section 33 of the Act, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the parent or spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.

Circumstances that may cause undue hardship

(2) Circumstances that may cause a parent, spouse or child to suffer undue hardship include,

(a) the parent or spouse has responsibility for an unusually high level of debts reasonably incurred to support the parents or spouses and their children during cohabitation or to earn a living;

(b) the parent or spouse has unusually high expenses in relation to exercising access to a child;

(c) the parent or spouse has a legal duty under a judgment, order or written separation agreement to support any person;

(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is,

(i) under the age of majority, or

(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life;

(e) the parent has a legal duty to support a child, other than the child who is the subject of this application, who is under the age of majority or who is enrolled in a full time course of education;

(f) the parent or spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

Standards of living must be considered

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the parent or spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other parent or spouse.

Standards of living test

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II.

Reasonable time

(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the order for child support, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time.

Reasons

(6) Where the court makes an order for the support of a child in a different amount under this section, it must record its reasons for doing so.

Circumstances for variation

14. For the purposes of subsection 37 (2.2) of the Act and subsection 17 (4) of the Divorce Act (Canada), any one of the following constitutes a change of circumstances that gives rise to the making of a variation order:

15. In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof.

Determination of annual income

15. (1) Subject to subsection (2), a parent's or spouse's annual income is determined by the court in accordance with sections 16 to 20.

Agreement

(2) Where both parents or spouses agree in writing on the annual income of a parent or spouse, the court may consider that amount to be the parent's or spouse's income for the purposes of these guidelines if the court thinks that the amount is reasonable having regard to the income information provided under section 21.

Calculation of annual income

16. Subject to sections 17 to 20, a parent's or spouse's annual income is determined using the sources of income set out under the heading "Total income" in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.

Pattern of income

17. (1) If the court is of the opinion that the determination of a parent's or spouse's annual income under section 16 would not be the fairest determination of that income, the court may have regard to the parent's or spouse's income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.

Annual obligation to provide income information

24.1 (1) Every person whose income or other financial information is used to determine the amount of an order for the support of a child shall, no later than 30 days after the anniversary of the date on which the order was made in every year in which the child is a child within the meaning of this Regulation, provide every party to the order with the following, unless the parties have agreed otherwise:

1. For the most recent taxation year, a copy of the person's,

i. personal income tax return, including any materials that were filed with the return, and

ii. notice of assessment and, if any, notice of reassessment.

2. As applicable, any current information in writing about,

i. the status and amount of any expenses included in the order pursuant to subsection 7 (1), and

ii. any loan, scholarship or bursaries the child has received or will receive in the coming year that affect or will affect the expenses referred to in subparagraph i.

Notices of assessment

(2) If the person has not received his or her notice of assessment or notice of reassessment for the most recent taxation year by the date referred to in subsection (1), the person shall provide every party to the order with a copy of the notice as soon as possible after the person receives the notice.

Change in address

(3) If the address at which a party receives documents changes, the party shall, at least 30 days before the next anniversary of the date on which the order was made, give written notice of his or her updated address information to every person required to provide documents and information under subsection (1).

Continuing obligation to provide income information

25. (1) Every parent or spouse against whom an order for the support of a child has been made must, on the written request of the other spouse or the person or agency entitled to payment under the order not more than once a year after the making of the order and as long as the child is a child within the meaning of this Regulation, provide that other spouse, or the person or agency entitled to payment under the order, with,

(a) the documents referred to in subsection 21 (1) for any of the three most recent taxation years for which the parent or spouse has not previously provided the documents;

(b) as applicable, any current information in writing about,

(i) the status and amount of any expenses included in the order pursuant to subsection 7 (1), and

(ii) any loan, scholarship or bursaries the child has received that affect the expenses referred to in subclause (i); and

(c) as applicable, any current information, in writing, about the circumstances relied on by the court in a determination of undue hardship.

Obligation of receiving parent or spouse

(3) Where the income information of the parent or spouse in favour of whom an order for the support of a child is made is used to determine the amount of the order, the parent or spouse must, not more than once a year after the making of the order and as long as the child is a child within the meaning of this Regulation, on the written request of the other parent or spouse, provide the other parent or spouse with the documents and information referred to in subsection (1).

N. Analysis Respecting Child Support

[267] The father's position is that he is prepared to pay child support based on his current income going forward, but he does not think there should be a retroactive order. He argues that although his income increased after Justice Murray's April 25, 2014 Order, the mother was aware that he had changed jobs and didn't ask for disclosure. As I will explain in more detail below, he argues that it was the mother's onus to ask. He also says that the mother seeks retroactive support tactically, as "leverage" in the mobility claim. Therefore, the mother is not entitled to retroactive child support.

[268] There is no question that there has been a change in circumstances within the meaning of both section 37(2.1) of the FLA and section 14 of the Guidelines.

[269] The April 25, 2014 Order of Justice Murray determines the father's income to be $22,300.00.

[270] According to his curriculum vitae, there was a gap in the father's employment between August 2012 and January 2015, yet the other evidence at trial was that the father started working in 2014 after the Order was made.

[271] The father's Line 150 incomes since 2014 were:

2014: $35,719 2015: $41,778 2016: $58,259

[272] The father did not provide the specifics of the job he started in 2014 nor did he explain the discrepancy between the income stated on the 2014 tax return and the income stated in the 2014 Order.

[273] From January 1, 2015 to October 2015, the father worked as the National Account Manager for KMI Media Inc. and then he worked as a publisher/business development specialist for MediaEdge Communciation from October 2015 to June 2017.

[274] The father's income tax documentation for 2017 was not available at the time of trial. However, the father filed a Record of Employment indicating that he was laid off from his previous job in the middle of 2017. This is consistent with his curriculum vitae.

[275] The last day that he worked at MediaEdge was June 9, 2017. He earned $20,719.37 in that job in 2017. He also earned net employment insurance of $11,533.00 from June 18, 2017 through December 23, 2017. I was not given the gross amount.

[276] There was some evidence that the father is moonlighting at a nightclub doing some sort of paid work there. The evidence was vague on this point. The father testified that he was mainly reimbursed for transportation expenses. This evidence made little sense. The father did not explain why he would take time away from his family and other commitments to do this work for little or no pay. That said, I do not have any concrete evidence from which the Court could impute further income.

[277] Based on the totality of the evidence, including the father's failure to provide his gross employment insurance income, I am rounding the father's gross 2017 income up slightly to $35,000.

[278] The father tended a chart of his job search after he lost his job in 2017. I am satisfied that the father engaged in an active search between mid-2017 and the time he found his current job.

[279] Indeed, the father secured the job at Metroland Media Group commencing January 29, 2018 that I have referred to above. The evidence is that he will be earning at least $47,000 in this job.

[280] I am mindful that section 16 of the Guidelines directs that in determining income, the Court must use the sources of income on the father's tax return. I also note that section 2(3) of the Guidelines requires that the most current information must be used.

[281] In this case, the most recent tax return that is available comes from 2016. However, there is also additional income information available post-2016. The father's income dropped in 2017 due to his unemployment, and then it rebounded. I find that an income of $47,000, which is his projected income for 2018 in his new job, is fair and reasonable for the purposes of determining prospective support. I have also considered section 17 of the Guidelines and the father's fluctuating income over the past 3 years in arriving at this conclusion. For clarity, the income on which I am basing prospective child support is not an average of past income, but rather I have chosen to set child support based on the current income the father projects he will earn in his new job. I note that the father agrees to this approach.

[282] If the father earns more than $47,000 due to any bonuses or other incentives that he may receive in this job (or less for some other legitimate reason) then the amount I am ordering can be adjusted in the future.

[283] Therefore, the table amount of child support for two children based on an annual income of $47,000 is $708 per month. The father shall pay this amount commencing February 1, 2018. The father is entitled to a credit for any amounts he has paid since February 1, 2018.

O. Applicable Legal Principles Respecting Retroactivity

[284] There is also no question that pursuant to the combined reading of sections 37(2.1) (c) and 34(1) (f) of the FLA, the Court has jurisdiction to make a retroactive child support order. The question for me to decide is whether in this case, the Court should make such an order, retroactive to May 1, 2014 as the mother asks, or to some other date.

[285] The leading case respecting retroactive child support is D.B.S. v. G.S.R., 2006 SCC 37. A number of statements from D.B.S. are applicable. At ¶ 36-38 and 45 Bastarache J. stated some basic premises that apply here. The fact of parentage places a support obligation on a parent. Child support is the right of the child. The right survives relationship breakdown. Child support should as much as possible provide children with the same standard of living that they enjoyed when the parents cohabited. And the quantum of child support will vary with the income of the payor. Thus, even if the mother's request for retroactive support now is tactical, the increased child support remains the right of the child and the obligation to pay it existed in the past.

[286] Next, the Court talked about our child support "application based system". This Court's jurisdiction to make such an award, which may include a retroactive award, only arises when a parent claims support. See D.B.S. at ¶ 56. Child support is not automatically adjusted each year. In this context, Bastarache J. also stated that we have a similar system respecting disclosure. See ¶ 58. Referring to section 25 of the Federal Child Support Guidelines, Bastarache J. wrote that the Guidelines do not make provision for automatic disclosure, but rather for disclosure on request. But at ¶ 59 he said, "[w]hile the payor parent does not shoulder the burden of automatically adjusting payments, or automatically disclosing income increases, this does not mean that (s)he will satisfy his/her child support obligation by doing nothing. If his/her income rises and the amount of child support paid does not, there will remain an unfulfilled obligation that could later merit enforcement by a court".

[287] Then, commencing at ¶ 61, the Court considered a number of different contexts in which claims for retroactive support arise. This case is one such context, namely one in which retroactive support is claimed in the face of an already existing child support order.

[288] One fact that may militate against a retroactive order in this context is if it disturbs any certainty the father may expect. However, as the Court stated at ¶ 64, "… parents should not have the impression that child support orders are set in stone. Even where an order does not provide for automatic disclosure, variation or review, parents must understand that it is based upon a specific snapshot of circumstances which existed at the time the order was made."

[289] On the one hand, acting consistently with a child support Order should provide a parent with a degree of certainty. However, although Murray J.'s Order of April 25, 2014 is presumptively valid, this presumptive validity is not an absolute concept. After Murray J.'s April 25, 2014 Order, both parents had the responsibility to ensure that the children received the correct amount of support when subsequent changes in circumstances occurred. I quote ¶74 of D.B.S.:

In summary, a payor parent who diligently pays the child support amount ordered by a court must be presumed to have fulfilled his/her support obligation towards his/her children. Acting consistently with the court order should provide the payor parent with the benefit of predictability, and a degree of certainty in managing his/her affairs. However, the court order does not absolve the payor parent — or the recipient parent, for that matter — of the responsibility of continually ensuring that the children are receiving an appropriate amount of support. As the circumstances underlying the original award change, the value of that award in defining parents' obligations necessarily diminishes. In a situation where the payor parent is found to be deficient in his/her support obligation to his/her children, it will be open for a court, acting pursuant to the Divorce Act or the Parentage and Maintenance Act, to vary an existing order retroactively. The consequence will be that amounts that should have been paid earlier will become immediately enforceable.

[290] Next, the Court provided direction about when and how the Court ought to exercise its discretion when asked to make a retroactive order. The Court began this section of its analysis by acknowledging that retroactive awards can "impair the delicate balance between certainty and flexibility in this area of the law". See D.B.S. ¶ 96. By the same token, the Court also stated that retroactive awards are not "exceptional". While retroactive awards may result in unpredictability, in many cases it is the payor parent who brought "that unpredictability upon him/herself." See D.B.S. ¶ 97.

[291] The Court then set out several factors to consider in the exercise of discretion respecting whether to make a retroactive award. I am applying those factors.

P. Application of the Applicable Factors Respecting Retroactivity

(1) The Parents' Conduct

[292] One factor is that unreasonable delay by a recipient parent is not presumptively justifiable. If a recipient delays in seeking support, this will militate against a retroactive award. However, the Court also notes that there is a difference between a "reasonable and unreasonable delay". This difference is often determined by reference to the conduct of the payor parent. For example, if the payor is transparent about changes to his income and does not pressure or intimidate the other parent, and the other parent then delays, that delay will be characterized as unreasonable. Nevertheless, even in cases of unreasonable delay, the Court was mindful that child support is the right of the child and the recipient parent cannot waive that right for the child. See D.B.S. at ¶ 100-104.

[293] On the other hand, if the payor engages in blameworthy conduct, this will militate in favour of a retroactive award. The Court takes an "expansive view" of what constitutes blameworthy conduct. Bastarache J. defines it as "anything that priviliges the payor parent's own interests over his/her children's right to an appropriate amount of support". Actively hiding increases in income is an example of blameworthy conduct. But even passive behaviour if a parent consciously chooses to ignore his or her obligations may be blameworthy.

[294] The question of whether a payor is engaging in blameworthy conduct is a subjective question. However, a good indicator as to whether the payor reasonably believed he was meeting his obligations, is to compare what the payor actually paid versus what he ought to have paid. The further apart those amounts, the less reasonable will be the payor's belief that his obligations were being met.

[295] Finally, positive conduct (such as paying additional amounts beyond what the Order provided) might militate against a retroactive order. See D.B.S. at ¶ 105-109.

[296] In my view, the father's position that he should not have to pay retroactive child support because the mother did not ask for disclosure, or because the mother is allegedly being tactical, is misguided and does not accord with the law respecting retroactivity.

[297] Bastarache J.'s comments respecting the disclosure regime (ie. disclosure on request) is no longer the law under Ontario's provincial legislation. In February 2010, Ontario enacted section 24.1 of the Guidelines (reproduced above), which requires both parents to exchange certain income information with each other. While the April 25, 2014 Order is silent as to the parties' disclosure obligations going forward, section 24.1 of the Guidelines imposed upon both parties a statutory obligation to exchange some level of disclosure each year irrespective of a request.

[298] As both parties' incomes were used to determine either the amount of table support, or special or extraordinary expenses, in Murray J.'s Order, the responsibility to exchange information fell on both parents. It is true that the mother did not ask. In her Change Information Form sworn March 8, 2017, the mother deposed that she believed the father obtained employment shortly after the child support order was made but the father had failed to provide disclosure. She testified that she did not understand that she had to ask for the disclosure. She understood it to be the father's onus to provide financial disclosure.

[299] In cross-examination, the father tried to suggest that the mother knew he was working between 2014 and 2016, that she didn't ask him for disclosure, and that the she was only asking for retroactive support now, strategically as "leverage" respecting her request to relocate. His cross-examination bordered on blaming the mother for his failure to increase child support. He boldly suggested that the mother's was irresponsible for accumulating debts and failing to save for the children's post-secondary education, without acknowledging either the role his failure to pay the correct amount of child support played in that debt accumulation, nor offering up evidence of his own efforts to save for the children. I note that his financial statement makes no provision for saving for the children.

[300] In response to this questioning, the mother testified that the father had updated his details with the Family Responsibility Office ("FRO") in the past when he changed jobs and that he even contacted FRO and asked to change the manner in which he made payments through the FRO. So she testified she assumed he would have adjusted the child support or provide the income information to the FRO at the time of one of those past contacts.

[301] I find that neither parent discharged his and her joint responsibility to ensure the correct amount of support was paid, starting with the exchange of disclosure. This impacts the analysis in two respects.

[302] In the mother's case, while she explained her belief that it was the father's onus to provide the information and she assumed he would do so through the FRO, she did not explain why she failed to ask for specifics as to the father's income nor pursue increased support when the updates she thought would be made through the FRO were not forthcoming. As I will explain further below, the mother did not give the father effective notice that child support needed to be renegotiated, prior to the date she commenced this proceeding. I find the mother's delay in pursuing support to be unreasonable.

[303] But on the other hand, I balance this against the fact that child support is the right of the children, the mother cannot waive that right, and against the finding that I am making that the father has engaged in blameworthy conduct. I add that even if the mother was being tactical with the timing of her claim as the father argues (which I am not prepared to find), this does not detract from the children's right to support.

[304] I do not find the father's explanation for his conduct respecting child support to be a reasonable explanation. I find his non-disclosure amounts to blameworthy conduct even though the mother failed to provide her income disclosure too. I note that in Koback v Koback, 2013 SKCA 91, the Saskatchewan Court of Appeal upheld the Chamber's Judge's finding that the father's failure to provide disclosure pursuant to a Separation Agreement was blameworthy, even where the mother had an obligation to provide disclosure too and she failed to provide it.

[305] The father has preferred his own interests over the children's right to the proper amount of support. I do not accept that the father actually believed that advising the mother of new jobs without details of the corresponding particulars was sufficient. Alternatively, this belief is not objectively reasonable.

[306] I also cannot accept that he believed this based on his own involvement in the prior proceedings. Disclosure was a central focus of the proceedings leading up to the final Order of Murray J. dated April 25, 2014. Six interim Orders had been made respecting disclosure before the matter settled in 2014. The father had been ordered to comply with a prior disclosure Order. Even when the parenting issues settled finally on November 6, 2013, disclosure remained in issue. Child support was adjourned from November 6, 2013 to April 25, 2014 to permit the exchange of further financial disclosure. I simply cannot accept that the father reasonably believed that his obligation to provide future disclosure depended on the mother asking for it.

[307] Other aspects of the father's conduct are also blameworthy, not just his conduct respecting disclosure. The father testified that he unilaterally contacted FRO to arrange to split his child support payments with his pay cheques. Sometimes he paid $200 from one pay cheque and $175 from another. But the amounts were due in full on the first of the month.

[308] His explanation respecting his failure to pay child support leading up to the trial was also telling. The FRO statement of arrears reveals that as of December 14, 2017, he had not made a payment at all for November or December. Then he made a partial payment. He testified that since the children were in his care for a considerable period in December and he wanted the children to have the "best experience possible" with him over Christmas, he chose not to pay.

[309] Meanwhile, the father got married on November 18, 2017 and then took a honeymoon with Shonelle from November 23 to December 10, 2017. The father offered vague evidence that the wedding cost between $11,000 and $12,000, but he testified that he recovered most of the cost from wedding gifts. Shonelle, his mother and his family covered a shortfall of the wedding costs of $2,000.00. He did not pay any child support in the month of November when this wedding was happening. The father could have chosen to pay the $1,333.82 then owing as reflected on the FRO Statement of Arrears (which was calculated under the April 25, 2014 Order) with some of these funds, but he chose not to.

[310] The father does not have a strong claim that the April 25, 2014 Order provided him with certainty and predictability that would be disturbed by a retroactive order. Not only did the father fail to pay child support in accordance with his income, as of the conclusion of this trial, he owed arrears of $1,707.82 calculated under Justice Murray's Order based on income of only $22,300. As I have explained, he admitted that he did not pay child support on time, and that he missed payments. See D.B.S. at ¶ 98.

[311] As D.B.S. directs, I have compared what Murray J.'s April 25, 2014 child support order provides against what the father ought to have paid, to assess the reasonableness of the father's stated beliefs that he met his child support obligations. Below I provide a chart of what the father's table obligation ought to have been, had he paid according to his income. Depending on the year in issue, the amounts the father ought to have paid range between 50% to 250% more than what he actually paid. Given the size of these discrepancies, I do not accept that the father believed he was discharging his obligations. Alternatively, this belief was not objectively reasonable.

[312] Finally, there is no evidence that the father made additional payments beyond Murray J.'s Order in any fashion such that this would militate against this finding that the father engaged in blameworthy behaviour.

(2) Hardship to the Children

[313] If the children have suffered hardship, this will militate in favour of a retroactive award. See D.B.S. at ¶ 110-113. The children's need during the time frame that the father failed to pay the appropriate level of support is presumed. I have already found that the mother has accumulated debt and has a modest budget. I find that the children have suffered hardship since 2014. They did not receive the children support that they were entitled to. This militates in favour of a retroactive award.

(3) The Date of Effective vs. Formal Notice

[314] If the Court finds a retroactive award to be appropriate, which I do find, the Court has discretion respecting the date to which the award should be made retroactive. The Supreme Court held that barring blameworthy conduct on the part of the payor, generally the award should be retroactive to the date of effective notice provided that the recipient proceeds promptly after giving that notice. See D.B.S. at ¶ 118-125.

[315] As I stated briefly above, the mother did not give the father "effective notice", meaning notice that the amount of child support needed to be renegotiated, prior to the date she commenced this proceeding. The mother launched her Motion to Change on March 13, 2017. I note that in her Motion to Change, the mother was unable to specify the dollar amount of the increase she sought. When she launched this proceeding, the mother did not have the financial disclosure she needed from the father to determine this.

[316] Although her sworn Change Information Form states that the father had not provided disclosure despite a previous request, thereby suggesting an earlier "effective notice" date, in her evidence in chief, the mother corrected this statement and testified that she had not requested financial disclosure from the father previously. Again, she explained this, saying that she thought the onus was on him to provide the documentation.

[317] The evidence before me is that the mother gave formal notice of her retroactive claim only, on March 13, 2017 when she commenced the proceeding.

[318] But I also find the father engaged in blameworthy conduct.

(4) The Quantum of the Award

[319] Despite the mother's failure to give effective notice earlier, in accordance with D.B.S., she has limited her claim to three years prior to the date of the Motion to Change. Coincidentally, this almost takes her back to the date of Justice Murray's Order. Concerning quantum, generally there will be less discretion here as the amount must be with reference to the Guidelines, unless resort can be had to one of the discretionary sections of the Guidelines, such as undue hardship. Still, even in the absence of one of the discretionary sections of the Guidelines applying (which is the case here), a Court may nevertheless adjust the start date to achieve a fair result. See D.B.S. at ¶ 126-130.

[320] If the Court were to set the commencement date at May 1, 2014 as requested by the mother, the amount owing (before applying any credits for the amount the father paid) would be:

Year	Father's Income	Monthly Amount (per Applicable Table)	Annualized Amount
2014	$35,719	$518	$4,144 (8 mos only. May-Dec.)
2015	$41,778	$610	$7,320
2016	$58,259	$866	$10,392
2017	$35,000	$508	$5,588 (11 mos only. Jan.-Nov.)
2017	$35,000	$532	$532 (New table amount for Dec.)
2018			$532 (for January only per analysis set out above).

[321] The mother has also claimed special or extraordinary expenses pursuant to section 7 of the Child Support Guidelines ("section 7 expenses") retroactively to May 1, 2014. However, she refined her claim during the trial to claim only the expenses for which she had receipts. These were all from calendar year 2016.

[322] The mother provided a tax receipt from the YMCA for Brooklynn's and Bryden's 2016 YMCA Membership fees and for various child care expenses incurred that year. The total of those expenses amounted to $3,739.06. I find these are appropriate expenses within the meaning of sections 7(1) and 7(1.1) of the Guidelines.

[323] The mother tendered her 2016 Notice of Assessment, but not her full tax return. Her Line 150 income in 2016 was $38,263.00. She claimed $13,319 in deductions from income. The deductions from income that she took are not specified on the Notice of Assessment, but the section 7 expenses she claims are tax deductible. The mother testified that she did deduct the section 7 expenses in 2016 that she now claims from the father.

[324] Using the parents' 2016 incomes, the father's share of these expenses would be approximately $99 per month in net dollars ($1,188 annualized) as set out in the attached Divorce Mate Calculation.

[325] Therefore, if the date of retroactivity is May 1, 2014 as the mother asks, the father's arrears of table support and section 7 expenses would be:

Item	Amount
Total of Amounts for Table Support	$28,508
Plus Support Arrears Owing After the Adjustment was made on account of Justice Murray's April 25, 2014 Order per FRO Statement of Arrears	$3,152
Plus Section 7 Expenses	$1,188
Less Father's Payments from May 1, 2014 to January 31, 2018.	$18,294.18
Total	$14,553.82

(5) Hardship and Summary/Applications of these Principles

[326] The Court may consider hardship to the payor parent in determining whether to make a retroactive award. For example, payor parents may have new families (such as is the case here) and any hardship that may be occasioned to children in that second family needs to be taken into account.

[327] The Supreme Court directs that a Court should try to craft an award in a way that minimizes hardship. See D.B.S. at ¶ 114-116. In this context, "hardship" does not have the same meaning as "undue hardship" pursuant to section 10 of the Guidelines. See Koback v. Koback, 2013 SKCA 91. At ¶ 56-59 of Goulding v Keck, 2014 ABCA 138, the Alberta Court of Queen's Bench said the following about hardship:

In awarding retroactive support, the court is entitled to consider fairness to all parties. Hardship to the payor is typically at the forefront of an application. Equally relevant, however, is the hardship suffered by the recipient parent and the child as a result of the lack of sufficient support.

Hardship, however, is not an abstract or impressionistic concept to be asserted by a payor in an effort to avoid a retroactive award. To weigh against granting retroactive child support, the payor parent must establish real facts from which a reasonable finding of serious hardship could be made. A bald or vague assertion of hardship is not sufficient. The obligation to pay support at the Guidelines amount for a prior period is not a hardship ( Greene at para 87). The payor does not suffer hardship by having to pay money which he or she may otherwise owe.

Even where hardship is established, courts have broad discretion to mitigate hardship to the payor through a structured payment plan. Indeed, s tatutory regimes provide judges with discretion to structure child support awards as a lump sum, a series of periodic payments, or a combination of the two: see, e.g., section 11 of the Guidelines.

In this case, the respondent provided no factual foundation from which a finding of hardship could be made. The chambers judge erred in finding to the contrary.

[328] In summary, the mother's unreasonable delay militates against a retroactive award before the date of the Motion to Change. The father's blameworthy conduct and the children's circumstances militate in favour of a retroactive award before the date of the Motion to Change. But I find that the retroactive award sought by the mother will cause some hardship to the payor.

[329] In balancing these factors, the Court will exercise its discretion and set the commencement date to be April 1, 2017, which is the first of the month after the mother commenced the Motion to Change. I do so to craft a fair award.

[330] I note that the father was unemployed between mid-2017 and very recently. He has a new child and he has relied on the support of his family. I am mindful that Shonelle has done some of the financial heavy lifting for their family in recent times and a larger retroactive award will cause strain for this family. The father has no savings and also has credit card debt. Justice Baldock considered similar factors in Franco v. Ram, 2009 ONCJ 472 at ¶ 19-24 in determining that the retroactive award would cause hardship and in both adjusting the date of retroactivity and setting a repayment plan to craft a fair result.

[331] I am also considering the increased travel costs under the new parenting regime that I am ordering. In my view, this is a circumstance that properly falls within the exercise of this Court's discretion to adjust the commencement date to relieve hardship.

[332] Alternatively, if I am incorrect and travel costs are not a proper consideration relevant to the exercise of the Court's discretion about the commencement date, then I would have reduced the father's retroactive support as a result of the travel costs as a credit pursuant to section 28 of the Children's Law Reform Act. I will provide the analysis for this alternative below.

[333] Therefore, the date of retroactivity in this case will be April 1, 2017. I fix the father's arrears at $3,636.82 as of January 31, 2018, calculated as follows:

Year	Father's Income	Monthly Amount (per Applicable Table)	Annualized Amount
2017	$35,000	$508	$4,572 (9 mos only. Jan.-Nov.)
2017	$35,000	$532	$532 (New table amount for Dec.)
2018			$532 (for January only per analysis set out above).
		Subtotal	$5,636
		Plus Support Arrears Owing As if March 31, 2017	$864.82
		Less Father's Payments from April 1, 2017 to January 31, 2018.	$2,864
		Total	$3,636.82

[334] The arrears shall be repaid at the rate of $100 per month until they are paid in full.

[335] As set out above, commencing February 1, 2018, the father shall pay child support of $708 based on his income of $47,000.00. The father shall be entitled to a credit for any amounts he has paid commencing February 1, 2018.

[336] I address the impact of these payments with reference to the parties' budgets below.

Q. Alternatively, Travel Costs May Be A Credit Towards Child Support

[337] Alternatively, I would have reduced the father's child support obligation to take into account his increased travel costs. The mother's alternative position is that she is prepared to concede some of the child support she is entitled to, to take into account the father's increased travel costs if she is permitted to move.

[338] Although I have achieved this in the analysis respecting the retroactive support claim, I intend to address the jurisdiction to give the father a credit against his child support in the event that my analysis respecting retroactive child support is wrong.

[339] In at least two cases, courts have reduced table support without analysis as to the authority to do so. See Jackpine v. Gamsby at ¶ 53 and see Sheikh v. Sheikh at ¶ 144-147 (although in Sheikh, the mother took the position that she did not seek support if the move was permitted).

[340] Separately, there is authority to reduce the amount of child support to take into account "unusually high expenses in relation to exercising access to a child" right in the Guidelines. But such cases require a successful undue hardship claim pursuant to section 10 of the Guidelines. See K.B.A. v J.G.B., 2015 SKQB 328 (Q.B.) at ¶ 77. Undue hardship was neither claimed, nor argued in this case.

[341] Although it is sometimes thought to be properly dealt with as a section 7 expense, the cost of exercising access is not a shareable expense pursuant to section 7 of the Guidelines. Nevertheless, some cases have indirectly treated high access costs as a section 7 expenses to a point, by reducing other proper section 7 expenses by the travel costs.

[342] For example, in Button v. Button at ¶12, the Court reduced the father's contribution to mother's claim for day care expenses by the amount of the father's travel costs. The Court did so to give effect to the maximum contact principle. See also Meenink v. Meenink at ¶ 44, 45 and also Ulrich-Cormier v. Cormier, 2000 SKQB 410 at ¶ 29.

[343] However, it is easy to conceive of a case, such as this one, where the access costs will exceed the other parent's section 7 expenses. In such a scenario, a reduction of the traveling parent's contribution to other section 7 expenses, even to $0, may not afford that parent sufficient.

[344] However, there is also jurisdiction to order a credit pursuant to section 28 of the Children's Law Reform Act. In Morrone v. Morrone, 2007 CarswellOnt 7392 (S.C.J.), Quigley J. thoroughly canvassed the Court's jurisdiction under section 28. He found that there is jurisdiction to adjust child support to take into account travel costs in a mobility case as an incident of custody or access pursuant to section 28(1)(b) of the Children's Law Reform Act.

[345] After determining this question of jurisdiction, Quigley J. also considered whether to order an "up front credit" as a set-off against monthly child support on the theory that future travel would happen, or to allow for an adjustment after the fact if the parents did not comply with the payment aspects of the travel Orders.

[346] Regarding this analysis, I reproduce ¶47-49 of Morrone v. Morrone as follows:

47 Apart from that distinguishing feature, however, in numerous decisions cited to the Court, decided both under the Divorce Act and the CLRA, courts have seen fit to fashion relief in circumstances of mobility cases that recognizes that relocation necessarily disrupts the frequency of access to the access parent in a manner that requires that some kind of economic adjustment be made. The relief is necessary to ensure that the rights of the access parent to continue to visit with the children, and more importantly the right of the children to continue to have access to the distant access parent, does not become a hollow or meaningless right in the face of financial circumstances that render it incapable of being exercised.

48 Although it was not a mobility case, in Crocker v. Critch (2005), [2006] W.D.F.L. 623 [2005 CarswellOnt 7469 (Ont. S.C.J.)], Eberhard J. reduced the applicant's obligation to pay his share of child care costs as a result of the increased access costs he experienced which the respondent did not share, considering it to be "an even trade." In Jackpine v. Gamsby, 2004 CarswellOnt 407 (Ont. C.J.), Bishop J. of the Ontario Court of Justice reduced child support payable under the Ontario Child Support Guidelines to compensate the respondent for increased costs in exercising access to the child. In Drury v. Drury, [2006] O.J. No. 833 (Ont. S.C.J.), a case where the mother relocated to Ottawa from Barrie, A.P. Ingram J. ordered that the parties were to share the costs of transportation of the children for access visits to their father, and in the absence of agreement on mechanics, would meet in Belleville for exchanges, that being about the half-way point between the two cities. In Tucker v. Tucker, [1996] W.D.F.L. 2582 [1996 CarswellOnt 1376 (Ont. Gen. Div.)], Wood J. of the Ontario Court ordered that a mother, who had relocated to Nova Scotia, must pay for the costs of getting the two children either to or from Ontario at least once a year as the contribution that the respondent should make "to the increased cost of access that her move has brought about." In R. (B.) v. K. (E.), [2007] O.J. No. 278 (Ont. S.C.J.), a case decided under the CLRA, Wein J. of this court specifically ordered that a portion of a father's child support payments was to be directed towards the costs of travel following the mother's move to Newfoundland, and in Mallia v. Wellman (2003), 2003 CarswellOnt 586 (Ont. C.J.), also decided under the CLRA, the Ontario Court reduced a father's child support by almost one-third from the provincial guideline amount to recognize long distance telephone costs and access travel costs from Florida to Ontario, a case similar to this case. Finally, our Court of Appeal as well appears to have acknowledged the problem of access costs in mobility cases and recognized that it was appropriate in a case decided under the CLRA to apportion certain of those costs to a mother who relocated to Alberta from Ontario: Bjornson v. Creighton, [2002] O.J. No. 4364, 62 O.R. (3d) 236 (Ont. C.A.).

49 Similar results to these have been reached by superior courts in other provinces as well: see Freeland v. Lorencz (2001), 2001 ABQB 886 (Alta. Q.B.) per Veit J. (weekend access visits to relate between towns 110 km apart where parents resided, with costs allocated as between the parents) and Hirst v. McCormick, [2005] B.C.J. No. 973 (B.C. S.C.) per Shabbits J. (father ordered to pay full Guideline child support but mother ordered to pay half of the increased costs of access). All of these cases, each in its own circumstances, provide authority to the court to apportion additional costs of access that arise as a result of a relocation as between the parents, and to apply those increased costs to offset other amounts that might otherwise be payable.

[347] In the result, Quigley J. declined to give the father an "up front credit" for child support in Morrone v. Morrone. He was concerned that the father may not travel but then get the child support credit anyway. Instead, he ordered the mother to share the father's travel costs and ordered that the father could claim a credit in future years if the mother failed to reimburse the father.

[348] This aspect of Morrone v. Morrone is not binding on me. Either option is available to the Court.

[349] In this case, if I have erred in considering travel costs in the quantification of the retroactive award, then I would have adjusted the quantum I ordered in any event under section 28 to take into account of the future travel costs. I would have ordered it as an upfront credit. It is too complicated and costly for these particular parties to come back to Court to argue about credits, should the need arise. Also given the move, there may be other questions about this Court's jurisdiction to deal with such issues in the future.

R. Analysis Respecting the Credit for Travel Costs

[350] The Order that I am making provides that until the children are old enough to travel on their own, the father shall travel to England to pick up the children, and then return with them to Toronto at the beginning of his visits. The mother shall fly to Toronto to pick the children up at the end of his visits, and bring them back to England. In other words, I have apportioned the physical burden of accompanying the children to the parents equally. Not only is this fair, but I direct the parents to send the children a message that each supports the relationship with the other parent. The children should be told that a decision has been made that this move is in their best interests but that the children will actively continue to be a part of both families.

[351] I am imposing on the mother most of the financial burden of travel. The father will pay for his own round trip flights and any overnight hotel costs if he chooses to stay overnight in England before flying back to Toronto. The mother shall bear the cost of her round trip flights to Toronto and back, and the children's round trip flights to Toronto and back.

[352] The father shall pay for any costs to get himself and the children to and from the Toronto airport, and the mother shall deliver the children to the airport in England to meet the father at her expense. If the mother has costs for ground transportation to get to and from the airport when she is here in Toronto to facilitate access, she will bear those costs on her own.

[353] Interestingly, regarding the cost of plane travel, while I did not accept either party's evidence concerning the cost of plane travel in full, there is some overlap in both parties' hypothetical itineraries presented. I find that the cost of a round trip ticket between Toronto and Newcastle, if properly booked in advance, is approximately $1,000 CAD per passenger.

[354] The mother's estimated cost for the father of a hotel near the Newcastle Airport ranges between about $170 and $220 CAD. I find this to be a reasonable estimate.

[355] In the absence of evidence about the cost of ground transportation here in Toronto to get to and from the airport, I take judicial notice of that, and find that $50 each way (maximum) to be a reasonable amount. It may be though that these costs will not be incurred as perhaps Shonelle will pick up and drop off the father and the children at the Toronto airport, and perhaps the mother will have family or friends do the same for her.

[356] Concerning the cost of ground transportation in England, I am not in a position to take judicial notice of that. The mother ought to have adduced evidence about the cost of ground transportation there. Whatever it costs, she will be responsible for that. I expect that Adnan will assist in getting the mother and the children to and from the airport in Newcastle too.

[357] In crafting the Order that I am making respecting travel, in addition to the evidence that I have summarized above, I am taking into account the fact that the mother testified that she will have job flexibility in her new role in Newcastle. She is in a better position to fly with the children.

[358] In apportioning the travel costs and imposing a greater responsibility on the mother, I am also considering that the mother has family here in Brampton with whom she can stay when she travels to get the children in Toronto if she needs to stay overnight, whereas the father does not have accommodations in Newcastle.

[359] I am taking into account that the mother and Adnan have managed to fund 7 or 8 trips between the Toronto and Newcastle to see each other in a relatively short period of time. Again, the move will reduce the cost of running two households, which the mother and Adnan are currently doing as a family. The mother is better suited to cover a greater share of travel.

[360] Finally, in permitting the move, even though it was offered in the alternative and in response to questions from me, I placed weight on the mother's and Adnan's undertakings to the Court, respecting their willingness to share in the burden of travel, to make the father's access work. Had the mother been firm in her insistence that the father be solely responsible for the cost and physical burden of all of the travel, this would not have been reasonable and it would have been a significant factor that militated against the move.

[361] In crafting the Order that I am making, I am directing the parties to source the most convenient but also the least expensive flights. This may not necessarily mean the most direct flights, within reason. They should also enrol the children and take advantage of any airlines' frequent flyer programs so they can accumulate miles or points, and secure free flights where possible.

[362] For the purposes of clarity, I have reduced the mother's retroactive support claim by almost $11,000.00. Based on my findings that the cost of a trip between Toronto and Newcastle will cost the father about $1,300 for his flight, one overnight in Newcastle and ground transportation in Toronto, the reduction to the retroactive support claim is worth about 8.5 trips. This should cover his travel for approximately three years from the date of this Order.

[363] Beyond this, I considered whether to further reduce the father's prospective table child support pursuant to section 28 of the Children's Law Reform Act. I decline to do so. The father still has a child support obligation for the children. And in a few years when the children age and once they are comfortable flying back and forth between England and Toronto, they will be able to travel on their own. The mother will continue to bear the cost of the children's travel, whereas the father's travel costs will stop.

[364] From a budgetary perspective, based on his income of $47,000, the father will have net disposable income of about $27,300 per year after payment of child support of $708 per month plus the $100 monthly arrears repayment that I have ordered. After deducting the $3,900 per year in travel costs that I have ordered, this leaves the father with $23,400 net. His annual budget on his financial statement sworn January 4, 2018 is $29,280.00. This includes provision for Cole. Therefore, he will have a shortfall of about $5,880.00 in this scenario, but many of the expenses on the financial statement are household expenses and he is in a relationship with Shonelle, whose income will certainly be used to share in the cost of household expenses.

[365] The mother did not tender a budget for her expenses to be incurred in Newcastle post-move. I do not have evidence what net income she will have in the United Kingdom, nor Adnan's net income, nor their expenses. She ought to have tendered that evidence.

[366] However, I note that the mother's and Adnan's combined incomes will be in the range of $150,000 and $175,000 CAD. Under the Order I am making, she will be responsible for travel costs of approximately $9,000 (ie. flights of $3,000 ($1,000 per person for herself and the children), 3 times per year), plus whatever ground transportation costs she incurs in England and in Toronto. I also note that her child support is more than doubling from what she currently receives ($337 to $708 per month plus $100 per month in arrears). This is $9,696 per year.

[367] She will have to structure her affairs post-move to cover the travel costs that I am ordering.

[368] Going forward, the mother also submits that the father should share the cost of swimming, soccer and martial arts in a post-move scenario. She proposed to send receipts and said she wants the father to contribute. I do not have evidence as to the cost of these expenses and given the new regime respecting travel between two continents and the costs that will be occasioned into the future I decline to make any further orders for special or extraordinary expenses at this time.

[369] The parties shall each be responsible for the cost of any activities in which they enrol the children when the children are in their respective care. I note that the father may in the future incur child care costs for the children when they are in his care pursuant to the schedule that I am ordering. He would be responsible for those costs as well.

S. Security for Future Travel Costs

[370] The Order that I am making requires a significant amount of cooperation between the parents and the mother to fund the majority of the travel costs going forward. I have found that she is able to afford this, but this turns in part on her moving and starting her job. At the moment, the mother is dependent on Adnan. While he testified that he will support the mother respecting the financial burden of travel if the move is permitted, he is not a party to this proceeding and any Order I make would not be binding on him in any event as he has no legal obligation to fund this.

[371] Although I did not find it to be an impediment to the move, I am sympathetic to the father's worry that the relationship is not tried and tested. The Court is also cautious given the mother's and Adnan's misrepresentation about their housing, and given the mother's initial impression/position that the father should shoulder all of the financial and logistic/physical burden of her desired move.

[372] It is the Court's expectation and belief that the Orders I am making will be followed. But I am also sympathetic to the father's worry that he will have difficulty enforcing the Order, if the mother is permitted to move and does not comply with the access and travel terms that I am ordering.

[373] I have found it to be in the children's best interests to permit the move, but I have also found that it is in their best interests to maintain a relationship with the father. This move will be a big deal for these children and the parents. So out of an abundance of caution, the Court is considering making an Order that the mother be required to deposit a sum of money with the Court as a precondition to her move as security in case of non-compliance. I believe there is jurisdiction to make this Order pursuant to section 28 of the Children's Law Reform Act. See also Johnstone v. Brighton, 200 CarswellOnt 3420 (S.C.J.). But I did not give the parties an opportunity to make submissions about jurisdiction, nor about whether to Order this, and if so, on what terms.

[374] If the parties can agree respecting security and appropriate terms, then the Court will make a consent Order. Otherwise, I direct parties to re-attend before me to address this limited issue.

[375] They may also address the issue of Costs if they cannot agree about that.

PART VII: ORDER

[376] I make the following Orders:

(a) The mother shall continue to have sole custody of the children, Brooklynn Doreen Amari Cater, born June 17, 2009, and Bryden Avery Cater, born October 7, 2011;

(b) The father has the same right to make inquiries and to be given information as to the health, education and welfare of the children. The mother shall sign any consents directing any 3rd parties involved with the children, including their current school (Winchester Public School) and their future school (Hilton Academy), and any current or future health care or dental care providers, to release information and documentation concerning the children to the father;

(c) The mother is permitted to take the children on a trip (dealt with below) to Newcastle, England, from the end of the school year to July 21, 2018, and then she is permitted to relocate the children to Newcastle, England as of August 31, 2018, but the relocation is subject to various terms and conditions set out below;

(d) The children shall continue to reside with the mother primarily in Ontario until the move on August 31, 2018, and then they shall reside with her primarily in Newcastle, England thereafter, subject to the various terms and conditions set out below. Except for the trip that I have authorized in paragraph (f) below, if the mother decides to leave for England permanently before August 31, 2018, then the children shall reside primarily with the father until August 31, 2018;

(e) The children shall remain in Ontario until the end of their current school year. For clarity, they shall finish the year at the Winchester Public School. If the mother remains in Ontario until then, the existing access schedule, namely that the children shall be with the father on alternating weekends, from Friday at 7:00 pm to Sunday at 5:00 pm shall continue until the end of the school year, or until July 21, 2018 (if the mother decides not to take the children on a trip to Newcastle, England between the end of the school year and July 21, 2018 as authorized in paragraph (f));

(f) In her sole discretion, the mother may take the children to Newcastle, England, after the last day of their school year this year until July 21, 2018. Or if the mother decides not to take this trip and she remains in Ontario, the children shall remain in her primary care and the father will have access as set out in paragraph (e) until then;

(g) The father's consent to the mother's travel to Newcastle, England for the trip referred to in (f) is dispensed with. The mother does not need a travel consent letter for this trip;

(h) The children shall then be with the father in Ontario from Saturday, July 21, 2018 until Friday, August 31, 2018;

(i) If the mother chooses to take the children to Newcastle England at the end of the school year as authorized in paragraph (f), then the father shall travel to pick the children up to bring them back for his access to commence on July 21, 2018 and the travel conditions set out in this Order shall begin at that time;

(j) Otherwise, if the mother leaves Toronto earlier such that the children are in the father's care already, or if the mother decides to remain in Toronto until July 21, 2018, then the travel terms set out in this Order begin at the end of the summer and it will be the mother's obligation to travel to Ontario to pick up the children on August 31, 2018;

(k) In this new regime when the mother resides in Newcastle, England and the father resides in Ontario, the children shall be in the father's care in Ontario at the following times during the year:

(i) For 6 weeks in the summer, during the Newcastle school's summer holiday. I have already set the dates for the summer of 2018. In future years, the children shall be picked up in England on the first Saturday after school ends and then they shall be picked up in Toronto on the last Friday before the new school year starts at the end of the summer break;

(ii) For the entire Christmas holiday every year, which the Court understands to be two weeks. The children shall be picked up in England on the first Saturday at the start of the break and they shall be picked up in Toronto on the last Friday before the end of the break; and

(iii) For two weeks in the winter or spring during the school break, which the Court understands to be two weeks. The children shall be picked up in England on the first Saturday at the start of the break and they shall be picked up in Toronto on the last Friday before the end of the break;

(l) Notwithstanding the reference to Ontario as the location of the father's access in paragraph (k) above, the father may elect to spend some of his access with the children in England at his expense if he chooses, but he does not have to do this;

(m) The father may also spend additional, reasonable time with the children in England at his expense on reasonable notice as arranged between the parties;

(n) If the mother decides to travel to Toronto during the summer months, she may have the children for a four day weekend in Ontario in the middle of the father's summer holiday time. The parties shall cooperate and agree upon the dates;

(o) The conditions of the children's relocation are:

(i) The mother shall enrol the children in the Hilton Primary Academy in Newcastle, England, for the 2018-2019 school year;

(ii) Once the children have relocated, the mother shall not then change the children's residence out of Newcastle, England, unless it is to return to Toronto, Ontario, without the father's consent or a Court Order;

(iii) The mother shall be the custodian of the children's passports and any of the children's government or other documentation for the children;

(iv) The mother is entitled to apply for any new passports and other documentation for the children as they need it. The father shall sign any applications or documentation as needed to facilitate this; and

(v) The mother shall not leave Ontario with the children until such time as the Court rules respecting whether she should be ordered to post money with the Court as security for future travel;

(p) The conditions of travel once the relocation proceeds are the following:

(i) Until the children can travel as unaccompanied minors, the father shall be responsible to travel to England to pick up the children. The father shall bear the cost of his return travel to England for this purpose. The mother shall deliver the children to the airport into which the father is flying on the first Saturday of his visits, at her expense. Alternatively she may deliver the children to the father at another location if the parties agree;

(ii) The mother shall be responsible for the children's round trip airfare for their travel, leaving England to Toronto and then back to England. Until the children can travel as unaccompanied minors, the father shall accompany the children on their flight to Toronto at the outset of his visits;

(iii) Until the children can travel as unaccompanied minors, the mother shall be responsible to travel to Toronto to pick up the children at the end of the visits. The mother shall bear the cost of her return travel from England to Toronto to pick up the children and then back to England. The father shall deliver the children to the mother at the airport on the Friday at the end of his visits. Alternatively, he may deliver the children to the mother at another location (for example if the mother has come to Toronto early to visit family or friends);

(iv) The father shall be responsible for the cost of any ground transportation to and from the airport in Toronto when leaving Ontario to travel to England to pick up the children and when returning home with the children. The mother shall be responsible for the cost of any ground transportation to get the children to and from the airport in England, and when she comes to Toronto;

(v) The parents shall cooperate respecting booking travel according to the following parameters;

(vi) The parents and the children may fly in and out of either the Newcastle airport, the Manchester airport and the Toronto Pearson airport. If they choose to use any other airport, they must agree;

(vii) Each year, on or before July 15 commencing in 2018, the parents shall exchange the school calendar for Hilton Primary Academy and they shall map out, on a calendar, the specific days that the children shall be in the father's care according to the access schedule that is ordered;

(viii) The parents shall book travel to ensure the father has access in accordance with the schedule that has been ordered. The father shall arrive in the United Kingdom on such days and times to be able to pick the children up on the Saturdays at the start of his visits, and the mother shall arrive in Toronto at such days and times to be able to pick the children up on the Fridays at the end of the father's visits;

(ix) The parents shall book travel for each journey at least 30 days in advance, to secure the lowest fares possible. They shall monitor flights for any seat sales from time to time, and they may decide to book flights earlier than 30 days out if necessary to take advantage of lower fares;

(x) When the parents do the travel bookings, the father shall book and pay for his return flight to pick up the children. The mother shall book her flight and the children's flights such that the outbound leg from England for the children is the same as the father's return leg on his ticket, and such that her return leg on her ticket is the same as the children's return leg. This will require coordination by the parties;

(xi) If due to any specific airline rules respecting travel with the children travel cannot be booked this way, the parties shall cooperate and make any necessary adjustments to implement the spirit of this Order to give effect to the principle that the father shall pay for one adult round trip ticket for each access visit and the mother shall pay for one adult round trip ticket and two children's tickets for each access visit;

(xii) The parties need not book the lowest fare that is available, within reason. They may decide to book a slightly more expensive flight if there is a route that is more convenient, or perhaps to take advantage of an airline's loyalty program. They shall endeavour to avoid long lay overs on their flights between England and Toronto;

(xiii) The parents shall sign the children up for frequent flyer programs for any airlines that they use. As the children accumulate sufficient points or miles, they shall use the points to defray the cost of the children's travel;

(xiv) Neither party requires a travel consent from the other parent to travel with the children between the United Kingdom and Canada;

(xv) If either parent plans a trip to any other locations with the children, then he or she shall provide the other parent with a complete travel itinerary at least 30 days before the trip, that includes flight or other transportation details, details of accommodations and contact information while away;

(xvi) The non-traveling parent shall sign a travel consent letter 7 days after the request and no later than at least 21 days before the trip. Neither party shall unreasonably withhold his or her consent to other parent's request to travel with the children;

(q) Commencing February 1, 2018, and on the first day of each month thereafter, the father shall pay child support to the mother for the children, namely Brooklynn Doreen Amari Cater, born June 17, 2009, and Bryden Avery Cater, born October 7, 2011 in the amount of $708 per month. This is the table amount of child support in accordance with the Guidelines for two children based on the father's annual income of $47,000;

(r) If the father's income is greater due to any bonuses or other incentives that he may receive in this job (or less for some other legitimate reason) then this amount can be adjusted annually by June 1 commencing June 1, 2019;

(s) Arrears of child support are fixed at $3,636.82 as of January 31, 2018. Arrears shall be repaid at the rate of $100.00 per month on the first day of each month commencing February 1, 2018;

(t) The father shall receive a credit for any amounts of child support he has paid since February 1, 2018;

(u) The parties shall each be responsible for the cost of any activities in which they enrol the children or child care costs when the children are in their care;

(v) A support deduction Order shall issue;

(w) Pursuant to section 24.1 of the Child Support Guidelines, on or before May 9 each year commencing May 9, 2019, the parties shall provide to each other:

(i) His and her income tax return for the previous calendar year. For example, on May 9, 2019, the parties shall provide his and her tax returns for 2018. In the mother's case, this may include a Canadian and a United Kingdom tax return in 2018 and then in future years it may only include a United Kingdom tax return;

(ii) His and her notice of assessment for the previous calendar year. If it is not available by May 9, 2018, then it shall be provided as soon as it is available. In the mother's case, in future years she may not have a Canadian Notice of Assessment so she should provide the United Kingdom equivalent, if such a document exists;

(iii) If the address at which a party receives documents changes, the party shall, at least 30 days before the next anniversary of the date of this order (at least by March 9 in future years), give written notice of his or her updated address information to the other party; and

(iv) The parties may request additional disclosure in accordance with the Guidelines annually if they wish in accordance with the Guidelines;

(x) The parties shall re-attend before me on April 19, 2018 at 3:00 pm for 1 hour to address the issue of whether the Court should order the mother to deposit a sum of money with the Court as a precondition to her move as security in case of non-compliance respecting the access and travel terms in this Order; and

(y) If either party seeks costs of the trial, then he or she shall exchange a Bill of Costs and any Offers to Settle beforehand and come prepared on April 19, 2018 to make submissions. Each party may provide the Court with copies of his and her Offers and Bills of Costs on the day of the hearing.

Released: April 9, 2018

Signed: Justice Alex Finlayson