Court File and Parties
Court File No.: D71050-14 Date: July 10, 2017 Ontario Court of Justice
Between:
J.T.R. Acting in Person APPLICANT
- and -
L.L.M. Acting in Person RESPONDENT
Heard: July 4 and 6, 2017
Justice: S.B. Sherr
Reasons for Decision
Part One – Introduction
1The respondent (the mother) has brought an application seeking to change this court's parenting order dated November 24, 2014 (the existing order) and to obtain child support for the parties' 4-year-old daughter (the child). The existing order provides for joint custody of the child and a week-about parenting arrangement. It sets out that neither party shall remove the child's residence from the City of Toronto without the written consent of the other parent, or court order. It is silent about support.
2The mother seeks sole custody of the child and various incidents of custody. She also asks for permission to move the child's residence from Toronto to the London/Simcoe, Ontario area. She asks for an order that the applicant (the father) have access on alternate weekends and spend equal time as her with the child during holidays.
3The father asks that the mother's application be dismissed. In his Answer/Claim he sought a police enforcement order. He did not pursue this relief at trial.
4Only the parties testified.
5The parties attached numerous emails and texts to their pleadings. They were told that the court would only rely upon documents that were marked as exhibits at trial. Both parties selected the important emails and texts that they wanted the court to consider and properly introduced them.
6The issues for this court to determine are:
a) Has there been a material change in circumstances affecting the best interests of the child that warrants a change to the existing order?
b) If so, what custody order is in the child's best interests?
c) Should the mother be permitted to change the child's residence to the London/Simcoe area?
d) What access order is in the child's best interests?
e) Should a child support order be made?
f) If so, what amount of child support should be ordered?
Part Two – Background Facts
7The parties are both 31 years old. They have no other children.
8The parties lived together from August, 2012 until May, 2014.
9The father issued his original application in June, 2014.
10The child spent time equally with the parties after their separation.
11The parties consented to a joint custody order and a week-about parenting plan which was incorporated into the existing order on November 24, 2014. A focused hearing was held on where the child would sleep on the nights the father was working night shifts (during his parenting weeks) and the court ordered that the child would spend those overnights with the mother, except for one night during the week when the child would sleep at the home of her paternal grandmother.
12In March 2015, the father was charged with criminal harassment.[1] The mother agreed to be his surety. The father subsequently lost his housing. The mother agreed that the father could move back in with her until "he got back on his feet". She did not ask for a contribution to rent from him.
13The father lived with the mother from June, 2015 until the end of February, 2016.[2] The mother testified that during this time the parties were not reconciled. Each parent would take primary responsibility for the child during their parenting week.
14In October, 2015, the father was arrested for shoplifting.[3] The mother testified that she and the child were present when the father was stopped by a store security guard and then apprehended after a chase. The father testified that the mother and child were not present during this incident. The court found the mother's evidence about this incident more credible.
15The father testified that living together with the mother rekindled his feelings for her and he wanted to reconcile. The mother did not want to.
16In March, 2016 the father obtained his own apartment in Brampton. He continues to reside there.
17Once the father obtained his residence, the parties reverted to the week-about parenting arrangement set out in the existing order, with minor amendments. This has continued up until today.
18The child attends a daycare while the parents work.
19The mother has paid all the daycare costs without contribution from the father.
20The father deposed that the criminal harassment charges against him were withdrawn.
21The mother deposed that she began a same-sex relationship with her current partner (A.M.) in May, 2016.
22The mother is employed as a paralegal. She has worked for the past 5 years for two related businesses handling accident benefit claims. As part of her duties, the mother manages an office for these businesses in London, Ontario. She said that she currently spends about 4 days each month in London and the balance of her time in Toronto.
23The mother received an offer from her employer in November, 2016 to work full-time in London. She would be in charge of developing the company's business there. The proposed move involves a pay increase. The mother testified that the offer continues to remain open.
24In December, 2016, the mother and A.M. became engaged. They plan to marry in 2018.
25A.M. resides in London. She is employed there as a landscaper.
26The father drives tractor-trailers. He testified that he was laid off by his employer in June, 2015 and was on employment insurance until September, 2015. He then worked for his father's company as a driver but left a few months later after a falling-out with him. He started his own business driving tractor-trailers in January, 2016. He has one primary customer.
27The father testified that during the weeks the child is with him he takes the child to daycare, before he starts work, on 3 out of the 5 weekdays. He says on the other 2 weekdays he will drop off the child at his mother's home (the paternal grandmother) early in the morning and she will take the child to daycare. The child will usually spend one overnight on the weekend at the paternal grandmother's home.
28The mother issued this application on March 13, 2017. The father filed his Answer/Claim on April 19, 2017.
Part Three – The Child
29The parties were both glowing in their descriptions of the child. They clearly love her very much.
30The child was described as happy and healthy. She is sociable, likes to play, swim and do arts and crafts. She was described as very smart.
31The father testified that the child went through an 8-month period, starting in March, 2016, when she was often reluctant to spend time with him. However, he testified that this has improved in the past 4 months.
Part Four – Material Change in Circumstances
4.1 Legal Considerations
32Section 29 of the Children's Law Reform Act (the Act) provides the statutory authority for varying a custody or access order. It states:
A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.
33The Supreme Court of Canada decision in Gordon v. Goertz, 1996 CanLII 191 (SCC), 19 R.F.L. (4th) 177 sets out a two-stage process for the court to conduct in motions to change custody or access as follows:
a) First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
b) If the threshold is met, the court must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.
34In Gordon v. Goertz (Paragraphs 10-16), the court discusses what evidence is required for the moving party to meet the threshold condition of establishing a material change in circumstances. The court sets out that the question is whether the previous order might have been different had the circumstances that now existed prevailed earlier.
35Both parties bear the evidentiary onus at the second stage of the analysis of demonstrating where the best interests of the child lie, and there is no legal presumption in favour of maintaining the existing custody and access arrangements. See: Persaud v. Garcia-Persaud, 2009 ONCA 782; Deslauriers v. Russell, 2016 ONSC 5285; Roloson v. Clyde, 2017 ONSC 3642.
4.2 Analysis
36The mother has met her onus of establishing a material change in circumstances affecting or likely to affect the best interests of the child that warrants changing the existing order.
37The major material change has been the deterioration in the parties' ability to communicate effectively.
38When the existing order was made, the parties were communicating well. In my oral reasons for decision at the focused trial, I commended the parties for their ability to work well together in the best interests of the child. Sadly, this has changed significantly for the worse.
39The mother testified that the father and she are totally unable to communicate. She said that the father is extremely aggressive and often verbally and emotionally abusive to her. This abuse, she said, often takes place in the presence of the child. She said that she and the father see things completely differently and their expectations are different.
40The father testified that after March, 2016, "it went downhill, downhill, we can't communicate anymore". He claimed that he no longer trusts the mother. He acknowledged that they have different parenting styles. He does not like the doctor that the mother takes the child to and he takes the child to different doctors at walk-in clinics during his time with her. He has taken the child to a different dentist than the mother uses. He claims that the mother is thwarting his contact with the child.[4]
41The father concluded by saying that he felt that the communication between the parties had recently improved.
42The emails and texts introduced by the mother corroborate her evidence that the father is frequently verbally and emotionally abusive to her. They will be discussed in more detail below.
43The court accepts the mother's evidence that the child is often distressed by the father's abusive behavior.
44There are other material changes in circumstances that have affected or will likely affect the best interests of the child, including:
a) The changes in the father's living arrangements since the existing order was made. He had his own residence in Toronto at the time of the existing order. The parties lived together in Toronto from June, 2015 until March, 2016 and the father subsequently moved to Brampton. The evidence indicates that the child struggled throughout 2016 adjusting to spending time with the father in his new home.
b) The court accepts the mother's evidence that the child is often distressed and confused about who she will be staying with. This is likely partially due to the child moving between the homes of the father and the paternal grandmother during the father's parenting weeks.
c) The child is not receiving consistent medical and dental care as she sees different health care professionals depending on whom she is living with. These health care professionals are not communicating with each other.
d) The mother has established a new relationship with A.M. and they are planning their life together.
e) The mother has the opportunity to significantly improve the standard of living for her and the child by moving to London.
f) The father has failed to pay for his share of the child's expenses – specifically the child's daycare expenses, creating financial stress on the mother. The parties had verbally agreed that he would pay his share of these expenses.
g) The child will be starting school full-time in September. It will be important for her to have a structured and predictable routine.
45The next step will be to determine what parenting order is in the child's best interests.
Part Five – Custody
5.1 Legal Considerations
46The Ontario Court of Appeal in Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 sets out the following principles in determining whether a joint custody order is appropriate:
There must be evidence of historical communication between the parents and appropriate communication between them.
It can't be ordered in the hope that it will improve their communication.
Just because both parents are fit does not mean that joint custody should be ordered.
The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
The younger the child, the more important communication is.
47Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child's best interests. See: Graham v. Butto, 2008 ONCA 260; Roy v. Roy, 2006 CanLII 15619, [2006] O.J. No. 1872 (Ont. C.A.).
48Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required, and is obviously not achievable. See: Griffiths v. Griffiths, 2005 ONCJ 235 (CanLII). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, 2009 CanLII 6423 (ON S.C.).
49Courts will order joint custody rather than sole custody where such an order is considered necessary to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties. See: Roloson v. Clyde, 2017 ONSC 3642, par. 59 for a review of these cases.
50In paragraph 504 of Izyuk v. Bilousov, 2011 ONSC 6451 (CanLII), the court writes:
In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children- particularly children already exposed to the upset of family breakdown- look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.
51In making any parenting decision, the court must consider the child's best interests and the relevant best interest factors set out in subsection 24 (2) of the Act. The court has taken these factors into consideration. Subsection 24 (2) reads as follows:
Best interests of child
24 (2) The court shall consider all the child's needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child's family who reside with the child, and
(iii) persons involved in the child's care and upbringing;
(b) the child's views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
52The court is also directed to address violence and abuse in assessing a person's ability to act as a parent under subsection 24 (4) of the Act, which reads as follows:
Violence and abuse
24 (4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person's household; or
(d) any child.
5.2 Analysis
53The evidence clearly established that this is no longer an appropriate case for joint custody. The level and quality of communication between the parties is too poor to make this work effectively for the child.
54It is very concerning that there has been such poor coordination of the child's medical and dental care. The father felt insulted by the doctor chosen by the mother and does not take her to see this doctor. He takes the child instead to walk-in clinics. The doctors do not communicate with each other. The parties have taken the child to different dentists, with no communication between them. The child has not been harmed yet, but is at risk of harm if her medical treatment is not properly coordinated.
55An essential element of joint custody is that the parents treat one another with respect. Joint custody is counter-indicated when one parent is abusive, demeaning and intimidating to the other. Unfortunately, this is the dynamic that has developed in this case.
56The police have been called 4 times since the date of the existing order due to incidents between the parties.
57The mother testified that the father is often abusive, threatening, demeaning and intimidating to her. He does this, she says, by email, text, phone and in person. This behaviour is frequently in the presence of the child. The mother was asked by the court to provide examples of this in the volumes of emails and texts she had brought to court. Some excerpts from these documents are as follows:[5]
"You're a pathetic mother showing your fucking daughter a lesbian relationship teaching my daughter to hate her fucking father you're a fucking bitch".
"I fucking hope you drop fucking dead you fucking to good fucking piece of shit whore. I hope you get an a massive accident and fucking die I hope you fucking die I hope you fucking burn alive you fucking whore. You fat pig go continue eating your fucking McDonald's 300 pounds is we're on the corner you fat fucking slut I fucking hate you. Fucking murder".
"I hope you bleed everywhere and fucking die".
"You're a selfish fucking cunt".
"Go walk into oncoming traffic do something for yourself and for your daughter aluminate yourself"
"Are used to FaceTime you for your daughter that's gone your daughter will never FaceTime your ass".
"I fucking hate you so much. You are a pathetic good for nothing mother that deserves nothing. I should've pushed you down the stairs when you're fucking pregnant".
"Good go on be a fucking cunt. Remember this conversation when you asked because I'm going to laugh in your fucking face. Nvr again u fucking bitch".
"It is in your best interest to answer before I blow up at you at DAYCARE tomorrow".
58When asked how many times the father has behaved in this manner in front of the child the mother said over a hundred. She said that it is exhausting trying to accommodate the father so he doesn't explode in this fashion.
59The mother testified that the father would also become very angry at the child when the child was upset and wanted to come home early to her. The mother described one incident in February, 2017 when the child called her crying and inconsolable. The child said that daddy was mad at her. The mother said that the father was screaming uncontrollably in the background. He was yelling at the child, "Do you like when Daddy is this angry?" "Do you want A.M. as your new Dad?". The mother said that she had difficulty de-escalating the father on the phone and had to call the police out of fear for the child.
60The mother related another time where the father was screaming at her on the phone while the child was with him in his car. The child became upset and wanted the mother to come and get her. The father yelled, "Be with your mom, you are a terrible child!"
61The mother testified that the father often comes to her home unannounced and harasses her. On one occasion in 2016, he found A.M. there. The father acknowledged coming unannounced and testified that the mother lied to him about A.M. being at the home. He told the court that he said to the mother, "You are going to lie about this dyke!". He stated that A.M. then physically attacked him. The police were called and no charges were laid. This incident took place in front of the child.[6]
62The mother testified that the father has never been physically violent to her or the child. However, she said, his frequent angry outbursts are alarming for them.
63The mother testified that the father will bombard her with texts and emails when he is upset.
64The mother said that she waited to bring this application to change the existing order, always hoping that matters would improve. She said it was hard for her with no support system in Toronto and the father often showing up at her home unannounced.
65The father testified that he believed that the mother had altered the texts but could not identify any alterations in the exhibits filed. His evidence was not credible.
66The father minimized his behaviour and deflected the blame to the mother and A.M. He demonstrated no insight into how destructive his behaviour can be and gave the court no confidence that he will change. He expresses that he wants to have a good relationship with the mother but remains very angry and unable to control himself.
67The father claims that none of these "arguments" with the mother take place in front of the child. This is highly unlikely. It is also likely that the child's reluctance to spend time with the father during 2016 and early 2017 was in large part a reaction to his angry behaviour.
68The father has had considerable instability in his life since the existing order was made. He was charged with criminal harassment in early 2015. He lost his housing in May, 2015. He was convicted of shoplifting in October, 2015. He was laid off from work in June, 2015. He left his father's employment in the fall of 2015 because they were not getting along. When the mother asked him to leave her home in December, 2015, he went to live with the paternal grandmother. This also didn't work out and he had to leave after two weeks and live in a hotel until the mother took him back in. He struggled in his relationship with the child for about 8 months in 2016. He has had an increasingly conflictual relationship with the mother and is antagonistic towards her new partner.
69The evidence filed by both parties showed that the mother attempts to communicate with the father in a respectful manner. It shows that she attempts to de-escalate his anger.
70This is not a case where a joint custody order is required to preserve the balance of power between the parties, or to preserve the father's ability to have a meaningful relationship with the child. The mother values this relationship. She was generous in her description of the father's parenting. She said that he is a good dad and that he is the more fun parent. She said that the father has a good ability to get the child to do things without getting into arguments with her. The father, she said, loves the child and everything he does is for her.
71The mother has also been generous with the father. She agreed to be his surety when he was criminally charged. She let him stay in her home rent-free when he had no residence and was out of work. She assisted him in his landlord and tenant dispute. She has paid for all the child's daycare expenses.[7] The father claims that he will pay these expenses once the mother gives him receipts. However, he is well aware that she has been paying these expenses for a long time and has chosen not to pay his share.
72The court finds that the father is primarily responsible for the deterioration in the communication between the parties.
73The court has much more confidence in the mother than the father to make major decisions that will be in the child's best interests. The evidence shows that she is a good parent, who is calm and makes child-focused decisions. She is the more stable parent. She is the better role model. The court is concerned about the level of the father's anger, his abusive behaviour, the instability in his life and his inadequate financial support of the child since the existing order was made.
74The mother will be granted custody of the child. The court's order will provide that the mother consult with the father on major decisions affecting the child. The father will also be able to obtain information about the child directly from her school and service providers. He will be able to attend all parent-teacher meetings and go to school events. He will be entitled to go to all medical appointments for the child.
75The court will also make a detailed parenting order to protect the child and the mother from conflict. The father needs clearly defined boundaries to control the worst aspects of his behaviour.[8]
5.3 Access
76The court recognizes that the father (when not angered) is a loving and devoted parent to the child. The mother described the father's many positive parenting qualities. The father spoke about the child with great affection. The child loves him and is used to spending equal time with him. The court has no concerns with the father's instrumental care of the child. He is capable of looking after her feeding, clothing and hygiene. They enjoy their time together.
77The child also has a very strong relationship with the paternal grandmother.[9]
78However, despite these positive factors, the evidence supports a finding that a shared parenting arrangement is no longer in the child's best interests.
79Similar to joint custody, a higher degree of cooperation and mutual respect is needed to make an equal parenting arrangement work effectively. See my comments in P.H. v. T.J., 2017 ONCJ 166. Parents need to be able to coordinate medical and academic issues concerning the child. They need to be able to coordinate extra-curricular activities and communicate effectively about other important aspects about the child's welfare. The necessary degree of cooperation and respect is no longer present in this case.
80The child is often distressed and confused about her living arrangements. She appears to move between the father's home and the paternal grandmother's care during his parenting weeks. The child has a difficult schedule during these weeks. She is delivered very early to the paternal grandmother's home (6:30 a.m.) on the days the paternal grandmother takes her to school. While the father said he will change his schedule to take the child to the before-school program each day in the fall, he still has to take her from Brampton to south Etobicoke to get her to this program by 7 a.m. This is a stressful schedule for a young child who is just starting school.
81The parents both testified that they have very different parenting styles and routines for the child.
82The child is starting school full-time in September and it is in her best interests to have a more stable parenting routine - particularly during the school week.
83The court reiterates that it is concerned about the father's level of anger and instability and how it has and may in the future adversely impact the child. It is concerned about his ability to accept the mother's new relationship with A.M. and to conduct himself appropriately in front of the child. What type of role model will he be about being tolerant and respectful about different types of relationships?
84The court is also concerned about what the child is learning from the father about how to behave when frustrated and how to resolve conflict in a constructive manner. It is essential that the father appreciate that he is the child's male role model. He is presently falling well short of what the child requires from him in this important aspect of parenting.
85The court has concerns about how well the father will manage his anger when dealing with the child's behaviour in the future. As she becomes older and more assertive, will the father react in anger and lose control? Will he demean her like he does the mother? At this point, this appears to be very possible.
86It is now in the child's best interests for her to primarily live in the mother's care. It is a calmer and more stable home.
87It is in the child's best interests that she primarily resides with the mother and spends weekdays with her during the school year. The parties should both have weekend access and share holiday time with the child. This finding is irrespective of the mobility issue - the father's parenting time with the child would have been changed even if the mother's request to move wasn't granted.
Part Six – Mobility
6.1 Legal Considerations
88The court in paragraphs 49 and 50 of Gordon v. Goertz, supra, sets out principles and criteria for determining what is in a child's best interests on mobility requests as follows:
49 The law can be summarized as follows:
a) The inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
b) The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.
c) Each case turns on its own unique circumstances. The only issue is the best interests of the child in the particular circumstances of the case.
d) The focus is on the best interests of the child, not the interests and rights of the parents.
e) More particularly, the judge should consider, inter alia:
the existing custody arrangement and relationship between the child and the custodial parent;
the existing access arrangement and the relationship between the child and the access parent;
the desirability of maximizing contact between the child and both parents;
the views of the child;
the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;
disruption to the child of a change in custody;
disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new.
89Both parents bear the evidentiary burden at this second stage of the inquiry. The court must weigh the benefits and detriments of the proposed move from the perspective of the child.
90Gordon v. Goertz was decided under the Divorce Act. However, the case law is clear that the legal principles also apply to cases brought under the Act.
91The Nova Scotia Supreme Court in N.D.L. v. M.S.L., 2010 NCSSC 68 (CanLII) listed additional factors (in paragraphs 9) that courts have considered when applying the framework in Gordon v. Goertz as follows:
9An analysis of cases that have applied these principles provides additional detail to the factors to be considered. Those details are:
(a) the number of years the parents cohabited with each other and with the child
(b) the quality and the quantity of parenting time
(c) the age, maturity, and special needs of the child
(d) the advantages of a move to the moving parent in respect to that parent's ability to better meet the child's needs
(e) the time it will take the child to travel between residences and the cost of that travel
(f) feasibility of a parallel move by the parent who is objecting to the move
(g) feasibility of a move by the moving parents new partner
(h) the willingness of the moving parent to ensure access or will occur between the child and the other parent
(i) the nature and content of any agreements between the parents about relocations
(j) the likelihood of a move by the parent who objects to the relocation
(k) the financial resources of each of the family units
(l) be expected permanence of the new custodial environment
(m) the continuation of the child's cultural and religious heritage
(n) the ability of the moving parent to foster the child's relationship with the other parent over long distances
92The views of the custodial parent are to be given serious consideration. See: Bjornson v. Creighton, [2007] O.J. No. 4107 (OCA).
93The financial security of the moving parent is a relevant factor in mobility cases. See: Greenfield v. Garside, 2003 CanLII 53668 (ON SC).
94Several cases have recognized that requiring a parent to remain in a community isolated from his or her family and supports and in difficult financial circumstances will adversely impact a child. The economic and financial benefits of moving to a community where the parent will have supports, financial security and the ability to complete their education and establish a career are properly considered in assessing whether or not the move is in the child's best interests. See: MacKenzie v. Newby, 2015 ONCJ 434.
95The court must also give serious consideration to the disruption that would be caused by a move to the relationship between the child and the other parent. See: Berry v. Berry, 2011 ONCA 705 (CanLII), [2011] O.J. No. 5006 (OCA).
96The level of co-operation that the moving parent will provide in facilitating access to the other parent is also a relevant consideration in a mobility application. See: Orrock v. Dinamarea, 2003 CarswellBC 2845 (B.C.S.C.).
97Moves have been refused where the court has found the move is for an improper purpose, such as to frustrate the access parent's relationship with the children. See: Jantzi v. Jantzi, 2003 CarswellOnt 5370 (Ont. S.C.).
98The non-removal clause in the existing order is not dissimilar to the non-removal clause which was discussed in the case of Ligate v. Richardson, 1997 CanLII 650 (ON CA), 34 O.R. (3d) 423 (Ont. Court of Appeal) where Moldaver J.A. said at pg. 440-441:
Turning to the residence clause in issue, I do not read it to mean that the parties foreclosed the possibility that at some future date, Ashley's best interests might be better served by permitting her to reside outside of Metropolitan Toronto. In fact, the clause is worded in a way that suggests just the opposite. In my view, the primary purpose of the clause was to provide Richardson with advance notice of any proposed move on Ligate's part. Thereafter, if Richardson chose to withhold his consent, Ligate could seek court approval.
99The non-removal clause in the existing parenting order does not preclude the court from engaging in the Gordon v. Goertz analysis.
100The court has considered the above principles and criteria in making its decision. It has also considered the best interest factors detailed in subsection 24 (2) of the Act.
6.2 The Mother's Proposed Move
101The mother has been offered an opportunity to work full-time in her employer's London office. Accepting this offer would result in more responsibility at work and an increase in pay. The mother presently earns $44,500 annually. Her pay would increase to $48,000 annually plus commissions.
102A.M. lives and works in the London/Simcoe area. The mother said they have looked into comparable jobs in the Toronto area and estimated that if A.M. had to leave her job to work as a landscaper in Toronto, her annual income would drop by approximately $15,000, from the $50,000 she presently earns.
103The major financial advantage to the move for the mother and the child is the housing opportunity. The mother presently lives in a one-bedroom apartment in Toronto. She pays rent of $1,100 a month. She pays all of the child's daycare costs. This means that it is a struggle to support herself and the child.
104The mother and A.M. will be able to live in a home on a beef cattle farm owned by A.M.'s parents. This home is located in the Simcoe area, just outside of London. The mother and A.M. will rent with a view to owning this home. The mother and A.M will pay a total of $1,000 a month for rent. It is a large 3-story home with 5 bedrooms, 2 baths and a large bedroom for the child to play in.
105The mother and A.M. have been renovating the property. It is almost ready for them to live in.
106The proposed school for the child is a 10-minute drive from the home.
6.3 Analysis
107The court finds that the child has a strong relationship with both parents. The child's relationship with the mother has been consistently strong. There were some difficulties in the relationship between the father and the child in 2016, but it appears to be stronger now.
108It is important to maximize the child's contact with the father in a manner consistent with her best interests. See: Gordon v. Goertz, supra.
109The court has no evidence of the child's present views and preferences. Given her young age, this would be a minor consideration. The evidence is that the child loves both parents.
110There will be some disruption for the child in moving to London. As the father said, presently, if the child wants to see him he can get in the car and be there in 40 minutes. He won't be able to do this if the child is living in London.
111A move to London will cause more inconvenience and time on the road for the father.
112There will also be additional travel involved and time spent in the car for the child if she moves to London.
113The distance from Toronto to London is also a limiting factor when determining how many weekends each month the child should travel to be with the father.
114However, the court finds that the benefits of the move for the child exceed any detriments for the following reasons:
a) The mother and the child will have a better standard of living and more economic security. The mother will have more income and lower expenses. A.M. will be able to maintain her present employment and income level. The mother has borne the major financial responsibility for the child and it has been a struggle for her. The father has not met his obligation to pay half of the child's daycare expenses. The move will relieve her financial pressure and provide a better quality of life for the child.
b) The quality of the child's accommodation will greatly improve. The home will be far more spacious. The mother testified that she presently takes the child to the farm on her weekends and the child loves playing in the outdoors and with the animals. The child will be exposed to agriculture and farming.
c) The mother will have better support if she moves. Her parents reside in Cochrane, Ontario and aren't nearby to support her. Her main support in Toronto is the father and that is very problematic. The mother told the court she didn't come to court earlier to change the existing order, despite the abuse she was enduring, because she felt alone and unsupported in Toronto. In London, she will have the support of A.M. and A.M.'s parents.
d) The mother's travel time for work will be reduced. She presently travels to London about 4 times each month for business. This will give her more time to be with the child.
e) There is some benefit to the child in creating physical distance between the mother and the father. The child is presently being exposed to far too much conflict. It is apparent that the father needs boundaries. A move to London will make it more difficult for the father to attend at the mother's home whenever he chooses. It will mean less exposure by the child to parental conflict.
115The court is confident that the mother will facilitate the father's access. She proposed to share transportation with him and proposed meeting half-way in Hamilton to reduce his travel time and costs. This will be ordered.
116The access order that will be made by the court won't be much different from what it would have ordered if the child was not permitted to move. Any disruption to the father-child relationship will be minor and is more than offset by the benefits of the move.
117The disruption with friends and her community will be relatively minor for the child. She will be going to a new school in September in any event and leaving her friends from daycare behind. She will still have the opportunity to spend time with the paternal grandmother. The father arranges play dates for the child and he will still be able to arrange these during his parenting time.
118The court took into consideration that there is little preventing the father from moving closer to London. He has only lived in Brampton for 18 months. He has his own business that he operates from home. He could do a short commute and continue to maintain his primary customer.
119The court finds that it is in the child's best interests to permit the mother to move the child's residence to the London/Simcoe area.
Part Seven – Access
120The court considered ordering that the father exercise access to the child on two out of every three weekends (the access schedule the court would have ordered if the child wasn't permitted to move) but decided that this is too much travel time for a young child.
121The court will order access to take place on alternate weekends and give the father additional holiday time with the child to ensure that the child maintains a strong relationship with him.
122The child shall spend the entire March Break with the father and 5 exclusive weeks with him each summer (starting in 2018) – the mother will have the child with her for 3 exclusive weeks each summer. Further, the order will provide that if a professional development day or statutory holiday falls on a Friday before or the Monday after the father's weekend with the child, his weekend time will be extended by one day.
123The parties have already changed the winter holiday schedule to give each other extended time in alternate years. This is because the mother travels to see her family in Cochrane during this time. The court will maintain this new schedule. The father said that it is his turn to have extended time with the child during the winter break this year and the order will provide for this.
124The court will also order that the father can FaceTime with the child at set times on three days during the week and that both parties can FaceTime with the child at set times on one day on the weekends the child is with the other parent.
Part Eight – Child Support
125The father stated that he is now earning $48,000 annually. The mother did not dispute this.
126The mother will be earning a comparable income once she moves to London.[10]
127The monthly guidelines table amount for one child at this income is $433. The father will be required to pay the mother this amount starting on September 1, 2017.
128The mother has also asked that the father pay 50% of the child's before and after-school expenses on an ongoing basis. This is a special expense as defined in section 7 of the guidelines.
129The mother said that these expenses would have been $265 each month in Toronto starting in September, 2017, and she expects them to be about the same in London.
130The court finds this expense to be reasonable and necessary for the child. The father did not dispute this, saying he would pay 50% of these expenses once he received receipts.
131Subsection 7 (3) of the guidelines instructs the court to take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.
132A software analysis shows that the net amount of the child care expense is $158 each month, after taking into account the income tax deductions and credits related to this expense.[11]
133The mother is only seeking contribution to the child care expenses on an ongoing basis. The father shall pay her $79 each month for these expenses, starting on September 1, 2017.
134The mother shall provide the father with a letter from the service provider showing the cost of the before and after school program by September 15, 2017.
Part Nine – Conclusion
135A final order shall go on the following terms:
a) The existing order is terminated and will be replaced by this order.
b) The mother shall have custody of the child.
c) The mother shall consult the father on all major decisions regarding the child.
d) The mother shall sign any necessary consents, authorizations or directions to permit the father to speak to the child's school, before and after school program, doctors or other service providers.
e) The mother shall provide the father with the names, addresses and phone numbers of the child's school, before and after-school program, doctors or other service providers.
f) The mother shall provide the father with reasonable notice of any parent-teacher meetings at school or any school functions. The father will be entitled to attend.
g) The mother shall provide the father with reasonable notice of any non-emergency medical appointments for the child. The father shall be entitled to attend.
h) Unless there is an emergency, the father shall not take the child to any medical professional not approved in advance by the mother.
i) The parties are to immediately notify the other of any medical emergency for the child. Both parents will be entitled to attend at the doctor's office or at the hospital.
j) The mother shall hold all government documentation for the child.
k) The child's health card shall travel with the child during access exchanges.
l) The parties are to maintain a daily planner that will travel with the child. They are to set out in the planner any relevant information about the child's health, schooling or welfare. All entries in the planner are to be respectful.
m) The parties are to limit all non-emergency communication to email in a respectful manner.
n) The mother may relocate with the child to the London/Simcoe area, or to any other location that is closer to Toronto.
o) The father shall have access to the child as follows:
i) Starting on September 8, 2017, the father shall have access with the child on alternate weekends from Fridays at 7 p.m. until Sundays at 7 p.m. This access will be extended until Monday at 7 p.m. if the weekend is followed by a statutory holiday, or a professional development day at the child's school.
ii) If a statutory holiday or professional development day falls on a Friday before the father's access weekend, the access weekend shall start on Thursday at 7 p.m.
iii) Every March Break from the Friday when school ends at 7 p.m. until the Sunday before school begins at 7 p.m.
iv) The child shall always spend the weekend on which Father's Day falls with the father and the child shall spend the following weekend with the mother.
v) The child shall always spend the weekend on which Mother's Day falls with the mother and the child shall spend the following weekend with the father.
vi) In 2017, the child shall spend July 17th at 7 p.m. until July 30th at 7 p.m with the father; July 30th until August 13th at 7 p.m. with the mother; August 13th until August 27th at 7 p.m. with the father and August 27th until September 8th at 7 p.m. with the mother.
vii) Starting in 2018, the child shall spend 5 weeks each summer with the father and 3 weeks with the mother. If there are more than 8 weeks when the child is off school in the summer, the additional time shall be spent equally with the parents. The child shall not spend more than 3 consecutive weeks with the father until she is 7 years old. The father will have first choice as to when his summer weeks will take place, provided he notifies the mother in writing about these dates no later than May 15th each year, failing which the mother will have first choice about which weeks she will exercise summer access. The child should always spend the last week before school with the mother.
viii) The parties shall alternate spending the 2-week school winter break with the child. In odd-numbered years, starting in 2017, the child shall spend this break with the father. In even-numbered years, starting in 2018, the child shall spend this break with the mother.
ix) Such further and other access as the parties may agree to.
x) The access schedule in the existing order shall remain in force until this new schedule starts on July 17, 2017.
p) The holiday times set out above take priority to the ordinary access schedule.
q) The access exchanges shall take place in Hamilton, Ontario at a public location chosen by the mother, or at such other place mutually agreed to by the parties.
r) Either party may travel with the child outside of Canada with the prior written consent of the other party (such consent not to be unreasonably withheld), or court order.
s) Either party may travel within Canada without the prior consent of the other party.
t) If either party plans to travel with the child, they shall provide the other party with 30 days' notice, including the travel information (including flight information, if any), where they will be staying, as well as contact information for the child during the trip.
u) The parties shall schedule 3 evenings during the weekdays when the father can FaceTime with the child.
v) The parties shall schedule 1 day on the weekend when they can FaceTime with the child when the child is in the other's care.
w) The father shall pay child support to the mother in the amount of $433 each month, starting on September 1, 2017. This is the guidelines table amount for one child based on the father's annual income of $48,000.
x) The father shall pay the mother $79 each month, starting on September 1, 2017, as his contribution to the child's section 7 child care expenses. This is based on each party making a 50% contribution to the net amount of this expense. The mother's annual income is also $48,000.
y) The mother shall provide the father by September 15, 2017 with a letter from the service provider setting out the child-care costs. She shall also provide the father with a letter from the service provider within 15 days of any change to the child-care costs.
z) The parties shall exchange their complete income tax returns and notices of assessment by June 30th each year.
aa) A support deduction order shall issue.
136If either party seeks their costs, they shall serve and file their written costs submissions by July 28, 2017. The other party will have until August 10, 2017 to respond. The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. The costs submissions should be delivered to the trial coordinator's office on the second floor of the courthouse.
Released: July 10, 2017 Justice S.B. Sherr
Footnotes
1This was in relation to another woman.
2The father left the home, at the mother's request, after an argument, in mid-December. He returned in mid-January.
3The father said he was convicted of this offence and paid a fine.
4The mother denied preventing the father's contact with the child. Interestingly, the father acknowledged often telling the mother he was blocking her calls, but claimed that she knows he would never do this.
5These statements are taken verbatim from the texts.
6The mother denies that A.M. attacked the father.
7The mother has solely claimed the Child Tax Benefit since the separation, which has relieved some of her financial burden. However, the father is also now claiming these benefits.
8The mother asked for restrictions on the father's ability to travel that were not justified by the evidence.
9The court accepts the mother's evidence that the child has a positive relationship with A.M.
10The mother hoped to also earn another $6,000 in commissions, but this is speculative at this time. The father provided little financial disclosure about his business. He might also earn more income.
11The software analysis is included with this decision.
