Court File and Parties

Court File No.: Toronto D 21006/18 Date: 2019-07-05 Ontario Court of Justice

Between:

Jeffrey O'Brien Applicant (Responding Party)

— AND —

Bia Chuluunbaatar Respondent (Moving Party)

Before: Justice Carole Curtis

Heard on: 7, 8, and 9 May 2019

Reasons for Judgment released on: 2019-07-05

Counsel:

Rebecca Winninger, Tami L. Waters, for the Applicant Father
Jane Mukongolo, for the Respondent Mother

CURTIS, J.

INDEX

Over-view
Background
Litigation History
The Parents' Claims and their Positions at Trial
- (a) The Mother's Claims and her Position at Trial
- (b) The Father's Claims and his Position at Trial
The Issues
The Legal Framework
- (a) Changing Custody and Access: The Test is Material Change in Circumstances
- (b) The Legal Framework for Joint Custody
- (c) The Legal Framework for Relocation
- (d) Changing Child Support: The Test is Change in Circumstances
The Evidence
- (a) The Mother's Life in Canada
- (b) The Mother's Plan for Living in Mongolia
- (c) Evidence about the Gordon v. Goertz Criteria
Analysis and Decision
Orders

1. Over-view

This is the decision in the trial of the mother's request to move to Mongolia with the child, who is five years old.

2. Background

The mother, Bia Chuluunbaatar (the moving party in this case), was born on 13 December 1975 and is 43 years old. She was unemployed at the trial, supporting herself and the child with the following income (in 2018):

Source	Amount
Ontario Works	$10,244
Child support	$10,512
Child tax benefit	$7,800
Employment income	$9,824
Total	$38,380

The father, Jeffrey O'Brien (the responding party), was born on 8 April 1976 and is 43 years old. He is employed at Norbord Inc., and earned $114,876 in 2018.

The parent's relationship began in 2010. They lived together, but were not married, from 1 January 2013.

The parents have one child, Caitlyn Az-Ujiin O'Brien, born 12 December 2013, now five years old. Caitlyn is an ordinary, healthy child, with no special needs and no challenges, who is happy and well-adjusted, and was described as smart, well-behaved, self-confident, and adaptable.

The parents lived together for about 21 months, and separated on 24 September 2014. The child was 10 months old at separation, and is now five years old at trial.

3. Litigation History

The original application in this case was started by the father, in 2014 in Brampton, Ontario, the day after the separation. That case was resolved with a consent order made by W. Sullivan, J. on 9 August 2016. The order dealt with custody, access, and child support. These are the sections of that order that are relevant in this motion to change:

(a) Sole custody to the mother;

(b) The mother is to consult the father about the child's medical and educational needs. If there is a disagreement, the mother shall make the final decision;

(c) The father is to have liberal and generous access to the child as agreed upon between the parents, including alternating weekends from Friday after school to Sunday at 4 p.m.;

(d) Both parents may travel with the child for up to eight weeks a year (on specified terms about notice and itinerary);

(e) Child support of $876 per month on income of $99,500 from 1 March 2016; and,

(f) Annual financial disclosure.

The order of 9 August 2016 did not address the issue of relocation.

4. The Parents' Claims and their Positions at Trial

The Mother's Claims and her Position at Trial

The mother started this case on 6 July 2018, as a Motion to Change the order of 9 August 2016. She asked the court to allow her to change the permanent residence of the child to Mongolia, and to adjust the father's access accordingly (to provide extended access at Christmas, the summer vacation, and other times, in Toronto and in Mongolia).

At trial the mother was claiming the following:

(a) The mother be permitted to relocate with the child to Mongolia. If she is permitted to move to Mongolia with the child:

i. Specified access to the father, including, among other things, two months in the summer (in Toronto), two weeks in December (in Mongolia, until the child turns 12 years old);

ii. Child support to be:

A. Table amount of $1,027 per month on father's 2018 income of $114,876 from 1 January 2018;

B. Each parent to be responsible for the s. 7 expenses incurred by the child when she is with them;

iii. Specific claims regarding travel arrangements and costs of travel, as follows:

A. Initially the claim was for the parents sharing the travel responsibility, child support being reduced, and the mother paying for most (but not all) of the travel costs.

B. In closing argument the mother changed this claim to child support continuing at the proper table amount, and the mother paying all of the travel costs;

iv. The father's claims for joint custody and other changes to access to be dismissed;

(b) If the mother is not permitted to relocate with the child to Mongolia:

i. Specific access to father, adding certain week-nights overnight to the current every other week-end schedule;

ii. Child support to be:

A. Table amount of $1,027 per month on father's 2018 income of $114,876 from 1 January 2018;

B. Parents to share s. 7 expenses in proportion to their incomes;

iii. The father's claims for joint custody and other changes to access to be dismissed;

(c) Both parents are permitted to travel with the child for two trips per year, up to eight weeks total, outside Canada, to certain specified countries, with specified notice provisions; and,

(d) The child's passport to be returned from the father's lawyer to the mother promptly.

The Father's Claims and his Position at Trial

The father filed a Response to the Motion to Change on 15 August 2018, and an amended Response to the Motion to Change on 19 March 2019, making these claims:

(a) joint custody;

(b) an equal parenting schedule for 50/50 time sharing;

(d) an order dismissing the mother's claim to move to Mongolia with the child;

(e) in the alternative, if the mother is permitted to move to Mongolia with the child:

i. access to be changed to provide equal time with each parent; and,

ii. child support to be reduced to account for the cost of exercising access.

At trial the father was claiming the following (among other claims):

(a) joint custody;

(b) Child support:

i. table amount of $1,027 per month on his 2018 income of $114,876 from 1 June 2019;

ii. Annual financial disclosure by both parents by 10 May each year;

iii. Parents to revise child support each year, to be payable on 1 June;

(c) dismissing the mother's claim to relocate with the child to Mongolia. If she is not permitted to move to Mongolia with the child:

i. the mother shall not move the child's primary residence outside the Greater Toronto Area;

ii. neither parent may travel with the child to a country that is not a signatory to the Hague Convention on the Civil Aspects of Child Abduction, unless agreed-upon security provisions are in place;

iii. travel with the child by either parent outside Canada, in the same terms of the original order, shall require the consent of the other parent, such consent not to be unreasonably withheld; and,

iv. increasing his access to the child, on an incremental basis, to a specific proposed schedule.

(d) if the mother is permitted to relocate with the child to Mongolia:

i. specified access to him, including, among other things, two months in the summer (in Toronto), four weeks (in Mongolia, or outside Mongolia on vacation), and additional two weeks in Toronto after the child reaches 12 years old (travel for this paid for by the father); and,

ii. Specific claims regarding travel arrangements and costs of travel, with the mother paying all of the travel costs.

5. The Issues

At the trial, these were the issues in dispute between the parents:

(a) Custody;

(b) Relocation of the child to Mongolia;

(d) Child support (table amount and special expenses);

(e) Whether the parents may travel with the child without the other parent's permission.

The issues for the court to determine are these:

(a) Has there been a material change in circumstances since the original order that affects or is likely to affect the best interests of the child?

(b) Is an order for joint custody now in the child's best interests?

(d) If the mother is permitted to move with the child, what are the access arrangements that are in the child's best interests?

(e) Has there been a change in circumstance that warrants adjusting child support, and if so, from what date?

6. The Legal Framework

Changing Custody and Access: The Test is Material Change in Circumstances

The leading case in the law of relocation, Gordon v. Goertz, sets out a two-stage process for changing earlier custody and access orders, and for determining the request to relocate with the child:

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; and,

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.

Gordon v. Goertz, however, has some differences to this case. Gordon v. Goertz was decided under the federal Divorce Act, and this case is to be decided under provincial legislation, the Children's Law Reform Act ("the C.L.R.A."). However, the case law is clear that the legal principles also apply to cases brought under the C.L.R.A.

In Gordon v. Goertz the court reviews what evidence is required for the moving party to meet the threshold condition of establishing a material change in circumstances. The question is whether the previous order might have been different had the circumstances that now exist prevailed earlier.

Before entering on the merits of an application to vary a custody order the judge must be satisfied of:

(a) A change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child;

(b) A change which materially affects the child; and,

(c) A change which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

These are the principles which determine whether a move by the custodial parent is a material change in the "condition, means, needs or other circumstances of the child".

Relocation will always be a "change". Often, but not always, it will amount to a change which materially affects the circumstances of the child and the ability of the parent to meet them. Where the child enjoyed frequent and meaningful contact with the access parent, a move that would seriously curtail that contact suffices to establish the necessary connection between the change and the needs and circumstances of the child.

The mother's motion to change the custody and access terms of the order made 9 August 2016 was bought under s. 29 of the C.L.R.A.:

Order varying an order

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

In a motion to change the onus is on the person seeking the change, the moving party (here, the mother), to prove her case, and to show that there has been a material change in circumstances regarding custody and access. If the material change cannot be established, the claim is to be dismissed.

The Legal Framework for Joint Custody

These are the principles to be considered in determining whether or not joint custody is appropriate:

(a) There must be evidence of historical communication between the parents and appropriate communication between them;

(b) It cannot be ordered in the hope that it will improve their communication;

(d) The fact that one parent professes an inability to communicate does not preclude an order for joint custody;

(e) No matter how detailed the custody order, there will always be gaps and unexpected situations and, when they arise, they must be addressed on an on-going basis; and,

(f) The younger the child, the more important communication is.

Joint custody is not a reflection of a parent's love for or relationship with their child. It is a reflection of the relationship between the parents. It requires a successful, high-functioning, co-operative relationship between the parents. The foundation for joint custody must be a history of co-operation about the child (not a promise, but a history), a history of communication about the child (again, not a promise but a history), and mutual respect for each other as parents.

Once the court is required to assess the best interests of the child, the court should have regard to the best interests considerations set out in s. 24 of the C.L.R.A.:

Merits of application for custody or access

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

Best interests of child

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

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

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

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

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

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

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

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

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

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

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

(h) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.

The Legal Framework for Relocation

This case, like Gordon v. Goertz, was a request to change a previous custody order.

The most important principal to be distilled and applied from the Gordon v. Goertz test is the following:

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

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

Gordon v. Goertz sets out the principals of the law of relocation:

The law can be summarized as follows:

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.

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

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

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.

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

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

More particularly the judge should consider, inter alia:

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

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

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

(d) the views of the child;

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

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

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

The decision in Gordon v. Goertz also sets out a threshold analysis in examining relocation issues:

While a legal presumption in favour of the custodial parent must be rejected, the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent's parenting ability (emphasis added).

There was no suggestion that the mother in this case had an improper motive of any kind in her desire to move back to Mongolia with the child.

The legal test in relation to relocation is the best interests of the child, as determined by a contextually full enquiry into the needs, means, condition and other circumstances of the child.

The court must consider and balance all the benefits and detriments of the proposed relocation. What is required is a full and sensitive enquiry into the best interests of the child.

While setting out general principles as guidance for courts in Gordon v. Goertz, the court also stresses that it is the best interests of a particular child which must be determined. The facts of each case provide the context within which the general principles are to be applied.

The following are additional factors that courts have considered when applying the framework in Gordon v. Goertz:

(a) the number of years the parents cohabited with each other and with the child;

(b) the quality and the quantity of parenting time;

(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; and,

(n) the ability of the moving parent to foster the child's relationship with the other parent over long distances.

Relocation cases are among the most difficult cases in family law. If the custodial parent is permitted to move with the child, inevitably the relationship between the non-custodial parent and the child will be affected and may suffer. Typically the court must balance the custodial parent's legitimate interest in relocating with the non-custodial parent's legitimate interest in maintaining a relationship with the child. But in every case, the ultimate question is what is in the best interests of the child.

The views of the custodial parent are to be given serious consideration in a relocation case. It is an error to not give sufficient 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 financial security of the moving parent is a relevant factor in relocation cases. Financial security has been found to be a valid and compelling parenting-based reason for a move, where a relocation was necessary to enable the primary caregiver to remain financially viable while providing care for the child.

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:

The children's need for shelter, food and clothing which could be provided by adequate earnings by the mother, must take priority over the disruption of a move, and reduced contact with the father and his family. The intellectual and emotional flowering of these children cannot occur until their basic physical needs are met.

The economic realities require that the mother be free to pursue employment which will permit her to escape the welfare rolls. I am confident she will manage the move in a way which promotes the children's best interests.

An order restricting the residence of the children would, as in Woods v. Woods, condemn the mother and children "to a life of penury with a dissatisfied [mother] bereft of work and dignity. The alternative is to empower the [mother] to improve their lives from both a material and psychological standpoint."

The 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.

The level of co-operation that the moving parent will provide in facilitating access to the other parent is also a relevant consideration in a relocation application.

Moving at a young age will usually have less effect on the child's life.

Since the Gordon v. Goertz case was decided in 1996, there has been a great deal of jurisprudence and academic writing about relocation. The parent's lawyers presented many cases to the court for consideration in their legal arguments (all of which were reviewed and considered). Both lawyers were able to refer to cases (trial and appeal decisions) that allowed a move or prevented a move. The issue has evolved in many ways.

Changing Child Support: The Test is Change in Circumstances

The mother's motion to change the support terms of the order made 9 August 2016 was bought under s. 37(1) and (2.1) of the Family Law Act, ("the F.L.A."), and s. 14 of the Child Support Guidelines ("the Guidelines"):

Application for variation

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

a) a dependant or respondent named in the order;

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

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

d) an agency referred to in subsection 33 (3). 1997, c. 20, s. 6.

Powers of court: child support

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

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

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

c) make any other order for the support of a child that the court could make on an application under section 33. 1997, c. 20, s. 6.

Variation of Orders for the Support of a Child

Circumstances for variation

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

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

b. In the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either parent or spouse or of any child who is entitled to support.

c. In the case of an order made under the Divorce Act (Canada) before May 1, 1997, the coming into force of section 15.1 of that Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).

d. In the case of an order made under the Act, the coming into force of subsection 33 (11) of the Act. O. Reg. 391/97, s. 14; O. Reg. 446/01, s. 3.

Sections 37(2.2) to 37(2.6) of the Family Law Act and the Child Support Guidelines provide the framework within which the court is to undertake the calculation of child support in a variation proceeding. The object of the child support provisions set out in the Act and the Guidelines is to ensure as reasonably as possible that children are not disadvantaged by the separation of their parents, by providing fair and predictable standards of support, facilitating the calculation of support, and rendering the legal process for addressing child support issues more efficient.

Both s. 37(2) and (2.1) of the F.L.A. give a court jurisdiction to "discharge, vary or suspend" the support "prospectively or retroactively". This gives the court jurisdiction to vary a child or spousal support order retroactively. The powers of the court on a motion to vary a child support order are very broad.

As set out in section 37(2.1) of the Family Law Act, a threshold issue that must be addressed in a motion to change child support is whether there has been a change in circumstances within the meaning of Guidelines since the order was made, or whether evidence that was not available at the hearing respecting the order has now become available. Section 14.1 of the Guidelines provides that where the amount of child support set out in the order includes a determination made in accordance with the Tables under the Guidelines, any change in circumstances that would result in a different order for the support of the child constitutes a change that gives rise to the making of a variation order. Accordingly, a change in the payor's income or evidence that the child is no longer entitled to child support under the Family Law Act would satisfy the threshold test of whether there has been a change in circumstances since the previous order was made.

7. The Evidence

The Mother's Life in Canada

The mother came to Canada in 2010.

The mother is well-educated. She has a B.A. in Financial Management, an M.A. in Economics, and one year of study in Film Making. Both her Bachelor's degree (from Mongolia) and her Master's degree (from Japan) were accepted as Canadian equivalent. Her past work experiences were in international development projects, economics and with mining companies. In Mongolia she worked as an economic analyst, a financial sector specialist, and as a consultant for various international companies.

The mother gave detailed evidence about her work history and job search history in the nine years she has been in Canada. She took extensive steps to establish herself professionally in Canada. She has had many different jobs (including door-to-door sales, coffee shop staff, analyst intern at a bank, administrative assistant at a bank, internship with the federal government, data entry clerk, translator), has applied for many different jobs (including administrative work, retail, teller), has taken many programs to upgrade her skills (including resume-writing, job search techniques, job interview techniques, the Canadian Securities Course, Toastmaster Club, course at Seneca College, job counselling, software skills), and has networked extensively and worked with several employment counsellors.

In addition to her jobs, the mother started a business in Canada with the child's maternal aunt selling baby blankets through the internet. The target market was the United States. The business was unsuccessful and both the mother and the maternal aunt lost money on it.

The mother was never able, in Canada, to get work at a similar level to her work in Mongolia. She had many low-end jobs. After many years of minimal job success, with no opportunities for professional work, the mother applied for Ontario Works in June 2018.

The mother is now a single mom. She did not plan to be a single mother living alone in Toronto. She says she is struggling here. She says her life has been more difficult financially and otherwise in Canada. She has no car, and no Canadian driver's license. She has few friends here, and is isolated. She has no family in Toronto. She lacks support in Toronto.

The father's family is not a source of support for the mother or the child. His family has been entirely absent from the mother's life since the separation. At the time when the mother was the neediest, the father's family did not help her at all and had no contact with her, including right up to the trial and during the trial. The absence of the father's family from the mother's life since separation is a significant statement of the willingness of the father's family to be a support to the mother and the child.

The mother described traumatic experiences from her relationship with the father. These are some examples of the conduct of the father that have left the mother with difficult memories and emotional damage:

(a) The mother was raised in a conservative family, and it was unacceptable and shocking to her to meet someone who smoked marijuana, drank a lot, engaged with sex workers, and watched pornography;

(b) The father was seeing prostitutes regularly at his home and other locations, in Toronto and when he was away on business trips;

(d) The father demanded that the mother abort the baby, on learning of the pregnancy, and asked the mother to trade babies with her sister, who had given birth to a boy at the same time;

(e) The father did not want the child to learn Mongolian and demanded that the mother not speak to her in Mongolian;

(f) The father threatened to keep the child if they separated; and,

(g) The father withheld the child's legal documents, including her health card.

The mother has few friends here, and none are close. She has community involvement only as it relates to the child's activities. The isolation experienced by her has had an impact on her psychological and emotional well-being.

The Mother's Plan for Living in Mongolia

On 25 June 2018 the mother notified the father by e-mail of her intention to relocate to Mongolia with the child. She intends to live in Ulaanbaatar, the capital city of Mongolia. She proposed that she would "do her best" to maintain the father's contact with the child, and to keep the child's English.

The mother's evidence is that Ulaanbaatar is a big, cosmopolitan city (population one million), offering similar choices to Toronto (including parks, the arts, and restaurants).

The mother plans to initially live with her parents, in the two-bedroom apartment of her grandparents. The child's maternal grandparents are both retired teachers.

The mother then plans to sell two apartments there (one is her apartment, currently in the name of the maternal grandmother, and one is held in trust for the child) and to purchase an apartment near the apartments of the maternal grandparents and the child's maternal aunt, to live in with the child. The plan is for the mother and child to move into the new apartment in fall 2019. The child will have her own bedroom for the first time.

The Mongolian school year calendar is as follows:

Period	Dates
School year starts	1 September
Winter break	Mid-December to mid-January for three to four weeks. During extreme cold conditions, the break can be longer, up to five weeks
Spring break	One week in the second half of March
School year ends	End of May. If the winter break was longer, the school year may end a week later
Summer break	1 June. If the winter break is longer, the school year ends a week later

The child has lived her whole life in the Greater Toronto area. Her first language is English. The child does not speak Mongolian, but understands it at about a 40% level (the mother says). The mother spoke only English to the child at home, as she wanted the child to be a proficient English speaker. The mother says that the child can understand Mongolian in the household environment. The child has been to Mongolia once with the mother, when she was two years old.

The father raised language concerns about the mother's plan to relocate with the child. The mother says that the child participates in video conference calls with her family members in Mongolia, including her cousins, who speak only Mongolian.

The mother intends for the child to become fully bilingual in English and Mongolian, and for the child to continue to be fluent in English. The child will attend English immersion school in Mongolia. The classes are 50% in English and 50% in Mongolian. It is a private school that the mother will pay for (tuition, books and uniform). The school has an intensive and advanced curriculum.

The child will be enrolled in activities (ballet, swimming, a private tutor for piano, and an English speaking tutor for vocal).

The child will be exposed to the mother's friends in Mongolia, who all speak English well.

The mother believes that she has more and better opportunities to flourish financially in Mongolia, with the support of her family both in her professional career and in her family business venture.

The maternal grandparents have historically been financially supportive of the mother and the child, sending money since the separation. The mother believes she would be better able to provide for the child in Mongolia.

The mother will be getting short-term (three to nine months) consulting contracts within a short time of arriving in Mongolia through her friends, university contacts and former co-workers. This work pays much higher in Mongolia than regular employment (e.g., from $3,000 to $8,000 U.S. per month) and offers flexible work hours.

The mother will also get financial support from the maternal grandparents to pay the one-time costs (e.g., the child's tuition fees). The maternal grandparents have deposited $5,000 into a bank account for the mother in Mongolia.

The mother also expects to earn income from her business (that she started in Canada with her sister). The mother intends to continue this business in Mongolia, selling other items. She expects to be able to work on creating products and the steps needed to take the business to the next level, and not to be spending time on administrative work (as she was in Canada).

If the mother moves to Mongolia, she wants the father and the child to maintain a good relationship, and she is confident that they can.

Evidence about the Gordon v. Goertz Criteria

The Existing Custody Arrangement and the Relationship between the Child and the Custodial Parent

The mother is the child's primary care-giver and has been since birth. The father acknowledges that the child has a close and loving relationship with the mother.

The Existing Access Arrangement and the Relationship between the Child and the Access Parent: The Father's Relationship with the Child

The mother was clear at the outset of the trial that she was not looking to sever or impair the father's relationship with the child and that she had always been supportive of the father's role with the child. The mother says that she recognizes the importance of maximizing the father-daughter relationship and has always done so since separation.

The father has a good relationship with the child. The mother says that the child has developed a strong bond with her father and enjoys spending time with him.

The mother says that the father is a good father. She says that the time that the father and child spend together is good for the child, the child looks forward to seeing the father, and their relationship is affectionate. The mother said that she wants the child to grow up knowing and feeling that she is deeply loved by her father.

Since spring 2016, when the mother moved to Brampton to facilitate the father's contact with the child, the parents have lived in close proximity to one another. In spring 2017 the parents both moved to downtown Toronto. The parents currently live very close to one another in the Yonge-Eglinton neighbourhood of Toronto. Their homes are about a 10 minute walk apart.

The current access schedule is every other weekend from Friday 5.00 p.m. to Sunday 5.00 p.m.. In addition to the access regular schedule, the parents shared holidays, as set out in the court order. The father had vacation access and travelled with the child outside Canada to the U.S. twice, each time for a few days.

Although the order of 2016 specified weekend access, there was not overnight access at the father's home until January 2019. The parents agreed that the child was not ready for overnight access. The child was unwilling or unable to sleep over-night at the father's home until recently. The parents live in close proximity and the child wanted to return to the mother's home at night. It is to the credit of both parents that they were able to accommodate the child's comfort level about this, and to progress at her speed. The father's access was daytime access on the weekend days. There was overnight access with the father at the paternal grandmother's home in Peterborough when they visited there, and on camping trips.

The child has adjusted to spending overnights at the father's home, and now spends most Saturday nights there, even on the weekends she is with the mother.

The parents have been able to be flexible about the access arrangements since the consent order in 2016. The father acknowledged that in general terms, the mother had never denied access. These are examples of arrangements varying access that the parents have made since the 2016 order, the mother's level of co-operation with the father about access arrangements, and the steps the mother has taken to maximize the father-child relationship:

(a) The father has always been the first person the mother would approach to care for the child in her absence;

(b) The father often saw the child on the mother's weekends with the child, for Saturdays overnight;

(d) When the father wanted to take the child to Peterborough to celebrate Thanksgiving or Easter, the mother agreed. She does not celebrate these holidays;

(e) The mother moved in March 2016 to Brampton with the sole purpose of increasing the time the child could spend with the father. In Brampton, she lived two blocks away from the father and as a result, the father and the child spent more time together, more frequently, and the bond developed. In this move to Brampton, the mother sacrificed her career prospects, as the job options were limited and there was limited childcare (compared to Toronto);

(f) When the father had a breakdown in December 2016, the mother allowed daily access, supervised by her, even when the Children's Aid Society advised her to stop the access; and,

(g) The mother encouraged regular telephone contact between the father and the child.

The child is interested in music and dance, and is interested in nature. The father took the child to ballet lessons. He registered the child in a musical theatre program at summer camp, with singing and dancing, which she really enjoyed. He registered her again for this program in the fall and winter of 2018. The father has also taken her to Riverdale Farm, the trampoline park, the Toronto Zoo, on camping trips, Centre Island, Pioneer Village. The father and the child watch hockey games together. The father has been involved in the child's school (she is in Senior Kindergarten).

The father has a very large extended family in Peterborough. The paternal grandmother, and her husband, the paternal uncle and his wife, and the paternal great-grandmother live there. As well, there are 21 cousins from the side of the paternal grandfather (who is deceased), and there are 15 children on that side. There are a number of large family events there each year, which the child participates in. Three members of the father's family gave evidence at the trial.

The Desirability of Maximizing Contact between the Child and Both Parents

The mother is aware that if she is allowed to move to Mongolia with the child that the father's regular contact with the child will be reduced, due to the distance between them and the cost of travel. She proposed a detailed plan for access, set out in her Plan of Care document filed at the trial.

The mother understands that the child's physical distance from the father is going to be difficult for the child.

The mother will encourage the child to have regular video chats as often as possible with the father. She will also organize this contact with the child's best friend in Canada.

Of course, the access schedule proposed will result in very different contact between the father and the child than they currently have.

The father believes that the consequences of the move for the child outweigh any possible benefits to the child.

The father believes that it would be impossible for him to continue to grow the relationship he now has with the child if she is permitted to move to Mongolia. He is concerned that he would miss out on her day-to-day life and activities.

The father is concerned that daily contact with the child through the use of a web-camera is no substitute for physical contact.

The mother is committed to the father and the child maintaining a good relationship. The mother has always been supportive of the father's role with the child.

The Views of the Child

At this age, five years old, the child's views about a possible move to Mongolia will not assist the court, and have not been canvassed or presented. Nor should they be.

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

Although the case law is clear that the mother's reasons for moving are not relevant, countless relocation cases address this issue and deal with it extensively. This is a principle of law, from Gordon v. Goertz, that is more observed in the breach. The mother gave extensive evidence about the reasons for the move, and those reasons are a relevant factor in this case.

The fact that the mother's financial life will be better in Mongolia and her life as a single parent will be easier there are not the only reasons that the mother wants to return to Mongolia.

The evidence about the reasons for the mother's move to Mongolia fell into several categories:

(a) Economic reasons;

(b) Family support; and,

Economic Reasons

The mother came to Canada in January 2010 (nine years ago). The parents lived together from January 2013 and separated in September 2014. The mother has been on her own as a single mother for over four years. The mother has been trying to make a secure life for herself and the child.

The mother's evidence set out in great detail the extensive efforts made by her since she first came to Canada, and since she and the father separated in 2014, to obtain work at the level consistent with her education, ability and experience. She has been entirely unsuccessful over a long period of time and despite making many efforts.

The mother believes she will not be able to build a successful professional career in Canada. But in Mongolia, her education, ability and experience is accepted without doubt. In Mongolia, she had many connections and professional networks, and friends and colleagues, many of whom hold high ranking positions at big companies, with international organizations, and in government. All of her past employments in Mongolia were found through or offered by her friends and former co-workers. Her expectation is to find a permanent, full-time job there as a mid-level professional with an international organization or foreign company.

In 2018 the father's income was $114,876, and the mother's total income from several sources was $38,380. In 2018, the father earned about three times the income that the mother had available for herself and the child. Surprisingly, the father described the child's current standard of living with the mother as good, despite the fact that the mother is supporting herself and the child on Ontario Works, child support and other government benefits.

Family Support

The mother's family are all in Mongolia. This includes the child's maternal grandparents, maternal aunt, cousins, uncles, aunts, nieces and nephews. The mother will get day-to-day support from her family in Mongolia.

The mother's family has shown their level of commitment to her and the child in the support that have given her already. The maternal grandmother and the maternal aunt both came to Canada to help the mother when the child was born. The maternal grandmother was at the hospital when the child was born. The maternal aunt had given birth herself a few months earlier, and brought a young baby with her to Canada. They stayed at the parent's home for about six months. The maternal grandmother, who spoke no English, made trips from Brampton to downtown Toronto, on public transit, to visit with and to help the mother and child at the hospital.

The mother's family has also supported her financially since the separation.

No–one from the father's family came to help, or even to visit the mother and child at the hospital. There is no evidence that the father's family is a support for the mother if she remains in Toronto. None of them live in Toronto. The father's family have not been a supportive presence in the mother's life in the four years since separation. The father's family members have not contacted the mother since separation, have not sent gifts, or money, or made telephone calls to see how she has been doing. In fact, quite the opposite: the starkness of their absence from the mother's life and the child's life in Toronto, particularly in the face of their closeness as a family, is quite telling.

The Mother's Mental Health, Isolation and Loneliness

The mother has not been successful integrating into life in Canada. The mother tried but was unable get her driver's license. She legally changed her first name to try to fit in in Canada. She tried to change her faith from Buddhism to Christianity but this was unsuccessful.

The mother feels socially isolated and experiences challenges trying to raise the child on a fixed and modest income. She had many plans regarding what she hoped to achieve in her life in Canada, and she was not succeeding. She feels ongoing financial hardship and stress and has struggled to be accepted professionally. She is fearful about whether she can provide the child with stable financial security. She says that the separation and the two years of litigation have been hard on her. She has no family in Toronto and no family support here. She is left feeling isolated, lonely and unhappy.

The mother's evidence detailed all of the counselling resources she pursued, which were significant, and included community referral sources, community resources, and her family doctor. She began seeing a counsellor for help with her mental well-being in 2015, and, with some breaks in their contact, is still seeing her.

Disruption to the Child of a Change in Custody

There is no claim for sole custody by the father. But the father has claimed joint custody whether the child is permitted to move to Mongolia or not.

Father's Claim for Joint Custody

The father seeks joint custody for these reasons:

(a) If the mother is permitted to relocate with the child, he believes he will have an easier time enforcing the court order in Mongolia if he is a joint custodial parent; and,

(b) If the mother is not permitted to relocate to Mongolia, he wants more say in decisions affecting the child's welfare.

The father's claim for joint custody (brought on 15 August 2018) was brought in response to the mother's claim to relocate with the child. He acknowledged that he had made no claim for joint custody before this. There was no evidence that he would have sought joint custody had the mother not sought to move with the child.

The father says that he has been an involved parent, including when the child was an infant. The mother disputes this. He says that he has spent a great deal of time with the child in the last three years. The mother says that the father did not show this level of interest in the child before she started the court case asking to relocate to Mongolia.

While the mother says that the father is a good father, she says that he is not capable of being a sole custody parent. He is capable of caring for the child during access.

The mother says that the parents have a limited history of co-operation when it comes to making major decisions about the child. She says that their communication is poor such that they rarely have face-to-face communication. This was not disputed by the father. Even the father admits that he and the mother sometimes communicate well, and sometimes do not. He admits that they get into conflict when e-mailing about arrangements for the child. He says that they have been able to co-operate in some areas.

When the mother told the father in June 2018 that she was planning to relocate to Mongolia with the child, he overheld the child and kept her with him. He decided to seek an emergency hearing at court to secure possession of the child's passport. The parents met each other at court the next day and agreed to deposit the child's passport with her daycare. No application to court was started then. The mother then brought a motion to change the earlier order on 6 July 2018 to permit her to relocate with the child.

The Father's Claim for More Access if the Child Remains in Canada

The father wants more time with the child, if the mother is not permitted to relocate to Mongolia. He says more time is appropriate given the changes in the child's age (about two and one-half years old when the original consent order was made, and now five years old). The consent order also provides for "liberal and generous" access, which has happened (that is, flexibility in the access arrangements, and additional access above the schedule provided in the consent order). He notes that the parents have consistently lived near each other for the past three years. He asks for a more defined access schedule to assist in reducing the conflict between the parents over scheduling. He wants a schedule that moves towards an equal time sharing, recognizing that the child is not yet ready for that.

The mother is agreeable to more access if the child remains in Canada, but not at the rate of increase proposed by the father. She says that time should be taken to allow the child to adjust to changes in access, particularly as the child has only begun to sleep over-night at the father's home in January 2019.

The mother is also concerned about the consequences for child support if the custody arrangement is changed to become an equal time-sharing. The father acknowledged that he would seek to reduce child support below the table amount of support if the custody arrangement is changed. She points out that if the child support is reduced as a result of time-sharing, that she would be unlikely to be able to afford the rent in the current area they both reside (Yonge and Eglinton), forcing her to move away from there, and away from the close proximity the child currently has to both parent's homes (a proximity which has allowed for flexibility regarding access).

Disruption to the Child Consequent on Removal from Family, Schools, and the Community She Has Come to Know

This child is five years old at trial. She is in senior Kindergarten, and her transition to another school will have some but not significant disruption. She is not yet connected to a community, to a school, or to a group of friends, in the way that older children are. She has a limited connection to the community due to her age. It is much easier for this child to make such a move than for an older child, who may be connected to a community, to a group of friends, to a day-care, to a school, to an extended family.

Child Support

The father is seeking an equal time sharing arrangement if the child remains in Canada, and would then seek that child support be set off under s. 9 of the Guidelines, and thereby reduced below the table amount of support.

8. Analysis and Decision

The Risk of Bias

Mongolia is a country that is far from Canada and may appear remote. It is bordered by Russia and China, and is nearly 10,000 kilometers from Toronto. It is also a country that Canadians are less familiar with than other countries. For example, a significant number of relocation cases that are reported deal with a request to relocate to America or to England, countries that are well-known to Canadians.

The fact that the court or the father might not know much about Mongolia, or might see it as foreign, unknown and remote should not determine or even influence the outcome of the mother's request to relocate there. Familiarity with the country involved is not part of the test for a court to decide a request to relocate with the child. The case must be decided on other issues. The court must guard against the risk of bias due to unfamiliarity with this country.

The issues for the court to determine are these:

(a) Has there been a material change in circumstances since the original order that affects or is likely to affect the best interests of the child?

(b) Is an order for joint custody now in the child's best interests?

(d) If the mother is permitted to move with the child, what are the access arrangements that are in the child's best interests?

(e) Has there been a change in circumstance that warrants adjusting child support, and if so, from what date?

Has There Been a Material Change in Circumstances since the Original Order that Affects or is Likely to Affect the Best Interests of the Child?

The mother's request to move with the child to Mongolia qualifies as a material change in circumstances.

Is an Order for Joint Custody now in the Child's Best Interests?

In determining custody and in assessing the best interests of the child, the court should have regard to the best interests considerations set out in s. 24(2) of the C.L.R.A. The court considered these factors in determining whether to change custody to joint custody.

A claim for joint custody should not be brought as a knee-jerk reaction to an unpopular decision by the other parent. That is not a child-focused action. Neither should a parent react to the news of such a decision by over-holding the child, or making threats, like the father did. That behaviour is certainly not the behaviour of a suitable joint custody parent. In these circumstances, where there is an existing consent order for sole custody to the mother, there must be a material change in circumstances before the court can intervene and change custody.

The child has lived her whole life with the mother. The mother is her primary caregiver, and her only caregiver. Moving the child to another caregiver would be unthinkable, would not be in child's best interests, and the court would not do that. The father did not make this claim.

While the father claimed joint custody, this case is not a custody case; it is a case about the request to relocate with the child to Mongolia, and if that request is granted, it is then a case about the father's access, notwithstanding the father's claim for joint custody.

There is no evidence to support a change in custody, and no basis on which to change the consent arrangement of sole custody to the mother.

Is it in the Best Interests of the Child to Permit the Mother to Move to Mongolia with the Child?

The relocation issue cannot be addressed or decided in a vacuum independent of consideration of what custody arrangement is in the child's best interests. Decisions in relocation cases require a delicate balancing act. The court must consider all the facts and factors involved. The court must weigh the benefits of the move to the mother and the child, and compare those benefits to the losses that would result from the move.

It is essential for the court to examine what is in the best interests of this child. Is this child better off moving to Mongolia with the mother, or staying in Ontario with the mother? Those are the only options and claims that are before the court. And if the court allows the move, will the benefits for this child outweigh the losses, if any? That is the real question here: is the move in this child's best interests? Is the move a positive for this child?

Decision-making in relocation cases is not scientific. There is no formula and no template for analysis. These decisions involve the exercise of the court's discretion, taking into account the legal framework and all of the circumstances, to determine if such a move is in the best interests of the particular child involved.

Courts deal with relocation on a case-by-case basis, applying the principles set out in Gordon v. Goertz. One of the most unfortunate effects of Gordon v. Goertz has been its emphasis that there are no presumptions, no subordinate guidelines, nothing but individualized decision-making in relocation cases.

In weighing the benefits of the move and comparing those benefits to the losses that could result from the move, careful attention must be paid to the potential negative effects on the child should the custodial parent be restricted from relocating.

The court considered the factors set out in s. 24(2) of the C.L.R.A. in determining whether or not the mother should be permitted to relocate to Mongolia with the child.

The court accepts that the mother and her family in Mongolia have a loving and strong relationship. The mother's family has repeatedly made the mother and the child a priority in their lives (which the father and his family have not done), and they will continue to do so, particularly now, as the mother really needs their help. She will not be struggling in Mongolia. She is struggling in Toronto and will be struggling as a single mother living alone, even if she is receiving the proper table amount of child support and the father's proportionate share contribution to s. 7 costs.

There is no evidence that the father's family is a support for the mother if she remains in Toronto. None of them live in Toronto. The father's family have not been a supportive presence in the mother's life in the four years since separation.

One of the factors a court should carefully assess before limiting a custodial parent's decision to move with the child is the economic effect of its decision on the child. But the fact that the mother's financial life will be better in Mongolia and her life as a single parent will be easier there are not the only reasons that the mother wants to return to Mongolia.

The court considered all of the following: that the mother feels isolated and insecure in Canada; that she would benefit from the support of her family and friends in the other location; that her employment prospects are better there; that the child will benefit if the mother is able to become independent and live in a stable environment; and that the child will suffer if the mother is restricted and remains insecure.

The court accepts that the mother and the child will have a better life in Mongolia. The mother will be financially more secure. She will not be isolated in Mongolia. She will have help from her family financially and with child care, for as long as she needs it.

Requiring a parent to stay in a community isolated from her family and social supports, and in difficult financial circumstances would have an unquestionable adverse impact on the child in her care. The court must consider the advantages of a move to the moving parent in respect to that parent's ability to better meet the child's needs.

By returning to her home country, the mother will become financially self-supporting. She will regain her confidence and her emotional, psychological, social and economic well-being. This will have a positive effect on the child. The child's environment will be much improved.

There is also a psychological, social and emotional component to her desire to move, in order for her to regain the general stability and control in her life that has been absent since the relationship with the father ended in September 2014. There is a connection between the quality of a parent's emotional, psychological and social and economic well-being and the quality of the child's primary care-giving environment.

An improvement in the mother's physical, emotional, and financial circumstances can only benefit the child and therefore be in the child's best interests.

It is in the best interests of a child to be in the care of a parent who is happy and who feels secure, and thus the parent should not be denied the opportunity to be the most fulfilled person she can be.

In some relocation cases, the move proposed is relatively neutral from the child's perspective, aside from reducing contact with the stay-behind parent. That is not so in this case. This is not a neutral move for this child. On balance, and taking into account all the issues for consideration, including the reduction in contact with her father, this move is still a positive event for this child.

The court seriously considered the relationship between the father and the child, and the disruption to that relationship that may result from a reduction or a dramatic change in their time together. The importance of the father's contact in this case cannot override the positive effects that the move will have for the child. The advantages for the mother and the child in moving outweigh the disadvantage of the possible reduction of contact with the father.

Caitlyn will remain in the primary care of her mother, who will be happy, living in a supportive environment, and financially secure. It is in the best interests of Caitlyn that her mother be permitted to move to Mongolia and to take Caitlyn with her. The mother may move to Mongolia with the child immediately.

If the Mother is Permitted to Move with the Child, What Are the Access Arrangements that are in the Child's Best Interests?

The mother has taken extensive steps to maximize the father-child relationship and to ensure that there is contact between them. This is not disputed. There is no evidence to suggest this would not continue if she is permitted to move with the child to Mongolia.

There is no doubt that the father loves Caitlyn and wishes to be involved in her life and have as much contact as possible with her. The court took into account the need to ensure that parents have as much contact with children as possible, consistent with their best interests, and the importance of the father maintaining access to Caitlyn, which is especially significant for young children.

There is no question that a move to Mongolia by the child will dramatically change the kind of contact the father has with the child. Nothing can replace physical contact. The father's relationship with the child may also change, and it will evolve over time. This relationship would be evolving over time even if the child were living in the same city as the father. If the child relocates to Mongolia, there will be many opportunities for extended time together, particularly as the child can come for lengthy stays during school vacation times.

Courts have recognized, in permitting a parent to move away with children, that modern-day technology has made it significantly easier to overcome the distance problem with respect to access and maximizing contact with the other parent.

Technology is constantly evolving and will no doubt present opportunities for forms of contact not thought of by either parent or the court. There is no doubt that both parents are committed to ensuring the father and the child have as much contact as possible, and in as many formats as they can devise.

The extended paternal family offers the child loving and beneficial relationships, and she is developing relationships with her father's family. But these relationships are limited by her age and the infrequency of her contact with them, bearing in mind that none of her father's family lives in Toronto. If permitted to move to Mongolia, this will be disrupted and will change, but the longer visiting time proposed can accommodate the continuation of these significant and positive relationships.

The mother is committed to the father and Caitlyn maintaining a good relationship. The mother has always been supportive of the father's role with the child.

Mongolia is far from Toronto, and the cost of travelling there is high. In determining an appropriate access schedule, the court took into account the time it will take the child to travel between residences and the cost of that travel.

The child has extended periods off school in Mongolia, periods which appear to be slightly longer than those in Canada. She is off for three full months in the summer. She is off for three to four weeks in December (sometimes longer, (five weeks) if the weather conditions are extreme). These are periods during which the child can come to Canada to be with her father. He can also take her away for vacations during this period, should he choose. This schedule will offer the father and the child extended periods together.

The child may not yet be ready, in 2019, for 10 to 12 weeks away from the mother in the summertime. The summer access in 2019 and 2020 should be for shorter periods, until the child is more accustomed to this new regime. The December access will not be affected by this.

Although this was not argued by either parent, and neither parent offered the court such a calculation, it likely that the total number of days and nights the father will spend with the child under this schedule is the same as or close to the number of days and nights the father and child spent together under the schedule in the order of 9 August 2016 (with the changes that the parents made to this schedule).

The mother shall pay for the cost of the travel for the summer access and the December access. The father may also go to Mongolia to see the child. The father shall pay for those travel costs.

Has there been a Change in Circumstance that Warrants Adjusting Child Support, and if so, from What Date?

At the end of the trial, if the mother were permitted to relocate to Mongolia with the child, both parents were claiming the table of child support, based on the father's current income, and that the mother would then pay for the cost of travel (on a particular schedule). Both parents asked the court to rely on the father's 2018 income of $114,976 for child support purposes, and each suggested different start dates for this adjustment.

The original order made on consent on 9 August 2016 provided for child support of $876 per month on income of $99,500 from 1 March 2016.

The father's income has fluctuated since the order was made. This is the father's income history since then:

Year	Line 150 Income
2015	$100,958
2016	$97,805
2017	$94,802
2018	$114,876

The father proposed that child support should be adjusted to reflect his current income, and proposed the table amount of $1,027 per month on his 2018 income of $114,876, from 1 June 2019. The mother proposed that the start date for this amount should be 1 January 2018. Both proposals were based on the mother and child remaining in Toronto.

The father's actual income is available to the court for the years since the original order. Child support should be adjusted to be the table amount for the years in question based on his income for each year (i.e., 2016, 2017, 2018), since the time of the original order. Adjustments in support can start in March 2016 (the start date of the original order).

9. Orders

The order of W. Sullivan, J. made 9 August 2016 is changed.

The mother may relocate with the child to Mongolia.

The father shall have the following access:

(a) 10 weeks in the child's summer break from school, every summer, starting in summer 2021. In summer 2019, this period shall be four weeks. In summer 2020 this period shall be six weeks. This access shall be in Canada, or another location of the father's choice;

(b) Three to four weeks during the child's December break from school: three weeks if the entire December break is four weeks long, and four weeks if the entire break is longer. This access shall be in Canada, or another location of the father's choice;

(c) The father shall pay the full table amount of child support (set out below) and the mother shall pay for the airfare costs of the scheduled access in this order (i.e., the December visit and the summer visit);

(d) The parent who is next getting the child to be with them shall be the parent who does the travelling and pick-up of the child, i.e., the father shall go to Mongolia to pick-up the child for the start of his access, and the mother shall go to Canada to pick-up the child at the end of the access. If the child is staying somewhere other than Mongolia or Canada at the start or end of the access, the parent picking up the child shall go to that location;

(e) The child will not travel unaccompanied (or as an unaccompanied minor) on any trip which requires changing flights. The parents may agree, at some point in the future, that she may travel as an unaccompanied minor on such trips. If the parents do not agree, either parent may return this matter to court;

(f) The father can have access to the child in Mongolia any time during the school year during the child's school breaks, for up to two weeks, on one month's notice. This access is to take place in Mongolia until the child turns eight years old, and after that, may be at another location of the father's choice. The mother shall assist the father in finding a suitable accommodations in Mongolia (a middle-class, furnished apartment). If the father comes to Mongolia for additional visits, he shall pay the costs of this airfare;

(g) The father can contact the child electronically (through Skype, Facetime, or any other appropriate program) two times per week, at times to be agreed by the parents, taking into account the child's schedule and the twelve hour time difference between Toronto and Ulaanbaatar; and,

(h) The father may call the child once per day. The child may call the father whenever she wishes.

Both parents may travel with the child outside their home countries without the consent of the other parent. Each parent doing so shall provide the other parent with an itinerary and contact information for the child. Each parent shall always be able to contact the child, should that be necessary.

The father's claim for joint custody is dismissed.

The father shall pay child support to the mother, according to the Child Support Guidelines table amount, for one child, as follows:

(a) From 1 March 2016, $862 per month on income of $97,805;

(b) From 1 January 2017, $838 per month on income of $94,802;

(d) From 1 January 2018 $1,027 per month on income of $114,876.

Father shall produce to mother every year by 1 July, starting in 2020, copies of his Income Tax Returns and Notices of Assessment pursuant to s. 24.1 and the disclosure requirements of the Child Support Guidelines.

Each parent shall pay for the costs of s. 7 special and extra-ordinary expenses, according to the Child Support Guidelines, incurred by them for the child in their home region without contribution from the other parent.

The other claims made by the parents not otherwise specifically addressed are dismissed.

Released: 2019-07-05

Justice Curtis