Igor Kazberov v. Tatyana Mikhailovna Kotlyachkova, 2021 ONSC 5006

Igor Kazberov v. Tatyana Mikhailovna Kotlyachkova

CITATION: Kazberov v. Kotlyachkova, 2021 ONSC 5006

COURT FILE NO.: 20-71

DATE: 2021/08/09

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Trimble and G.W. King JJ.

BETWEEN:

Igor Kazberov

Applicant (Respondent in Appeal)

– and –

Tatyana Mikhailovna Kotlyachkova

Respondent (Appellant in Appeal)

Lorrie Stojni-Kassik, for the Applicant (Respondent in Appeal)

Farrah Hudani and Jessica Luscombe, for the Respondent (Appellant in Appeal)

HEARD at Hamilton by videoconference: June 8, 2021

sachs j.

Overview

1This is an appeal by the Appellant Mother from the Order of Breithaupt Smith J. dated December 20, 2019, in which the Trial Judge refused the Mother’s request to move the child, A.N.K. (“A.”), from Waterloo, Ontario to Ann Arbor, Michigan. In her Order the Trial Judge also expanded the Respondent Father’s access to the child.

2The parties were never married. The child was born as a result of a ten-year affair that the parties engaged in while the Father was married to another woman (“Larissa”). The Father is still married to Larissa and she is an important person in the child’s life.

3The Mother has been the child’s custodial parent since the child’s birth. The Father started having regular unsupervised access to the child in 2014. In September 2015, he was granted access on alternate weekends, holiday access, and mid-week access, which was expanded to overnights in September 2017.

4In January 2014, the Mother met her current fiancé, Pavel Nagorny (“Pavel”). Pavel is a tenured professor who resides in Ann Arbor with his daughter, Alex. Alex spends her weeks with Pavel and her weekends with her mother. Pavel and the Mother became engaged in February 2017. At trial, the Mother sought to move with the child to Ann Arbor so that she and Pavel could marry and possibly start a family. Pavel’s residence is approximately four plus hours away by car from Waterloo, dependent on traffic and time to cross the border.

5The Trial Judge found that both parents were good parents and that the child also had a good relationship with Larissa and Pavel. However, she concluded that it would not be in the child’s best interests to move to Michigan as his current schedule maximized his contact with both his parents and with other important family members. The Trial Judge also found that given the lack of trust between A.’s parents, the Mother’s plan for continued contact between A. and the Father if she moved to Ann Arbor “was doomed to fail.” This finding was made despite the fact that in the six years leading up to the trial the Mother had only failed to allow access to the Father twice, once because of weather conditions and once because the child was sick. During the trial, the Mother stated that if she were not allowed to move with the child she would not move. The Trial Judge accepted that this might well mean the end of the Mother’s relationship with Pavel.

6The basis for the Mother’s appeal is that the Trial Judge made several errors of principle in her decision that emanated from her failure to follow the jurisprudence in mobility cases where the custodial parent is seeking to move. In particular, the Mother argues that:

(i) the Trial Judge reversed the onus by requiring the Mother to prove that her plan if she moved would be better than the child’s current circumstances;

(ii) the Trial Judge failed to take account of the fact that while the court is to consider maximizing contact, maximizing contact is not an absolute principle in mobility cases;

(iii) the Trial Judge failed to demonstrate the required attitude of respect towards the Mother’s desire to move;

(iv) the Trial Judge failed to properly consider the effect on the child if the Mother was not allowed to move;

(v) the Trial Judge erred in considering the status quo as the default position for the child; the Trial Judge invented a new and incorrect test to find that the Mother was not really the primary parent in the child’s life, to diminish the importance of the Mother’s wishes;

(vi) the Trial Judge put the Mother in the position of saying that she would not move if the relocation was not authorized, thereby putting her in the “classic double bind” that the case law says to avoid;

(vii) the Trial Judge erred in attaching any weight to the child’s wishes because those wishes were communicated when he was only six years old; and

(viii) the way the Trial Judge treated her and her counsel, as compared to the Father and his counsel, demonstrated bias.

7For the reasons that follow, I would allow the appeal. Fundamentally, I agree with the Mother that the Trial Judge did not correctly apply the legal principles that have emerged from the jurisprudence dealing with a custodial parent’s request to move with a child. However, I would not give effect to the bias argument.

8The Mother also brought a motion to introduce fresh evidence.

9For the reasons that follow, I would also admit the fresh evidence. While most of it does not satisfy the first branch of the test from R. v. Palmer, [1980] 1 S.C.R. 759, it is well-recognized that when the best interests of a child are at stake, the rules for the admission of fresh evidence may be relaxed. In my view, if the Trial Judge had the fresh evidence in front of her, particularly the emails between the Father and the Mother, her credibility assessments of the Mother and the maternal grandmother would have been very different. These emails support the Mother and the maternal grandmother’s testimony, which the Trial Judge discounted, that during the ten years of the affair between the Father and the Mother, the Father abused and controlled the Mother. He became particularly abusive when the Mother sought to terminate their relationship after she became pregnant with A. The Father, after promising to marry the Mother, then made it clear that he would never marry her and that what he and Larissa wanted was for the Mother to engage in a three-way sexual relationship with them. When the Mother refused, the Father denigrated and belittled her, telling her that she would never find another man to love her. Ultimately, the Mother’s counsel made the decision not to produce the emails. However, counsel only did so after the Trial Judge appeared to suggest that these emails may not be important when it came to credibility. Contrary to this suggestion, which was made at the beginning of the trial when the Trial Judge may not have appreciated all the facts, the Mother’s failure to produce the emails became an important factor in the Trial Judge’s credibility assessments.

Factual Background

10The Mother was born in Russia in 1980. She immigrated to Waterloo in 2002, when she was 22. Shortly after her arrival she met the Father while attending a party for the local Russian community. The Father was also born and brought up in Russia, as was his wife, Larissa. The Mother, the Father, and Larissa are all well-educated people.

11The Father was born in 1960. He met his wife, Larissa, when he was 24. They were married two years later, and in 1987, their only child, Olga, was born. The family immigrated to Waterloo in 1998. At the time that the Father met the Mother he was 42 years old, twenty years older than the Mother.

12The Father and the Mother began a sexual relationship some time in 2002 or 2003. In 2010, the Mother decided that she wanted to have a child. Subsequently, A. was born in early 2011. In January 2012, the Mother met another man and ended her relationship with the Father.

13The Father’s first access visit with A. occurred on November 13, 2013, when A. was two and a half years old – the visit was supervised. The Father’s access to A. continued on a supervised basis until May 2014. During this period, the Father attended every visit, except for one in December 2013, which was cancelled by the Mother due to the weather. That day there was a snowstorm and the Mother did not feel it was safe to drive A. from Waterloo to Cambridge, where the supervised access centre was located.

14In May 2014, a graduated plan was implemented for the Father to exercise regular unsupervised access to A. On September 22, 2015, a final order was made by Rogers J. on consent. The Mother was awarded custody and the Father was awarded access to take place every alternate weekend, every Wednesday evening, and two weeks in the summer. This order also provided that in September 2017, when A. entered Grade 1, the Father’s Wednesday access would be extended to Thursday mornings. While the order stated that the Father’s weekend access was to end on Sunday at 7:00 p.m., the Mother misinterpreted the order and allowed the Father’s weekend access to extend to Monday morning.

15In 2016, the Father brought a motion to vary Rogers J.’s final order. He sought to formalize his weekend access as ending on Monday morning, to accelerate the overnight aspect of his Wednesday access, and to be allowed access for half of A.’s summer vacation. He also requested a reduction in child support.

16The Mother resisted the Father’s motion to vary. Following a case conference, the Father brought a motion seeking the appointment of the Office of the Children’s Lawyer (“OCL”). This request was denied in January 2017.

17In 2013, the Mother’s relationship with the man she had met the year before ended. In December 2013, she met Pavel. In February 2014, Pavel met A. Soon afterwards, Pavel started to spend time with A. on alternate weekends when he drove from his home in Michigan to spend time with the Mother in Waterloo. On the weekends that the Father had access to A., the Mother would drive to Pavel’s home in Michigan.

18In February 2017, Pavel and the Mother became engaged. As a result, the Mother sought to vary the final order to seek permission to move A. to Michigan. The parties consented to the involvement of the OCL and Christine Glogovic was assigned as the Clinical Investigator. Ms. Glogovic completed her investigation and filed her report in October 2017. In her report Ms. Glogovic recommended that A. not be moved to Michigan. She based her recommendation on two primary factors: A.’s wishes and minimizing the disruption in A.’s life. Ms. Glogovic noted A’s connection to not only the Father and Larissa, but to their daughter Olga, Olga’s nine year old daughter, A.’s paternal aunt and her family, A.’s maternal grandmother, and A.’s maternal uncle and his children, all of whom lived in Waterloo.

19The Father’s request to vary and the Mother’s request to move proceeded to trial in September 2019 before the Trial Judge. After a trial that included fourteen days of evidence and one day of submissions, the Father’s motion to vary was granted and the Mother’s request to move A. was denied.

The Trial Judge’s Decision

20The following witnesses were called at the trial – Ms. Glogovic, the Mother, Pavel, the Maternal Grandmother, the Maternal Sister-in-Law, the Father, Larissa, and Olga.

21The Trial Judge’s reasons contain a section on credibility. While she stated that she “will not comment on each witness’ credibility”, she also stated “that the findings regarding credibility set out in … this section inform my treatment of this matter”: at para. 4.

22The first witness that she dealt with was the Mother. She began by commenting on the “Mother’s theory of the case”, which she found revolved around the Mother’s view that “her young adulthood was consumed by an inappropriate relationship with a much older, married man, which … was marked by an imbalance of power in Father’s favour”: at para. 5. The Mother maintained that the Father’s objection to her move with A. was a continuation of the Father’s desire to control her life and future. She testified that the Father placed inappropriate sexual demands on her that she refused and that the Father manipulated her by making her a “sham marriage proposal”, a trick that the Father told her Larissa agreed with. The Trial Judge noted that the Mother said that she had emails to support these allegations, but these emails were never produced. According to the Trial Judge, “[w]ithout corroborating evidence such as the email confirming the ‘trick’, Mother’s perspective about Father’s motivation in sending such an email bolsters her theory but does not assist me in determining credibility”: at para. 7.

23The Trial Judge also found that the Mother’s counsel’s questioning of the Father about the emails was “combative”, “unhelpful”, and did not “impugn Father’s overall credibility”: at para. 9.

24The Trial Judge then turned her attention to the testimony of the Maternal Grandmother. According to the Trial Judge, the evidence about the “sham marriage proposal” totally undermined the Maternal Grandmother’s credibility as did the fact that the Maternal Grandmother disliked the Father by commenting that “I don’t want to breathe the same air that he is breathing”. According to the Trial Judge, “Maternal Grandmother’s dislike of Father and her alignment with Mother overwhelm her ability to be honest with the court and I reject her evidence in its entirety”: at para. 10. I note that, importantly, the Mother and A. live with her parents.

25After making this statement, the Trial Judge went on to find that “[t]he evidence of [Larissa] stands in stark contrast to that of Maternal Grandmother. … Wherever the evidence of another witness contradicts that of [Larissa], I prefer her testimony”: at para. 11.

26With respect to Ms. Glogovic, the Trial Judge found that she brought valuable evidence as to the views and preferences of A. before the court.

27The Trial Judge found that a move from Waterloo to Ann Arbor would constitute a material change in circumstances affecting A. Therefore, she went on to determine whether such a move would be in A.’s best interests.

28In considering best interests, the Trial Judge made the following findings:

• A. is bonded closely to his mom and the “Mother is an excellent parent”: at para. 26.
• The “Mother’s approach to prioritizing her one-on-one time” with A. is concerning. In particular, the Trial Judge commented on the number of extra-curricular activities that the Mother enrolled A. in and the times that the Mother travelled to Ann Arbor to visit Pavel. On all but four weekends in the six years the Mother had known Pavel before the trial, this travel occurred on the weekends that A. spent with the Father. However, the Trial Judge commented as follows, at para. 28: “As Mother is the sole custodial parent, it is unclear as to what her plan would have been if A. required her presence – such as with respect to medical care – during the times that she was out of Canada. While certainly medical instructions can be provided over the telephone, it would be a poor way to comfort a young child who must be taken to the hospital.”
• The Mother’s choice to enrol A. in extra-curricular activities reduced “her direct parenting time with him” and that her travel to Michigan indicated that “her energies are primarily spent in nurturing her growing relationship with her fiancé and blending the two single-parent families into one nuclear family. Mother is free to make these choices, but it is fair for Father to point to them in defence of the threat posed by this mobility case to his relationship with A.”: at para. 29.
• A. was closely bonded with his dad and that the Father was an active and involved parent.
• A. had a “close and loving relationship with his Maternal Grandparents”; “a loving familial relationship” with his three cousins on the Mother’s side of the family; “grown very close to Mother’s Fiancé but that his relationship with Alex is simply an active friendship between two children”; a very close relationship to Larissa; an important connection to his Paternal Grandmother, who lives with the Father and Larissa; and a relationship with Olga and her family that is “integral to his emotional well-being”: at para. 31.
• The current parenting schedule is preferred because it complies with the “maximum contact principle”. At para. 32, the Trial Judge states:

Between Mother’s work schedule and A.’s other pre-arranged activities on weekday evenings, it is challenging to conclude that Mother spends much more actual waking time with A. than Father. Arguably, the existing parenting schedule already provides for A. to have maximum contact with each of his parents. Having regard to the living arrangements in each household, and the fact that [Olga] and family spend every Wednesday night at Father’s home, the current schedule maximizes A.’s contact with both sides of his extended family. Viewed objectively through a lens that promotes a breadth of family relationships as important to a child’s healthy emotional development, A. is a very lucky boy. I find that the current parenting schedule complies with the maximum contact principle, meaning that in a comparative assessment of parenting plans for A., it is the one to beat.

• A.’s views and preferences, as told to Ms. Glogovic, indicate that “the most important thing for A. was to continue to live with his Mother, followed closely by living with his Father. Although he has fun when he goes to America with Mother, the drive is long and boring, and he does not really want to live there”: at para. 33.
• The Mother’s proposed schedule for contact by the Father (every alternate weekend and extended holiday time) “requires active co-operation and a collaborative approach”: at para. 37. However, given the hostility between the parties, this proposed plan of care was not a viable one. To support this finding, the Trial Judge relied on the Mother’s unwillingness to meet with the professionals involved in A.’s life at the same time as the Father; the Mother’s unwillingness to extend the Father extra time for access beyond that provided for in Rogers J.’s final order; the Mother’s anger when the Father ignored her wishes and the final order by picking up A. early from a day camp that the Mother had arranged for him; the Mother’s failure to deliver A. to a supervised access centre on one occasion in December 2013 because of weather conditions; and the Mother’s expressed view that she and the Father were “not parents who can be easily flexible and can trust”. On this basis the Trial Judge found, at para. 45: “I have no confidence that Mother would take a different approach in Michigan. Mother cannot be relied upon to take a collaborative approach and to prioritize A.’s relationship with his paternal family. Consequently, the requirements for flexibility and trust inherent in Mother’s plan are its downfall.”
• There is “no inherent benefit to A. of moving to Ann Arbor”, other than the “potential for the nuclear family that Mother clearly craves”: at para. 46. On this point, the Trial Judge considered the Mother’s reasons for the proposed move to Michigan – to marry Pavel and possibly have another child. In particular, the Trial Judge noted the “Mother’s Fiancé’s evidence that the future of their relationship becomes uncertain if the move is not permitted”: at para. 36, fn. 10.
• A. was happy in his school and “[w]hile children are resilient, it would not be fair to A. to conclude that a move away from his community would not have some negative impact upon him”: at para. 48.
• Ultimately, the move to Ann Arbor is not in A.’s best interests. At para. 49, the Trial Judge states:

is closely bonded with both sides of his family, all of whom he would miss were he to move to Michigan. The existing residency schedule maximizes his contact not only with both of his parents, but also with extended family on both sides. He does not particularly want to move to Michigan and would rather continue the present schedule. Having regard to the inherent distrust between Mother and Father, Mother’s proposed plan is doomed to fail. Other than the bald assertion that A. would be happy because Mother’s dream of a nuclear family would come true in Michigan, there is no connection between A. and Ann Arbor. Provided that A. stays in Waterloo Region, no change in custody is sought. A. is connected to his community in a variety of positive and stable ways. I therefore conclude that a move to Ann Arbor is not in A.’s best interests.

29In the result, the Trial Judge varied the final order of Rogers J. to provide that the Father’s alternate weekend access terminated on Monday morning and that A. is to be in each parent’s care on an alternating weekly basis during the summer. The Trial Judge also made provisions for child support, which are not the subject of this appeal.

The Fresh Evidence

30The Mother brought a motion seeking to introduce fresh evidence on this appeal. The fresh evidence included the following:

(ix) Emails between the Mother and the Father dating from December 28, 2011, to July 16, 2012.

(x) An expert opinion letter from a U.S. immigration lawyer, dated May 17, 2021.

(xi) The Order in Council from the Government of Canada dated January 2, 2021, on the Canada-US travel protocols during COVID-19.

The Email Evidence

31The emails that the Mother seeks to adduce consist of certified translations of emails between her and the Father from December 28, 2011, to July 16, 2012. The Father was not exercising access to A. during this time. In January 2012, the Mother met another man and decided to end her relationship with the Father. The Father does not dispute that he sent the emails, but he claims that some translations of different words may vary. The Mother’s translator is a certified translator who acted as the special interpreter for President Mikhail Gorbachev and the Premier of Ontario during one-on-one talks. She has also been the exclusive interpreter for the Prime Minister of Kazakhstan, and his cabinet ministers, and Mr. Arefieff, Deputy Chief of Staff of the Russian Federation.

32During the trial, the Mother testified that in the summer of 2010 she told the Father she was pregnant. He told her that he had a mistress in Moscow before he moved to Canada and that she lived with him and his wife, Larissa, for three years. The Father told the Mother that unless she agreed to be with him and his wife sexually, he would not financially support her or her child.

33After this conversation, the Mother refused to see the Father for the rest of her pregnancy.

34After A. was born, the Mother and the Father began to see each other again. In December 2011, when A. was nine months old, they met in a parking lot. The Father again asked the Mother to have a sexual relationship with him and Larissa and promised that if she did so he would financially support A. and her. If not, she would be on her own.

35After that meeting the Mother sent the Father an email, in which she told him that the pain he was inflicting upon her could not be love. The remainder of this email exchange is as follows:

At 1:47 p.m. on December 28, 2011, the Father replied:

Did we have a meeting in the car? – We had

Did we discuss all the details? – Discussed

Did we agree to start dating? – Agreed

Did we agree to try? – Agreed.

Did you suck my dick? – Sucked

I was happy, and flew on the wings.

I waited for visits to restaurants and rendezvous

I have been mind-fucked.

The Mother responded:

… you admitted that you simply are looking to only satisfy your lust for threesomes, you admitted that some sort of alternative family, evenings with a child – it’s all secondary, you said that the primary motivation for visits will be sex, and the child is secondary, you said it yourself that I am easily replaceable and it is as easy to find somebody like me as a click with fingers and that you won’t even need to pay …

… you have a wife and it is obvious that you love her, everything is great in your life, money, family, I have nothing …

I am normal and I don’t have any deviations, I won’t be able to bear it all.

And then, during my pregnancy, you betrayed me, ultimately you have already betrayed me back then, I cannot just forgive everything …

I know I am stepping into the unknown, I know that I will have to work 2 jobs, I am in a state of uncertainty and fear, but it’s better than to be raped by a loved one, it is better to remember you before you’ll turn into a complete rapist, let only the good remain in the memory.

At 2:07 p.m., the Father replied:

This is fucking BS. And you’re very close to ruin our relationship forever. You agreed – then came home and changed your mind … WTF! …

Stop saying stupid things. Let’s meet, you will suck my cock. Then we will proceed according to plan. And you will have everything. If it does not work, at least we’ll part as friends and without deception. You’ll get some kind of support still. Do not punish yourself!

The Mother responded that she could meet, but only to talk. At 2:17 p.m., the Father answered:

If you are not going to suck my cock, there is no need to meet. I am fed up with just conversations.

At 2:22 p.m., the Mother emailed back:

… what can I say, I have nothing to say, love cannot be based on blackmail, pressure, threats.

The Father replied three minutes later:

Okay, time to come to a certain conclusion. Are we meeting today or not? If we meet it means that you suck my cock first then we talk. If no I am erasing you from my life.

A minute later the Mother answered:

No

36During the period from January 2012 to June 2012, the Mother and the Father did not see each other, and the Father did not ask to see A. However, they did email. The Father asked the Mother to find a babysitter for A. and to meet him so they could have sex together. He also told the Mother that because she had a child, she would never find a husband. An example of this is the email the Father wrote to the Mother on May 5, 2012, which read:

… you won’t find any “husband”. It was very likely when you were a student, it was still possible when you first started working, and it became completely unrealistic after you’ve given birth. If you remember that in its essence Waterloo is a small town, and all secrets wound up revealed sooner or later and thinking that you can find a husband here is science fiction.

37On June 7, 2012, the Father emailed the Mother to say that he was thinking of her and that he had noticed that she added a young man as a friend on Facebook.

38On June 9, 2012, the Mother emailed the Father, offering to send him the latest photos of A. and asking if the Father would help her pay for A.’s education as he would be a smart child. The Father replied saying that he was ready to help her, but not when she lived with another man.

39On June 24, 2012, at 7:04 p.m., the Father emailed the Mother as follows:

Tanya, I would like to suggest the following plan.

Let’s start visitations on weekends, you, me and [A.]. From Friday to Sunday night we can go to Niagara, Toronto, Montreal – anywhere you want. We can look into flying to New York, Chicago, I think the flight won’t take long.

If you have more time, we can go to any resort or a cruise. 4-5 stars resort or a cruise ship will be ok for [A.] I think.

When you are ready, I am not rushing you, I’ll wait as long as necessary, but possibly starting with September we can rent and furnish an apartment together and we could start living together.

40In July 2012, the Mother told the Father that she was seeing another man and did not want to be with him anymore. This prompted the following emails from the Father:

July 3, 2012, at 2:22 p.m.:

Well, all that was good in you was your virginity. Because of that I felt responsible for you and endured everything. Now Tanya you are an ordinary whore and a single mother. Now you’ll have to sleep around much more and tell stories about your life in the hope of getting married.

July 3, 2012, at 2:25 p.m.:

Do not fucking bullshit me. You wanted to get married and that is why you gave birth. And now you are just fucking around. Because you don’t think with your head. Your reputation is fucked.

The Mother responded by saying that she never thought of the possibility of marrying the Father and that she realized that it was necessary to change something when he started to “blackmail” her. The Father replied at 2:32 p.m.:

That’s the only way to deal with whores

and I paid for your services

later you will see that you cost much less.

On July 4, 2012, at 9:04 a.m., the Father wrote the Mother a lengthy email, some excerpts of which are as follows:

About me

About marriage with you – I have lied, and Larissa played along, but I would have signed all the papers, I wanted to save you and your family from disgrace and give the child my name. … The idea was to make you move out from your parents and to clear your head. And maybe you would have stayed with me.

Night call was up to 50% part of the game, another 50% alcohol, a cigar and emotional songs. I knew that something must be done here and I tried. Before the birth of the baby, I only needed from you the kind of sex I like; normal sex I already have, I groomed you for something different, and eventually I got it:) Thank you for that. I was not particularly interested in the parallel relationship with you, because I love my wife and relationships interfere with family life. It was torture being more than 2 hours alone with you.

The pain that I experienced was real. But not because of love, but from a bruised ego. This is what I need to work on for sure :-(. Also jealousy. I have a strong sense of responsibility to those with whom I deal with, therefore I was taking care of you and helping you endlessly. Again, you turned out to be (or were) a virgin, even though there were lies, dumping you would be a bad thing to do.

An average man normally doesn’t bother about it. I also always try to pay my bills. That’s why I gave you money when we were parting. …

About you

A psychopath and a pathological liar, with features of childishness that sometimes touch me. You can only love yourself and your own feelings. Example, your child now needs all your attention, but you are preoccupied with looking for a man. Unbelievable. You’re a bad mother, it can be seen immediately by how you treat your child. Thank god, a grandmother is around. You are a poorly educated fool with a big ego. Without normal occupation. You do not know how to behave in company. Sharp voice. Intonation is practically absent. Do not know how to manage the voice, do not know how to speak in a whisper. Speech impediment. Generally, excessively abrupt in movements and in everything else.

Sexually, you are a flop, the log. It is not for you. It became clear after the first contact. Therefore I began only caring about myself in sex. That’s a first for me. I lied that you’re the best lover for the same reason as I said that I love you.

Before the birth of the child you had young elastic body and great tits. Nice smile and height. After the birth you have lost weight too quickly and the skin sagged, the elasticity was gone. Boobs disappeared. “Breeches” on the hips. No waist and no ass. Your dick sucking mastery: I rate it with 3+. You also make the brain scream.

You do not need marriage. A normal person won’t be able to live with you. … You shouldn’t have had a child.

Conclusion

Tanya, in your 30 years you have already done a lot of messed up shit. Finally start using your brains. In 3 years you’re going to become old. Your type is prone to a rapid aging. You have 50 percent of inherited Parkinson. Do not waste a lot of time on talkers. Find yourself something real. In the meantime get men somehow used to pay for the pleasure beforehand. [Emphasis in original.]

At 9:26 a.m., on the same day, the Father wrote another email:

… As for the child. I get a right for him as a piece of cake, and I don’t need your permission. …

Now I will not interfere, I will give you time to arrange your personal life, like you asked. … If you find him a father maybe I won’t interfere then as well. If the boy is left without a father at the age of 3 years, then I’ll decide.

On July 8, 2012, the Father emailed the Mother to say that he had left his wife. He suggested that they should live together and have more children. After the Mother refused his offer, he wrote her the following email on July 9, 2012:

… You’re a single mother, read what is written in the internet about dating them: Talk to your lawyer before dating a single mother and you will run away screaming. … You’ll get offended but you’re representing all the negative signs. You gave birth out of wedlock, did not bother to provide a father to the child. It means that you are irresponsible and selfish. … The fact that the heat of the moment I wrote that I would marry you and then divorce you, and give you my family name, actually has a lot of sense. If you are divorced then it is a normal situation. That’s a lot of trouble, but if you want I can do it for you.

On July 12, 2012, at 6:55 a.m., the Father emailed the Mother to tell her he had never loved her, and it was only about sex for him because he loved his wife:

If only it were possible to merge two women into one, it would be a way out. That is the source of those fantasies, which as you say pushed you away. But I think it wasn’t what really pushed you away, I think you realized that I’ll never fall in love with you. And that is what you hate my wife for. I am very glad that I had the sense to stop visitations with the child. No attachment was built, at least here we managed to avoid a trauma. I do not feel guilty. I did not deceive you and never promised anything. And before our first meeting I warned you that there can only be sex.

When the Mother wrote to the Father telling him to find a new woman he responded as follows at 9:39 a.m.:

No, I do not want a new chick yet … I went for the first time to a massage parlor, it won’t make any sense. The coolest option is a Sugar Daddy. Young, hot bimbo of 25 years for personal use, who is supported with 1-3 thousand per month. A former mistress wants to come for a visit (2 years older than you), her mother is here now, and they changed their minds and are giving her to me. She wants a baby, this and that. But I do not want to yet.

I’ve got enough sex going on at home, and I’ve got you to remedy my boredom.

On July 16, 2012, the Father emailed:

I thought that we have forgiven each other or was I wrong?

You have declined my marriage proposal and now you have another suitor. Is that not enough for you?

The Mother responded:

Do you actually realize what you were trying to do? Involve me in group sex, with your wife supporting you in this in every possible way, meaning she didn’t stop you, she even met me for a chat and confirmed with all her behaviour that she supports your decisions, meaning that she didn’t side with me, you even talked about lesbian sex, you used all kind of things to threaten me and at that time I was bearing your child under my heart.

Should the Email Evidence Be Admitted on Appeal?

41In Palmer, at p. 775, the Supreme Court of Canada set out the four-prong test for the admission of fresh evidence on appeal:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) [The evidence] must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [Citations omitted.]

42The fresh evidence at issue, if admitted, could have been expected to affect the result at trial. First, the failure to produce these emails affected the Trial Judge’s assessment of the credibility of the Mother and the Maternal Grandmother such that she found that she gave much less weight to the Mother’s evidence and no weight at all to the Maternal Grandmother’s evidence. This is apparent from para. 5 of her decision where the Trial Judge set out what she referred to as the Mother’s theory of the case, which was that the Father’s objection to her move was a continuation of the pattern that persisted during their relationship – namely, that he manipulated and controlled her and did not want her to move on with her life. The Trial Judge found that the failure to produce the emails effectively precluded her from finding that this theory was a credible one.

43If the emails had been produced, the Trial Judge would have been aware that there was confirmation that the Father did emotionally abuse the Mother while she was pregnant with A.; that he refused to even discuss support unless she performed fellatio on him first; that he refused to support her unless she entered into a sexual relationship with him and his wife; that he was very upset when she found another boyfriend; and that he did offer her a “sham” marriage proposal. While this may not have caused the Trial Judge to adopt the Mother’s theory of the case, she might have understood the Mother’s point of view and at least given it consideration. This is especially apparent given the Father’s position at trial that there was no access proposal that the Mother could make that would cause him to consent to her moving with A. to Michigan.

44The Trial Judge also found that the Mother’s counsel’s cross-examination of the Father about the emails was combative, unhelpful, and did not undermine the Father’s credibility. If the emails had been produced, the Trial Judge would obviously have changed her position with respect to this cross-examination.

45With respect to the Maternal Grandmother, the Trial Judge stated that the lack of confirmation of a “sham” marriage proposal and the Maternal Grandmother’s clear hostility to the Father caused her to find that the Maternal Grandmother was incapable of being honest with the court. The emails confirm the Maternal Grandmother’s evidence about the “sham” marriage proposal and explain the Maternal Grandmother’s dislike of the Father.

46The Trial Judge’s reasons make clear that one of the major reasons she refused to allow the Mother to move with A. to Michigan is because, in her view, the Mother’s attitude to the Father was unreasonably hostile. Therefore, the Mother could not be relied upon to maintain the Father’s relationship with A. if she moved. In effect, the Mother was too hostile to be “flexible”. If the emails had been admitted, the Trial Judge would have had the necessary context to appreciate why the Mother, and the Maternal Grandmother, were hostile towards and suspicious of the Father. With this context, the Trial Judge might have given more weight to the fact that, in the six years before the trial that the Father had been exercising access to the child, the Mother had never failed to comply with court orders for access (except for two occasions early on when A. was sick and when the weather conditions made the Mother feel unsafe driving). The Trial Judge also might have appreciated why the Mother became angry with the Father when he unilaterally interfered with the arrangements that she had made for A.’s care during her time with A.

47With respect to reliability, the Father did not deny that the emails had been sent and received. Rather, he quibbled with the way in which certain words had been translated. These differences were not material. Further, the Mother’s translation of these emails was made by a certified translator with excellent credentials. Thus, the evidence is reasonably capable of belief.

48The one aspect of the Palmer test for the admission of fresh evidence that the Mother cannot meet is the first prong of that test – due diligence. The emails were available and could have been produced at trial. However, there is clear authority that in appeals of parenting cases, where the evidence bears directly on the best interests of the child, the Palmer test should be relaxed and the evidence should be admitted for the purpose of the appeal: Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561, at para. 47; H.E. v. M.M., 2015 ONCA 813, 393 D.L.R. (4th) 267, at paras. 71-72, leave to appeal to S.C.C. refused, 2016 34000.

49A recent example of relaxing the Palmer test occurred in the case of Geliedan v. Rawdah, 2020 ONCA 254, where the Court of Appeal admitted fresh evidence from the mother in a case involving an appeal of an order returning the child to Dubai. In doing so, the Court of Appeal noted the circumstances in which the mother had prepared her case for the original application and found at para. 41: “I start with the observation that where a child’s best interests are at issue, the test for the admission of fresh evidence is applied more flexibly.”

50In this case, the explanation for why the emails were not filed at trial lies not in the circumstances surrounding the preparation for the trial, but in the following exchange between the Mother’s trial counsel (who is not the same counsel she had on the appeal) and the Trial Judge. This exchange occurred during the Maternal Grandmother’s examination in-chief while the Mother’s counsel was questioning her about her relationship with the Father. After being questioned by the Trial Judge about what documents the Maternal Grandmother had to confirm what she was saying about the relationship, the Maternal Grandmother stated that she had the emails. The Father’s counsel objected, saying that the emails were irrelevant. Following this objection, the exchange continued as follows:

The Trial Judge asked the Mother’s counsel:

What is the purpose of this area of the evidence? Is there any relevance to this? This is….

And the Mother’s counsel replied:

I, I agree, Your Honour, that it’s not relevant to the issue we’re deciding. It would just be relevant to, to credibility of what – all of the witnesses have said and are going to say so…

The Trial Judge stated:

I think there are other areas that you can use for credibility.

The Mother’s counsel replied:

Yeah, mm-hmm.

The Trial Judge:

Okay. So, yes, let’s move on?

51What concerns me about this exchange is that the Trial Judge indicated to the Mother’s counsel that the emails were not relevant to credibility. Then, as has already been discussed, the failure to produce the emails was a significant factor in the Trial Judge’s credibility findings, which in turn infected every aspect of her judgment. This is fundamentally unfair. I agree that the fault in not insisting on producing the emails may partly lie with the Mother’s counsel. However, in a situation where, contrary to the Trial Judge’s indication at trial, the non-production of the emails played such a large role in her credibility assessments, the first Palmer criterion should be relaxed so that the emails are admitted.

Other Fresh Evidence

52The other fresh evidence consists of an expert opinion letter from a U.S. Immigration lawyer concerning the Mother’s route to seek American residency and an update concerning the travel protocols in place between Canada and the US during COVID-19. Both pieces of evidence will assist this Court in determining what order to make if the appeal is allowed. The travel protocol evidence was not in issue at the time of the trial and the Mother’s immigration proposal has also changed, partly as a result of COVID-19. For this reason, I would admit the evidence.

53At trial, the Mother was proposing to move to Michigan with A. under a fiancé(e)’s visa, which would then allow her to apply for permanent residency status from within the United States. Pending her application, neither the Mother nor A. could leave the United States. At the time of trial, the time estimate for the Mother to obtain permanent residency status was six to nine months. With the advent of COVID-19, it became apparent that this time period could be extended substantially. Thus, the Mother sought an expert opinion on an alternate way for her and A. to immigrate to the United States. According to the expert retained by the Mother, Marvic Thompson, the Mother and Pavel could get married and then Pavel could apply for relative visa petitions for A. and the Mother. Once approved, the petitions would be processed for immigration visas. During this time, the Mother and A. would be free to visit the United States on the understanding that they would be returning to Canada until they were issued their immigration visas. Once their immigration visas were issued, the Mother and A. would need to enter the U.S. within 120 days. Within four to six weeks they would receive their green cards, which they could use to travel back and forth between the U.S. and Canada. Thus, under the new plan, there would be no period during which the Father could not exercise his access to A. in Ontario.

54By Order in Council from the Government of Canada dated January 6, 2021, dependent children who enter Canada under the terms of a written agreement or court order regarding custody, access, or parenting, are exempt from quarantine requirements. Furthermore, a driver of a vehicle who enters Canada to drop off or pick up a dependent child, or who re-enters Canada after dropping off or picking up a dependent child, is exempt from the quarantine requirements if the driver only left the vehicle to escort the child to and from the vehicle and wore a mask while outside the vehicle. Thus, both parents could drive across the border to pick up or drop off A.

Should the Appeal Be Allowed?

55As the Court of Appeal stated in Porter v. Bryan, 2017 ONCA 677, at para. 11, a judge’s decision on a relocation case is a discretionary one. To set aside the Trial Judge’s decision, the Mother must demonstrate that the judge committed an error in principle or that the decision was clearly wrong.

Failure to Apply Four Key Principles

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(10) 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), 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 (2nd Supp.).

58In this case, the Trial Judge failed to apply any of these four principles. First, she over-emphasized the maximizing contact principle by elevating it to an almost absolute principle. This is most apparent in her finding at para. 32 that because of this principle, the current schedule became “the one to beat.” It also assumed a major role in the Trial Judge’s conclusion where she states, at para. 49, that: “A. is closely bonded with both sides of his family, all of whom he would miss were he to move to Michigan. The existing residency schedule maximizes his contact not only with both of his parents, but also with extended family on both sides.”

59Second, she did not display an attitude of respect for the Mother’s desire to move. The Mother was the custodial parent and the primary caregiver. She had the child in her care for nine out of every 14 days. In para. 46 of her decision, the Trial Judge correctly points out that the reason the Mother wishes to move to Michigan with A. is to be with her fiancé and to hopefully start a family. While she found that Pavel lived in a “lovely single-family home in a residential area with access to parks, activities and amenities” and that Pavel and his daughter would make A. “feel welcome”, she dismissed this evidence with the following conclusion: “However, other than this potential for the nuclear family that Mother clearly craves, there is no inherent benefit to A. of moving to Ann Arbor.” The Trial Judge displayed a similar lack of respect for the Mother’s desire to move in her conclusion at para. 49 where she stated: “Other than the bald assertion that A. would be happy because Mother’s dream of a nuclear family would come true in Michigan, there is no connection between A. and Ann Arbor.”

60Clearly, the Trial Judge did not see the Mother’s desire to create a new family and be with the man she loves as an important factor to consider. The Trial Judge acknowledged that not allowing the move might cause the end of the Mother’s relationship with Pavel, a man she had been with for six and a half years by the time of the trial. However, nowhere did she consider what the effect on the Mother might be of the loss of this relationship. More importantly, nowhere did she consider what the effect on A. might be of losing Pavel from his life. A number of witnesses, including Ms. Glogovic, gave evidence as to A.’s loving connection to Pavel. Notably, Pavel has been in A.’s life as long as the Father.

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.

62The fresh evidence also plays a role in this consideration under the second principle. It supports the Mother’s account of a relationship with the Father that was controlling and manipulative, with the Mother’s role being primarily to satisfy the Father’s desires. Those desires were mostly sexual and included the Mother agreeing to have sex with the Father and Larissa. In other words, the Father would stay in his marriage with Larissa while the Mother would increase his happiness in that marriage by supplying him with the sexual variation he felt he needed. If the Mother agreed to these terms, only then would the Father support her and the child she was carrying. If not, she would be on her own. Thus, for the Father, it was important for him to keep his nuclear family and to continue to live with the woman he loved. But it was not important that the Mother be allowed to do the same. The result of the Trial Judge’s Order is to cement this reality – a reality that must inevitably leave the Mother feeling trapped and unhappy. What effect would this emotional state have on A.? This is something the Trial Judge erred in failing to consider. Even without the fresh evidence, it should have been given considerable weight. Instead, this factor was ignored.

63The Trial Judge also erred in failing to apply the third principle. The Trial Judge’s “default position” was the status quo. The Trial Judge assessed the Mother’s plan to relocate to Michigan by comparing it with A.’s current situation where the Mother and A. remain in Waterloo. This approach is clearly demonstrated in the Trial Judge’s conclusion at para. 49, where she states: “Provided that A. stays in Waterloo Region, no change in custody is sought. A. is connected to his community in a variety of positive and stable ways. I therefore conclude that a move to Ann Arbor is not in A.’s best interests.”

64Lastly, the Trial Judge erred under the fourth principle. The only reason the Trial Judge could proceed to find that a move was not in A.’s best interests is because she put the Mother in what has been described as a “classic double bind”. The Trial Judge did this by relying on the expression by the Mother that she would not move if A. could not come with her. The jurisprudence has been clear for some time that this is an error. That jurisprudence is now enshrined in recent amendments to the Divorce Act, that received Royal Assent by the time of the trial in this matter and that are now in effect. Subsection 16.92(2) of the Divorce Act states:

In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.

65In addition, s. 39.4(4) of the recently amended Children’s Law Reform Act, R.S.O. 1990, c. C.12, contains near identical wording:

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.

Application of an Incorrect Test to Determine Who is the Primary Parent

66In her decision the Trial Judge seeks to downplay the Mother’s role as the custodial/ primary parent by focusing on what she describes as “actual waking time”. At para. 32, the Trial Judge states that, “[b]etween Mother’s work schedule and A.’s other pre-arranged activities on weekday evenings, it is challenging to conclude that Mother spends much more actual waking time with A. than Father.”

67While the Trial Judge recognized that the views of the custodial parent must be given deference when it comes to the arrangements that they make for the child, in her decision she effectively punishes the Mother for enrolling A. in extra-curricular activities; for relying on the Maternal Grandmother to assist with A.’s care because the Mother has to work; and for travelling to Michigan to see Pavel on the weekends that the Father has access. In the Trial Judge’s eyes, this made the Mother less of a primary parent and put her more on par with the Father. However, the Trial Judge does no similar analysis of how many hours the Father spends with A. when A. is in his care or how the Father spends his time when A. is not in his care. Aside from being unfair, this is also an error in principle. What counts is not the number of waking hours that a parent spends with a child, but the number of hours that the child is in their care.

68This distinction is highlighted in the case law on whether an access parent has reached the 40 percent threshold for the purpose of triggering a child support calculation under s. 9 of the Child Support Guidelines, O. Reg. 391/97. In G.H.F. v. M.D.E., 2019 ONCJ 766, Paull J. provides a useful summary of the law in this area. At para. 30 he notes that that “the relevant period is the amount of time the child is in the care and control of the parent not the amount of time that the parent is physically present with the children”.

Consideration of A.’s Views and Preferences

69In her conclusion at para. 49, one of the factors that the Trial Judge highlights in declining to allow the move to Michigan is that A. “does not particularly want to move to Michigan and would rather continue the present schedule.” A.’s views and preferences were put before the Trial Judge through the testimony of Ms. Glogovic. A. was six years old at the time he was interviewed by Ms. Glogovic. It is an error in principle to attach any significant weight to the views and preferences of a six-year-old child, especially in a situation like this one where his expressed preference is to continue with the status quo: Y.T. v. J.K.1 (Ont. S.C.), at para. 35; K. v. K., 2015 ONSC 4345, at para. 61.

Requirement for Flexibility

70I have already adverted to the Trial Judge’s reasons on this issue. Essentially, the Trial Judge accepted the Father’s argument before her that the Mother’s proposed schedule for access should she move to Michigan “requires active co-operation and a collaborative approach. Father argues that, having regard to the history of conflict, Mother’s proposed schedule will collapse when the parties are unable to agree upon the exact monthly access plans”: at para. 37. In accepting the Father’s view, the Trial Judge expressed concern about the following:

• “Mother testified that she would be the one to assess whether A. was too ill to attend access with Father. She agreed that due to the high-conflict nature of the parenting relationship, Father would likely be sceptical of her assessment of A.’s health. Regardless, placing Father in the position of tending to a sick boy in a hotel room in Ann Arbor is not child focused, with the probable result being that a Michigan visit could also be cancelled due to A.’s illness. Further, it could well be that more than one of Father’s visits may be cancelled due to A.’s illness: in cross-examination, Mother commented that it would be for her to decide whether A. has ‘fully recovered’ and can attend access”: at para. 39.
• The Mother cancelled a visit between A. and the Father at the supervised access centre in December 2013 due to weather. “Mother’s evidence was that if a visit was cancelled due to weather or A.’s illness, a make-up visit would be arranged by mutual agreement, provided that such visit did not conflict with A.’s activities and taking both families’ schedules into consideration. She admitted that, in her view, it was up to her whether a visit would take place and that the ‘perfect time’ would have to be chosen. Mother said that her understanding of the sole custody Order is that she makes all the decisions”: at para. 40.
• Mother refused to extend additional time to the Father under the access order. Her explanation for this was that doing so would result in further litigation: at para. 41.
• “One incident which exemplifies Mother’s de-prioritization of the relationship between A. and his paternal family, and her overall volatility and inability to work collaboratively”: at para. 42. In August 2018, the Father asked to extend his access to include a statutory Monday holiday. The Mother refused as she had the day off work. The Father had access to A. on Wednesday overnight to Thursday. On Wednesday night the Father wrote to the Mother to ask if A. could stay home from camp on a Thursday to spend time with the Father’s grandchild, who was residing at the Father’s home. The Mother refused, both because she had paid for the camp and because she thought that the camp was good for A.’s development. The Mother then discovered that on Wednesday the Father had picked A. up from camp two hours early without telling her. The Mother wrote an angry email to the Father berating him for disregarding her efforts to enrich A.’s life and the fact that she worked hard to pay for these activities. According to the Trial Judge, the Mother’s “need to chastise Father and restate her authority vis-à-vis A. overrides her logical assessment of the events”: at para. 42.
• In email exchanges with the Father around the time of the above events, the Mother referred to her lack of trust for the Father and maintained that it was his fault for commencing litigation. According to the Trial Judge, this was unreasonable because the Father commenced the litigation after the Mother declared her intention to move to Michigan: at para. 43.
• A. told Ms. Glogovic that he missed his dad when he is at his mom’s house and that his mom does not always let him call his dad. According to A., who was six years old at the time, this happened a lot because “his mom doesn’t want him to live with his dad”: at para. 44.
• The Mother would not take a different approach in Michigan. Specifically, the Trial Judge found that the “Mother cannot be relied upon to take a collaborative approach and to prioritize A.’s relationship with his paternal family. Consequently, the requirements for flexibility and trust inherent in Mother’s plan are its downfall”: at para. 45.
• “Having regard to the inherent distrust between Mother and Father, Mother’s proposed plan is doomed to fail”: at para. 49.

71The Trial Judge clearly felt that the hostility and distrust between the Father and the Mother was the Mother’s fault. I have already dealt with why the fresh evidence emails would have put the Mother’s hostility towards the Father into context.

72However, the Trial Judge’s view that without trust, cooperation, and flexibility the Mother’s plan for A. to have access to his Father “was doomed to failure” is more concerning. This finding ignored the evidence that I have already addressed several times, namely that the Father admitted that in the over six years leading up to the trial, the Mother had only denied the Father access twice, once due to illness and once due to weather conditions. This history is a very positive indication that far from frustrating access, the Mother is willing to abide by any access orders that the court makes. Importantly, the Mother’s plan for access as presented at trial actually resulted in the Father spending more days per year with A. than Rogers J.’s final order.

73The Trial Judge’s view essentially amounts to a position that, in a high conflict case, a child’s move to another jurisdiction with their custodial parent cannot be countenanced. Yet, this is not the law. Nowhere in Gordon v. Goertz, [1996] 2 S.C.R. 27, did the Supreme Court say that the custodial parent must be flexible and collaborative with the access parent, and that there must be trust between the parents as a precondition to relocation. In fact, the presence of ongoing and high conflict between the parents has been used as a reason to permit the relocation – not deny it: Elliot v. Elliot, [1998] O.J. No. 4827 (Gen. Div.), at para. 21; Browne v. Cerasa, 2017 ONSC 4684; and Greenan/Zachariasz v. Johns/Greenan, 2015 ONSC 1413. Courts have recognized that the presence of conflict between parents necessarily impacts a child negatively. The more removed the parents are from each other, and the more they are both allowed to pursue their own lives, the higher the possibility that the conflict will dissipate.

74The presence of high conflict between parents is an indication that the court must be as specific and detailed as possible in its order regarding the contact that the child is to have with each parent. High conflict is not a reason to deny a request by the custodial parent to move if the custodial parent has a proven history of abiding by court orders.

Bias

75The Mother alleges that the Trial Judge was biased against her and her counsel. In support of her submission she alleges that the Trial Judge was more critical of the Mother’s evidence and the conduct of her counsel than she was of the Father’s evidence and the conduct of his counsel. Trial judges are entitled to make comments critical of the parties, provided that those comments are based on the evidence. Bias exists when a judge’s conduct demonstrates or gives the appearance of demonstrating a predisposition towards a particular result, such that it appears that the judge is not open to being persuaded by the evidence or the submissions. The party alleging bias has the onus of proving it on a balance of probabilities. The threshold for a finding of actual or apprehended bias is high. Bias must be shown with cogent evidence and cannot be based on mere suspicion: see Hazelton Lanes Inc. v. 1707590 Ontario Limited, 2014 ONCA 793, 326 O.A.C. 301, at para. 64.

76In this case the Appellant has not met the threshold for demonstrating bias.

Conclusion

77For all these reasons, I find that the appeal should be allowed and the Trial Judge’s decision denying the Mother’s request to move with A. should be set aside.

Disposition

78Having allowed the appeal, the question becomes whether the matter should be sent back for a new trial. The Mother initiated her request to relocate in February 2017. Thus, the parties have been engaged in litigation on this issue for over four years. In Bjornson, at para. 46, the Court of Appeal had the following comments to make when confronted with a similar issue:

In the best of all worlds, the appropriate disposition of this appeal would be to send it back to be retried and to retry, in particular, the question of the child’s best interest. But that is impractical. Neither parent has unlimited resources and the child’s biological clock moves inexorably on. His childhood should not be spent in court or in a state of doubt. In any event, neither counsel invited us to send the matter back for rehearing. In Gordon, the Supreme Court of Canada chose to proceed notwithstanding an incomplete record below. Our obligation is to do the best that we can.

79These comments apply equally to the case at bar. In reaching the conclusion that this Court is able to make an appropriate decision I am relying on the Trial Judge’s conclusion that the Mother is a good parent. To the extent that the Trial Judge impliedly found fault with the Mother’s parenting and her relocation plans, those conclusions were driven by: (1) her assessment that there was no reasonable basis for the Mother’s hostility and distrust towards the Father, an assessment that would have changed if the fresh email evidence had been admitted; and (2) errors in principle that she made. Thus, I make the following order:

1. Paragraphs 1, 2, and 3 of the Order of Breithaupt Smith J. dated December 20, 2019 (attached as Appendix “A” to these reasons), and the Costs Order of Breithaupt-Smith J. dated February 10, 2020, are set aside and judgment is granted as follows:

a. The Father’s motion to change is dismissed.

b. The Mother is granted permission to relocate with the child, A., from the Regional Municipality of Waterloo, Ontario to Ann Arbor, Michigan, but such relocation is not to occur until both the Mother and A. have received their necessary immigrant visas.

c. The final order of Rogers J., dated September 22, 2015 (attached as Appendix “B” to these reasons), is varied to provide that the Father is to have parenting time with the child, A., two weekends a month at the Father’s home in Waterloo, with the Mother to drive A. to Waterloo for the purposes of exercising that access and, at the Father’s request, one additional weekend per month in Ann Arbor, Michigan. The Father is also to have parenting time with A. for seven weeks each summer and equal time during the March break and Christmas holidays. The parties are to negotiate the details of such access (e.g., any special COVID-19 provisions, delivery time, pick up time, extension of access if a holiday, notice for summer access and desire for third weekend access, details of March break (split or alternating), details of Christmas access, Mother’s Day, Father’s Day). Parties are also to negotiate specific times for Skype access five days a week for the Father when A. is with the Mother and for the Mother when A. is with the Father. The parties are also to negotiate how they will communicate with each other and keep each other apprised as to A.’s welfare (i.e. by using Family Wizard). Failing agreement on these and any other terms the parties may address this court in writing, with submissions not to exceed five pages. The intention is that this Panel will make as specific an order as possible to set out the parties’ arrangements regarding parenting time with A.

80As the successful party, the Mother is to receive the costs agreed upon of $22,000 for the appeal and the fresh evidence motion. The Mother is also entitled to the amount fixed for costs of the trial by the Trial Judge, which the Mother was originally ordered to pay to the Father.

Sachs J.

I agree. _______________________________

Trimble J.

I agree. _______________________________

G.W. King J.

Released: August 9, 2021

APPENDIX “A”

[omitted for publication]

APPENDIX “B”

[omitted for publication]