Court File and Parties

BARRIE COURT FILE NO.: FC-15-568-00 DATE: 20170109 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Melinda Hollefriend Applicant – and – Larry Cole Respondent

Counsel: Mark Kowalsky, Counsel for the Applicant Donna Macfarlane and Beth Kibur, Counsel for the Respondent

HEARD: May 25, 26, 27, 30, 31, June 1, 2, and 3, 2016

Reasons for Decision

JARVIS J.

[1] In a Preliminary Judgment dated July 22, 2016, the mother’s request to relocate the child’s residence was denied, with written Reasons to follow. In addition to the mobility issue, each party made custody claims. The mother also requested child and spousal support. These issues were reserved.

Background

[2] The following background facts are relevant:

(a) the mother, Melinda Hollefriend, is 45 years old, and the father, Larry Cole, is 51 years old;

(b) the mother has four children from a previous relationship and the father has two children from a previous relationship;

(c) when the parties met in 2001, their respective children were primarily resident with them;

(d) the parties began cohabiting in August 2002, combining their respective households. On December 8, 2002 a child, SEC, was born to the parties. He is 14 years old;

(e) SEC was born with significant health challenges. He was diagnosed with Cerebral Palsy, and presents with developmental, mobility, communication and other serious health concerns, one of which is Marfan syndrome, a potentially life–threatening genetic disorder affecting the body’s connective tissue;

(f) the parties separated in late October 2003. The mother and her children left the parties’ shared residence to reside elsewhere. The residence was owned by the father. The circumstances of the parties’ separation are not pertinent to the issues before the court: suffice it that the parties were no longer able, or willing, to reside together. They did, however, maintain their personal relationship;

(g) since the parties separated, SEC has resided with his mother. The father has exercised access to SEC. Although decisions about the child’s care were jointly made, it was the mother who initiated, often championed, the care decisions to which the father almost always acquiesced;

(h) the mother has significant health challenges. In addition, the two younger of the mother’s children have a number of health challenges involving anxiety; eating, hearing, and obsessive-compulsive disorders; language comprehension issues; and Tourette’s Syndrome, which is a neurological development disorder;

(i) at the time of trial, the mother resided in Penetanguishene (“Penetang”) and the father resided in Barrie;

(j) on or about April 7, 2015, the mother told the father that she was planning to move to the Ottawa area with SEC;

(k) by lawyer’s letter dated April 16, 2015, the father notified the mother’s lawyer that the father opposed the move;

(l) on or about May 7, 2015 (that is the date identified as the date for the Agreement of Purchase and Sale, although the Agreement was not concluded until May 10, 2015), the mother purchased a rural residential property in Apple Hill, Ontario, having a completion date of July 10, 2015. The maternal grandfather was identified as a co-purchaser to assist the mother in qualifying for a mortgage. Apple Hill is about 89 km southeast of Ottawa and about 582 km from Penetang (about five-and-a-half hours of estimated driving time);

(m) on July 2, 2015, Graham J. made a temporary Order that SEC reside within a 100 km radius of the City of Barrie;

(n) on August 4, 2015, Wildman J. made an Order that, among other things, appointed an assessor (Paula Carter) pursuant to section 30 the Children’s Law Reform Act, R.S.O. 1990, c. C.12, to undertake a custody and access assessment of SEC;

(o) on October 14, 2015, Ms. Carter delivered her Assessment. Her most important recommendation was that the mother not be permitted to move as proposed. Other recommendations included expanded, graduated parenting time between the child and his father;

(p) on October 26, 2015, the Children’s Aid Society of the County of Simcoe (the “Society”) received a complaint from the father about possible physical abuse of SEC by the mother. By early February 2016, it was clear that the protection concern could not be verified. There was some evidence that there was a protection concern involving the father in early 2016, which also did not proceed;

(q) on November 12, 2015, Sutherland J. made an Order that, among other things, dealt with the father’s access to SEC, communications between the parties and disclosure;

(r) on February 14, 2016, the mother signed an agreement to sell her Penetang residence. This transaction was scheduled to be completed on June 30, 2016;

(s) the trial in this matter started May 25, 2016 and concluded on June 3, 2016. Closing submissions were made in writing and were completed on June 28, 2016, two days before the completion of the sale of the mother’s residence; and

(t) on July 22, 2016, a Preliminary Judgment denying the mother’s request to move the child’s residence with her as she proposed was denied, with written Reasons to follow.

[3] In addition to setting out the court’s reasons for denying the mother’s proposed move with the child, the outstanding issues are:

(a) what should be the parenting arrangements for the child? Specifically, should sole or joint custody be ordered?;

(b) determination of the commencement date for child support and the amount payable; and

(c) whether the mother is entitled to spousal support and, if so, its amount and duration.

The Evidence

[4] Each of the parties testified. In the father’s case, his evidence-in-chief was tendered by affidavit, then supplemented by viva voce evidence. Both parties were vigorously cross-examined.

[5] The mother called as witnesses a clinical psychologist (Melanie Telegdi) who had provided counselling to the mother and her two younger children before the events which gave rise to this litigation; an educational assistant (Melanie Coulter) from SEC’s former school; the mother’s eldest son (Devin Hollefriend); and a Family Service Worker (Mirielle Martin) who had been involved with the family after the father made an allegation of physical abuse of SEC by his mother, and who later investigated a complaint by the mother.

[6] The father called as witnesses a neighbour (Ms. Lise Major) who resided across the street from his residence in Barrie; his sister (Deborah Bailey), who resides in Coburg, Ontario; and one of his sons (Jeffrey Cole).

[7] Considerable documentary evidence comprising doctors’ notes, records and assessments about SEC, some dating from 2003, was tendered by the mother along with information about the mother and three of her biological children. Many of these were presumably intended to provide the historical context underpinning, and supporting, the reasons for the proposed move but reference to them was rare at trial. Both parties also relied on the considerable email exchanges between them.

Melinda Hollefriend

[8] The mother was born and raised in the Newmarket-Aurora area. Her parents continue to reside in their family home in Aurora. She married, then was divorced in 2001 or 2002. Four children were born of that relationship. After a brief work history, the mother was a homemaker after the birth of her eldest child in 1994. In what was described as relatively high conflict litigation between the mother and her former spouse, the mother succeeded in her claim for primary custody. Adjustment issues relating to their parents’ separation were experienced by the children and led to continued court involvement and family counselling, at first therapeutic then mediative, over a period of the following eight years, with Dr. Melanie Telegdi, a clinical psychologist. In 2012, Dr. Telegdi discontinued her services.

[9] The mother was about 30 years old when she met the father in 2000. He was 37 years old and had moved that year to Tottenham with two sons from his prior marriage. In the litigation involving the breakdown of that relationship, an assessment had recommended that the father have primary custody of the children.

[10] The mother and father began dating in late 2001. After learning that she was unexpectedly pregnant with SEC in the spring of 2002, the mother accepted the father’s offer to move to his residence, which happened in August 2002. The parties became engaged to marry. SEC was born prematurely on December 8, 2002. There were neonatal complications.

[11] In late June 2003, the parties moved from Tottenham to Horseshoe Valley into a home bought by the father. But not too long afterwards, the parties separated after an argument. They disagree on the details of this argument. Suffice it that the mother and the children moved to a rental property about 25 km distant.

[12] In the following years, the mother dedicated herself to, almost single-handedly, raising her five children, the younger three of whom had health, developmental and, particularly in SEC’s case, significant medical challenges. In April 2004, SEC was diagnosed as having Cerebral Palsy. His motor skills were very limited and it was reported by medical specialists that he required “significant care, more than what is expected for a child his age.”

[13] Despite their physical separation, the mother and the father maintained their personal relationship and, at least initially, a relationship with the other’s children. Examples included the mother picking up the father’s children from their school with her children, and the father attending at her residence after work to pick up his children. When the mother moved to Elmvale, the father helped set up her residence.

[14] The father saw SEC, mostly on weekends. Often the mother would take SEC to the father’s residence and spend the weekend there. However, frequent arguments punctuated the parties’ relationship. These led to times when the parties would not communicate for weeks, sometimes for three to four months, and SEC would not see his father. The father often said that the mother was “crazy”: she acknowledged that she wore her heart on her sleeve.

[15] The mother testified that the father struggled with accepting that SEC was a special needs child requiring consistency, structure and regularity of schedule. Unlike the father, she and the children living with her understood and communicated with SEC using American Sign Language (“ASL”) and other communication modalities. She was very involved with SEC’s school: the father was not.

[16] According to the mother, the parties’ relationship changed in 2011 as a result of her health. Earlier, in 2000, the mother had begun to experience hypertension episodes that lead to hospitalization and ultimately, in March 2006, to a diagnosis of systemic scleroderma, a potentially life-threatening disease of the body’s autoimmune system affecting its connective tissue. In 2008 she was diagnosed with Lyme disease, then, in February 2009, with Celiac disease. Between 2010 and 2011, she spent 19 weeks in hospital when her scleroderma worsened. There were several “Code Blues” where she experienced cardiac arrest and stopped breathing. During this time, she was totally reliant on her parents, her children and, to a lesser extent, the father for SEC’s care.

[17] Even though the father visited the mother in hospital, what changed the parties’ relationship (at least in the mother’s eyes) was his declaration that “he didn’t sign up to be sick with her.” Between January and April 2011, the parties saw each other less frequently.

[18] The mother left the hospital in June 2011 with a cocktail of medications that has since stabilized her health, although her blood pressure remains seriously high and she struggles with infections. Despite acknowledging at trial that her health was one of several considerations for her proposed move, the mother resisted the father’s pre-trial requests to produce her current medical records. None was disclosed at trial.

[19] Beginning in the spring of 2011, SEC began to spend overnights at his father’s home. Notwithstanding the mother’s description that the father’s reaction to her health development altered the emotional nature of their relationship, the parties continued, more or less, as before. Beginning in the summer of 2011, most summer weekends were spent at the father’s tent trailer: this continued into 2014. In November 2011, the father treated the mother to a Jamaican holiday to celebrate her 40th birthday.

[20] The mother relied on a network of contacts to care for SEC. In addition to the many healthcare supports needed, an elderly neighbour helped care for SEC in a respite capacity, as did the mother’s older children. SEC’s challenges impacted his schooling, leading in 2013 to the mother deciding to homeschool SEC, a task to which she dedicated countless hours and which SEC enjoyed and showed signs of progress.

[21] Between 2011 and New Years’ 2014, the episodic nature of the parties’ unsettled relationship continued as before. There were arguments between the parties. These often involved driving and, according to the mother, her unsuccessful attempts to have the father spend more time with SEC. Christmas 2014 and that New Year’s celebration were awkward and unpleasant.

[22] The parties had little communication in the early months of 2015. Then, on or about April 7, 2015, the mother emailed the father to tell him that she was thinking of selling her residence and moving elsewhere. She was involved at this time in child support proceedings with her children’s Hollefriend father. Over the course of the following days, she gave a number of reasons for moving:

(a) a reduction in her finances. The Hollefriend legal proceedings involved a potential reduction in child support. The mother also complained about her household expenses;

(b) she would have a better support system in the Ottawa area where her eldest two children were studying and where they would be living relatively nearby to respond to her health challenges. A better support system, she said, could improve SEC’s care;

(c) a reduction in travel time. The location she was considering was closer to hospitals such as the Children’s Hospital of Eastern Ontario (“CHEO”), therapeutic services and healthcare providers than her current residence;

(d) better schooling opportunities for her next oldest child whose high school was closing and who had been experiencing Obsessive Compulsive Disorder (“OCD”) and anxiety crises;

(e) a larger rural property that, while acknowledging it was a “sideways housing move”, offered more outside recreational space and small farming opportunities;

(f) the loss of respite care from the woman who had provided that care for many years; and

(g) the absence of extended family in the Penetang area.

[23] Despite the father’s offer to “try to help make up” any financial shortfall, the mother was as determined about her plans to move as the father was in opposing them. There were many email exchanges between them which alternated between respectful and unpleasant. Physical exchanges of SEC were unpleasant too, according to the mother, often involving the father making offensive hand gestures, sarcastic comments and mouthed epithets, some of which were noticed by SEC. As became apparent during the trial, this behaviour was not out of character for the father. His emails to the mother spanning a period of several years before trial were nothing less than emotionally abusive, accusatory and puerile and stood in stark contrast to those from the mother.

[24] The parties retained lawyers.

[25] Cooperation between the parties deteriorated. Court Orders were needed to set out the times that SEC would spend with his father. The Order made by Wildman J. on August 4, 2015 gave directions in the event that the father chose to bring “…a motion for further access or contempt …” The genesis for the court’s reference to contempt and its reaffirmation of the 100 km mobility restriction was that the mother had already made contacts with healthcare providers in the Apple Hill-CHEO catchment area and her next oldest child had interviewed, and selected one of, several schools there to attend. That child’s father had already been informed a month earlier by the mother about the child’s new address in Apple Hill.

[26] On October 26, 2015 the father made a complaint to the local Society about the mother’s care of SEC. After an investigation, the Society advised the parents that it was unable to verify any protection concern and closed its file in early 2016.

[27] The Order of Sutherland J. made on November 12, 2015 set out the times that SEC would spend with his father leading up to and including the Christmas period and, afterwards, alternating weekend and weekday overnight access. These arrangements continued to trial.

[28] The mother has proposed a final Order that, among other things, she have primary care and control of SEC and that the father have monthly access of four days’ duration, daily contact through technology and other communication devices and reasonable holiday time no longer than seven days at a time, to a maximum of 21 days a year. The father was to comply with the mother’s directions about SEC’s care when with him. Excepting the monthly access when the mother would meet the father at a half-way point to exchange the child, the father would be responsible for all other driving. The mother did not request a sole custody Order but requested that she be allowed to change the child’s surname to a hyphenated combination of his parent’s surnames.

Mirrielle Martin

[29] Ms. Martin is a Child Protection Worker with the Society. On or about October 26, 2015, the Society received a complaint from the father about physical abuse of SEC by his mother. Ms. Martin was assigned the complaint’s investigation. She interviewed the mother on November 3, 2015 at the mother’s residence. She also met with SEC. As Ms. Martin did not “sign”, SEC’s older half-sister interpreted: the mother was not present for this interview but was elsewhere in the residence. Both the mother and SEC denied any abuse. Based on the discussions held and observations made, Ms. Martin had no concerns about the mother’s care of SEC or his safety.

[30] Ms. Martin afterwards met with the father and told him that the Society was unable to confirm his allegations of physical abuse - there was no indication of SEC being hit by his mother, as the father had reported. As Ms. Martin described it, and as recorded in the notes taken of that meeting, the father was “very unhappy with these findings.” He described his relationship with the mother as “very negative”, portraying her “as a violent; horrible clingy person that (sic) was obsessed with him.” When the father was challenged why he was not seeking SEC’s custody, Ms. Martin testified that the father retracted his statements about the mother and stated that she was “a good mom” and that he only wanted more time with SEC. The father was upset. He described himself as a good father. He wanted a further interview of SEC undertaken, this time with an independent interpreter. Ms. Martin agreed.

[31] A second interview of SEC was conducted on December 10, 2015. An independent ALS interpreter was used. SEC’s answers were no different from those given when his half-sister interpreted. Ms. Martin also met with the mother, the half-sister, and SEC’s nanny. Ms. Martin formed the view, and recorded in her notes, that the mother had been mentally and/or emotionally abused by the father and she expressed her concern for the well-being of the mother and SEC. Ms. Martin advised the mother to contact an organization that provided domestic abuse support for women.

[32] After further inquiries, the Society determined that it was unable to verify any protection concerns. In a February 17, 2006 log report, Ms. Martin informed the father about the Society’s decision in a telephone call, which the father recorded. The notes describe the father as loud, argumentative and disrespectful, challenging Ms. Martin’s integrity and professionalism. The father was also noted as blaming everything on the mother and depicting her as horribly violent. Ms. Martin was very concerned that the father was engaging in “manipulative attempts at distorting information to destroy the mother’s credibility completely.” The father’s recording of that lengthy telephone discussion (75 minutes) was played in court.

[33] Not surprisingly, both parties asked the court to differently interpret Ms. Martin’s evidence.

[34] The mother relied on Ms. Martin’s testimony as underscoring the father’s manipulative and self-serving behaviour, more purposed for his benefit and to demonstrate his unimpeachable conduct as a parent than any real concern about SEC’s well-being which a move to Apple Hill would foster.

[35] The father challenged Ms. Martin’s impartiality, arguing that she had pre-judged his protection concerns before speaking with him and his son Devon Cole (the mother also had a son, Devin Hollefriend). She was not objective.

[36] This court has several concerns about the manner in which the Society’s investigation was conducted which raise doubt about the weight to be given to the worker’s evidence, not the least of which include these;

(a) the worker’s interview of the mother. Prominent in the notes taken of that meeting are the mother’s description of the benefits of her proposed move to Apple Hill and her disappointment with Ms. Carter’s “biased” assessment;

(b) the worker then interviewed the child using his sister as an ASL interpreter;

(c) the mother forwarded to the worker letters of support from two of the mother’s older children and the girlfriend of one of her sons, all of whom were then in Ottawa. Those letters expressed, among several other observations about SEC and the father, their support for, and their reasons for supporting, the mother’s move to the Ottawa area;

(d) two days before interviewing the father and one of his sons (to whom SEC was alleged to have made the comments which prompted the father’s complaint to the Society) the worker wrote to the mother to inform her that she had been unable to verify any protection concerns;

(e) the interview of the father did not go well. The worker’s notes disclose that after being informed that the protection complaint could not be verified, the father requested a second interview of the child using an independent ASL interpreter. The father was recorded as alternating between crying, making rude comments about the mother and contradicting himself about the mother’s general behaviour. Ms. Martin did not interview the father’s son to whom it was alleged that SEC had also told about the event giving rise to the father’s protection complaint;

(f) a further interview of the child was conducted. The worker noted that she advised the mother that the protection complaint was not verified but the worker noted her concern that the ongoing court process involving the mother’s proposed move was “re-victimizing someone who has been through mental/emotional abuse at the hands of this man. FSW is very concerned for [the mother’s] wellbeing and for [SEC]”;

(g) shortly before Christmas, the worker gave presents to the mother for SEC and her family;

(h) the Society made a decision in early 2016 to close its file, noting the outstanding “custody and access dispute between the parents” and that there was “limited information to suggest that there [was] an emotional impact on the child…”

(i) a telephone interview with the father was held in mid-February 2016 to confirm for a second time that no protection concern could be verified. The worker recorded the father as being “… very loud, argumentative, disrespectful by then questioning this worker’s integrity, professionalism and role.” She expressed her concern about the father’s manipulative behaviour. This was the discussion which the father recorded;

(j) shortly before a scheduled court appearance in early March the mother received a letter confirming that the Society had closed its file. The worker’s notes disclose a contact by the mother thanking the worker for a referral to a local service for victims of abuse. The mother reported more “abuse” from the father, that he was “trying to force himself into [SEC]’s appointments and is very resistant about access changes…”; and

(k) the Society declined to pursue reports by the mother that the child was being worried by his father about her health.

[37] The mother insisted that the tape of the discussion between the worker and father be played in court. It did not conform to the colourful description of the father’s comments as recorded by the worker. The father was upset but neither in tone nor language does the written record support the worker’s observations.

[38] The Society’s investigatory process was flawed almost from its inception and the worker, likely unwittingly, was enlisted in the mother’s cause in favour of the proposed move. Even before interviewing the father, the worker had decided that the protection concern was unverified. Ms. Martin was aware virtually from the outset of her investigation that there was ongoing litigation in the family court and that ought to have caused her to act in a more circumspect manner. While clearly sympathetic to the mother and SEC, the worker did not demonstrate that degree of impartiality to be expected. Gift-giving during the course of an on-going protection investigation was unwise.

[39] In the court’s view, each party inappropriately used the Society’s involvement for tactical purposes relating to these proceedings. What does emerge from this evidence is the father’s accusatory, often contradictory, attitude toward, and treatment of, the mother. Otherwise, no weight can be given to the worker’s evidence.

Dr. Melanie Telegdi

[40] Dr. Telegdi was called by the mother. She is a semi-retired clinical psychologist who, when in full practice, provided counselling services to the Hollefriend family between 2003 and 2010. These sessions related to parenting issues arising from the mother’s earlier marriage breakdown with her older four children’s father. In the legal proceedings between the mother and her former spouse, the mother had succeeded in moving with the children to the Penetang area over the Hollefriend father’s objection.

[41] Dr. Telegdi’s goal was to help the Hollefriend children have a better relationship with their father and his new partner, a relationship which she said the mother supported. Dr. Telegdi described the mother as intelligent and dedicated to her children, but emotionally challenged by her health status, that of two of her children and the stress of a high conflict parenting dispute. In a December 7, 2010 letter to a colleague, Dr. Telegdi described the mother as “easily grateful, overly apologetic, proactive and deeply concerned for the children’s needs.” The mother’s relationship with the father in this case was briefly described in that letter as “volatile” and “massively draining and emotionally abusive” for the mother.

[42] In early 2012, the mother asked Dr. Telegdi to help mediate issues involving the Hollefriend children and their father. Little progress was apparently made. Dr. Telegdi informed the mother and her former spouse in March 2012 that she saw no useful purpose in continuing to act as a mediator and so discontinued her services for “time and personal reasons.”

[43] Relevant to the issues in this case are the descriptions of the mother’s dedication to her children and her support of their relationship with their Hollefriend father. The passing reference to the mother’s relationship with the father in this case was never the focus of Dr. Telegdi’s involvement and not explored further in her testimony. It does shed some light on the mother’s description about the history of her relationship with SEC’s father.

Melanie Coulter

[44] Ms. Coulter acted as SEC’s educational assistant at school for five years, from JK to Grade Three. She knew ASL and communicated with SEC using that approach as opposed to an augmentation device because SEC found that easier. In 2010 she agreed to act as legal guardian for SEC if both of his parents died, and was also asked by the mother to be an emergency contact person.

[45] Ms. Coulter testified that the mother was very involved with SEC at school, attending all the child’s parent-teacher meetings and social functions. She never observed the father at any of these events, although she would see the father pick up the child from school. Since the mother began homeschooling SEC, her contact with the family was twice yearly. She thought that SEC would benefit from exposure to ASL-competent people.

Larry Cole

[46] The father’s evidence was tendered by affidavit, supplemented viva voce, upon all of which he was cross-examined. The merits of this approach are often ignored: in this case, the time needed for trial was lessened without any impairment of the adversarial and fact-finding process.

[47] The father was 37 years old when he met the mother. He had purchased a residence in Tottenham in 2000 to accommodate himself and his two sons, then six and seven years old, from his prior marriage. In the litigation which followed that marriage breakdown, he and the children’s mother had agreed to joint custody, and the children’s transition in September 2000 to his primary care. It was through the children's school that the father met the mother in this case, and her former spouse.

[48] The father’s evidence about how the parties met and later combined their families (seven children in total) accorded with the mother’s evidence. Where the parties differed was in their description, and perception, of the circumstances that led in October 2003 to their separation. The father’s evidence is that the mother had a volatile temper which, one evening, led to an argument where the mother grabbed the father’s collar and soon afterwards threw a bottle of water at him. The next day the father reported the incident to the police but declined to press charges. As his biological children were spending the weekend with their mother, the father went to his sister’s residence. When he returned, the mother and her children had already left for rented accommodation elsewhere.

[49] The father described the mother’s temper as often frightening him with the intensity of her emotional outbursts. She was, he thought, at the “more overly protective end of the spectrum” when dealing with SEC, an observation that must be qualified by the fact that SEC presented with an array of serious daily health challenges, any one of which was potentially life-threatening.

[50] Whereas the mother alleged that the parties’ relationship ended in 2004, the father’s evidence was that they maintained a personal relationship until mid-to-late 2014. This was punctuated by periods of non-contact every year, sometimes more often, ranging anywhere from two weeks to a month. Apart from those times, the parties shared their weekend, birthday, holidays and vacation time in the summer. The father tendered in evidence a catalogue of Christmas, Valentine and birthday cards from the mother ranging in dates from Christmas 2002 to May 2014 in which the mother’s affection for him is palpable. Only one from him to her was entered into evidence.

[51] During those periods of time when the parties were communicating and seeing each other, the father said that he was a hands-on parent, extensively involved in SEC’s care including overnights before 2015. The child and father saw each other mid-week, during the weekends, holidays and family celebrations. Non-holiday times involved weekends at the parties’ respective residences, most often at the father’s residence where the mother would bring the child and stay over. At the time of trial, SEC was seeing his father on alternating weekends from Friday to Sunday and overnight on the following Thursdays.

[52] The father described the parenting arrangement with the mother as being a “de facto joint custodial arrangement” in that he participated in the decisions relating to SEC’s health, education and well-being. But it was clear from the evidence that, as between him and the mother, it was she who shouldered the responsibility for managing SEC’s care; it was she who arranged and attended SEC’s medical and other therapeutic appointments; it was she who interacted almost exclusively with SEC’s other caregivers and his school (before she made the decision in 2013 to homeschool him). The father’s job responsibilities precluded a greater degree of involvement.

[53] The father agreed that the parties’ New Year 2014 celebration was unpleasant. The mother reproached him for never following through with his promise to marry her and told him that she regretted giving SEC his father’s surname. While the mother presented a different version of that holiday, there is no doubt that the parties’ personal relationship was irreparably ended after that date.

[54] When the mother told the father in early April 2015 that she was planning to sell her Penetang residence and move to the Ottawa area, the father tried to persuade her to reconsider. None of the mother’s reasons for the proposed move made sense to the father. They echoed the mother’s earlier reasons for moving to the Penetang area in the litigation with the Hollefriend children’s father. When their discussions failed to dissuade the mother, and litigation ensued, problems arose with the father’s access to SEC and resulted in Orders being made restricting the mother’s relocation of the child’s residence and setting out access terms. The mother insisted that the father’s lack of formal ASL training was a reason why the child should not spend overnights with him.

[55] On October 26, 2015, shortly before an October 30 Settlement Conference, the father reported to the local Society that SEC had told him that his mother had hit him. There were no marks. Despite the mother’s dedication to the child’s welfare and her overprotective attitude, the father chose not to discuss what the child had told him with the mother, or to reference anything about the incident in the communication book that accompanied the child, before contacting the Society. The protection concern was not verified.

[56] The father proposed as a final Order that the parties share joint custody of SEC, who would remain in his mother’s primary care, and that a detailed residency, access, transportation and parenting plan be ordered. He was prepared to pay Guideline support but no spousal support.

Paula Carter

[57] Ms. Carter was appointed by the Order of Wildman J. made August 4, 2015 to undertake a custody and access assessment of SEC. She concluded her Report on or about October 14, 2015 and testified at trial.

[58] Ms. Carter’s qualifications were not challenged. Her professional experience included many assessments ordered pursuant to section 30 the Children’s Law Reform Act and often involved physically disabled persons. She had assessed developmentally and physically challenged children. This engagement involved longer, and numbered more, interviews than she typically performed. She was qualified to provide expert evidence to the court about SEC’s needs and the ability and willingness of the parties to meet those needs.

[59] Ms. Carter’s evidence mirrored in most respects the contents of her Report. In addition to the parents, Ms. Carter interviewed SEC, the mother’s four other children, both of Mr. Cole’s children and, for collateral information, reviewed reference letters from extended family and friends, academic and medical records and correspondence dealing with SEC and Ms. Hollefriend’s daughter (MH, aged 16 years old).

[60] Ms. Carter described SEC as a “gentle, friendly and very engaging 12-year-old child” and commended the mother for her efforts in creating an environment suited to SEC’s special needs. In her assessment, Ms. Carter focussed on the principal issues relating to the mother’s proposed move, the mother’s reasons, the father’s objections and, most importantly, how all of these impacted SEC. Much of what Ms. Carter reported as being told by each party was echoed in their testimony, along with the same allegations and denials that each party thought best served their case. When the assessor observed the child with each of his parents, she used an ASL interpreter.

[61] Ms. Carter dismissed the father’s allegations that the mother suffered some kind of mental health disorder. Despite no health records being made available to the assessor by the mother, Ms. Carter’s observations, and review of the collateral information given to her, raised no mental health alarms.

[62] Clearly, the mother’s proposed move to Apple Hill accentuated what both parties in their testimony described as a deterioration in their communications and the level of cooperation that had preceded that decision. What was evident from Ms. Carter’s testimony was that SEC had a “close and loving relationship” with all of his Hollefriend half-siblings and a close and “truly genuine loving relationship” with his Cole half-siblings. There was no question that a move to Apple Hill would limit SEC’s access with his father and contact with his Cole half-siblings.

[63] Ms. Carter recommended that the mother remain the primary care parent but not relocate beyond 100 km from the father’s residence. She also recommended additional access time between SEC and his father and communication through Family Wizard. In the event of any dispute on key issues regarding SEC’s health and education, the assessor recommended that an alternative dispute resolution protocol be created.

[64] Although the mother accepted, even highlighted, Ms. Carter’s description of her parenting history of SEC as “amazing” she challenged the recommendations made as insufficiently assessing the child’s views and preferences. Given the child’s propensity to try to please those with whom he interacted, and the obvious difficulties associated with a child having such special needs, little weight was given to this criticism. The mother acknowledged that SEC was a “pleaser.”

[65] The mother challenged the degree to which the assessor fact-checked what the mother alleged were the father’s self-serving reports about his involvement with the child. Apart from those situations where third parties were present, this would be impossible. The assessor had, in any event, reviewed what the mother had provided to her about the child’s care and directly observed the child with both parents.

[66] The assessor was aware of the mother’s principal caregiver role and was clear that the mother must remain the child’s primary caregiver. What impressed the assessor was the father’s plan to deal with the child’s needs, his commitment, devotion and high motivation to remain an integral part of the child’s life.

[67] Viewed overall, the assessor’s evidence was balanced. She affirmed the mother’s primary caregiving role, and focussed not only on what she observed were the child’s relationships with his parent and siblings but also each party’s plan to foster a meaningful and beneficial relationship with the child in the context of the proposed move. Her recommendations were sensible.

Deborah Bailey

[68] An older sister to the father, Ms. Bailey, resided in Coburg with her husband and their five children. She first met the mother in 2001 and, in later years, came to regard the mother almost as a sister. In the years after her brother and the mother had separated, she and the mother often spoke. Ms. Bailey was sympathetic to the mother who, she said, had difficulty with the frequent ruptures in her relationship with the father. Ms. Bailey had great difficulty at trial maintaining her composure because of her desire to comfort the mother and her brother.

[69] In early spring 2014, the mother conceded to Ms. Bailey that it was very difficult to speak to her because the relationship between her and the father was so strained. After the mother announced her plans to move to Apple Hill, Ms. Bailey saw even less of SEC than before. Sadly, in the summer of 2015, SEC was only allowed to spend a limited amount of time at a wedding of one of Ms. Bailey’s sons because the mother demanded his early evening return. The child was visibly upset.

[70] In her observations of each parent, Ms. Bailey commended the mother’s dedicated care to SEC’s well-being (although “a tad overprotective”) as well as her brother’s loving and caring relationship with the child. Ms. Bailey had no concerns about her brother’s ability to care for SEC.

[71] Ms. Bailey was a credible witness. She spoke plainly and was unshaken in cross-examination about the relationship between SEC and his father. Her concern about the proposed move adversely impacting the child’s relationship with his father and extended family was credible.

Lise Major

[72] Mrs. Major is a neighbour of the father, living across the street from his home. A retired civil servant with grown children, she testified that she often observed SEC, his Cole half-siblings and the father. The Cole children were polite, the family private. On those occasions when she observed SEC and his siblings outside, they seemed happy, brotherly. In 2012, and again shortly before trial, she agreed to act as a contact person for SEC in the event of an emergency.

Devin Hollefriend and Jeffrey Cole

[73] Each party called one of their adult biological sons as a witness. Both sons described a happy and loving relationship with SEC. Whereas Devin’s Hollefriend’s testimony mostly concentrated on SEC’s caregiving history by his mother and the father, Jeffrey Cole focussed more on the relationship between SEC and him and his older Cole brother. Refreshingly, neither spoke ill of the other parent. Their testimony made clear that the mother’s move to Apple Hill would further distance SEC from almost all of his siblings and both of his half-siblings. Devin Hollefriend and his girlfriend had relocated to the Greater Toronto Area from Ottawa after the mother started these proceedings, and Jeffrey Cole continued to reside with his father while completing community college.

Credibility

[74] The father challenged the mother’s reasons for the proposed move, contending that it had less to do with SEC than with her wanting to distance herself from him to make, as it were, “a fresh start.” He also argued, not without some justification, that the mother had gone to great lengths to mold evidence to support her theory of the case. Examples involved the mother arranging to have corrected information contained in medical notes and records supportive of the move, and delaying recommended treatment for SEC in favour of that being provided in Ottawa.

[75] The mother contended that the father overstated his involvement with the child, was defensive and unresponsive in his testimony and, overall, was motivated by a need to be viewed as right. Revealing was the tone and language of the emails exchanged between the parties. The mother’s emails were more child-focussed and conciliatory, whereas the father’s emails were often accusatory and vituperative. When asked by the court to explain the contrast, the father answered that those entered in evidence did not fairly reflect what the mother had sent him, but that he had overlooked bringing those to court.

[76] In Christakos v. De Caires, 2016 ONSC 702, [2016] W.D.F.L. 2085, at para. 10, Nicholson J. adopted MacDonald J.’s following outline in Re Novak Estate, 2008 NSSC 283, 269 N.S.R. (2d) 84:

There are many tools for assessing credibility:

a) The ability to consider inconsistencies and weaknesses in the witness’s evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness’ testimony and the testimony of other witnesses.

b) The ability to review independent evidence that confirms or contradicts the witness’ testimony.

c) The ability to assess whether the witness’ testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CarswellBC 133, it is “in harmony with the preponderance of probabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions”, but in doing so I am required not to rely on false or frail assumptions about human behaviour.

d) It is possible to rely upon the demeanour of the witness, including their sincerity and use of language, but it should be done with caution (R. v. Mah, 2002 NSCA 99 [at paras.] 70-75).

e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence. R. v. J.H., [2005] O.J. No. 39 (OCA) [at paras.] 51-56).

There is no principle of law that requires a trier of fact to believe or disbelieve a witness’s testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence (See R. v. D.R. [1966] 2 S.C.R. 291 at [para.] 93 and R. v. J.H. supra). [Emphasis in original.]

[77] As noted in Christakos, the court can sift through witness’ testimony to determine what evidence to believe, and the weight to be given to different parts of the evidence. There is little doubt that each party in this case tailored their evidence to support their desired outcome. Even so, the mother’s evidence about the extent of the parties’ respective involvement with SEC, his needs and how the parties dealt with them, as well as the level of respectful communication between the parties is preferable to that of the father. As noted, hers was more child-focussed, and was independently supported by her witnesses and documentary evidence: his parenting was overstated, often exculpatory of his lesser involvement with the child and characterized by frequent attempts to demean the mother. The father’s protection complaint to the Society in late October 2015 left this court with the impression that it was thought tactically advantageous in the litigation rather than a sincere concern about the child’s well-being. The emails from the father evidence an emotionally abusive relationship. Ironically, they support the father’s position that the mother’s proposed move was intended as a fresh start - to get away from him. The mother used the Society workers to enlist further support for her decision to relocate to Apple Hill.

[78] Given the foregoing, caution must be exercised when assessing each party’s evidence about the merits of the proposed move and the form of the parenting arrangement best for SEC.

Mobility Analysis

[79] In Gordon v. Goertz, at paras. 49-50, the Supreme Court of Canada summarized the law dealing with child mobility as follows:

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

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

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

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

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

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

7. More particularly the judge should consider, inter alia: (a) the existing custody arrangement and relationship between the child and the custodial parent; (b) the existing 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.

8. 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?

[80] The substantial body of case law to which each party referred this court as supporting their position affirmed McLachlin J.’s observation that “[E]ach case turns on its own unique circumstances.” The impact on SEC’s best interests of the intended move to Apple Hill must be tested in the crucible of the Goertz considerations.

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

[81] The relationship between SEC and his mother, his de facto custodian since birth, is unaffected whether or not the intended move is allowed.

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

[82] Despite arguing that the father’s relationship with SEC “should continue to be encouraged and preserved in whatever way may make the most sense in all of the circumstances” the mother implicitly acknowledged that the loss of physical contact between SEC and his father was capable of being augmented or remedied by technological means. Given SEC’s profound communication challenges, this was disingenuous. So too was the mother’s suggestion that a restructured regime giving the child the same number of days with his father but compressed together was “more than adequate.” Distancing SEC from his father will impact SEC’s already limited ability to interact with his father, which less frequent physical contact will only further attenuate.

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

[83] In Berry v. Berry, 2011 ONCA 705, 7 R.F.L. (7th) 1, the Court of Appeal disallowed a mother’s intended move from Toronto to Kingston. The child was seven years old and had been born with severe health challenges, later diagnosed with a genetic developmental disorder, and had already undergone surgeries with the prospect of more in the future. The parents had a cooperative parenting history. Referring to the Goertz principles, the court commented, at para. 12:

In particular, the trial judge failed to give sufficient weight to the principle that a child should have as much contact with each parent as is consistent with the child’s best interests. Instead, the trial judge’s reasons focus almost exclusively on the mother’s reason for moving. A parent’s reason for moving is a proper consideration only in exceptional cases where it is relevant to the parent’s ability to care for the child. Where applicable, the parent’s reason for moving, like all factors, should be considered from a child-centred perspective. (emphasis added)

[84] There was little disagreement between the parties that the father’s job was stressful and time-consuming. This impacted the father’s time available to spend with SEC. A greater travel distance, with contact between the child and his father being expanded over a period of several more days rather than on traditional weekend time, would affect the frequency of child/father contact and the father’s employment responsibilities.

[85] The father proposed, and Ms. Carter supported, a plan that the child’s time with his father be expanded. Given the mother’s existing responsibilities, not only from the standpoint of the time being spent caring for SEC but also for dealing with her two next oldest children and her own health, this plan is sensible.

(d) the views of the child

[86] It was unclear from the evidence at trial what SEC thought about the intended move to Apple Hill. That he had spent time there and appeared to enjoy himself was obvious, but given his cognitive limitations and, as Ms. Carter reported, inconsistencies in his interview responses and gestures, no reliable consideration of his views is possible. The mother’s criticism of Ms. Carter’s assessment in this respect is disingenuous.

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

[87] In Goertz the court rejected the notion that a custodial parent was presumptively entitled to move with a child but, at para. 48, observed that,

“… 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.”

[88] The mother argued that her principal reason to move was that it would improve her financial and logistical ability to meet SEC’s needs. Remaining in the Penetang area would compromise that ability. SEC’s best interests would be affected by the proposed move’s economic benefits and its psychological, social and emotional impact on the mother: Woodhouse v. Woodhouse; Cade v. Rotstein; Ryall v. Ryall, 2009 ONCJ 687, 2009 CarswellOnt 4740. In Lebrun v. Lebrun, [1999] O.J. No. 3393 (Ont. S.C.), Pardu J. allowed a mother’s move for employment reasons, emphasizing the intellectual and emotional flowering that a materially enhanced physical and psychological environment could provide, and the negative effect that denial of the move might entail.

[89] Although several reasons favouring the move were given, the following capture the most significant.

(i) Economic Benefit

[90] The mother maintained that the proposed move was a financial imperative, that she could no longer afford to reside in the Penetang area.

[91] After deciding that she had to move, the mother looked for alternate, more affordable accommodations. Within a month of alerting the father about her intentions, the mother signed an agreement to purchase property in Apple Hill for $161,000 having a completion date in July 2015. This was funded by a bridge mortgage registered against title to her Penetang residence. Between that completion date and this trial the mother had to financially carry two properties, which she was able to do thanks to financial assistance from her father and by accessing her line of credit. Afterwards, she listed her Penetang property for sale. While she had hoped to sell it for about $20,000 more, she ultimately agreed to its sale for $162,500, with a completion date of June 30, 2016. Taking into account realtor commission, moving and solicitor’s costs, the overall outcome of her planned move was improvident: unaffordable net financial loss and high ratio debt servicing being incurred. While the mother did not intend this outcome, her conduct in (a) agreeing to purchase Apple Hill knowing the father’s objection to any move and (b) agreeing to sell her Penetang residence after litigation had begun, but before trial, was astonishingly imprudent. Compounding this was the uncertain outcome, between June and August 2015, of the outstanding Hollefriend child support proceedings.

[92] The mother testified that the move to Apple Hill would result in about $1,800 less realty taxes a year, and a slightly lower mortgage payment. She also claimed that the move would involve less travel time to Toronto and Richmond Hill than was currently the case because Apple Hill was closer both to CHEO in Ottawa and to a therapeutic pool for SEC.

[93] The mother testified that heating costs would be lower in Apple Hill because it had a high efficiency furnace, but provided few details about what savings would be achieved.

[94] Despite the undeniably bucolic setting of Apple Hill, the planned move was at best a lateral financial move of dubious long-term financial benefit. In fact, the mother had acknowledged as much in early April 2015 when she emailed the father that she was making “a sideways housing move.”

(ii) Proximity of Care and Medical Services

[95] As already noted, SEC, his half-sister and mother all present with serious health challenges. The mother’s dedication to SEC’s well-being, often at the risk to her own health, has been remarkable. But that dedication has been facilitated by, and heavily reliant on, proximate family, friends and professional support, none of which exists in Apple Hill.

[96] The mother testified that when she decided to move a factor favouring the choice of Apple Hill was the presence in Ottawa of two of her children and one of their partners. They could provide caregiving and respite support for SEC and her. By the time of trial, however, one child and his partner had relocated to Toronto: the other had less than two years study left in Ottawa.

[97] On those occasions when the mother had spent time in Apple Hill, she had made the acquaintance of several of her rural neighbours. These persons could, she suggested, provide unspecified assistance as might be needed. How the neighbours, who worked, could provide the respite care which the mother said she had lost in Penetang was never made clear. How willing they would be to undertake caregiving assistance for a child having as many cognitive and health challenges as SEC was not explored.

[98] Filed at trial was voluminous medical documentation involving SEC and, to a lesser extent, his Hollefriend siblings. The mother referenced a note from the Hollefriend’s paediatrician of 25 years as supporting the proposed move, that remaining in Penetang “will have a negative impact on [the] current health and activity” of SEC and his next oldest sister and that there were minimal services available and long services delays, with “most necessary services…not entirely available.” Earlier, the paediatrician commented that SEC was referred to the CHEO because a referral to a Toronto rehabilitation centre had been refused since the child was outside the service provider’s catchment area. This comment overlooked the service provider’s reference to more local community-based services (which the mother felt were inadequate).

[99] The father pointed out that when the mother was in earlier mobility litigation with the father of her Hollefriend children and seeking to move from her rental accommodation to more distant Penetang, she extolled the merits of the move as being more affordable housing and “…a well-staffed school to accommodate the special academic needs of one of [my] children and the availability of Community Services due to the fact that my youngest child has cerebral palsy…”

[100] Another factor favouring Apple Hill was its 17-minute driving proximity to Cornwall (closer than Penetang to Barrie), and 55 minute driving proximity to CHEO. Driving to Toronto was a day-long affair and often involved staying overnight in cramped quarters with one of the mother’s other children who lived in Toronto.

[101] A major complaint of the mother was that it was always she who made the arrangements for SEC’s medical and physiotherapy appointments, did the driving and incurred the expenses. It was she who championed her son and who wrote to SEC’s care providers to correct or to clarify their correspondence where she felt there were inaccuracies or ambiguity. It was she who enlisted support for the proposed move from SEC’s healthcare providers.

(iii) Better Schooling Opportunities

[102] Another reason which the mother factored into the proposed move was her next oldest child’s health. This child (MH) had OCD, Tourette’s Syndrome and hearing disabilities. Shortly after her proposed move was challenged by the father, the mother claimed that schooling in the Apple Hill area was researched because the child’s local school was closing in September 2015. This, as it transpired, was not accurate: the school was closing in 2015/2016.

[103] The mother solicited support for the move from the child’s therapist and Special Education Resource Teacher. The latter favoured it, but noted the child’s anxieties surrounding the move and the outstanding litigation: the former had been asked by the mother to correct an earlier “misinterpretation” made in the court proceedings that the child “truly did not want to move and leave her life behind.” The therapist reaffirmed what she had reported, and noted that there were “some incentives” favouring the proposed move. It is difficult not to view the therapist’s letter and, to a lesser extent, that of the teacher as acquiescing to the mother’s persistence in assembling support for the proposed move.

[104] The mother acknowledged that she was torn between the best interests of MH and SEC. Presented with a “Sophie’s choice”, the mother was not prepared to move without SEC, even if remaining was not in her daughter’s best interests.

[105] This trial was, of course, about only SEC’s best interests, not those of his half-sister; however, as both children’s primary caregiver, the mother’s reasons merit serious consideration. Two observations are noteworthy, particularly as they apply to SEC. The first is that none of the healthcare givers’ notes of support in favour of the proposed move was solicited until after the mother had decided to move and she became aware that the father opposed it. The second is that it is inferentially clear, and certainly nowhere contradicted by the same caregivers’ notes, that none of them initiated the recommendation proposing the move.

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

[106] This is not a factor. The father acknowledged that the child should remain in his mother’s primary care and the mother told the court that she would not move without SEC.

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

[107] The mother acknowledged that the proposed move would disrupt the child’s connection with his social environment, but only minimally due to his limited communication abilities. Lost in translation is the larger context of SEC’s cognitive and dependant life. Excepting a sister studying in the Ottawa area for another year, none of the child’s immediate family resides anywhere closer to Apple Hill than to Penetang. Most reside in the Greater Toronto Area, Aurora and in the Simcoe region. The mother was especially reliant on her parents for caregiving and financial assistance - they live in Aurora. In a note to the assessor, the mother mentioned that she had been able to connect in the Simcoe area “with two special needs playgroups when they are running” and that “[i]n addition to foster peer contact [she had] created a connection with several schools in the area” (this in the context of SEC’s home-schooling).

[108] All of the child’s healthcare providers have long-standing relationships with him: his primary care physician since birth, his paediatric cardiologist since 2003, his opthamologist since 2005 and major medical institutions (developed since the child’s birth and later as medical issues arose). There has been a consistency and stability of care and caregivers. Undoubtedly, as the mother evidenced at trial, all of these healthcare providers could, in time, be replaced, but the singular fact is that from a larger perspective, proximity to family for SEC would be significantly compromised as would frequency of contact.

Conclusion on Mobility

[109] In his annotation to Young v. Young (2003), 63 O.R. (3d) 112, 2003 CarswellOnt 63, (Ont. C.A.), Professor Rollie Thompson observed that what appears to matter most in mobility litigation is “the real-life, on-the-ground arrangements for the child’s care”. Those proposed move cases involving shared custody were less likely to be allowed. In this case those on-the-ground arrangements have almost entirely been managed by the mother.

[110] Despite the father’s position to the contrary, this case involving SEC is not a shared custody case. But what distinguishes this case from those cases where one parent has been a child’s primary caregiver are SEC’s significant health challenges, those of his mother, the distance involved and the parties’ plans. The child’s relationship with the father and almost all of his siblings would be affected. Viewed in its entirety, the evidence supportive of the mother’s reasons for the move are unpersuasive that the move would be in the child’s best interests. What she has proposed is, quite simply, “a move too far.”

Support

[111] The mother claims child support commencing May 1, 2012 payable in accordance with the Child Support Guidelines (“the Guidelines”) and spousal support commencing October 1, 2015.

[112] There was no dispute about the following facts:

(a) the mother was not working outside the home before she met the father, and never worked outside of the home afterwards;

(b) excluding child support paid for the Hollefriend children and ODSP for SEC, the mother’s line 150 income for 2012-2015 comprised her disability pension and child tax credits as follows:

i. 2012 - $10,628; ii. 2013 - $11,042; iii. 2014 - $11,000 (estimated); iv. 2015 – unknown, but probably $11,000 (estimated);

(c) the father was employed as President of Regal Gifts Corporation, a direct marketing company specializing in the consumer catalogue business;

(d) the father’s 2012-2015 income comprised salary, taxable benefits and allowances. His qualifying line 150 income for those years was agreed as follows:

i. 2012 - $150,380; ii. 2013 - $187,908; iii. 2014 - $235,131; iv. 2015 - $199,653;

(e) the father paid child support from 2012 to 2015 as follows:

i. 2012 - $13,800; ii. 2013 - $16,587.12; iii. 2014 - $17,423.38; iv. 2015 - $18,102.98;

(f) the mother presented no evidence dealing with section 7 expenses for SEC. No budget accompanied her financial statement.

[113] The father acknowledged his child support obligation but disputed the mother’s entitlement to spousal support. Each will be separately considered.

(a) Child Support

[114] From an evidentiary standpoint, the mother’s claim for child support was overshadowed by her focus on the proposed move. This was reflected in her pleadings not only by the inconsistency between what was being claimed and then requested after trial, but also the failure to evidence the child’s needs, particularly those pertaining to any section 7 special or extraordinary expenses. For instance, the mother’s Application issued May 6, 2015 claimed child support simpliciter: even when afterwards amended, all that was additionally pleaded was that the father had been consistently underpaying support. No particulars were provided. Equally confounding were the mother’s trial submissions requesting child support retroactive to 2004 and her draft Order, filed after the trial started, seeking child support retroactive to May 1, 2012.

[115] The father protested the mother’s failure to properly plead, and to particularize the important facts relating to, her retroactivity claim. Even so, he knew shortly after service of the Application that child support compliant with the Guidelines was being sought and he then revised his child support payments accordingly.

[116] The father asserted that the parties agreed to the child’s support arrangements (which were clearly not compliant with the Guidelines), and that the mother’s failure to request child support adjustments over the years misled him into believing that he was meeting his support obligations. These assertions were ill-conceived and are devoid of merit.

[117] It is axiomatic that child support is a right of the child, and one that no parent can discount or bargain away. Even if the mother was acquiescent, the father’s failure to comply with his child support obligations cannot be excused. In D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, at para. 4, Bastarache J. observed that when dealing with child support,

…the ultimate goal must be to ensure that children benefit from the support they are owed at the time when they are owed it. Any incentives for payor parents to be deficient in meeting their obligations should be eliminated.

[118] Excepting the tax-driven agreements by the parties between 2006 and 2009, there was no other written agreement or court Order dealing with SEC’s support. The father paid child support but the amount paid did not comply with his Guideline obligation. As already noted, once lawyers became involved, the father brought into good standing basic child support compliant with the Guidelines.

[119] The father contended that any retroactive award would be unfair since it would cause him hardship. That must be viewed contextually by comparing (a) his 2012-2015 average income of $193,268 to the mother’s average annual income of $10,918 (although her income included non-taxable ODSP for SEC and child support payments from her former spouse) and (b) his net worth of $373,000 to the mother’s negative net worth of $3,000 (both figures rounded). The father knew, or reasonably should have known, that he was paying less child support than required. In D.B.S., the court summarized the proper approach to be followed:

[125] The proper approach can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past. However, in order to avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (s)he must disclose the material change in circumstances to the recipient parent. Where the payor parent does not do so, and thus engages in blameworthy behaviour, I see no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially. A payor parent should not be permitted to profit from his/her wrongdoing.

[120] As for blameworthy behaviour, the court commented,

[107] No level of blameworthy behaviour by payor parents should be encouraged. Even where a payor parent does nothing active to avoid his/her obligations, (s)he might still be acting in a blameworthy manner if (s)he consciously chooses to ignore them. Put simply, a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct: see A. (J.) v. A. (P.) (1997), 37 R.F.L. (4th) 197 (Ont. Ct. (Gen. Div.)), at pp. 208-9; Chrintz v. Chrintz (1998, 41 R.F.L. 219 (ONSC)).

[121] Applying the foregoing to the facts in this case, the father owes the mother for child support effective May 1, 2012 - December 31, 2015 the sum of $9,675, calculated as follows:

(a) 2012 - $812 (i.e. 2/3 x [$15,192 payable less $13,800 paid]); (b) 2013 - $1,940 (i.e. $18,598 payable less $16,588 paid); (c) 2014 - $5,293 (i.e. $22,716 payable less $17,423 paid); and (d) 2015 - $1,630 (i.e. $19,560 payable less $18,103 paid).

[122] The father’s March 10, 2016 financial statement sworn for trial disclosed an income of $183,396 exclusive of any discretionary bonus. Neither it nor the mother’s financial statement disclosed the amount that the father was then paying for child support, but the trial evidence was that the father was paying $1,630 monthly based on an income of $199,600 inclusive of an $8,400 annual car allowance. That amount was being paid current to trial and presumably afterwards to and including August 2016. Following the conclusion of trial, and while this Decision was under reserve, the father’s employment was terminated on September 16, 2016 after his employer unexpectedly went into Receivership. On motion by the father, unopposed by the mother, a support Order was made on October 24, 2016 based on the father’s anticipated Employment Insurance income of $27,927 a year, or $227 monthly, commencing November 1, 2016.

[123] The father’s evidence was that he had not been paid since September 9, 2016 and that while he had filed a claim with the Receiver for severance and termination pay in lieu of notice, it appeared that the likelihood of recovery was remote in light of the company’s outstanding liabilities. The support Order also required the father to forthwith provide to the mother all details of any new employment within 72 hours of acceptance. It is unknown what, if anything, was paid to the mother for child support in September and October, 2016.

[124] The mother acknowledged in her submissions that no evidence of section 7 expenses was tendered. The onus of proving entitlement to, and the amount of, a qualifying section 7 expense rests squarely with its claimant. Even so, both parties agreed in the draft Orders that they sought at trial that responsibility for payment of these expenses be allocated in accordance with the Guidelines.

(b) Spousal support

[125] After Graham J. prohibited the mother from moving to Apple Hill pending trial, the mother amended her pleadings to claim spousal support. Section 29 the Family Law Act, R.S.O. 1990, c. F.3 (“the Act”) defines a spouse as including

… either of two persons who are not married to each other and have cohabited,

(a) continuously for a period of not less than three years, or

(b) in a relationship of some permanence, if they are the natural or adoptive parents of a child.

[126] “Cohabit” is defined in section 1 (1) of the Act as meaning “to live together in a conjugal relationship, whether within or outside marriage.”

[127] In Molodowich v. Pennttinen, a case decided under a predecessor to the Act, the Family Law Reform Act, 1978, S.O. 1978, c. 2, and involving a slightly different qualifying definition of spouse which is immaterial to this case, Kurisko J. identified what the court should consider when determining whether a relationship met the definition of cohabitation:

[16] I propose to consolidate the statements just quoted by considering the facts and circumstances of this case with the guidance of a series of questions listed under the seven descriptive components involved, to varying degrees and combinations, in the complex group of human inter-relationships broadly described by the words “cohabitation” and “consortium”:

(1) SHELTER: (a) Did the parties live under the same roof? (b) What were the sleeping arrangements? (c) Did anyone else occupy or share the available accommodation?

(2) SEXUAL AND PERSONAL BEHAVIOUR: (a) Did the parties have sexual relations? If not, why not? (b) Did they maintain an attitude of fidelity to each other? (c) What were their feelings toward each other? (d) Did they communicate on a personal level? (e) Did they eat their meals together? (f) What, if anything, did they do to assist each other with problems or during illness? (g) Did they buy gifts for each other on special occasions?

(3) SERVICES: What was the conduct and habit of the parties in relation to: (a) Preparation of meals, (b) Washing and mending clothes, (c) Shopping, (d) Household maintenance, (e) Any other domestic services?

(4) SOCIAL: (a) Did they participate together or separately in neighbourhood and community activities? (b) What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?

(5) SOCIETAL: What was the attitude and conduct of the community towards each of them and as a couple?

(6) SUPPORT (ECONOMIC): (a) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)? (b) What were the arrangements concerning the acquisition and ownership of property? (c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

(7) CHILDREN: What was the attitude and conduct of the parties concerning children?

[128] In this case, the following 2002-2014 facts are relevant:

(a) the parties exclusively occupied separate residences with their biological children but spent considerable spare time, such as weekends and holidays, together. These times always involved SEC;

(b) the parties maintained a relationship of intimacy and fidelity to each other but, despite professing love and affection to the other, were unable to live together. The mother said that the father was unable to make a commitment. Each was attentive to the other in periods of illness. The father was, for example, hospitalized for heart issues in 2012 and the mother visited him at the hospital. Special occasion cards and gifts were also exchanged;

(c) there was no, or very little, evidence that the parties provided domestic services to the other, such as meal preparation, laundry, shopping, household maintenance or any other such service, except on weekends and on holidays;

(d) according to the father, the mother accompanied him to most of his company events. There was no evidence about community attitudes towards the parties as a couple;

(e) there was no evidence that the parties ever commingled their financial affairs such as sharing bank or investment accounts. The mother acknowledged that the parties kept their finances separate. Except for $2,000 which the mother said that she had contributed to the father’s purchase of his Horseshoe Valley property, there was no other evidence of a financial, labour or other kind of contribution to any property owned or maintained by the other party or registered in the other’s name;

(f) there was no evidence that the parties shared credit cards or assumed any contingent liability for the other, whether in the form of loans or other guarantees. The mother relied on her father for financial assistance. She declined the offer for financial assistance to remain in the Penetang area made by SEC’s father; and

(g) the mother was SEC’s primary caregiver, to whose decisions the father almost always deferred. Neither party assumed, nor was expected to assume, any parenting responsibility towards the other’s biological children.

[129] While no one factor predominates (see Stephen v. Stawecki) what must not be overlooked is the economic interdependency of the relationship. In Brebric v. Niksic, a damages case involving, among other things, a constitutional challenge to the three year spousal support qualifying period, the court affirmed that,

[23] The definition of spouse in s. 29 of the Family Law Act is tied to the purpose of the legislation. Spousal support obligations that arise on the termination of a relationship have a compensatory purpose of recognizing contributions to the relationship and the economic consequences of the relationship. [Emphasis added]

[28] The objective of the Family Law Act as a whole is to, among other things, provide for the equitable resolution of economic disputes when intimate relationships between individuals who have been financially interdependent break down… [Emphasis added]

[130] Cases that have found cohabitation in the absence of a shared residence all feature an economic interdependency arising from the parties’ individual and collective physical and financial contributions to that relationship: see McEachen v. Fry Estate, [1993] O.J. No. 1731 (Ont. Gen. Div.); Thauvette v. Malyon; and Hazlewood v. Kent, [2000] O.J. No. 5263 (Ont. Fam. Ct.). Those cases where cohabitation was not found lacked any such economic interdependence, even where a child was born of that relationship: see Obringer v. Kennedy Estate (1996), 16 E.T.R. (2d) 27 (Ont. Gen. Div.); and Quesnel v. Erickson, 2012 ONSC 4335, 24 R.F.L. (7th) 229. In Quesnel, the court noted the absence of any merger of the parties’ financial and household lives.

[131] That the father paid child support to the mother in this case does not, ipso facto, elevate the parties’ relationship to one of “some permanence.” Nor should the fact, however troubling, that the parties filed agreements with Canada Revenue Agency between 2006 and 2009 identifying themselves as spouses for tax reduction purposes be determinative of the issue. Substance over form must prevail. Excepting the support paid by the father for SEC, the parties were, and conducted themselves as being, financially independent of the other.

[132] The mother’s claim for spousal support is dismissed.

Disposition

[133] This is not a case where an Order for joint custody would be appropriate.

[134] Throughout the child’s upbringing the mother has undertaken primary responsibility for all major decisions involving SEC’s care, choice of healthcare providers and schooling: the father invariably deferred to her. The mother requested sole custody in her pleadings but was content at trial to request an Order that the child remain in her primary care. That request was made in the context of her proposed move being allowed. The father has requested an Order for joint custody fearing that the mother would otherwise minimize and potentially alienate the child from him.

[135] The evidence is that the mother promoted the child’s relationship with the father, and that she has otherwise acted responsibly in terms of the child’s care. While she precipitously arranged her affairs as if the proposed move was a fait accompli and sought to limit the father’s newly expressed interest in a more fulsome relationship with the child, that seems more of a product of the litigation than any resolve to frustrate a meaningful father/child relationship. Periodically, the parties’ ability to communicate was frustrated. That may have been, as the father testified, because the mother was acting too emotionally or too demanding of him, but his choice to end any contact with her and SEC, on several occasions for several months until she “cooled off”, must be qualified by his frequent emotionally abusive treatment of her.

[136] In Kaplanis v. Kaplanis, the Court of Appeal observed that joint custody was not an appropriate prescription for potentially remedying parental inability to respectfully and effectively communicate on issues affecting a child’s best interests. In Ladisa v. Ladisa, a history of co-parenting, and demonstrated success in overcoming repeated conflict, favoured a joint custody disposition. In this case, the mother has demonstrated her selfless dedication to SEC, but erred in choosing a move too far away from his father. A clearly defined parenting arrangement that sets out the parties’ responsibilities and the court’s expectations of the parties should address the father’s sole custody concerns about the mother. Joint custody is not a default outcome for a failed mobility claim.

[137] Accordingly the following is ordered:

1. The mother shall have sole custody of SEC, born December 8, 2002.
2. The mother’s residence with SEC shall be restricted to a 100 km radius of Barrie, Ont.
3. Commencing February 3, 2017 the child shall reside with his father as follows: (a) Regular weekend and midweek access: (i) Every second weekend from Friday at 5:30 p.m. to Monday at 9:00 a.m. The father shall pick up SEC at start of his access period from mother’s residence. The mother shall pick up SEC at end of the access period from the father’s residence; (ii) On alternate Thursdays, prior to the weekend that the child will not be residing with his father from 3:30 p.m. on Thursday to Friday at 9:30 a.m., in accordance with father’s availability based upon his place of residence and employment at the time, with a provision for the start time to be later on an as-needed basis by the father (i.e. due to weather, work, traffic/distance, etc). The mother shall deliver SEC to the father’s residence at the start of the access period. The father shall return SEC to the mother’s residence at the end of the access period. If the father is unavailable, there shall be no make-up time unless the mother agrees; (b) Holiday and Special Date access in accordance with the following schedule, which overrides the regular weekend and midweek access schedule above, unless otherwise explicitly stated: (i) an equal sharing of July and August, and any week in June and September that is outside of the public school schedule, subject to the father’s availability to care for SEC during the day. In odd numbered years, the mother shall have first choice of weeks in June and July, and the father shall have first choice of weeks in August and September. The parties will rotate the choices in even numbered years. The party having the first choice shall communicate that choice to the other parent in written format by no later than May 1 in each year, failing which the other party shall be entitled to their choice of weeks, that choice to be communicated in writing by May 21; (ii) Canada Day, Civic Holiday, and Labour Day will not alter the summer access schedule. Any additional or new statutory holidays in the aforementioned weeks will be treated in this same manner; (iii) an equal sharing of the public school board Christmas break (i.e. before Christmas to after New Year’s break), with annual alternating of Christmas Eve/Day and New Year’s Eve/Day. In odd numbered years, SEC shall reside with his mother from 6:00 p.m. on Christmas Eve until 1:00 p.m. on Christmas Day. On New Year’s Eve, SEC shall reside with his father from 1:00 p.m. on December 31 until 1:00 pm on January 1. The parties will rotate this schedule in even numbered years; (iv) SEC shall alternate March Break, as determined by the local school board, with each parent. In odd numbered years, SEC shall spend the weekday time with his mother and the father’s access shall be suspended. In even numbered years SEC will reside with his father. The regular access weekends on either side of the non-school days during the March Break will not be affected; (v) in the event of a public school board PA day, PD day or statutory holiday preceding or following a weekend that SEC would otherwise be spending with his father, SEC shall, as the case may be, reside with his father from Thursday at 5:30 pm until Monday at 9:00 am (in the event that the day involved is a Friday) or until Tuesday at 9:00 am (in the event that the day involved is a Monday) when he shall be picked up by his mother; (vi) if SEC is not otherwise with the father on Father’s Day weekend, SEC will reside with the father on Father’s Day weekend from Saturday at 6:00 p.m. until Sunday at 4:00 p.m.; (vii) if SEC is not otherwise resident with the mother on Mother’s Day weekend, SEC will reside with the mother on Mother’s Day weekend from Saturday at 6:00 p.m.; (viii) SEC will spend a minimum of five hours (between the hours of 9:00 a.m. and 7:00 p.m.) on his birthday with the father in accordance with the father’s availability based on his place of residence and employment at the time; (ix) such further and additional access as requested by the father for special events and opportunities which may present themselves provided that the father shall assume all transportation responsibilities; and (x) such further and other times as the parties may agree.
4. Except as otherwise provided in subparagraphs 3(a) and (b)(ix) above, transportation responsibilities are to be shared equally between the parties, with the father to pick up SEC at start of an access period from the mother’s residence, and the mother to pick up SEC at end of an access period from the father’s residence. In the event that either party cannot fulfill his or her transportation responsibilities for any reason, it will be that party’s responsibility and expense to enlist a trusted, licenced and competent driver to fulfill his or her transportation responsibilities. Each party is free to use a trusted and competent proxy for any aspect of the access transportation and/or transitions.
5. SEC’s Health Card shall accompany him at all times. The mother will comply with the father’s reasonable requests for copies of SEC’s Social Insurance Card, other identification and personal documents/information.
6. In the event that the mother is unable to care for SEC for a period in excess of 24 hours, she shall immediately notify the father and offer him the first right of refusal to care for SEC.
7. Each parent shall respect the parenting role of the other and neither shall interfere with the parenting practices of the other while SEC is in his or her care.
8. Our Family Wizard shall be used in non-emergency communication between the parties. The father shall pay the initial and annual subscription costs.
9. The mother shall consult the father about all major health decisions affecting SEC and his care in a timely way. These decisions shall include, without limiting, regular medical and emergency services and special needs services such as orthotics, vision and dental care. In the event of any dispute the mother shall have final decision-making authority.
10. The mother shall advise the father about SEC’s medical, therapeutic, or assessment appointments as soon as the appointments are made. The father is entitled to attend any appointments, at his discretion.
11. The mother shall share with the father copies of all written medical or special needs service Reports received by her from SEC’s health service providers within 48 hours of her receipt of that information. Any changes in diagnosis, recommendations, treatments or medications shall be immediately shared with the father, but this in no way relieves the father from taking reasonable steps to obtain this information himself.
12. The father shall be at liberty to obtain directly from third party service providers any information concerning the health and education of SEC and the names of all of SEC’s current medical specialists. Within 30 days from the date of release of these Reasons, the mother shall provide to the father a list identifying SEC’s current healthcare and other special needs service providers, and shall update that list in the event of any change in future. The father shall prepare and submit to the mother directions prepared at his expense authorizing those service providers to share with him information about SEC on the same basis as with the mother.
13. The parties shall keep each other advised of their current telephone numbers and addresses.
14. The parties shall immediately notify the other by telephone in the event of any medical emergency involving SEC, or any urgent matter pertaining to SEC’s needs or well-being.
15. Each party shall maintain a home landline phone for the benefit of SEC in an emergency, and each party shall maintain home Internet and cellular data service to facilitate electronic communication (text, email, Skype, FaceTime, cell phone, etc.) between SEC and the other parent.
16. Either parent shall be able to communicate directly with SEC by telephone, text, and video messaging (Skype, FaceTime, WhatsApp Messenger, etc.) once each day, at least one half hour before SEC’s bedtime. Additionally, SEC shall be free to initiate communication with either parent and/or reply to communications from either parent at any time during the day, outside of school times, by any means available during those times. All such communications shall be private and shall not be monitored, recorded, or disrupted by the other parent. The mother shall forthwith arrange for the installation of Skype on SEC’s iPod (and any other concurrent or future device he may use from time to time) to facilitate the father’s communication with SEC.
17. If either parent plans an out-of-province vacation within Canada with SEC, that parent will give to the other a detailed itinerary at least 45 days before it begins, including the name of any flight carrier and flight times, accommodation, including address and telephone numbers, and details as to how to contact the child during the vacation.
18. Neither parent shall remove SEC from Canada without the express written consent of the other party.
19. If either parent plans an out-of-country vacation with SEC, that parent will give the other a detailed itinerary at least 45 days before the proposed departure date, including the name of any flight carrier and flight times, accommodation, including address and telephone numbers, and details as to how to contact the child during the vacation. In the event that a Travel Consent or other such document is required from the other parent, then the travelling parent shall at their expense provide to the other parent the document required not less than 30 days before any proposed departure date and the party to whom the document has been given shall have seven days to return it in completed and satisfactory form to the travelling parent.
20. The mother shall retain SEC’s Passport and shall release it to the father when he requires it for out-of-country travel. The father shall forthwith return the Passport to the mother when SEC is returned to her care.
21. If either parent plans a vacation without SEC, that parent will give the other a telephone number where he or she can be reached in case of emergency or if the child wishes to contact that parent.
22. Neither party will change SEC’s name.
23. The father shall pay to the mother for support for SEC the sum of $227 a month based on an income of $27,927 a year effective the first day of the first month after the date of release of these Reasons and monthly thereafter on the first day of each succeeding month until varied. Should the father secure employment, he shall, within 72 hours of acceptance, provide the mother with full particulars thereof with a view to adjusting the base child support payable pursuant to the Guidelines effective the first day of the first month following the father’s commencement of that employment.
24. Save and except for any issue with respect to child support paid or payable for September and October 2016, the father shall pay to the mother for arrears of child support accruing before January 1, 2016 the sum of $9,675.
25. The parties shall share any section 7 special or extraordinary expenses for SEC in accordance with the Guidelines. Neither party shall incur an expense for SEC for which a contribution will be sought from the other without first obtaining the other party’s written consent. In the event that consent is not forthcoming within 10 days of the request being made the provisions of subparagraph 29 below shall apply.
26. The father shall designate the mother as trustee for SEC as beneficiary of any policy of insurance on his life equal to one-third of the value of the policy, and shall provide proof of that designation within 60 days of the date of these Reasons.
27. The parties will exchange complete copies of Income Tax Returns and Notices of Assessment and Reassessment no later than May 30 of each year. Child support and the proportionate sharing of special and extraordinary expenses shall be adjusted as of July 1 of each year, commencing July 1, 2017, based on the previous year’s line 150 income of the parties.
28. The mother’s claim for spousal support is dismissed.
29. In the event of any dispute about the interpretation or implementation of the provisions of subparagraph 3 above or about the child support paid or payable for the months of September and October 2016, then either party may move for directions by Form 14B to my attention on 10 days’ notice to the other party.

[138] A Support Deduction Order shall issue.

[139] The parties are encouraged to resolve any issue involving costs between themselves by January 31, 2017. In the event of no resolution, each party shall deliver their written submissions (no longer than three double-spaced pages) and file them as part of the Continuing Record by February 10, 2017. Any Offers to Settle, Bills of Costs and Authorities upon which a party may be relying shall be filed by that date, too, but not form part of the Record.

Date: January 9, 2017 Justice D.A. Jarvis