Rioux v. McCutcheon, 2022 ONCJ 246

Rioux v. McCutcheon, 2022 ONCJ 246

ONTARIO COURT OF JUSTICE

CITATION: Rioux v. McCutcheon, 2022 ONCJ 246

DATE: 2022 04 11

COURT FILE No.: FO-19-104

BETWEEN:

Michael David Patrick Rioux

“Applicant”

— AND —

Jessica-Lynn McCutcheon

“Respondent”

Before Justice B.C. Oldham

Heard on December 6, 7 & 8, 2021 and January 19, 2022

Reasons for Judgment released on April 11, 2022

William Abbott counsel for the applicant(s)

Farrah Hudani/Jessica Luscombe counsel for the respondent(s)

OLDHAM J.:

1This trial involves a three-year old boy, Matthew John David Rioux, born [xxx], 2019 (“Matthew”). The Applicant, Michael Rioux (“Michael”) is the biological father (the “father”) and the Respondent, Jessica McCutcheon (“Jessica”) is the biological mother.

2The parties were in a brief relationship which commenced in January 2018. They are both young, first-time parents. Michael is 31 years of age and Jessica is 26 years old. Jessica was attending a nursing program at Nipissing University in North Bay, Ontario when the parties met. Michael is employed as a truck and coach technician and was employed in a similar capacity when the parties met. Jessica became pregnant soon after the parties started dating. They moved in together in September 2018. The relationship ended on April 18, 2019, when Matthew was only three months old. The final separation was marked by a domestic incident and police involvement which set a tone of lack of trust, high conflict and intense litigation.

The Issues

3The issues to be determined at trial included the following:

a. Decision-making responsibilities. Michael seeks an order for joint decision making, with the right to make the final decision if the parents cannot agree. Jessica seeks final decision-making responsibilities, with an obligation to seek and solicit input and opinions from Michael. Both agree that communication is and has been a challenge and that communication needs to take place through the ‘Talking Parent’ or some similar application.

b. Mobility. Michael seeks an order confirming Matthew’s residence in North Bay. Jessica seeks approval to relocate to Sudbury with Matthew. Variations in decision-making responsibilities may flow depending upon whether the move is approved, or if Jessica moves even if the relocation for Matthew is not approved. If Jessica is not allowed to relocate with Matthew and she proceeds with her plans to move to Sudbury, Michael seeks an order granting him sole decision-making responsibilities.

c. Parenting time. Michael seeks equal parenting time pursuant to a 2-2-5–5 parenting schedule. Jessica seeks an order providing Michael with parenting time three weekends a month with additional mid-week visits in Sudbury. The parties are in substantial agreement with respect to parenting time during the holidays, school breaks and special occasions which have been proposed and detailed by each party through draft orders provided to the court.

d. Child Support. Michael seeks an order for off-setting child support based on a shared parenting schedule. If Matthew is allowed to relocate, Jessica seeks an order for child support in accordance with the Child Support Guidelines. Both parties agree that an order for a proportionate sharing of special expenses, which include daycare, is appropriate.

e. Costs. The issue of costs with respect to Michael’s contempt motion returnable on June 10, 2021, was reserved to trial. Jessica seeks a cost order in the amount of $1,754. Michael submits that the motion was necessary and that costs should not be ordered.

The Evidence

4The parties obtained extensive disclosure prior to the trial which included police records, daycare notes and attendance sheets, medical records, hospital and Children’s Aid Society (“CAS”) records and a report by the Office of the Children’s Lawyer (“OCL”). In accordance with the Trial Management Conference Endorsement, the evidence was present by affidavit and the parties, and their witnesses attended in person to be cross-examined.

5In addition to his own testimony, Michael relied upon the evidence of his father, Donald Rioux; Jannah Avery, the operator of the North Bay Daycare and Learning Centre; Dr. Gleeson, Matthew and Jessica’s physician in North Bay; and Sean Nolan, the facilitator for the Partner Assault Response Program (“PARS”).

6Jessica relied upon the evidence of her father, John McCutcheon; Dude Senack, the biological father of Layton (Jessica’s and Dude’s daughter who was born […], 2021); Kelly Guillard, a friend Jessica met through the nursing program; and Hannah May, a friend Jessica met at the Tim Horton’s in North Bay in July 2019.

7Carol Vaillancourt, the Clinician appointed by the Office of the Children’s Lawyer (“OCL”) testified with respect to her report dated January 10, 2020.

8The parties also filed Statements of Agreed Facts which establish an agreement with respect to many aspects of the timing, caregiving and incidents that arose both prior to and after the separation. Both acknowledge a relationship and bond between Matthew and the other parent. The main discrepancy in the evidence is with respect to who is responsible for conflict, litigation and lack of communication. Each party in their extensive affidavits set out in detail virtually every incident that occurred in their relationship and in their parenting of Matthew.

Position of the Parties

9Michael’s position is that he was an active and engaged father during the first three months of Matthew’s life. He claims that Jessica was controlling and irrational. He claims that she would be physically aggressive and would insult him. He claims that he would not respond and would sit quietly waiting for her to calm down. Michael denies that he was intoxicated on either occasion when the police attended their home.

10Michael has concerns about Jessica’s ability to manage her own health and worries about how that will impact her ability to care for Matthew.

11Michael does not trust Jessica. He claims that Jessica fabricated the allegations against him so that she could get the strategic advantage in the litigation. Since the separation, Michael claims that Jessica has failed to provide him with information about Matthew’s medical appointments and general well-being. He claims that she has made decisions about Matthew’s care without consultation and has unilaterally restricted his parenting time and created conflict at access exchanges. Michael firmly believes that Jessica has not made reasonable efforts to find employment in North Bay and that she has been intent on moving Matthew from North Bay so that Matthew will not be able to have a relationship with his father.

12Michael believes that it is in Matthew’s best interest that he stay in North Bay so that Matthew can continue to have the love and support of his family. Michael does not believe that Jessica has a close relationship with her family and suggests that she has been creative in the presentation of her support group in Sudbury.

13Jessica claims her relationship with Michael was impaired by the interference of his parents. She claims that their attitude towards her changed drastically when they announced the pregnancy. Their distain for her created considerable tension in her relationship with Michael.

14Jessica claims that she felt that Michael was not supporting her in the care of Matthew during the first three months prior to their separation. She claims that she attended to the majority of his caregiving and when she sought help, he was critical and dismissive. Rather than assist, he worked late or invited friends over to drink and play video games.

15Jessica denies making false allegations and maintains that she was fearful of Michael in both February and April 2019 when the police were called. She claims that he drank to excess and that he became angry and aggressive with her.

16Jessica claims that she tried to find employment in North Bay but decided early on that she needed to return to Sudbury where she would have the support of her family. Jessica was able to obtain a permanent full-time position in her field in Sudbury and has obtained geared to income housing. Jessica believes that she will be able to ensure that Matthew maintains his relationship with his father and that the move to Sudbury is in Mathew’s best interest.

17Jessica claims that the lack of communication by the paternal grandparents created conflict that was not necessary. The tension has only strengthened her resolve that Matthew will be better off with her in Sudbury. She does not believe that Michael or his parents are prepared to encourage or facilitate her relationship with Matthew.

Facts and Findings

Relationship Prior to Matthew’s Birth

18Michael was born and raised in the North Bay area. He has a close relationship with his mother, Diane Rioux and father, Donald Rioux who live in Callander, Ontario, approximately 20 to 30 minutes from North Bay. Michael’s father, Donald, is a retired supervisor from a heavy equipment truck coach shop. His mother, Diane, is a Registrar/Clerk at the North Bay courthouse. Michael graduated from college and works as a truck and coach technician. At the time the parties met, he was working for Arnstein Equipment. At the time of the trial, he was employed with McDougal Transport. Both employers are located in or have branches in North Bay.

19Jessica was born in Sudbury, Ontario. Jessica’s parents separated when she was 11 years of age. She continued to live with her mother following the separation and remained with her until she was 16 years of age. She lived with her father, John, in Oakville, Ontario for a brief period of time when she was 16, but returned to Sudbury to reside with her aunt, Anita Norad that same year. In 2013, Jessica was admitted into the nursing program at Nipissing University. Jessica had significant health issues in October 2014 which resulted in her withdrawing from all classes for a year. During the entire period that Jessica was out of school, she lived with her father. He supported and provided her with care until she was diagnosed with neuropathy and gastroparesis. She was placed on medication and able to return to school in mid 2015. Jessica graduated with a Bachelor of Science in Nursing from Nipissing University on June 7, 2018. Jessica suffers from Type 1 Diabetes which she has had since she was approximately 15 years of age.

20When Jessica and Michael first started dating, they spent a lot of time at the paternal grandparent’s home in Callander. Michael was living with his parents at this time. After learning of the pregnancy, the parties moved into a residence together which was located at 165 Sherryl Crescent in North Bay.

21It was undisputed that Michael’s parents were concerned when they found out about the pregnancy. Jessica testified that their attitude toward her changed dramatically at that point. Donald Rioux confirmed in his affidavit and oral evidence that he and Diane asked Michael and Jessica to meet with them to have a discussion. The grandparents raised a number of concerns such as how new Michael and Jessica were in their relationship and how Jessica’s pregnancy was high risk because she had Type 1 Diabetes. They asked about the couple’s plans to live together or in separate homes and questioned what would happen if the relationship did not last. Donald confirmed that Diane would encourage Jessica to eat properly and regularly once they learned of the pregnancy. By any measure, the grandparent’s approach was a significant intrusion into the lives of this couple.

22Jessica testified that their reaction caused considerable tension in her relationship with Michael and in her comfort around the paternal grandparents. Jessica testified that she felt that Michael was not as supportive as he could have been and that she was often left to attend pre-natal appointments on her own. Michael testified that he was working full-time and that he was unable to attend. He expressed frustration with Jessica’s lack of personal care, including her lack of healthy eating and proper management of her diabetes during the pregnancy and before. While Michael and his parents downplayed the suggestion by Jessica that there was friction in the relationship prior to Matthew’s birth, this court accepts Jessica’s claim that she was distraught and uncertain about the relationship to the extent that she was reaching out to her friends and father for support.

23Jessica’s father, John McCutcheon (“John”), testified that he first met Michael in April 2018 and that he seemed nice, but that “many red flags appeared over the next few months”. He testified that he observed Michael and his parents to be intoxicated at the ‘gender reveal’ in September 2018 and that he became at bit concerned at this point. He described Michael as extremely drunk by the end of the baby shower (which was on another occasion). He described how Jessica reported that she continued to work throughout the pregnancy and that Michael often belittled her job and that she was left to do the majority of the chores around the house. He described the call on February 9, 2019 when Jessica called him “crying loudly and in obvious distress”. John tried to console his daughter as she described the lack of support she was feeling. She called an hour later reporting that Michael had overheard the conversation and became so irate that she called the police.

24Kelly Gillard (“Kelly”) received similar calls. She testified that as of September 2018 “Jessica would regularly call [her] crying and confide in [her] about arguments she was having with Michael”. Kelly described Jessica as anxious, worried and unsure of what to do about her relationship with Michael. Jessica relayed concerns about Michael being belligerent and scaring her when he was drinking. Jessica called Kelly to pick her up from Michael’s parents one evening. Kelly described Jessica as begging her to come because Michael could not or would not drive her home. She found Jessica sitting outside crying by herself. Jessica called Kelly on February 9, 2019 and reported similar observations as Jessica’s father. Kelly reported that Jessica “sounded really upset and shaken”. Jessica reported that Michael was drunk, she feared for her safety and the police were called and drove him to his parents.

25Michael denies that he was ever intoxicated, belligerent or argumentative. He claims that Jessica was violent and unpredictable. There is no corroboration for this claim. Even Michael’s parent’s do not describe any incidents where they observed Jessica to be aggressive or where Michael reported these concerns to them. They maintain, however, that all of Jessica’s allegations are false and deny that they or Michael have ever been intoxicated in Jessica’s presence.

26The court accepts Jessica’s evidence regarding the tension and arguments in the relationship before the separation. It is corroborated by her father and by Kelly. It is consistent with Michael’s evidence that he felt that Jessica was not doing her share of the household chores and that he was often frustrated. Jessica’s reports of feeling belittled are strengthened by Michael, Donald and Diane’s evidence that they did not believe that Jessica was capable of caring for herself, much less a child. The court does not accept that Jessica made up allegations of excessive drinking. Jessica’s father observed it on at least three occasions. Her father was credible and supportive of the relationship and pregnancy at the beginning. It was not until there were repeat calls and observations that he took note of the red flags that began to appear.

Relationship and Roles following the birth of Matthew

27The tension and division of roles continued and escalated after Mathew was born […], 2019.

28Matthew was born with a number of medical issues which included a large hematoma from the forceps delivery and laryngomalacia (soft larynx and vocal cords). He had approximately 15 doctor’s appointments in the first three months of his life. In the first four months of Matthew’s life, he was in the hospital overnight on three separate occasions. When he was almost two months old he contracted an MRSA (Methicillin-resistant Staphylococcus Aureus) infection and required intravenous antibiotics and a hospital stay from February 5^th to February 8^th, 2019.

29Jessica expressed frustration with Michael’s lack of attendance at the various appointments and hospital stays. Michael’s evidence was that he was unable to attend appointments because Dr. Gleeson’s office was only open during his work hours. He noted that he did attend two appointments which he deemed to be important as one required his family’s medical history and the other was a follow up on his own concerns regarding Matthew’s health. He took time off work to attend these appointments.

30Michael denies that he was not involved in early days and denies that Jessica was primarily responsible for caregiving tasks such as bathing, changing and feeding Matthew. Jessica claims that she did the majority of the caregiving tasks, even when Michael was home from work. Michael acknowledges that he felt obligated to work to financially support the family and notes that he did some after hours work and acknowledges being at the shop for longer hours before Matthew was born to repair a Jeep Grand Cherokee for the family.

31While Michael provided explanations for his absences, there is no question that Jessica took on the primary caregiving role during the first three months of Matthew’s life while the two lived together. This is confirmed by the evidence of Kelly, Jessica’s former roommate and friend who spent time with Michael and Jessica before and after Matthew’s birth. Her evidence was that she would come by regularly, at least three times a week, after Matthew was born to help Jessica. She acknowledged that Michael helped Jessica at first, but that he returned to working long hours within two weeks of Matthew’s birth.

32Kelly’s evidence was that Michael was often away working when she visited Jessica and Matthew. She testified that she would try to stay with Jessica until he came home to provide support, but that eventually Michael was staying out so late that she would have to leave before he came back. Kelly claimed that she was called to pick Jessica up from the hospital following the three-day stay in February 2019, because Michael was busy at work. Kelly was a credible witness. She was friends with and supported both Michael and Jessica in the early stages of their relationship. Moreover, none of Kelly’s evidence of her observations are inconsistent with Michael’s evidence that he was working long hours to support the family financially.

33Kelly also testified that she observed Michael to refuse to cook, clean, change diapers or bathe Matthew. While Michael claims that he assisted when he came home, he acknowledges that he was tired and that he urged Jessica to wake up through the night during the week to care for Matthew. Michael’s evidence was that he worked from 8:00 am until 5:30 or 6:00 pm. Jessica claims that Michael routinely came home after 8:00 pm and often not until 9:00 or 10:00 pm.

34The court accept Jessica’s evidence that Michael was working late and that she continued to be the primary caregiver in the evenings and weekends. This evidence is consistent with Kelly’s observations and the tensions forming between Jessica and Michael. Michael confirmed that he felt that Jessica should be doing more of the chores at home given that he was working long hours. If he was working long hours, he was not available to assist Jessica to the extent he claims.

35The tensions boiled over on February 9, 2019 and on April 18, 2019.

36Jessica returned home on February 8, 2019, after spending three days in the hospital with Matthew. Michael claims that he asked, and Jessica agreed to him inviting friends over that evening. He claims that these friends came to share exciting news of their pregnancy. Michael acknowledges that when they arrived, Jessica said that she was going into the bedroom for awhile and might come out after. That is not indicative of a person ready to receive guests. Jessica claims that Michael and his friends drank and played music and video games late into the night and that she was frustrated and exhausted when she could not wake him up the next morning to help with Matthew as promised. Michael acknowledges that he had agreed that he would assist with Matthew the next day.

37Jessica’s evidence of what occurred the next day is supported by her father’s affidavit. He confirms that Jessica called him in the early hours of February 9, 2019. She was crying, exhausted and frustrated that Michael was not helping her. Jessica claims that Michael overheard this conversation and woke up and confronted her about it. The police were called and Michael does not deny that there was a verbal dispute. Michael acknowledges that he agreed to leave because Jessica had no where else to go. This was to be a cooling down period, but Michael also acknowledges that the level of conflict had risen to the stage that he felt he should move out and return to live at his parent’s home for a period of time. He claims that he no longer trusted Jessica ‘after she made the first false allegation about him to the police’.

38Michael claims that he was not drinking that night and the allegation by Jessica that he was intoxicated was a false allegation. Whether he was intoxicated or not, the fact that Michael takes no responsibility for the impact that his late night videogaming may have had on his partner and child who just returned from a three-day hospital stay, is concerning.

The Separation

39The parties separated following a second incident involving the police on April 18, 2019. On this occasion, there was another altercation and Jessica called the police. Kelly testified that the call was at her direction after they were unsuccessful in de-escalating the situation. Michael disputes this and claims that Jessica was the one who decided to call the police and that she did this, and made-up false allegations of abuse to strategically restrict his time with Matthew. Michael claims that Kelly told Jessica not to call the police. Kelly’s evidence was that Michael threatened that “if Jessica did this [call the police] he would leave her and she would never see Matthew again”. Michael denies that he made this threat.

40Jessica did call the police and they attended on April 18, 2019. After speaking with Jessica, Michael was arrested and charged with domestic assault. Kelly claims that he continued to make threatening remarks such as “see what you did”, “there’s no coming back from this” and “you’ll be sorry”. She claims that he was told by the police to stop talking. The court accepts Kelly’s observations from that night. She was a credible witness and was called over to help de-escalate. Her observations were detailed. Michael claims that her evidence that he had been drinking is inconsistent with the officer’s decision to allow Michael to continue his efforts to feed Matthew. He claims that this is evidence that Kelly and Jessica were lying and exaggerated the events of that night. The court does not agree. Unless Matthew was in danger, there would be no reason to pull Matthew away. Michael was sitting on the couch at that time and the other officer was talking to Jessica.

41Jessica’s affidavit sworn on October 29, 2021 indicates that she understands that the police lost her original statement and the photographs they took of her injuries. Michael claims that the photo’s taken by Jessica were undated and prove nothing. He claims that she only went to a clinic five days after the incident and that the marks depicted in her photos could have been anything.

42The records from the North Bay Police Service were produced on November 26, 2021 and filed as Exhibit #6 at the trial. These records include Jessica’s statement and the date stamped picture of what appears to be a red mark on her shoulder. This photo is the one taken by the North Bay Police Service in the kitchen on April 18, 2019. Michael denies that he assaulted Jessica and advises that the charges have been withdrawn. The fact that the charges have been withdrawn does not confirm that there was no physical contact. Michael’s claim that Jessica’s allegations are completely false are belied by Jessica’s evidence, the photos taken by the officer that night and by Jessica’s follow-up visit to the walk-in clinic on April 23, 2019.

43The court accepts Jessica’s claim that there was some jostling and physical contact. She claims she was elbowed and pushed to the ground. She did not suffer any serious injury, but claims to have been in pain for several days following the incident.

44Michael also claims that he voluntarily completed PARS. This is an example of Michael’s evidence falling short in terms of being completely candid with the court. Sean Nolan, the PARS Facilitator testified and confirmed that PARS is a mandatory program and that it is either mandated by the court or a probation officer. In this case he believed it to be by the court as he was contacted by Michael’s lawyer. The court acknowledges that Michael may have agreed to engage in the PARS program, but it appears that this was done in the context of the criminal charges. There is no evidence before the court that Michael he took the PARS program or an equivalent voluntarily in the sense that he wanted to take a program to inform himself of issues around domestic violence. Michael maintains that the allegations were completely false, that he is non-violent and does not drink to excess.

45Regardless of the outcome of the criminal proceedings, these incidents cannot be categorically dismissed as false allegations. They are incidents of domestic violence.

46Both Michael and Jessica agree that the disagreement was around the fact that Jessica had not started to make dinner. Michael claims that he offered to help when he finished the maintenance on his vehicle. Jessica claims that she had been in the hospital with Matthew all day and that she told Michael she needed to rest before making dinner.

47Jessica decided to leave to avoid conflict and was packing Matthew in a car seat. Michael took Matthew out of the car seat and locked himself and Matthew in the bathroom for a period of time. Jessica called her friend, Kelly, to come over to assist. Although Matthew was only three months old at the time, the environment, the tone and the interaction between these parties that night was escalated and negatively impacted Matthew who was reportedly crying for most of the time when he was locked in the bathroom with Michael. When he came out, Michael refused to allow Jessica to console Matthew and sat on the couch trying to bottle feed him. Matthew was being breast fed at this time.

48Michael claims that Jessica was rough when she put Matthew into the car seat and that he was alarmed and fearful that she would be rough again, so he needed to remove Matthew from Jessica. The court does not accept that this was the reason Michael removed Matthew. If that was his concern, the situation would have de-escalated when Kelly arrived. Michael did not want Jessica to leave with Matthew and was prepared to lock himself in the bathroom with Matthew to prevent that from happening.

49Again, Michael takes no responsibility for his role. He claims that it was a “minor disagreement when he asked Jessica to start dinner”. He maintains repeatedly that the allegations were false allegations, false charges and that Jessica did this to strategically gain an advantage in family law proceedings. The court does not accept that characterization. Jessica’s decision to call a friend, before the police and her private hand-written note to Michael dated April 19, 2019 suggest otherwise. She was scared and needed assistance to de-escalate the situation. Her letter to Michael asks for space and understanding. She was hopeful that the relationship could continue. Jessica did engage in counselling for domestic violence and provided a letter from Nipissing Transition House dated July 25, 2019 confirming her attendance since May 21, 2019.

50Michael claims that Jessica is the one that is aggressive and that she yells and screams at him. This is not borne out in the evidence. Jessica’s demeanour in court and the patience demonstrated through her notes in the communication book are not consistent with Michael’s description. Jessica’s friends and family describe her as supportive, loving, generous, kind, funny, and nurturing. Neither the Daycare providers, nor Dr. Glesson note any concerns regarding anger or irrational behaviour. Dr. Glesson’s letter dated September 24, 2021 confirms that she has “never seen any aggression and [has] no concerns about Matthew or Mom”. She describes mom as “completely appropriate. She always brings Matthew in when he is sick.”

51The CAS was contacted on April 20, 2019. The caller reported concerns about Jessica’s ability to care for Matthew. These concerns included the risk that Jessica may be aggressive with Matthew and that she was “lazy, gets frustrated and [that the caller] finds her to be overwhelmed”. The CAS closed its file on July 31, 2019 after meeting with Jessica and investigating the concerns. The CAS noted that “Jessica presents with numerous strengths”. There were no concerns about her home or care of Matthew and she was described as presenting “as attentive, responsive and affectionate toward Matthew.” In terms of aggression she was described as presenting “as being well balanced, calm and attentive toward Matthew”. The CAS records are redacted, but it was acknowledged that the caller was Michael’s mother, Diane Rioux.

52Even though the paternal grandparents made a number of negative comments about Jessica, Donald did not describe any incidents where he observed Jessica yelling or screaming. Donald’s main concern was around Jessica’s behaviour at the exchanges where she would be insistent on saying goodbye to Matthew or adjusting his car seat straps which he felt was unnecessary. Donald was convinced that Jessica’s every move was an effort to breach Michael to make the grandparents look bad. He believed that she would intentionally tug on Matthew’s car seat straps to make him cry. The video recordings provided to the court do not show any signs of aggression or even an elevated tone of voice or posturing by Jessica at the exchanges. This line of reasoning by Donald demonstrates the deeply entrenched lack of trust. There is no question that there were times when Jessica lingered longer than she should have and that perhaps a quick exchange may have made the transitions smoother. However, the court does not accept that she did anything to attempt to make Matthew uncomfortable or to make the grandparents look bad. She is a young mother adjusting to leaving her infant child. The court does not accept that Jessica was aggressive or violent with Matthew or with Michael.

53In contrast, there are police reports documenting some concerning behaviour by Michael. The police records are dated and the court accepts Michael’s acknowledgement that he was not perfect growing up. This acknowledgment is a recognition of the inappropriateness of his conduct at the time and supports his claim that he has changed and is more focused on work and getting ahead. Notwithstanding the progress Michael may have made, the court does not accept his claim that he sat patiently discussing issues with Jessica while she yelled and screamed at him and throughout this tug of war with Matthew on April 18, 2019. Michael is not being candid with the court about his role in the escalation and the conflict that occurred on April 18, 2019.

54Following the arrest, Michael was released on a Promise to Appear and an Undertaking to Peace Officer which included a condition that Michael was to “abstain from communicating directly or indirectly with Jessica McCutcheon or from going to 165 Sherryl Crescent, North Bay, Ontario or any subsequent residence of Jessica McCutcheon expect through counsel.

Litigation Following the Separation

55As a result of the incident and the non-communication condition, Michael was unable to have liberal access to Matthew following the separation.

56Jessica is critical of the fact that Michael did not reach out for access until May 31, 2019. Michael describes this time as being very difficult for him. He had to move out of the residence at 165 Sherryl Avenue. He was away from Matthew. He was dealing with the criminal charges and had no real means of finding out how Matthew was doing during this period of time. Apart from having his parents reach out to Jessica to ask for access, the court accepts that there was little Michael could do at this early stage to arrange for parenting time with Matthew without the assistance of a lawyer or a court proceeding.

57Michael retained a family lawyer and made a request for access through counsel on May 31, 2019. Jessica’s response at that time was to ask for supervised access. Michael was not prepared to have his access supervised and accordingly, he did not accept any access until August 5, 2019 following a motion that was heard on July 31, 2019. At that time, Justice Mendes made an order for the gradual reintegration of Michael into Matthew’s life (the “2019 Mendes Order”). She did not agree that supervision was necessary. The parenting time under the 2019 Mendes Order commenced with two-hour visits three times per week in August 2019 and progressed to one overnight commencing September 9, 2019, increasing to two overnights as of January 2020. The exchanges were to be facilitated by the paternal grandparents at the Tim Hortons between Callander and North Bay.

58By letter from the Crown Attorney dated August 13, 2019, Michael was advised that the non-communication condition was varied to include a further exception: “except through a third party for the purposes of arranging for access pursuant to a valid family court order.”

59The 2019 Mendes Order also included a restriction preventing either party from changing Matthew’s ordinary residence from North Bay, without consent or further court order.

60From August 2019 until March 2020 exchanges occurred at the Tim Horton’s between Callander and North Bay. Hannah May (“Hannah”), who had befriended Jessica provided an affidavit of her observations of the exchanges during this period of time. Hannah worked as a supervisor at the Tim Horton’s and testified that she observed the exchanges twice a week. She described the exchanges as uncomfortable to watch noting that the paternal grandparents would often ignore Jessica completely and look right past her and act as if she did not exist. Hannah said, “It made me sad for her watching this each week”.

61Donald testified that he experienced a lot of difficult situations during the exchanges and attributes the difficulties as being Jessica’s attempts to discourage a healthy relationship with his family. He goes on to describe a number of situations where he believes that Jessica was trying to breach Michael by meeting up with him in a Subway restaurant or by approaching the vehicle. Jessica denies knowing that Michael was at the various locations and denies any effort to cross paths with him.

62The court was provided with videos of a few of the exchanges. Two cameras were mounted inside the paternal grandparent’s vehicle. One to capture the view out the front window and a second to capture a view of the backseat where Matthew was placed in his car seat. On August 14, 2019, the second week of access visits, the paternal grandparents called the police to assist with the exchange. The video shows the exchange and the placement of Matthew in his car seat in the back of the vehicle by the grandparents. Donald says that Jessica then approaches the backseat but is unable to access Matthew as the door is locked. The grandparents refuse to give her access to the inside of their vehicle and Jessica positions herself in front of the vehicle while her friend tries to negotiate with Donald and Diane to allow Jessica the opportunity to say goodbye to her son. Jessica is clearly emotional and is seen wiping tears from her eyes as she stands in front of the vehicle. In her evidence Jessica acknowledges that this was a difficult time for her. She was anxious about leaving Matthew and concerned about Michael’s parenting time given the health issues with Matthew and the lack of communication. Jessica testified that the lack of communication by Diane and Donald was the most concerning part of the exchanges. She describes how they would not even look at her or acknowledge her. They simply wanted to get Matthew in the car and leave.

63Jessica’s description of the tone of the exchange is confirmed by the video and by Donald’s evidence. He testified that he and Diane wanted nothing to do with Jessica. He just wanted to pick up Matthew and leave. On the video, Diane and Donald are seen to respond to Jessica’s friend by telling her that Jessica is to say her goodbyes before she approaches their car. She is to hand Matthew over and she is not entitled to enter or reach in the car to say goodbye. When Jessica does not leave the front of the vehicle, the police are called. Diane and Donald are heard explaining to Jessica’s friend that there is a court order which prohibits Jessica from being in their car. Presumably the reference is to the criminal non-communication provision. There is nothing in either the family court order or the criminal non-communication provision which restricts Jessica from saying goodbye to Matthew while seated in the Rioux’s vehicle. Jessica’s friend appears to accept the information at face value. The friend acknowledges that this is new information and shortly after returning to her car, she and Jessica leave. They depart before the police arrive.

64In his affidavit and in cross examination, Donald maintained that he intentionally refused to engage with Jessica as he believed that any communication would be a potential breach of Michael’s release conditions and he was not prepared to risk a breach. This attitude demonstrates an extraordinary level of distrust and the complete absence of any desire to take practical steps to reduce the tension and stress that was so apparent at the exchanges.

65The paternal grandparent’s position with respect to communication moves from unreasonable to outrageous when viewed in light of the efforts made by Jessica to manage the issue. Not only did she try to bring a self-represented motion seeking communication through the Family Wizard or Talking Parents in August 2019, she initiated a written communication book when she was unable to proceed with that motion. Jessica wrote in the communication book consistently and appropriately from September 2019 until January 31, 2020 without receiving a single response from the paternal grandparents. The communication book describes Matthew’s feeding, bathing and sleeping routines. It notes medications and any health or dietary concerns. Jessica’s comments are not judgemental, critical and almost without exception, they are completely child focused. There may be a couple of comments where there is a hint of frustration, but that would be expected in the circumstances.

66The paternal grandparents maintain that they could not respond because of Michael’s restrictions, even though the restriction was changed on August 13, 2019. If there were any concerns about ambiguity, that could have been addressed. The Crown’s consent to the variation in August 2019, demonstrated an agreement that communication through a third party was not problematic as long as it was child focused. Jessica’s communications were child focused. Donald acknowledged in cross examination that there were no further changes to the conditions in January 2020 when they finally started to write in the communication book.

67By January 2020, the refusal to communicate had reached the point of being inexcusable. On December 27, 2020, the paternal grandparents recognized that they needed to get some information to Jessica. Matthew had been sick and they had administered medication. They wanted to ensure that Jessica did not give him too much not knowing what had been provided. Notwithstanding their concerns, rather than address her directly at the Tim Horton’s during the exchange, Donald loudly announced the information to a complete stranger anticipating that Jessica would hear or that the stranger would properly relay the information.

68The grandparents then communicated the information to Michael’s family counsel hoping that the information would get to Jessica in a timely manner. The date of this incident was December 27, 2020, falling between Christmas and New Years when one might reasonably expect counsel to be off on holidays or at least taking a break from the office. Given the nature of the information, it needed to be communicated immediately.

69In all of the circumstances, including the ongoing communication log by Jessica, the number of exchanges that had occurred, the fact that the exchange was in a public location, the variation to the Undertaking to provide for third party communication, the paternal grandparent’s actions on this occasion were indefensible. Donald and Diane understandably wish to protect and support their son, Michael. They are no doubt great grandparents to Matthew. However, there has to be a point at which one recognizes that the level of disfunction affects the child.

70Donald, in his evidence at trial, did not back down from his actions at the exchanges or on this occasion. He described Jessica as working her agenda at the exchanges. When asked what agenda, Donald explained that he believed she was trying to keep Matthew from Michael and the rest of his family. He believed that she intentionally tried to upset Matthew to create conflict or to make them look bad. He thought she was dishonest and was concerned about how her improper morals would impact Matthew. His approach to the access exchanges and obvious distain for Jessica leaves the court with no confidence that he, or Diane, will be able to let their guard down enough to respect or foster the relationship between Jessica and Matthew. It is also clear to the court that they have a significant impact on Michael and his approach to Jessica. Michael endorsed their concerns and their decision to limit all communication and have minimal contact during the exchanges. With respect to the incident on December 27, 2020, Michael described it as “not ideal”, but defended their actions. Unfortunately, Michael’s distrust of Jessica parallels that of his parents.

71Shortly after the incident on December 27, 2020 communication by way of the communication book started for the Riouxs, but the litigation did not end.

72The OCL who had been appointed in the 2019 Mendes Order provided its report on January 10, 2020 (the “Report”). The Report recommended an order for full custody to Jessica and an order granting her leave to relocate to Sudbury. The Report further recommended longer, but less frequent access in light of the relocation. Three weekends a month, plus holidays and summer access was recommended. Communication was noted to be an issue and the use of a communication tool was recommended if the difficulties continued.

73Counsel for Michael submits that the Report is biased and flawed in that the Clinician accepted Jessica’s information without confirmation and failed to properly investigate and engage the appropriate collaterals. While the Report appears to be thorough, it is dated. As noted by counsel for Michael a lot has changed since the Report. Matthew is much older. Michael had only just begun having parenting time with Matthew and had not even had an overnight visit with him by the time the Report was released.

74Ms Vaillancourt acknowledged that the changes may have an impact on her recommendations if she were asked to provide an update. Given the stage of these proceedings and the resulting delays that would follow if an update were requested, neither counsel felt that an update was appropriate. At the time of the trial, Matthew was only three years old and accordingly, his wishes and preferences would be difficult to ascertain, even with the assistance of a clinician. Consequently, to the extent that the Report relies upon the circumstances in 2019 and 2020 and Jessica’s role as the primary caregiver, it does not fairly take into consideration Michael’s increased engagement and relationship with Matthew. The recommendations are dated and cannot be given much weight in these proceedings.

75On January 16, 2020, six days after the release of the Report, Jessica was served with a motion for contempt. The motion involved a misunderstanding of the 2019 Mendes Order. As of January 2020, access moved from one overnight to alternate weekend access. Understandably, Michael wanted to preserve his parenting time and interpreted the Order as providing for ongoing two-hour parenting times on Mondays, Wednesdays and Fridays. Jessica interpreted the Order as ending these visits when the full weekend parenting time commenced. Although it was ultimately determined that Jessica’s interpretation was wrong, as noted by Justice Villeneuve, ‘a simple phone call to the court to arrange a five minute telephone call with Justice Mendes to clarify the terms of her order would have, in my view, sufficed to clarify for both parties”. Jessica’s counsel had suggested that approach.

76Following a settlement conference on March 27, 2020, the parties consented to an expansion of Michael’s parenting time as an “interim, without prejudice arrangement made in light of the pandemic”. Michael’s employment was suspended for a period of time allowing him more time with Matthew. Pursuant to the terms, Michael’s parenting time increased from every other weekend and Wednesday evenings to include an overnight on the opposite weeks such that Matthew was with his father approximately four days over a 14 day period.

77The exchanges at Tim Horton’s also ended at this time and the exchanges moved to Jessica’s and the paternal grandparent’s homes. Donald started to pick up Matthew at Jessica’s home at the beginning of Michael’s parenting times and Jessica would pick up Matthew at the Rioux’s home at the end of Michael’s parenting time.

78While the exchanges improved, the limited communication, allegations of stalking, watching and documenting exchanges, continued on both sides.

79Donald describes and provides a video of an exchange in August 2020. Michael is in the back seat receiving Matthew who is fussy and begins to cry. Jessica is seen to be hovering while Donald attempts to put Matthew in the back seat. All three appear to be working relatively co-operatively to calm Matthew, offering toys and a bottle. At one point, Donald suggests taking Matthew for a short walk to calm him and have Michael drive a block or so to meet him. Jessica follows him. Her continued presence at this stage is problematic. Matthew likely would have calmed quicker if she had simply said goodbye and departed. Michael was present and appropriately calming Matthew.

80Matthew started daycare in July 2020. Exchanges eventually moved to the daycare centre which further reduced the interactions and opportunities for allegations. Communications continued to be problematic, with allegations by Michael that Jessica did not properly advise him of medical appointments, health concerns and Covid testing. The court reviewed the volumes of communication notes through the communication book and the Talking Parents App which started in April 2021. While there may have been a couple of occasions where a Covid result or an appointment may not have been communicated, taken together, the logs confirm that Jessica is prepared to and has provided the father with timely, appropriate notification of all of the major milestones and issues relative to Matthew’s care.

81On May 20, 2021, the parties consented to a further temporary order that expanded Michael’s parenting time to six days in a 14 day period. Matthew is picked up at day care at noon on Wednesday and stays in his father’s care until Friday morning in week one and then from Thursday at 5:00 pm to Monday morning in week two.

82At the same time, the motion by Jessica to relocate to Sudbury and the cross-motion by Michael for primary residence and decision-making responsibility of Matthew were stayed pending final determination of the matter by way of trial.

83On May 26, 2021, Jessica texts Michael to confirm that she has been asked by the daycare to drop Matthew off at 2:00 pm so that he does not disturb the other children who are napping. She informs Michael he can still pick up Matthew right after work and that it will not result in an absent day if Matthew is only there for 1-2 hours. Michael’s response was “my access starts at noon I’ll be contacting my lawyer.”

84On May 31, 2021, Michael served Jessica with the second motion for contempt alleging that she had moved to Sudbury in breach of the 2019 Mendes Order. While both parties filed materials for the motion which was returnable on June 10, 2021, the motion did not proceed as the information requested had been provided to Michael by the return of the motion. Costs of that motion are an issue to be determined in this trial.

The Law

85This case commenced in May 2019 with claims for custody and access. The law regarding mobility and the language in the Children's Law Reform Act (“CLRA”) changed on March 1, 2021. Custody and access are now described as decision-making responsibilities and parenting time. In closing, both counsel focused on the issue of mobility. While mobility features large, there is no agreement with respect to decision-making and parenting time and those issues need to be determined first, but also in the context of Jessica’s request to relocate from North Bay to Sudbury which is an approximately 1.5 hour drive.

86The relevant sections of the CLRA regarding mobility and parenting orders are set out below.

Parenting order, application by parent

21 (1) A parent of a child may apply to a court for a parenting order respecting,

(a) decision-making responsibility with respect to the child; and

(b) parenting time with respect to the child.

Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.

Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child's physical, emotional and psychological safety, security and well-being.

Factors

(3) Factors related to the circumstances of a child include,

(a) the child's needs, given the child's age and stage of development, such as the child's need for stability;

(b) the nature and strength of the child's relationship with each parent, each of the child's siblings and grandparents and any other person who plays an important role in the child's life;

(c) each parent's willingness to support the development and maintenance of the child's relationship with the other parent;

(d) the history of care of the child;

(e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;

(f) the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child's care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

Factors relating to family violence

(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person's ability to care for and meet the needs of the child; and

(h) any other relevant factor. 2020, c. 25, Sched. 1, s. 6.

87The amendments to the CLRA also include definitions in ss. 18(1) which include:

“contact” means the time a child spends in the care of a person other than the child’s parent, whether or not the child is physically with the person during that time;

“contact order” means an order made under section 28 respecting contact with respect to a child;

“decision-making responsibility” means responsibility for making significant decisions about a child’s well-being, including with respect to,

(a) health,

(b) education,

(c) culture, language, religion and spirituality, and

(d) significant extra-curricular activities;

“family violence” means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct;

“parenting order” means an order made under section 28 respecting decision-making responsibility or parenting time with respect to the child;

“parenting time” means the time a child spends in the care of a parent of the child, whether or not the child is physically with the parent during that time; (“temps parental”)

“relocation” means a change in residence of a child, or of a person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child, that is likely to have a significant impact on the child’s relationship with,

(a) another person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child, or

(b) a person who has contact with respect to the child under a contact order;

88Subsection 18(2) of the CLRA contains an expansive definition of what constitutes family violence. It reads as follows:

"Family violence"

18 (2) For the purposes of the definition of "family violence" in subsection (1), the conduct need not constitute a criminal offence, and includes,

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and the killing or harming of an animal or the damaging of property.

89The amendments with respect to residence and relocation of a child are set out in s. 39.1 and following of the CLRA. The relevant provisions regarding relocation are as follows.

Relocation

39.3 (1) A person who has decision-making responsibility or parenting time with respect to a child and who intends a relocation shall, at least 60 days before the expected date of the proposed relocation, notify any other person who has decision-making responsibility, parenting time or contact under a contact order with respect to the child of the intention. 2020, c. 25, Sched. 1, s. 15.

Notice requirements

(2) The notice shall be in the form prescribed by the regulations or, if no form is prescribed, shall be in writing and shall set out,

(a) the expected date of the proposed relocation;

(b) the address of the new residence and contact information of the person or child, as the case may be;

(c) a proposal as to how decision-making responsibility, parenting time or contact, as the case may be, could be exercised; and

(d) any other information that may be prescribed by the regulations. 2020, c. 25, Sched. 1, s. 15.

Best interests of the child

39.4(3) In determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with section 24, as well as,

(a) the reasons for the relocation;

(b) the impact of the relocation on the child;

(c) the amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child's life of each of those persons;

(d) whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement;

(e) the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside;

(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses; and

(g) whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance. 2020, c. 25, Sched. 1, s. 15.

Factor not to be considered

(4) In determining whether to authorize a relocation of the child, the court shall not consider whether, if the child's relocation were to be prohibited, the person who intends to relocate the child would relocate without the child or not relocate. 2020, c. 25, Sched. 1, s. 15.

Burden of proof

(5) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child. 2020, c. 25, Sched. 1, s. 15.

Same

(6) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend the vast majority of time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child. 2020, c. 25, Sched. 1, s. 15.

Same

(7) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child. 2020, c. 25, Sched. 1, s. 15.

Burden of proof, exception

(8) If an order referred to in subsection (5) or (6) is an interim order, the court may determine that the subsection does not apply. 2020, c. 25, Sched. 1, s. 15.

90Prior to the above amendments, there were no specific statutory provisions in the CLRA which addressed the issue of mobility or the relocation of a child’s residence. These changes are still relatively new and accordingly, there are only a few cases which specially address these provisions.

91Counsel for Michael submits that the amendments have drastically changed the law in this area and that the court must be cautious in relying on jurisprudence decided before the amendments to the CLRA on March 1, 2021. The court, counsel submits, is limited to the specific considerations set out in ss. 39.3 and 39.4 of the CLRA. Notably, the happiness and well-being of the caregiver proposing the move is not part of the framework under s. 39.3 and 39.4 of the CLRA and counsel submits, should not be determinative as it is not a child-focused inquiry.

92Counsel for Jessica submits that the changes to the CLRA, simply codify or enshrine the recent trends in the mobility decisions. The emotional and psychological well-being and happiness of the primary caregiver, she submits is still a relevant and important consideration. The well-being of the caregiver impacts the well-being of the child which is an enunciated best interests factor.

93Counsel for Jessica also submits that the four principles applied by the Ontario Divisional Court in Kazberov v. Kotlyachkova, 2021 ONSC 5006 (”Kazberov”) are still appropriate and applicable in this case. At paragraph 56 the court in Kazberov sets out the four principles and at paragraph 57 notes the application in cases of unmarried couples who are not subject to the provisions of the Divorce Act. Specifically, Justice Sachs refers to the following and then concludes that the trial judge failed to apply the four principals:

56In Bourke v. Davis, 2021 ONCA 97, the Court of Appeal dismissed an appeal from a trial decision allowing the mother to move to the state of Washington from Ontario with her two boys, ages six and four, to be with her second husband. In doing so, at para. 20, the Court of Appeal for Ontario referred to four important principles that were relied upon by the trial judge and set out by the Court of Appeal for British Columbia in Hejzlar v. Mitchell-Hejzlar, 2011 BCCA 230, 18 B.C.L.R (5th) 128, at paras 24-27. These are the principles “that are to be applied in cases where the custodial parent proposes to relocate with the children against the wishes of the access parent”. While Bourke was decided after the trial in this case, by the time of the trial, the principles at issue had already been established in the jurisprudence on mobility cases. The four principles are:

(a) while subsection 16(1) of the Divorce Act provides that the court must consider maximizing contact between the child and parent, the same subsection makes it clear that maximizing contact is not an absolute principle, and is only to be pursued within the limits of that which is consistent with the best interests of the child;

(b) barring an improper motive for the proposed move, there must be an attitude of respect for the custodial parent/or primary caregiver. This means, in part, the party seeking to move need not prove the move is necessary, although any degree of necessity, such as for income-earning reasons, may bear upon the best interests of the child;

(c) the authorities generally do not favour the status quo as a “default position” as such an approach reinserts into custody discussions a presumption which is contrary to the instructions in Gordon v. Goertz to assess each case individually, and is contrary to the principle that presumptions are inappropriate in custody cases and detract from the individual justice to which every child is entitled; and

(d) courts in Canada have discouraged reliance by a judge on any expression by the parent who is seeking to move that he or she will not move if the child cannot accompany him or her, as it places the parent in a “classic double bind.”

57In Bjornson v. Creighton (2002), 2002 CanLII 45125 (ONCA), 62 O.R. (3d) 236, at para 32, the Court of Appeal confirmed that the principles applicable to a mobility case apply even if the parents were unmarried and, accordingly, the mobility case was not proceeding under the Divorce Act, R.S.C., 1985, c.3 (2^nd Supp.).

94The court agrees with counsel for Michael that the jurisprudence must be cautiously applied. It cannot, however, be ignored. The amendments do not completely replace or overwrite the jurisprudence. Some of the amendments codify the direction provided by the court with respect to mobility – the double bind issue, for example. Treatment of the primary caregiver, as the parent with decision-making responsibilities is addressed to some extent, through the burden of proof provisions. Maximum contact considerations are still important, but the best interests of the individual child remain the paramount consideration.

Application and Analysis

Decision Making Authority

95Neither parent in this case, is seeking joint decision-making. Michael seeks an order for joint decision-making, with the ability to make the final decision if the parties cannot agree. Jessica submits that an order granting her final decision-making is in Matthew’s best interests.

96Joint decision-making requires evidence of an ability to communicate effectively. One cannot simply hope that the parents will learn to communicate effectively if they are required to make joint decisions. Communication is particularly important when the court is dealing with younger children. (See: Kaplanis v. Kaplanis 2005 CanLII 1625 (Ont. C.A.) (“Kaplanis”)).

97As a result of the criminal charges, Michael was subject to a non-communication provision for approximately two years following the separation. There is no evidence of effective communication prior to the separation or after the restrictions were lifted. Jessica made the majority of the decisions with respect to Matthew’s health and well-being before the parties separated. She attended most of the doctor’s appointments. She was the one who stayed in the hospital with Matthew when he was sick. Michael attended to the financial support of the family. Their inability to communicate and effectively resolve issues led to two attendances by the police within the first three months of Matthew’s birth.

98From the date of separation forward, Michael took a very rigid approach to communication. He, or his parents, decided it was too risky to communicate with Jessica even by way of a written communication book until January 2020.

99As time moved on and the parties started to use the Talking Parent App, communication improved; however, even after all of the restrictions were lifted, the parties continue to use the communication tools and both have submitted that this should continue. The evidence in this case does not support effective engaged communication, but rather suggest a fragile framework where parties cannot have meaningful discussions about important health, education and well-being decisions that will need to be made in respect of Matthew over the years.

100While Michael has demonstrated that he is a capable and loving father to Matthew, the court is not satisfied that an order for joint decision-making would be in Matthew’s best interest. Communication does not have to meet a standard of perfection in order to support an order for joint-parenting (See: D.G. v. K.G. , 2005 ONCJ 235 at para 23 and Kaplanis, supra, at para 11). However, the communication in this case falls far short of perfection, without any evidence to suggest that the situation will change.

101Parties who require such detailed court intervention about their interactions are not good candidates for joint decision-making responsibility orders.

102Citing from Justice Chappel in McBennet v Danis 2021 CarswellOnt 7411 (“McBennet”), counsel for Michael urges the court to delve below the surface and consider the source of the conflict. In situations where a parent creates conflict, engages in unreasonable conduct, impedes access and marginalizes the other parent, the court has granted decision-making to the marginalized parent, or alternatively, makes an order for joint decision-making as a way of ensuring a balance of influence and authority between the parties in making important decisions. (See: McBennet, supra at paragraph 97(7).)

103The court is not convinced that Jessica created the conflict in this case. The criminal charges, the lack of communication and parenting time immediately following the separation set the tone as is often the case. It is what the parties do after that is important. Jessica initially resisted access by insisting on supervised access. Once granted, however, she complied with the orders and over time consented to significantly expanded access.

104The court is sympathetic to Michael’s concerns and accepts that there is a lack of trust. His parenting time with Matthew was irreparably interrupted by the non-communication restrictions. He faced an uphill battle to get parenting time going and he has demonstrated his commitment to Matthew by his consistency, engagement in the daycare and planning for Matthew and in his concerns and follow up on medical and developmental issues. He did not, however, open up with respect to communication and engagement with Jessica. As he became more involved, he chose parallel parenting options, such as scheduling his own 18-month wellness check, rather than providing comments to Jessica as he was invited to do.

105Jessica was the primary caregiver during the relationship and continued in that role following the separation. The court does not see her actions in taking the lead in scheduling appointments and arranging daycare as unilateral decisions, but rather as a continuation of her primary parenting role. As Michael’s parenting time increased, she increased the communication to Michael. Jessica has been consistent in her desire to have Michael help in Matthew’s care – from her urgings before the separation to her detailed reports in the communication book and through the Talking Parents application.

106By contrast, Michael maintained his campaign against communication. He refused to engage in any form of communication. He supported his parents request that Jessica limit entries in the communication book or by text message to emergencies. This approach resulted in delays in information, miscommunication about medical appointments and the need to set up parallel meetings with service providers.

107There were examples of missed information by both parents, but the claim that Jessica was the source of the conflict is not supported by the evidence. Given her role as the primary caregiver during the relationship and in the months following the separation, it was reasonable for her to take exception when the father rebooked the hearing test on his time when the clinic called him after being unable to reach Jessica. She notified Michael, through Donald, that she would be cancelling this appointment. While it may have been preferrable for Jessica to have notified Michael of the new date in advance, it is understandable that she would have wanted to attend the appointment as she had scheduled the original appointment and had been present at all appointments to date. It was not an option at the time to suggest that they both attend.

108Despite the concerns raised by Michael and his parents about Jessica’s ability to provide proper care for Matthew, there is no evidence that Jessica has not attended to Matthew’s needs. She has engaged therapists, doctors and has followed through with recommendations for socialization and engagement. Witnesses who testified for her gave evidence of her fully packed diaper bag, well prepared meals and her ability and desire to engage Matthew with arts and crafts and various activities. She is child focused, engaged and capable of making decisions in the best interests of Matthew.

109The lack of trust is a further concern. As noted by Justice Sherr in L.B. v. P.E., 2021 ONCJ 114 at paragraph 104 “there must be some modicum of trust and respect to make a joint decision-making responsibility order viable for a child”. There is a lack of trust and a lack of respect by the father in his case. An order for joint-decision making would only escalate the conflict and tension and delay decision making. A detailed order would not be sufficient to remedy the lack of co-operation and communication that exists at present.

110An example of the court’s concern in this regard is around the day care registration. Michael claims that Jessica registered Matthew in daycare without seeking his opinion. He then notes that “had I been consulted and involved in the decision as to where Matthew would be cared for, I would have researched and made an informed decision. There were a lot of concerns about social distancing and the doctor suggested a small daycare.” Initially, Michael did not agree with the daycare that Jessica chose and even though she had already registered Matthew, she had to go to considerable lengths including getting Dr. Gleeson to confirm that she supported Matthew’s enrolment in daycare. By trial, Michael was very supportive of the daycare and listed it as one of the stabilizing factors that supported Matthew maintaining his residence in North Bay. Had Michael been a joint-decision maker at the time of Matthew’s enrollment, it is unlikely that the parties would have agreed upon the North Bay Daycare and Learning Centre which has proven to be a good placement for Matthew.

111Similarly, speech therapy was delayed for approximately two months, because Michael told the doctor that Matthew was speaking at a two-year old level while Jessica was reporting concerns that both she and the daycare had observed.

112The court is satisfied that an order granting Jessica sole decision-making responsibility is the most appropriate order in this case. Through her counsel, Jessica consents to an order requiring her to solicit input and opinions from Michael. Any obligation in this regard should not result in delayed decision-making, or in increased litigation and accordingly, must be limited given the history of distrust, lack of respect and communication that exists in this case.

Mobility – The Proposed Move to Sudbury

113Michael’s primary concern regarding the relocation relates to how a move to Sudbury will disrupt the current parenting time and his ability to be part of Matthew’s day to day life and activities. Jessica claims that the move to Sudbury is what is best for Matthew. She has secured a permanent part time position at the hospital in Sudbury. She has a geared to income apartment and family supports in Sudbury. Mobility cases are some of the most difficult cases. Relocation impacts the nature of the relationships between the child and each of his or her parents. The challenge is to determine what is best for the child.

a. Notice of the Move

114Counsel for Michael submits that Jessica failed to provide proper notice of the move as required by s. 39.3(1) and (2). He submits that mobility was not properly put before the court until the Amended Answer dated October 13, 2021 was served and filed just prior to the commencement of the trial.

115Notwithstanding the delayed Amended Answer, mobility has been a central feature of this litigation from the start. The parties were prohibited from moving Matthew’s residence without consent, or a further court order in the 2019 Mendes Order. The OCL recommendations which were released on January 10, 2020, were structured around Jessica’s request to relocate to Sudbury.

116The amendments to the CLRA included the formal notice requirements which did not come into effect until March 21, 2021. By this time, Jessica had already secured employment and housing in Sudbury. The only outstanding issue was approval to relocate. To the extent that the details of her plans to move to Sudbury had not been formally communicated to Michael, Jessica’s affidavit dated May 13, 2021, attached her offer for employment dated February 9, 2021 and a letter dated January 12, 2021 confirming her address and approval for subsidized housing. Through the trial process, both parties have provided details of their plans with respect to decision-making and parenting time.

117Counsel for Jessica was critical of Michael’s failure to put forward a formal plan for parenting time in the case where Jessica’s request to relocate was denied and she relocated to Sudbury without Matthew. Subsection 39.4(4) prohibits the court from considering “whether, if the child’s relocation were to be prohibited, the person who intends to relocate the child would relocate without the child or not relocate.” The court must consider the interests of the child in both scenarios. The lack of a detailed plan does not prevent this consideration, but as noted by counsel, leaves the court with the father’s representation that he would “communicate with Jessica and do what is healthy for Matthew”.

118In all of the circumstances, the court is satisfied that the notification requirements have been satisfied such that the court is in a position to properly consider the requested relocation.

b. Burden of Proof

119Subsections 39.3(5) – (8) of the CLRA address the issue of the burden of proof in mobility cases. Counsel for Michael urges the court to rely on the Order of Justice Carr from May 20, 2021 which expanded Michael’s parenting time to six of 14 days. Counsel submits that Michael and Jessica have had approximately equal parenting time since May 2021 and accordingly Jessica should bear the onus of proving that the relocation is in Matthew’s best interests.

120Counsel for Jessica submits that Jessica has been the primary caregiver and that the burden falls on the father, as he is opposing the move.

121This case can be distinguished from those where there is a final order and those where there has been a long-standing status quo. The May 20, 2021 order is an interim order expanding parenting time for Michael approximately six months before the trial commenced. Prior to that, Matthew spent most of his time with Jessica. While counsel submits that Jessica made unilateral decisions that impacted Michael’s time with Matthew, as noted above, the court does not agree. Even when the parties were together, Jessica was home with Matthew while Michael worked. That is the routine that this couple chose prior to their separation. Upon separation, the criminal charges and non-communication order impacted Michael’s ability to arrange for access. A motion was heard on May 31, 2019 and a schedule for progressive parenting time was put in place. This was a court order, not a unilateral decision.

122This case is also distinguishable form many cases in that the relationship was very short. Jessica had just graduated from University and had not made any firm plans as to where she wanted to live and work. She put writing her nursing exams on hold to care for Matthew. There was friction in the relationship and there was uncertainty as to whether she and Michael would continue as a couple. After the parties separated, Jessica returned to finish her nursing exams in 2020 and was able to find work in her field in 2021.

123While there is no evidence of any discussions about returning to Sudbury prior to the separation, Michael has connections in Sudbury both through his own family and through Jessica. Michael attended in Sudbury with Jessica for the Easter weekend in 2018, for a gender reveal party and for a baby shower.

124When the parties disclosed the pregnancy to Michael’s parents, Donald and Dianne urged the couple to consider whether they would continue to reside together. As of February 2019, Michael was already considering moving out to return to live with his parents. When the relationship ended and it became clear that Jessica did not have the support of Michael or his parents, it was not unreasonable for her to consider other options.

125Given the circumstances of this relationship and the lack of any formal plan, this is a case where ss. 39.3(8) should apply as an exemption to any burden of proof set out in ss. 39.3(5) or (6). Sudbury is only 1.5 hours away from North Bay (as opposed to a move which is across provinces or across countries, as in some other cases), but that is a considerable distance for any child and a relocation will have an impact on the role that Michael can play in Matthew’s day to day life. Such a move requires an in-depth consideration of all of the statutory factors set out in the CLRA and the variety of options available to Matthew.

c. Best Interests Test

126In considering whether a relocation is in the best interests of the child, the court is directed to consider the best interests test under section 24 of the CLRA in addition to the factors set out in s. 39.3(3).

S. 24 Best Interests Test

127The court is directed to give primary consideration to the child's physical, emotional and psychological safety, security and well-being. As noted by Justice Kukurin in Rudichuk v Higgins, 2021 CarswellON 12761 (“Rudichuk”) at para 22, “this is the lens through which the court considers the circumstances of the particular child for whom the court is asked to make a DMR or PT order”. By extension it applies to the consideration of the factors relevant to a mobility assessment.

(i) The child's needs, given the child's age and stage of development, such as the child's need for stability

128Matthew is three years of age. He will start Junior Kindergarten in the fall of 2023. The first three years of Matthew’s life have seen a lot of change. He spent the majority of his time with his mother from birth to about 12 months of age. As of January 2020, Matthew started to spend overnights with his father. Initially, one overnight. As of March 2020, Matthew was spending 4 of 14 days with his father. This continued until May 2021 when the schedule was expanded to 6 of 14 days. That schedule has now been in place for approximately 10 months.

129The plans presented by both parents request a change to the schedule. The father is seeking a 2-2-5-5 parenting scheduled which he suggests would maintain the current status quo of approximately equal parenting time. He claims that Matthew has adapted well to this schedule, and it should be continued. The mother is seeking a parenting schedule where the father’s time is focused around the weekends to accommodate a relocation to Sudbury.

130Children are adaptable and a move at this stage in Matthew’s life is less pronounced than if he were older and more established in North Bay. In upholding a move from Toronto to New Ross, Nova Scotia, the Ontario Court of Appeal made the following comments:

30Children’s adaptability to change, especially at Ray’s age, bolsters the trial judge’s conclusion. As Furey J. sensibly noted in his recent decision in Sexton v. Tipping, 2017 CanLII 56984 (N.L. S.C.T.D.), at paras. 81-82:

It is a reality of the times in which we live that many couples with children come together through partnership or marriage, separate or divorce after a period of time and then move on with their lives. … The crux of these scenarios is change – for the parents and for the children.

Change is a constant in all our lives. As a general principle, children are adaptable in their lives. They change communities. They change schools. They change friends. Many change families, not because of their actions but because of the actions of their parents. That has happened in this matter.

31Ray is young. The disruption to the life of a six-year old is likely to be less significant than the disruption to the life of, say, a fifteen year old.

131While Matthew will have developed some connections at daycare and at the paternal grandparent’s home, there was no evidence of significant ties outside of Matthew’s core family. Matthew plays with a child who lives close to the grandparents, but socialization has been limited in the past two years as a result of Covid.

132There has also been changes with respect to caregivers. Although Matthew has been attending the same daycare since July 2020, his schedule varies depending upon whether he is in his mother’s care or his father’s care. There are times when Jessica works and Matthew is in daycare for the full day. When she is not working, he often stays with her or leaves early. On the weeks where Matthew is with his father he spends his morning with his paternal grandfather. In addition to his primary caregivers and the daycare, Jessica has a network of friends who have assisted her with Matthew’s care which include, Kelly Gillard, Hannah May, Dude Seneck, Mr. Seneck’s mother and a nursing colleague, Marco.

133There is a benefit to continuity of care, but this is not a case where a change in Matthew’s daycare would be too disruptive. There is no evidence that he is so bonded with his daycare providers that a change would have a significant impact on his emotional of psychological well-being. Furthermore, Michael’s focus on stability for Matthew if the relocation is denied, misses the fact that his own plan is not that permanent. Michael is living with his parents. He plans to stay there for five years. A move from the paternal grandparent’s home after five years will be a significant change. Michael proposes to enroll Matthew at St. Luke’s, a Catholic French school in North Bay, if Jessica stays in North Bay, but he would propose to move Matthew to a school closer to Callander, if Jessica moves to Sudbury without Matthew.

134As Jessica points out, Michael has only been with his current employer since 2021. Prior to that he worked for Canor and before that with Arentsien Industrial Equipment.

135Change is inevitable and while stability is important, the court is satisfied that Matthew’s needs can be met despite the move. He will continue to live with his primary caregiver and will have significant parenting-time with his father and access to his grandparents during this time.

b. The nature and strength of the child's relationship with each parent, each of the child's siblings and grandparents and any other person who plays an important role in the child's life

136Matthew is bonded with each of his parents. Both acknowledge that in their Statements of agreed Facts. Both parents love Matthew and Matthew loves both of his parents.

137Matthew has also spent a considerable amount of time with his paternal grandparents. Michael has been living with them since the separation and they have facilitated in all of the access visits and have provided care for Matthew when Michael is working. It was very apparent from Donald’s affidavit and evidence at trial that he loves his grandson very much and that he enjoys their time together.

138Contrary to the suggestion by Donald, this court does not accept that Jessica’s proposed move is part of an agenda to make sure that Matthew does not have a relationship with Michael or Matthew’s grandparents. Notwithstanding their stated dislike and distrust of her, Jessica has accepted them as the designated third-party facilitating exchanges on Michael’s behalf. Jessica, notes, but has not taken exception to the fact that Matthew spends time with the paternal grandfather when Michael is at work. The court accepts Jessica’s evidence that the challenges at the exchanges are not efforts to alienate Matthew, but rather her own frustration over the lack of respect, communication and co-ordination.

139Jessica has demonstrated an understanding of the importance of extended family. She has done a very good job of maintaining connections for Matthew. Not only has she made connections through play groups, she updates family members with photographs and arranges for time with her father and Aunt in Sudbury when possible. In addition to her side of the family, Jessica has reached out and maintained relationships with Michael’s side of the family – his great grandmother in North Bay and his aunts and cousins who reside in Sudbury.

140Jessica has facilitated and developed the relationships with Michael’s extended family. Michael has not. Michael is very critical of Jessica’s decision to reach out to his grandmother. Jessica claims that Michael got along with his grandmother when they were together. Michael claims that he decided on his own not to associate with her and finds Jessica’s connection to be offensive. Michael’s evidence on this point is inconsistent. At one point he denies a relationship with his grandmother. At another point he claims he could not communicate with her for fear that he would be breaching his non-communication restrictions knowing that Jessica had been speaking with her.

141The court finds that Michael and his parents have taken a very narrow, almost exclusionary approach with respect to family. Michael downplays the importance of Jessica’s father. His evidence focuses on Jessica’s comments about their challenges during her teenage years and dismisses her evidence that she has become very close to her father after he helped her through a very challenging year of illness and through his own health struggles. Michael fails to see how Jessica’s father can be a support for Jessica given his failing health. He places little importance on Matthew getting to know and spend time with him because has not had the opportunity to date.

142While Jessica testifies about her deep connection to her Aunt Norad and the assistance and emotional support she provided, Michael responds with criticism about how Jessica was required to pay rent when she lived with her. He dismisses any import that she may have in either Jessica or Matthew’s life. Counsel notes that the court did not hear from Aunt Norad and questioned that omission given the importance placed on her by Jessica. The court did not hear from Diane either and is accordingly, left with the evidence of Jessica and Michael in respect of the role that each of these women play in their lives and that of Matthew’s.

143A parent’s ability to look past their own differences to allow and foster relationships with family and individuals who may enrich their child’s life is an important quality. Jessica has demonstrated that she possesses this trait.

144It is also important, although given little attention during the trial, that Matthew has a sibling. Layton was born […], 2021. This is a new sibling relationship and no doubt there will be ups and downs. Jessica testified that Matthew was excited about his baby sister and provided a few pictures of Matthew holding his sister. There may well be times where Matthew struggles with sharing Jessica’s attention with a sibling. That is to be expected and likely will make the time with his own father more special.

145Dude Senak, Layton’s father, testified and confirmed that he is not seeking a caregiving role. Layton will be living with Jessica full time. If Jessica is not permitted to relocate with Matthew to Sudbury, he would not have the opportunity to bond with his new sister in the same way, unless Jessica decides not to move.

c. Each parent's willingness to support the development and maintenance of the child's relationship with the other parent

146Michael claims that Jessica’s actions throughout demonstrate a specific intention to negatively impact his relationship with Matthew. He relies on the ‘false allegations’, her failure to provide parenting time following the separation and her move to Sudbury as evidence. For reasons set out above, the court accepts that Jessica was justified in calling the police on April 18, 2019 and that her allegations were not false. Her actions on that day and in the days that follow do not support the allegation that she made up the allegations to gain an upper hand in the litigation.

147Jessica’s reluctance with respect to agreeing to unsupervised parenting time was rooted in her concerns about Michael’s lack of engagement in Matthew’s care to that point, their lack of communication and her concerns over his behavior in February and April 2019. Jessica’s claim that she wanted Michael to be more involved in Matthew’s care when they were together is supported by the evidence of Kelly and Michael’s own acknowledgement that he was often unavailable as a result of work obligations. Jessica was engaged in Matthew’s care, and he had several medical issues within the first few months of his birth. Her concerns about Michael’s ability to parent were compounded by the lack of communication which might have otherwise provided her with some comfort. She tried to bring a motion to address the lack of communication. She tried a communication book. None of that was successful. A request for supervised access, although not successful, was not entirely unreasonable.

148Furthermore, this court does not accept that Jessica’s decision to relocate to Sudbury is evidence of her intention to diminish Michael’s importance in Matthew’s life. The barriers and lack of support from Michael and his family no doubt fed into her decision to relocate. She identifies one of the main motivators as being her need to be supported and be close to family to support her decision to look at opportunities in Sudbury. The court accepts her evidence on this point. It is supported by her actions which include agreeing to increase parenting time over the months leading up to the trial.

149Michael has had less opportunity to demonstrate his willingness to support Matthew’s relationship with Jessica. Counsel for Jessica points to Michael’s decision to call CAS when Matthew was in quarantine, the extensive litigation and his refusal to engage Jessica in communications and medical appointments for Matthew as evidence of a lack of willingness to support the relationship between Matthew and Jessica. Michael was obviously very concerned about communication with Jessica. There was a lack of trust from the beginning. His call to the CAS on July 31, 2020, is a further example of the unfounded lack of trust. Although Jessica advised that Matthew was required to quarantine and would not be able to attend the access visit, Michael called the CAS and reported the following: “Michael suspects that Matthew got hurt and Jessica is trying to hide the injury. If Matthew is in fact sick, Michael doesn’t believe that Jessica is seeking the necessary treatment for him.” This after a year of Jessica providing impeccable care for Matthew.

150Unfortunately, even though Jessica has been caring for Matthew for three years now, with no evidence that she has ever put his health or safety at risk, Michael still harbors concerns about her ability to care for him. In cross examination he would not acknowledge that she was a good mother and maintained his concerns that her health would impact her ability to care. He maintained that she was erratic, reckless and did not make good decisions. While Michael may not agree with Jessica’s decision to move to Sudbury, the court has no evidence that she has acted erratically, recklessly or failed to make good decisions about Matthew’s care.

151Michael and Jessica parent differently. While differences in parenting are common, his inability to respect Jessica as a caregiver, does not bode well in terms of convincing the court that he will facilitate and maintain Jessica’s relationship with Matthew if at a distance.

152The court is also concerned about the influence Michael’s parents will have over him. He lives in their home and their dislike of Jessica is palpable. Donald capably focused his evidence on Matthew, but his demeanor changed when addressing issues around Jessica. He thought she showed poor judgement, described her as dishonest and having improper morals. He referred to her actions at the exchanges as ‘working her agenda’. He was convinced that she was trying to breach Michael on occasions where she had no knowledge that he was even coming to the access exchange. The court accepts her evidence. Jessica’s evidence was that her only concern was to ensure that Matthew was exchanged safely. She was criticized for staying at the exchange location when Donald’s truck would not start. She testified that she offered assistance, which was declined, but that she waited until help arrived because it was cold out and she was worried. She denied that she went into the Subway restaurant to breach Michael, but rather to purchase a drink. On each occasion she did not approach Michael and there is no evidence that she tried to intentionally engage Michael or that there was ever a threat to report a breach. The Rioux’s fears are simply not borne out in the evidence. Unfortunately, however, the lack of trust colored Donald’s ability to see the situation for what it was. He was intent on believing that Jessica had another agenda. There is no indication that this has changed and without change it will continue to impact his willingness to support and maintain a relationship.

153While Diane did not testify, the records before the court confirm that she called the CAS and raised concerns about Jessica’s ability to care for Matthew in April 2019. In a text dated July 13, 2021 from Diane to Jessica, Diane discourages direct communication unless there is an emergency. In this text she also maintains that she is not prepared to facilitate a video conference between Jessica and Matthew because “she cannot trust that [Jessica] will not try to wind Matthew up on a video conference or a telephone call”. This is precisely the communication and efforts that must be taken to maintain and facilitate Matthew’s relationship with his mother; particularly, if Jessica’s request to relocate with Matthew is not granted.

154The court is satisfied that Jessica is committed to facilitating, respecting and maintaining Matthew’s relationship with Michael. Her family will not interfere. Given the lack of respect and trust demonstrated toward Jessica, the court is concerned that Michael and his parents would not be able to provide the support that is required.

d. The history of care of the child

155There is very little history of the care of Matthew prior to the separation. However, as noted above, Jessica was the primary caregiver. The fact that she primarily cared for Matthew during the day was acknowledged and set out in Michael’s Statement of Agreed Facts.

156Following the separation, Jessica continued to be the primary caregiver. Since June 2021, Matthew has been in his father’s care six out of 14 days. There are some days, Fridays (in week one) and Mondays (in week two) for example, when the drop off is at daycare and Michael will not even see Matthew. Michael leaves for work before Matthew is awake. Donald looks after him during the day returning him to daycare where Jessica picks him up, before Michael gets home.

157Michael lives in his parent’s home. There is only one kitchen which is shared. Michael and Matthew have their own bathroom and space upstairs. Michael and Donald both testified that Michael primarily looks after Matthew when he is at their home, but acknowledged that there would be times when Matthew is cared for by Diane and Donald.

158Michael’s time with Matthew has increased, but Jessica continues to be the primary caregiver.

159The court acknowledges that if Jessica is allowed to move to Sudbury with Matthew, she will have to find care for Matthew when she is working. She works three or four 12-hour shifts per week and will need support. She has proven herself capable of finding appropriate care for Matthew and being able to care for him on her own, after completing her shifts at work. This is something that Michael struggled with prior to the separation. Michael felt that Jessica should care for Matthew during the week given his long work days.

e. The child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained

160Counsel for Michael submits that Matthew is too young to be able to express views and preferences. The court agrees. The court also agrees, for the reasons set out above, that the Report by the OCL is of limited assistance. It is dated and does not take into consideration the changes that have occurred in the parenting time of each parent since its release in January 2020.

f. The child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage.

161Each parent, comes from traditions and experiences which they would like to be able to foster in Matthew. Matthew would benefit from any family connections and traditions offered by either parent.

162Both parents seem to be in agreement that Matthew should be enrolled in a Catholic and French Immersion program. Apart from the plans for schooling, there was no evidence of any cultural, linguistic, religious of spiritual upbringing.

g. Any plans for the child's care and the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child

163Both parents have demonstrated an ability to plan, care for and meet the needs of Matthew.

164Both Dr Gleeson, Matthew’s pediatrician and Ms Avery, the daycare provider, confirm that Michael is appropriate in his approach to them and in his care for Matthew.

165The only concern is in respect of Michael’s ability and willingness to foster a relationship with Jessica. For the reasons set out above, the court finds that Jessica is more willing and able to foster Matthew’s relationship with Michael. Michael has expressed a willingness, but has not demonstrated the ability to facilitate a relationship. The court is concerned that his lack of trust and respect remain as significant barriers.

h. The ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child

166This issue has been addressed above. Communication has not been good. Jessica has made attempts to communicate from the early stages. In Michael’s reply affidavit dated November 24, 2021, he attaches the communication between his criminal counsel and the Crown as evidence of his ongoing attempts to vary the bail conditions. While the email of February 25 and March 2021 include some specific language for a variation, the earlier emails seem to be focused on reporting concerns that Jessica is trying to breach Michael. On at least two occasions, counsel urges the Crown to speak to, or send an officer to caution Jessica. Michael claims that the delays in obtaining a variation were because Jessica did not respond to the Crown. There is no evidence that was the case.

167It is acknowledged, however, that in March 2021, counsel proposed a variation to allow communication through a parenting application. Michael did start using the Talking Parents tool in April 2021.

168Michael has demonstrated an ability to relay day to day information about feeding, health or other related concerns, but he has also made medical appointments without notifying Jessica or advising her of the results. By contrast, Jessica provides specific details about everything that occurred in the appointment to the extent that Michael has commented in the communication book that she provides too much detail.

i. Any family violence and its impact on, among other things, (a) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (b) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child.

169Family violence has been given a broad definition under the CLRA. Charges do not have to be laid in order for conduct to fall within the definition of family violence. Courts are required to specifically consider any family violence in the context of the best interests analysis.

170Counsel for Jessica submits that Jessica was subject to family violence. Michael was charged, but the charges were eventually withdrawn. Michael denies any allegations of violence and claims that he is the one that was subject to family violence.

171This is an issue of credibility. The relationship was short, but the police were called twice. There is support for Jessica’s claim that Michael is belligerent when he is drinking. There are a number of historical occurrence reports where the police were involved in situations where Michael was intoxicated and belligerent or engaged in physical altercations. For example, the July 19, 2010 incident report regarding an intoxicated male notes “Rioux… was given directions on where to head. Rioux refused to heed these directions and began to yell at, and insult the writer and Cst. Marshall”. On April 30, 2011 Michael was spoken to after reports by a complainant of being awoken by an unknown male entering her home. Michael’s cell phone was found in the back yard. He was described in the incident report of showing signs of intoxication. On November 8, 2014 there is a report of “a fail to remain, impaired driving and possession of CDSA in relation to the accused Michael Rioux”. To be clear these are occurrence reports and the only conviction on Michael’s record is an impaired from 2015. It shows, however, that alcohol was a factor over a period of at least four years to the extent that Michael’s conduct generated occurrence reports.

172What is concerning is that Michael downplays the allegations in the incident reports, notes them as dated and then claims that ‘excessive alcohol consumption and/or drug use is inconsistent with my current life and responsibilities.” He denies that he uses marijuana but does not comment on the photo Jessica took on or about February 9, 2019. The photo is of the marijuana and drug smoking paraphernalia that Jessica claims to have found the next morning (being the morning of the verbal argument which resulted in a call to the police on February 9, 2019). Jessica also provided a photo of a case of empty beer bottles she claims Michael consumed on April 18, 2019. Michael denies consumption and states “the photo is not time stamped and could have been taken at any time of any bunch of beer bottles.” This court accepts Jessica’s claim that Michael consumed alcohol on February 9, 2019 and on April 18, 2019 and that alcohol consumption contributed to the family violence that occurred on those two occasions. Again, it is supported by the evidence of Kelly and Jessica’s father. Michael acknowledges that he invited friends over on February 8, 2019 to celebrate.

173Michael’s claims that Jessica is physically and verbally aggressive with him, is completely unsubstantiated. There is no history of reports by Jessica to the police. No single witness testified to any incidents where Jessica was physical with Michael, belligerent with him or even raising her voice at him. The videos of the exchanges between Donald and Jessica show a tearful, but calm and controlled mother persistently, but not aggressively watching over her child.

174The two police occurrences were not the only instances of family violence in this relationship. Kelly testified to a number of occasions leading up to the separation and the incidents on February 9, 2019 and April 18, 2019 when Jessica called her in a distraught state over her relationship and interactions with Michael. Jessica’s father testified to receiving a number of calls from Jessica in which she was distraught about her relationship and the fact that Michael was demeaning of her. The court does not accept Michael’s claim that these are all false allegations crafted by Jessica to gain an upper hand in this litigation.

175The court accepts that Matthew was subject to family violence on April 18, 2019. Michael claims that Jessica was rough with him when she put him in his car seat. Michael then pulled him out of the car seat and locked him in the bathroom. Matthew was crying. Jessica called Kelly who came to try to coax Michael out of the bathroom so that Jessica could tend to Matthew. It was not until the police were called that Michael came out.

176Since the separation, there has been no communication or contact between Michael and Jessica. Unfortunately, however, Michael continues to challenge every decision that Jessica makes and clearly does not trust or respect her. Neither of these attributes amount to family violence. They raise concerns, however, about Michael’s ability to support Jessica’s decisions and the impact his lack of support may have on Matthew.

j. Any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

177As of the time of the trial, there were no orders, conditions or measures that were relevant for the safety, security and well-being of Matthew.

s. 39.3(3) Factors

178In addition to the above, the court must consider the factors under s. 39.3(3) in order to determine whether the relocation is in Matthew’s best interests.

(a) The reasons for the relocation

179The reasons for the relocation are set out in paragraph 13 of the Jessica’s affidavit sworn on October 29, 2021. They include the claim that she is the primary caregiver; and that she has a job, family and community in Sudbury that can provide a support system that is missing in North Bay. Jessica’s employment in Sudbury will provide financial security and emotional and social stability. Jessica is hopeful that the distance will help dissipate the conflict in the relationship. She notes that she has complied with all of the court orders demonstrating her willingness to ensure a continued meaningful relationship between Matthew and Michael.

180Michael is critical of Jessica’s lack of effort in searching for employment in North Bay. He believes that the sole reason for the move is to ensure that he does not have a relationship with Matthew. For the reasons set out above, the court does not accept that characterization.

181Michael has provided a number of links to current job listings in North Bay. It is difficult to imagine that Jessica would would not be able to find a nursing job in North Bay, if she had continued her search efforts. The court can take judicial notice of the fact that Covid has resulted in an increased demand in the hospitals across the province, if not across the country.

182Employment is not, however, the only reason for the move. As noted at the outset, this is an unusual case in that, the relationship was short. Jessica came to North Bay to attend school. She had just graduated when she became pregnant with Matthew. She was not established in North Bay in the sense of owning a home or having full-time employment. She was very much at a cross-road in her life in terms of deciding where to establish roots for herself and for Matthew.

183From April 2019 until May 2021, Jessica was not only the primary caregiver for Matthew, she had Matthew in her care the majority of the time 10 days in every 14 day cycle. Every decision she made was met with opposition, litigation and criticism. Neither Michael, nor his family have embraced or supported her. Jessica has established friendships in North Bay, but as she notes in her affidavit Kelly and Hannah have their own responsibilities and are not always available to her. One of the main reasons for her request to relocate is to return to the support of her family and a community that has provided her with employment and has opportunities for Matthew.

184Michael is skeptical of Jessica’s claim. He suggests that she has embellished her relationships with her family and denies that they can provide her with support. That is not for him to say. Jessica speaks of the enormous support she has received from her father in the past five to six years and the support of her Aunt Norad, which has been ongoing since she was a teenager.

185Jessica’s reasons to move are not motivated by bad faith and are sound and reasonable. She has worked out a detailed plan for housing, employment, medical, educational and social engagement for Matthew. She has structured a proposal that includes significant parenting-time for Michael and Matthew.

186Counsel for Michael cautions the court about placing too much weight on Jessica’s well-being and submits that Jessica’s happiness is not a factor that can be considered under s.39.3 of the CLRA. The well-being of the primary caregiver was a factor that was given significant weight by the Divisional Court in granting a move from Ontario to Michigan in Kazberov . At paragraph 61, Justice Sachs makes the following finding:

61Finally, the Trial Judge never followed the direction in the case law that the best interests of the child must include a consideration of the effect on the child if his primary parent is unhappy because of an inability to move forward with their lives. In effect, the Trial Judge made the same error that was present in Bjornson, where the Court of Appeal, in overturning the trial judge, stated the following at para. 30:

With the greatest respect to the learned trial judge, he did not contemplate what improvement, if any, would result to the interests of the child if the custodial parent were permitted to move to Alberta. I agree with the statement of counsel for the mother, as expressed in her factum, that the trial judge failed to “give due regard to the relationship between the quality of the custodial parent’s emotional, psychological, social and economic well-being and the quality of the child’s primary care-giving environment”. The learned 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.

187The fact that s. 39.3 of the CLRA does not specifically reference a consideration of how the move may impact the happiness and well-being of the primary caregiver, does not mean that it is an irrelevant factor. The trial decision in Kazberov was made prior to the amendments to the CLRA, but the Divisional Court decision was released on August 9, 2021 and took the amendments into consideration and made specific reference to the codification of the double bind issue. A child’s emotional and psychological well-being, a best interests factor in s. 24 of the CLRA, is tied, at least to some extent, to the success and happiness of his or her primary caregiver. The happiness of the primary caregiver is not the only factor and cannot be given weight to the exclusion of all of the other enunciated considerations, but it remains an important consideration.

188In this case, the complete lack of support offered by the paternal grandparents has negatively impacted Jessica’s well-being. Every access visit is a challenge; some because of her own insecurities (ie., lingering too long at exchanges). However, rather than offer support, understanding or making attempts to address her concerns, the grandparents call the police. That only escalates the situation.

189Jessica describes their dislike for her as palpable. That is consistent with the evidence before the court. While the affidavits are controlled, cross-examination allows for personalities to come through. In cross-examination, both Michael and Donald confirmed their distrust of Jessica. Neither believed her to be a capable parent or decision-maker. They repeated concerns about her ability to manage her diet and diabetes and yet there was no evidence that she has failed Matthew in any way. As an infant she followed up on the referral to an Orthotist to address concerns about the shape of his head and whether he was suffered from deformational plagliocephaly. She enrolled him in daycare when socialization was suggested. She engaged him in speech therapy when providers questioned whether there may be a delay. She followed up with hearing tests and took him to regular appointments with his physician.

190During the trial, Michael and Donald’s dislike for Jessica was obvious. Michael did not venture even a glance toward the table where Jessica sat for the entire trial. He stared straight ahead at his own counsel during his examination. During Jessica’s entire questioning, his head was down and he did not look at her. There was absolutely no engagement. The notes in the communication book by Diane and Michael are replete with references to ‘Matthew’s best interests’. How can it possibly be in Matthew’s best interests for a family to have such distain or detachment, for the biological mother that they dare not even look at her.

191Counsel for Jessica submits that if she were forced to stay in North Bay, it would have a catastrophic impact on her and Matthew. Jessica would be alone and completely reliant on Michael and his parents to facilitate her relationship with Matthew. That, she suggests, is unlikely given the history to date.

192Michael claims he hopes that the parties can turn a new page and co-parent, but there is no indication of his willingness to do that. Michael is not prepared to meet with her at an exchange, go to doctor’s appointments with her or even communicate with her face to face. Michael suggests that he and his family can be a support to Jessica. The only support they have offered is to take care of Matthew if she is working.

193Jessica’s emotional and social well-being will be improved by a move to Sudbury. That is one of several reasons for the move. It is relevant and impacts Matthew’s emotional, psychological well-being.

(b) The impact of the relocation on the child

194The court must also consider the impact that the move will have on Matthew. Mathew is young and as noted above, courts have recognized that the impact of a move is less significant on younger children.

195Michael responds with a focus on the impact that the move will have on his relationship and his ability to spend time with Matthew. Counsel for Michael relies heavily on Justice Kukurin’s decision in Rudichuk, to support the position that even if there are good reasons for the relocation, the court must consider the impact of the move on the father-child relationship. The reference in Rudichuk at paragraph 31 to the travel time having a negative impact on the father-child relationship and in weakening that relationship, is in the context of the determination that a move from Brampton to Scarborough is a relocation, not a change in residence in the context of the amendments to the CLRA. There is no question that the move from North Bay to Sudbury is a relocation.

196The focus of the considerations of the impact under section 39.4(3)(b) is with respect to the impact on the child, not the parent. The impact of the move in Rudichuk is set out in paragraph 57 to includes a new school, teachers, neighbours; more travel time to be with their father; loss of friends and acquaintances; loss of established recreational and extracurricular activities; loss of living in the bosom of the maternal family; and less to do with their father. Justice Kukurin declined the mother’s request to move, given the impact on the child, even though he determined that the reasons for the move were compelling and reasonable.

197While there are some similarities in terms of the facts in Rudichuk, Justice Kukurin’s decision was in the context of an interim mobility motion. Before embarking on the analysis under s. 39.4, Justice Kukurin notes the principles set out by Justice Marshman in Plumley v. Plumley, 1999 CanLII 13990 (ONSC). The test is different and courts continue to be more reluctant to grant a move, or a change to the status quo, in an interim mobility case. Mobility in a trial context requires that each case be assessed individually and that the focus must be on the impact on the child.

198However, just as the issue of the happiness of the primary caregiver feeds into the issue of the well-being of the child, the maximum contact principle plays into the impact that a relocation will have on a child and the child’s relationship with the non-relocating parent. This court accepts that the impact of this move on the father-child relationship is a legitimate and serious concern. Courts are less likely to move a child where there is an equal or shared parenting regime, because of the impact the move will have on the child-parent relationship.

199Michael relies on the order of May 21, 2021 as evidence of a shared parenting regime. Jessica claims that she consented to this order on the understanding that the trial would commence in August 2021 and she wanted Matthew to be able to spend as much time with Michael as possible before what she hoped would be approval to relocate.

200In compliance with the 2019 Mendes Order, Jessica has maintained her residence in North Bay. She has found caregivers in North Bay and has travelled to Sudbury for her employment since April 2021. Unfortunately, the friction between Michael and his parents and Jessica did not improve over this two year period. There is less contact, but no more trust or respect. The result being that Matthew’s parenting time is maintained in two silos – his time with his father and father’s family and his time with Jessica. These silos and the relationships in each home can be maintained notwithstanding a move to Sudbury. Michael describes how Matthew loves their time together ice fishing, camping, enjoying walks in the woods and playing in the pool at his parents. These are activities that can continue on the weekend and holiday parenting time that Jessica has proposed.

201Jessica on the other hand has been the primary caregiver in terms of daycare and medical needs – the mid-week obligations. This predates the separation and since separation, Michael has relied on his parents to take Matthew to daycare and pick him up on most days. Jessica attends to all of Matthew’s needs in this regard. Jessica also needs supports and coverage when she is working, but she has proven her ability to source out and maintain relationships with appropriate caregivers who can support her. They are supports only and Jessica remains Matthew’s primary caregiver.

202Donald claims that he and Diane give Michael and Matthew space in their home, but there is no question that they are very involved grandparents. In the video clip where Diane calls the police to assist on the exchange, Diane repeatedly tells the officer that the mother will not allow or accommodate visits with “their son” – referring to Matthew. She then corrects herself and confirms that it is their grandson and that they are facilitating in the pick up and drop off. They are very involved and have been from the beginning. Michael and Matthew live in their home. Diane and Donald assist with meals, baths, playtime and excursions.

203Counsel for Michael notes that Jessica should not be allowed to rely on the fact that Michael is not always available for Matthew, when he has made arrangements for appropriate care by family members. There is merit to that submission, however, the fact that Matthew can be cared for by the paternal grandparents, does not mean that they should displace Jessica’s role as the primary caregiver. This is what would happen if Jessica was unable to relocate to Sudbury with Matthew and she moved with Layton. Matthew would lose his primary caregiver and Michael’s parents would, out of necessity, have to take on the primary parenting role during the week when Michael is at work. That in the court’s view would have a significant, negative impact on Matthew.

204Michael notes that a move would mean that he would not be able to be involved in day-to-day activities such as soccer practices and school. If Matthew is living in Sudbury, Michael would not be able to engage in the day-to-day activities in the same way as he would if Matthew stayed in North Bay. Jessica has offered mid-week parenting time, but there are obvious challenges to that proposal. The court must focus on the impact on Matthew. While Michael will miss out on these opportunities, the impact on Matthew may be worse if these silos overlap. Michael and Jessica do not communicate. Michael has insisted even after the criminal charges were withdrawn that it is best if exchanges are done at the daycare to avoid contact. Imagine a soccer game where the parents stand at opposite sides of the field, refusing to look or engage one another. The history of conflict between Michael and Jessica does not provide the court with any confidence that Matthew would not be pulled into and impacted by the conflict that would surround every activities he engages in if both parents continued to reside in North Bay.

205The following comments and references to the jurisprudence by Justice Fryer in Browne v. Cerasa, 2017 ONSC 4684 are particularly applicable in this case:

261The court is mandated to consider the maximum contact principle as set out in Young v. Young, 1993 CanLII 34 (SCC) and referred to in Gordon. However, the maximum contact principle is still circumscribed by and must be consistent with the child’s best interests.

262As Justice McLachlin stated in Gordon at para. 25:

The 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. If the child’s needs are likely to be best served by remaining with the custodial parent, and this consideration offsets the loss or reduction in contact with the access parent, then the judge should not vary custody and [should] permit the move. This said, the reviewing judge must bear in mind that Parliament has indicated that maximum contact with both parents is generally in the best interests of the child.

263In her parenting plan that she continued to hone during the trial, Maria worked to maintain as much as possible John’s current level of parenting time with Vincenzo and to ensure that there would be meaningful communication in between visits.

276In the case of Bjornson v. Creighton, 2002 CanLII 45125 (ON CA), the Court of Appeal held that the negative relationship between the child’s parents was one of a number of factors that supported the move. While in Bjornson the issue was the father’s economic and emotional control over the mother, there are parallels to Vincenzo’s parents’ relationship.

277The level of conflict between John and Maria and its chronic nature was of grave concern to me as well as the other professionals involved with the family. John did not accept the order of Kaufman J., and he frequently worked to undermine Maria’s decision making for Vincenzo. John adopted a tactical and at times deceitful approach to co-parenting with Maria. Maria described how John’s approach to parenting made her anxious and she had reservations about being flexible with John for fear of being taken advantage of. John’s family all appear to have rallied around John who they still view as having been betrayed by Maria.

278Even though each parent may have tried to shield Vincenzo from conflict, it is inevitable that Vincenzo will pick up on what they as parents are feeling and experiencing. The evidence suggests that this is the case. It is strongly recommended that Maria and John both engage in therapy to assist them in understanding the dynamic in their relationship that is leading to conflict and for each of them to develop strategies to avoid conflict.

279It is imperative for Vincenzo that this conflict between his parents comes to an end. While Maria’s move to New York with Vincenzo will have an impact on John’s parenting time and the time that Vincenzo is able to spend with John’s extended family, the physical distance and associated modifications to the parenting schedule may be beneficial in terms of reducing Vincenzo’s exposure to conflict.

206In all of the circumstances, while a move would impact Michael’s ability to care for Matthew on a day-to-day basis, the court does not believe it will impact his relationship with Matthew. Michael and his family provide a unique relationship and environment for Matthew. It is the big house by the lake with opportunities to engage in outdoor activities. There is no reason that Matthew can continue those activities with his father on the times that have been proposed by Jessica.

(c) The amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child's life of each of those persons

207A move to Sudbury will impact the amount of parenting time that Michael has been exercising since the May 20, 2021 Order. Jessica has been on maternity leave since the commencement of this trial, and it is appropriate that Michael have as much time with Matthew as was available prior to any move. Jessica planned to return to work at the end of March, or early April 2022. The fact that Michael’s increased time with Matthew has been extended, does not, in this court’s view, weigh against a relocation. The time together will only solidify the bond, but it has not changed the nature of the roles that each parent plays.

(d) Whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement

208As noted above, the amendments came into affect after the commencement of these proceedings and after the issue of relocation had been raised. To the extent that the formal requirements had not been met, they have been rectified.

(e) The existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside.

209The 2019 Mendes Order which prohibits the relocation of Matthew’s residence from North Bay, was only an interim order. There is no final order, agreement or award that address the issue of Matthew’s residence.

(f) The reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses.

210Jessica has put forward a proposal which attempts to maximize Michael’s time with Matthew taking into consideration the distance that he must travel. She has offered to share in the transportation and is offering three of every four weekends. These weekends will continue to be extended to include Fridays until Matthew is in school. Given that Michael works Monday to Friday, this proposal maximizes his time with Matthew.

211Michael claims that his mid-week access will be drastically reduced. He works until 3:00 pm and suggests that he would be able to spend approximately four hours with Matthew from after work until Matthew’s bedtime at 8:00pm. Counsel have filed copies of the daycare records which confirm that even on the days that Michael had Matthew since May 2021, there are very few, if any days that he picked Matthew up at 3:00, or 3:30 pm. On most occasions the pick-up was between 4:30 and 5:00 pm.

212Jessica has suggested that Michael could also have mid-week visits in Sudbury. While he may not be able to take advantage of this opportunity on a regular basis, it would allow for the opportunity to see Matthew mid-week and attend at school or other activities on occasion.

213In addition to parenting time, Jessica’s proposal has considered and includes considerations for medical and educational needs for Matthew. She has confirmed that Matthew will be accepted by her family doctor, Dr. Laski. His dentist will be Dr. Andrews. Matthew is on a waitlist for preschool daycare at Our Children Our Future at the St. Charles Elementary School in Sudbury. Her Aunt Norad will provide child care until she has a space.

214Jessica has plans to enroll Matthew in a French Immersion program at the St. Charles Elementary School which is a 13-minute car ride from her rental unit in Sudbury. It is the same school she attended growing up. Sudbury also offers a variety of extracurricular activities such as gymnastics.

(g) Whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance.

215Michael claims that Jessica has not complied with court orders and notes the contempt of court motion before Justice Villeneuve and the failure to pay costs as examples. The motion for contempt arose out of a misunderstanding and the costs were eventually paid. There has been a lot of litigation, and this is a high conflict case. Notwithstanding, Jessica has complied with the intent, if not the letter of the Orders that have been in place. There is no evidence that Jessica breached the orders by repeatedly refusing access, making excuses for why access could not occur or manipulating schedules. In making that finding, the court notes the concerns raised by Michael around birthdays and the difficulties in scheduling the initial summer access periods. In any high conflict case, there will be issues, but in this case, Jessica demonstrated an ability to recognize the orders of the court and to comply. When Justice Mendes ordered access, Jessica complied. When Justice Villeneuve clarified the ongoing mid-week visits, Jessica complied. When she was told she could not move, she did not move.

216This court is not concerned that if an order is made, even if not favourable to her, that Jessica would not comply.

217Having reviewed all of the factors under s. 39.3 of the CLRA, including the s. 24 best interests factors, this court finds that the move to Sudbury is consistent with and in Matthew’s best interests. Jessica is therefore granted leave to move to Sudbury with Matthew, subject to parenting time for Michael which will include three weekends a month, mid-week and holiday parenting time. The details are set out in the terms for the order which is attached as Appendix A.

Child Support

218By temporary order of Justice Mendes dated July 31, 2019, Michael has been paying Jessica $537 per month for the support of Matthew, based on a gross annual income of $58,149.

219Both parties agree that child support should be paid based on his current income which is agreed to be $67,000. The only issue was with respect to whether child support should be off-set. Given that the parenting times will not be equal, child support will be owing by Michael to Jessica, commencing May 1, 2022. The amount owing pursuant to the Child Support Guidelines is $624 per month.

220Section 7 expenses should be paid on a proportionate sharing. Jessica’s income for child support purposes was based on her 2020 income of $23,361. This income will likely change when Jessica returns to work following her maternity leave; however, there were no specific submissions made by either counsel with respect to a more current income amount. This amount will need to be reviewed in 2023, based on each parties 2022 income.

221For 2022, the prorated sharing based on the above income levels, is 25% for Jessica and 75% for Michael. Both parties agree that daycare, when Jessica is working, is a section 7 expenses. No other section 7 expenses were identified.

222Counsel for Jessica claims that $113 is owing for arrears in child support for the period of April 18, 2019 to April 30, 2019. Michael claims he overpaid by $257 once off-setting child support is applied for the period commencing June 1, 2021. Counsel for Jessica suggests that the arrears should be fixed at nil on the basis that Jessica paid for medical expenses which included hearing tests and scans for Matthew’s hematoma to determine if a helmet was required. The difference between the two amounts would leave arrears in the amount of $144 owing to Michael. Jessica did not provide invoices for the medical expenses, but in all of the circumstances, including the fact that this court has made an order for the full amount of child support to commence May 1, 2022, it is appropriate that the arrears be fixed at nil.

Costs on Contempt motion

223Michael brought a contempt motion on June 10, 2021 seeking interim decision-making on the basis that Jessica breached the 2019 Mendes Order by moving to Sudbury. Through counsel, Michael served a Request for Information on May 4, 2021. Jessica provided information in response to Michael’s concerns by affidavit sworn on May 13, 2021. The only information missing from the Request, were copies of Jessica’s bank and credit card statements which Michael claims would confirm whether she was residing in Sudbury and whether she spent time in North Bay.

224Notwithstanding the affidavit, Jessica was served with a motion for contempt on May 31, 2021 with a return date of June 10, 2021. Michael claims that “had Jessica responded within the required time period with fulsome disclosure, the contempt motion would have been avoided. I reasonably adjourned the motion on consent.”

225It is not clear what if any additional information was supplied following the May 13, 2021 Affidavit to sway Michael to adjourn his motion. Neither party spent much time on this issue at the trial. Jessica claims costs in the amount of $1,754 for this motion. No submissions were made in closing with respect to the amount claimed in costs. The court was not provided with a bill of costs. It is unclear what this amount applies to. Specifically, beyond the affidavit sworn on May 13, 2021, it is not clear what other preparation was required.

226Assuming that the costs were incurred in responding to Michael’s Request for Information, the court is not inclined to award costs. While a motion for contempt was not necessary, it is understandable that Michael may have some concerns about Jessica moving at this time. She had just obtained and started employment at the Sudbury Hospital on April 1, 2021. She had obtained an apartment in Sudbury and was traveling there with Matthew on occasion. Ideally, counsel could have just discussed the issue which would have saved both parties the expense. It cannot be said, however, that the Request for Information was unreasonable and ultimately it was necessary in terms of disclosure leading up to the trial.

227There will be no costs ordered in respect of the motion for contempt.

Conclusion

228For all of the foregoing reasons, there will be an order granting Jessica final decision-making responsibilities and permission to relocate to Sudbury with Matthew. Michael is to have generous parenting time which includes weekends and holidays consistent with the draft orders provided to the court.

229While Jessica’s draft proposal included an exchange at the Tim Hortons between Sudbury and North Bay, in light of the difficulties with the exchanges, this court is concerned with that regime. Pick up and drop-off should occur at the parents’ home, or daycare/school to the extent possible, and unless the parties agree otherwise. Communication should continue through a communication tool until they are able to communicate effectively together.

230Attached as Appendix A are the terms of the final order.

231Jessica is presumptively entitled to costs of this matter. If counsel cannot agree on a cost order Jessica shall provide her submissions with respect to costs (limited to 5 pages plus a Bill of Costs) by May 16, 2022. Michael is to prepare responding cost submissions (limited to 5 pages and a Bill of Costs, if appropriate) by May 30, 2022. Jessica will have an opportunity to file any reply submissions (limited to 3 pages) by June 10, 2022.

Appendix A

Terms of the Final Order:

Decision-making Responsibility

1. The Respondent, mother Jessica-Lynn McCutcheon (“Jessica”) has sole decision-making responsibility for Matthew John David Rioux born […], 2019 (“Matthew”) subject to the following terms:

a. Day-to-day decisions and emergency medical treatment shall be the responsibility of the party whose care Matthew is residing. A parent who makes an emergency medical decision for Matthew shall notify the other party of such decision immediately.

b. Jessica shall solicit the input and opinions of the Applicant, father, Michael Rioux (“Michael”) in relation to major decision about Matthew’s:

i. education;

ii. major non-emergency health care; and

iii. major recreation activities.

Such communication shall take place through the Talking Parent application, or other communication tool chosen by the parties at least 45 days (except in extenuating circumstances) in advance of any decision being made or any event or activity taking place. Michael’s input and opinions must be provided within 30 days of having her input/opinion solicited (except in extenuating circumstances). Jessica shall make best efforts to incorporate Michael’s input and opinions when making major decisions for Matthew. In the event of an impasse, Jessica shall make the final decision.

2. The parties agree that they may both enroll Matthew in extracurricular activities, provided that these activities do not overlap with the other’s parenting time. If either parent seeks to enroll Matthew in an activity which would overlap in the other parent’s time, they much seek written consent from the other parent.

3. Both parties may make inquiries and be given information by Matthew’s teachers, school officials, doctors, dentists, healthcare provides, summer camp counsellors and others involved with Matthew. The parties intend this clause to provide each of them with access to any information or documentation to which a parent of a child would otherwise have a right of access. If, for whatever reason, this clause itself is not sufficient, although both parties intend it to be sufficient authority for either of them, the parties will cooperate and execute any required authorization or direction necessary to enforce the intent of this clause.

4. Neither party shall remove Matthew from the Province of Ontario without the consent of the other parent, except for a brief vacation, and such consent shall not be unreasonably withheld. The travelling party shall give the other party 14 days written notice if Matthew is to be removed from the Province of Ontario for a brief vacation and such notice shall include the location and duration of the vacation and/or the phone number of a contact person in case of an emergency. Each party shall give the other party a notarized letter of consent if Matthew is to be removed from Canada for a brief vacation, for the purpose of satisfying the immigration authorities along with any other travel documents required such as Matthew’s passport seven days prior to departure.

5. If a parent request that Matthew obtain a passport for travel, the other parent shall facilitate with the application.

6. All important documents for Matthew shall remain with Jessica, with the exception of Matthew’s health card which will travel back and forth with Matthew in accordance with the parenting schedule.

7. Neither party shall disparage or speak ill of each other or discuss any issues regarding parenting arrangements, child support, or other financial issues between them with Matthew or in his presence.

8. The parties shall not communicate with each other through Matthew.

9. The parties shall communicate through the Talking Parents App or other communication tool chosen by the parties for child related communications. The parties shall share information in a timely manner regarding Matthew, particularly in relation to his health and education.

Habitual Residence

10. The child, Matthew may relocate to Sudbury with Jessica.

Parenting Time

11. Michael will have regular parenting time with Matthew pursuant to the current schedule until April 30, 2022 at which time the following schedule will continue until Matthew reaches school-age:

a. Commencing May 5, 2022, the first three weekends each month, from Thursday at 5:00 pm to Sunday at 5:00 pm. Subject to the holiday schedule set out below, if the Monday is a holiday, Michael’s parenting time is extended to Monday at 12: pm.

12. Once Matthew begins school, Michael will have regular parenting time with Matthew pursuant to the following schedule:

a. The first three weekends each month, from Friday at 5:00 pm to Sunday at 5:00 pm. Subject to the holiday schedule below, if Monday is a school holiday or Professional Development (“PD”) day, Michael’s parenting time is extended to Monday evening at 5:00 pm. Subject to the holiday schedule set out below, if Friday is a school holiday or a PD day, Michael’s parenting time will begin on Thursday evening at 5:00 pm.

b. A further six (6) weekday evenings each month can be spent in Sudbury, with pick up after school and drop-off at Jessica’s home by 8:00 pm at Michael’s election. This parenting time is to be exercised by Michael.

13. The following holiday schedule is in addition to the regular schedule set out above and overrides the regular schedule for parenting time, in the event of a conflict.

a. Matthew’s Birthday: Matthew shall reside with Michael during his birthday in odd-numbered years and with Jessica in even-numbered years, from leaving daycare/school to return to daycare/school the following morning.

b. Family Day Weekend: Matthew shall reside with Michael during Family Day Weekend in odd-numbered years and with the Jessica in even-numbered years, from leaving daycare/school on the Friday before Family Day Weekend until the following Monday evening at 6:00 pm.

c. School Spring Break: Matthew shall reside with Michael during Spring Break in even-numbered years and with Jessica in odd-numbered years, from leaving school as the Spring Break starts until the night before the return to school at 6:00 pm

d. Easter Weekend: Matthew shall reside with Michael during Easter Weekend in even-numbered years and with Jessica in odd-numbered years, from leaving school on the Thursday before Easter long weekend until the following Monday evening at 6:00 pm.

e. Mother’s Day: If Matthew is not otherwise residing with Jessica on Mother’s Day, Jessica may pick up Matthew by 10:00 am on Sunday.

f. Father’s Day: If Matthew is not otherwise residing with Michael on Father’s Day, Matthew may be picked up at 10:00 am on Sunday and returned to Jessica by 6:00 pm on Sunday.

g. Victoria Day: Matthew shall reside with Michael during the Victoria Day Long Weekend in odd-numbered years and with Jessica in even-numbered years, from leaving school on Friday until the following Monday evening at 6:00 pm.

h. Summer Vacation: Matthew shall reside with each parent for four non-consecutive weeks of their choosing during the child’s Summer Break. Jessica shall have first choice of weeks in odd-numbered years and Michael shall have first choice of weeks in even-numbered years. The parent with first choice in a particular year shall advise the other parent of his or her chosen weeks by March 1^st, and the parent with the second choice shall advise the other parent of his or her chosen weeks by March 15^th. In making plans, each party shall consider the child’s camp and other scheduled activities. Matthew shall be returned to Jessica by the Saturday evening at 6:00 pm before the start of the school year.

i. Thanksgiving Weekend: Matthew shall reside with Michael during the Thanksgiving Long Weekend in odd-numbered years and with Jessica in even-numbered years, from leaving school on Friday until the following Monday evening at 6:00 pm.

j. Christmas Eve and Christmas Day: Until Matthew begins school, the Christmas holidays shall be divided from December 19^th to 26^th at noon, and from December 26^th at noon to January 2^nd at noon. Matthew shall reside with Jessica for the first half of the Christmas holiday and with Michael for the second half in odd-numbered years, and with Michael for the first half of the Christmas holiday and with Jessica for the second half in even-numbered years.

k. School Winter Break: Once Matthew begins school, the School Winter Break shall be divided from after school on the last day of school to December 26^th at noon, and from December 26^th at noon to 5:00PM the evening before the start of school. Matthew shall reside with Jessica for the first half of the Christmas holiday and with Michael for the second half in odd-numbered years, and with Matthew for the first half of the Christmas holiday and with Jessica for the second half in even-numbered years. This schedule shall replace the “Christmas Eve and Christmas Day” schedule above.

14. Matthew may call or video, the non-resident parent, and the resident parent shall assist in facilitating those telephone calls.

15. If the resident parent cannot be with Matthew for an overnight, the resident parent shall call the other parent and give him/her the opportunity to provide childcare, before asking a third party for assistance. It is the intention of both parents to look to each other, first and foremost, to provide childcare to Matthew.

16. Except for the six evenings each month when Michael can elect to travel to Sudbury to see Matthew, Michael will pick up Matthew at Jessica’s home at the commencement of his parenting time and Jessica will pick up Matthew at Michael’s home in North Bay at the end of Michael’s parenting time, unless otherwise agreed to by the parties.

Child Support

17. Commencing May 1, 2022, Michael shall pay child support for Matthew, to Jessica in the monthly amount of $624, based on a projected annual income of $67,000 per year.

18. There shall be no retroactive adjustment or arrears for child support owing as between the parties to April 30, 2022; provided that Michael has paid the child support for April 2022 in accordance with the current agreement.

19. Michael and Jessica shall contribute to Matthew’s reasonable and necessary special expenses in proportion to their income. For the purposes of 2022, Michael shall pay 75% and Jessica shall pay 25%. The parties agree that day care is a special expense. Any other special expenses shall be agreed upon in writing before they are incurred. Neither party shall unreasonable withhold consent.

20. The proportionate sharing shall be adjusted annually based on the parties’ incomes.

June 2021 contempt motion

21. There shall be no order for costs of the motion for June 10, 2021 motion for contempt.