Court File and Parties

COURT FILE NO.: FS-16-409816 DATE: 20170424 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

TERRI JO REEVES Applicant – and – IRENE MICHELLE BRAND Respondent

Counsel: Stephen J. Codas and Joelle Ruskin, for the Applicant Matthew Fordjour, for the Respondent

HEARD: February 9, 10, 13, 14, 15, 16, and March 7, 2017

REASONS FOR DECISION

DIAMOND J.:

Overview

[1] The applicant Terri Joe Reeves (“Terri”) and the respondent Irene Michelle Brand (“Irene”) were married on June 17, 2006. Irene was born and has lived in Toronto, Ontario for her entire life. Terri was born in New Ross, Nova Scotia (“New Ross”) and moved to Toronto in or around 2004.

[2] Terri and Irene had one child during their marriage, Ray Mihael Miles Brand-Reeves (“Ray”) born on January 20, 2012. Ray was conceived through intrauterine insemination (“IUI”) with an anonymous sperm donor. Terri carried and delivered Ray by caesarian section.

[3] Terri and Irene separated on April 23, 2015, and until very recently (i.e. near the end of the trial of this proceeding), they lived separate and apart under the same roof.

[4] Most of the issues in this proceeding were resolved prior to the commencement of trial. The only outstanding issues pursued at the trial before me were:

a) custody of Ray (Terri requests sole custody while Irene requests joint custody);

b) Terri’s request to relocate with Ray back to New Ross;

c) child support; and,

d) spousal support in the event Terri’s request to relocate is denied.

[5] At trial, I heard evidence from 17 witnesses, including the parties, their family members, their friends, Terri’s potential Nova Scotia employer and Ray’s potential Nova Scotia school principal. At the end of the trial, I took my decision under reserve with reasons to follow.

[6] These are my reasons.

Issues to be decided

[7] I am charged with determining the following four issues, and in the following order:

Issue #1 What custody arrangements ought to be ordered for Ray?

Issue #2 Should Terri be permitted to relocate with Ray to New Ross?

Issue #3 What is the proper amount of child support (including section 7 expenses) for Ray?

Issue #4 Is an order for spousal support appropriate, and if so, in what amount?

[8] I note that in the event Issue #2 is decided in favour of Terri (i.e. she is permitted to relocate with Ray to New Ross), she is foregoing her right to claim spousal support from Irene.

Issue #1 What custody arrangements ought to be ordered for Ray?

[9] Section 16(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) allows the Court to make “an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage”. In V.K. v. T.S., 2001 ONSC 4305, Justice Chappel set out an extensive and helpful review of the legal principles to be considered and applied by the Court:

“As this is a divorce case, the legislative principles that apply are those set out in section 16 of the Divorce Act. Section 16(1) of that Act provides that a court may make an order respecting custody of or access to a child of the marriage on application by a spouse or any other person. Section 16(4) of the Act clarifies that in making an order under section 16, the court may grant custody and/or access to more than one person. Section 16(6) of the Act gives the court a broad discretion to include any terms, conditions or restrictions in a custody and access order that it considers to be fit and just.

Section 16(8) of the Divorce Act specifies that the sole criterion for determining custody and access issues under the Divorce Act is ‘the best interests of the child of the marriage, as determined by reference to the conditions, means, needs and other circumstances of the child.’ The Supreme Court of Canada has held that these interests must be ascertained from the perspective of the child rather than from the parents’ perspective; parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child.

Sections 16(9) and (10) of the Divorce Act set out additional principles that the court must apply in carrying out the best interests analysis. Section 16(9) stipulates that the court may not take into consideration the past conduct of a person, unless the conduct is relevant to the ability of that person to act as a parent of the child. Section 16(10) provides that in making a custody and/or access order, the court “must give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child”. To that end, the court is required to consider the willingness of each spouse who is claiming custody or access to facilitate such contact. The goal of maximum contact with each parent is not absolute, but the legislation is clear that maximum contact can only be restricted to the extent that contact conflicts with the best interests of the child.

Unlike many provincial and territorial statutes dealing with custody and access, the Divorce Act does not spell out a lengthy list of other factors for the court to consider in assessing the best interests of the child. The flexible and imprecise nature of the best interests test set out in the Divorce Act renders a measure of indeterminacy inevitable, but recognizes the paramountcy of the child’s needs and interests over the interests of expediency and predictability.

In an effort to obtain some assistance in applying the best interests test, courts across the country have decided that provincial and territorial legislation setting out criteria to consider in carrying out the “best interests” analysis may be referred to as guides in deciding cases under the Divorce Act. The relevant statutory provision in Ontario is section 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, which provides as follows:

Merits of application for custody or access

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

Best interests of child

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

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

(i) each person entitled to or claiming custody of or access to the child,

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

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

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

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

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

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

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

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

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child. 2006, c. 1, s. 3 (1).

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1).”

[10] Both parties agree that prior to the determination of Terri’s request to relocate to New Ross, I must decide the issue of custody of Ray first. This is due to the fact that this proceeding is an original application, as opposed to a motion to change or vary an existing court order. As held by the Court of Appeal for Ontario in Bjornson v. Creighton:

“The Gordon proceeding dealt with mobility within the context of an application to vary an order. In the instant case, the issue of mobility was dealt with at the original hearing following the two interlocutory orders made on consent. Despite these differences, the guiding principles set out in Gordon, which remain applicable in the case before us, are:

1. The judge must embark on a fresh inquiry into what is in the best interest 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.

2. 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 and the most serious consideration.

3. 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.

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

5. More particularly, the judge should consider, inter alia:

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

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

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

(d) the views of the child;

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

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

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

In applying the guidelines provided by Gordon to the instant case, two matters require consideration. The first is that at the outset of the trial, the parents were “equally entitled to custody”. As a result, for analysis purposes, the parents could not be divided into “custodial parent” and “access parent”. The second is that the organization of his reasons is such that the trial judge appears to have decided the question of mobility first and the question of custody second. With respect, that strikes me as putting the cart before the horse.”

[11] Irene argues that while the Bjornson decision is binding upon this Court, an initial custody determination cannot be carried out without reference to Terri’s plan to relocate with Ray to New Ross. As held by Justice Mackinnon in Terris v. Marcoux:

“It would be artificial to interpret Bjornson as requiring the court to determine custody without reference to all aspects of each parent’s plan, including proposed place of residence, and only to consider the proposed place of residence as a discrete issue, at which time ‘great respect and the most serious consideration’ is to be given to the views of the newly determined custodial parent.”

[12] I agree with that approach. As the bulk of the evidence at trial concentrated on Terri’s request to relocate with Ray to New Ross, that request is obviously a factor (although one of several) to consider when making the initial custody determination.

Factual background

[13] Terri comes from a close family, with whom she has and continues to maintain a very strong bond. In the summer of 2004, Terri moved to Toronto because her partner at the time obtained employment in Markham, Ontario. Upon arriving in Toronto, Terri was initially employed at a Scotiabank branch earning approximately $30,000.00 per annum.

[14] Irene testified that she also has a current strong relationship with her own family, although at different points in the trial it was obvious, and admitted, that prior to the parties’ separation, Irene’s relationship with her parents, and in particular her mother Abigail Brand (“Abigail”), was splintered and frustrating. Abigail testified that, as a religious, observant Jewish woman, she encountered difficulty and obstacles in accepting that two of her daughters (Irene and her sister May) were lesbians.

[15] Terri and Irene met on June 18, 2005 at a bar. Their romantic relationship progressed quickly, and they began cohabitating by September 2005. They were engaged to be married shortly thereafter, and were formally married on June 17, 2006. Present at their wedding were, inter alia, Terri’s mother Mary-Ellen Reeves (“Mary”) who flew in from New Ross (Terri’s father has a fear of flying that preventing him from attending). Irene’s parents did not attend the wedding or the reception.

[16] At the time of their marriage, Irene was employed as a police officer with Toronto Police Services. In or around late 2006, Irene expressed an interest in leaving her current employment and enrolling in a wine making course with a view to ultimately securing employment in the wine making industry. While Irene went back to high school to complete certain courses and then enrolled at Brock University to study wine making, Terri supported them through her then employment with Rogers.

[17] For approximately the next four years, Terri was the primary income earner. During those years, both Terri and Irene testified that even though Terri’s family resided in New Ross, Terri and Irene enjoyed a stronger relationship with Terri’s family and visited them on several occasions.

Ray is born

[18] Terri testified that she had wanted a child her entire adult life. It took six IUI attempts before Terri became pregnant. While Terri testified that Irene was less than emotionally and physically supportive of her during these times, Irene disputed that evidence and was quite disappointed when each of the first five IUI attempts proved unsuccessful.

[19] When Irene’s parents were told of Terri’s pregnancy, both Terri and Irene were displeased with their non-responsive, underwhelming reaction. Terri gave evidence that Irene did not speak to her mother again during Terri’s entire pregnancy.

[20] Terri gave evidence that during her pregnancy, Irene had become less affectionate and there were problems in their relationship. According to Terri, Irene seemed far less excited about the prospect of their new son. Irene took issue with this evidence.

[21] Ray was born on January 20, 2012. At that time, Terri and Irene lived in a jointly owned condominium unit on Charles Street. As a result of giving birth by way of a caesarian section, Terri’s mom stayed in the condominium unit with them for approximately two weeks to assist Terri in her recovery. To the best of Terri’s recollection, Abigail only met Ray when he was approximately eight months old.

The move to New Brunswick

[22] Terri went on maternity leave from Rogers. After her one year maternity leave was over, the parties agreed that Terri was going to stay home to take care of Ray and Irene would assume full financial responsibility to support the family. At that time Irene was employed at the Mill Street Brewery and had taken steps to assume her role as primary income earner.

[23] Irene’s desire to enter the wine making industry caused her to apply for various winery employment positions including some in eastern Canada. Irene ultimately secured a job at a winery in New Brunswick. While this was undoubtedly a substantive change of plans for both parties, they decided to relocate to New Brunswick when Ray was just over one year old. Irene testified that the New Brunswick job was an opportunity she had been waiting for, and Terri was agreeable as it would bring them closer to Terri’s family in New Ross.

[24] Terri and Irene rented out their Charles Street condominium unit to a tenant, and relocated to New Brunswick. Irene moved there first in May 2013. Terri soon followed with Ray several weeks later. Terri had obtained a six month extended maternity leave from Rogers in the event the relocation did not work out so that she could return to work if necessary.

[25] During the time Terri, Irene and Ray lived in New Brunswick, Terri’s parents visited almost every weekend. Unfortunately, the employment opportunity did not turn out the way Terri and Irene had hoped. Irene testified that she did not enjoy her relationship with her new boss, and both of them were quite unhappy with their new accommodations. Terri testified that after they discovered mould in the basement of their new house, Ray and Terri moved and began residing with Terri’s parents in New Ross.

[26] After approximately two months, Irene quit her job in the winery. They returned to Toronto in or around early July 2013. As their Charles Street condominium unit was still rented out, they found new accommodations at 83 Elm Avenue, Unit 105 (the “Elm property”).

[27] Within a few weeks, Terri rejoined Rogers in her original position, and once again became, on a temporary basis, the primary income earner, earning approximately $40,000.00 per annum. Irene stayed at home with Ray while Terri worked at Rogers. Terri would come home at lunch whenever she could.

Irene returns to work

[28] In or around June 2014, Irene became re-employed with Toronto Police Services. She has continued to work as a police officer to this day. Terri resigned from her position at Rogers, and became a stay at home mom with Ray.

[29] As a police officer, Irene’s employment schedule consisted of shift work which required her to work various hours, including late night and over night shifts. The income Irene earned from her position with Toronto Police Services was far greater than what Terri was earning at Rogers. Both of them decided that it would make far more financial sense for Irene to be the primary income earner.

[30] Terri and Irene sold their Charles Street condo in the spring of 2015. They paid off their joint debts and placed approximately $50,000.00 of the net proceeds into a joint account.

Separation

[31] The parties separated on April 23, 2015. Terri testified that she felt Irene was simply not in love with her anymore. Terri asked Irene to attend couples counselling together. Irene agreed, but after three sessions Irene stopped attending. Irene gave evidence that the relationship was simply over.

[32] According to Terri, Irene initially told her that she would be moving out of the Elm property. Terri then told Irene that she was desirous of relocating back to New Ross, and bringing Ray with her. Despite Terri’s understanding that Irene would move out of the Elm property, this never happened.

[33] This proceeding was commenced in late April 2016. Terri brought a motion, returnable in the fall of 2016, seeking interim custody and an access schedule. The parties ended up resolving that motion, resulting in the consent Order dated September 21, 2006 of Justice Moore. That Order provided, inter alia, that until the conclusion of trial there would be a partial nesting arrangement whereby each of Terri and Irene would have exclusive use of the Elm property with Ray pursuant to a fixed monthly schedule.

[34] Terri testified that she experienced difficulty with the implementation of the nesting agreement, and that Irene did not always stay with Ray at the Elm property during her allotted time, as Irene took Ray with her to Irene’s parents’ home for stretches of time.

[35] Irene testified that life in the Elm property was stressful, and while she and Terri did not acknowledge each other very often they still “tried to keep it together”.

[36] Of note, in early 2017 Irene gave notice to the Elm property landlord that she would vacate the Elm property by the end of February 2017. Terri testified that she was not initially aware of Irene’s intention to vacate, but found out from the landlord. During Irene’s cross-examination, she testified that it was in fact her desire to stay in the Elm property past the end of February 2017, as she mistakenly believed that a decision would be rendered in this proceeding by that deadline (she was apparently under the impression that these Reasons for Decision would be delivered at the actual conclusion of the trial). While this evidence was fully explored, the timing of Irene’s notice and her subsequent request for an extension did appear to render the terms of the nesting arrangement to be somewhat tactical.

Decision

[37] Pursuant to section 20 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, both Terri and Irene are equally entitled to custody of Ray. The only test I must apply in determining custody and access is the best interest of the child. That test is a flexible one, with numerous criteria available for the Court’s consideration.

[38] Both parties rely upon the Court of Appeal for Ontario decision in Barnes v. Parks which provides that, in resolving custody disputes, emphasis must be placed upon the critical importance of bonding, attachment and stability in the lives of young children.

[39] Terri requests that I grant her sole custody of Ray. Irene requests that I grant her and Terri joint custody of Ray. They are entrenched in their respective positions, and Terri’s desire to relocate with Ray to New Ross is a relevant consideration.

[40] When determining whether joint custody of a child is appropriate, the comments of the Court of Appeal for Ontario in Kaplanis v. Kaplanis are important and helpful:

“Family law cases are, by their nature, fact-based and discretionary. It is unnecessary to address this court’s prior jurisprudence regarding the issue of joint custody to resolve the issue of custody in this appeal.

As in any custody case, the sole issue before the trial judge was the best interests of the child. The fact that both parents acknowledged the other to be “fit” did not mean that it was in the best interests of the child for a joint custody order to be made. The evidence before the trial judge should have revealed what bonds the child had with each of her parents and their ability to parent the child. In addition to detailing the mother’s current arrangements respecting the care of the child, the evidence should also have indicated what practical plan to care for the child the father proposed to make when he had the child with him and the benefits to the child of such an arrangement. The trial judge had no evidence to this effect. Indeed, as the trial judge acknowledged at the time she made her order, the child had never spent an overnight with the father alone.

The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important. In this case there was no evidence of effective communication. The evidence was to the contrary.”

[41] In Loncar v. Pendebury, 2015 ONSC 3026 Justice Lococo held that joint custody may be appropriate in three main types of situations:

a) when both parents agree to joint custody, although such an agreement is not a pre-requisite to the court making such an order;

b) when neither parent has disentitled him/herself to custody, and where there is a positive history of co-operative parenting and effective, appropriate communication between the parent with respect to the child, and

c) where a parent’s relationship with the child ought to be preserved in cases where the parent who is the primary caregiver objects to joint custody without just cause, particularly where there is a risk where the objecting, primary caregiver parent will try to marginalize and limit the other parent’s involvement with the child

[42] The first situation does not apply as there is no agreement between the parties that a joint custody order is appropriate.

[43] With respect to the second situation, in my view the parties have encountered and experienced poor parenting communication, especially since they separated. They have effectively ceased communicating, as Irene feels very upset with what she considers to be Terri’s efforts to marginalize her as a parent, and Terri feels trapped in an unworkable predicament. I am reminded of the comments of Justice Gray in Warcop v. Warcop, 2009 ONSC 6423:

“The focus is simply on the best interests of the child. The best interests of the child will obviously not be fostered if the parents are unable to communicate and cooperate in making decisions that affect the child. However, a standard of perfection is not required, and is obviously not achievable. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis.”

[44] Irene points to various text messages exchanged between herself and Terri as evidence that the parties have made reasonable and consistent efforts to ensure reciprocal communication. In my view, these text messages are, for the most part, concerned with financial matters such as paying Elm property bills, locating items in the Elm property which may have been misplaced, and other non-substantive matters. While the tone of some of these text messages is courteous and respectful, it became obvious during the testimony of both Irene and Terri (and some of their family members and friends) that the parties have been unable to maintain informative, substantive communication on a day to day basis. There is an element of mistrust between them. Terri was very upset that Irene apparently left Ray alone in the Elm property while she went for a brief exercise run, albeit a run within the building itself. Terri believes that Irene breached the partial nesting agreement by not staying with Ray at the Elm property during her allotted time. Irene believes Terri has a dominating personality, and is overbearing and fretful when it comes to parenting Ray. Irene remains angry that Terri views her as a “minimal parent”, testifying that she feels “sick to her stomach” with the idea of Terri taking Ray away from her to New Ross.

[45] Irene was cross-examined about whether she advised her sister over lunch (during the trial) that “everything was all Terri’s fault” and that Irene “hated Terri”. Irene was alleged to have advised her sister that Terri’s sister and mother were “overdramatic witnesses who overplayed their roles” in Ray’s life. When asked whether she had made such statements over lunch, Irene seemed to deny making them but in fact answered that she did not recall making them. Irene was never asked to elaborate further in re-examination, and in my view this evidence was somewhat troubling.

[46] Hope that communication between parents may improve once litigation is over is not a sufficient basis to support an order for joint custody. I find that Terri and Irene have been unable to communicate in a constructive way on any sustained basis, and in particular with respect to substantive issues concerning Ray’s life.

[47] With respect to the third situation, despite Irene’s protestations that she now feels marginalized by Terri (and by extension her family members), I cannot conclude on the evidence that there is a real risk that Terri will seek to actively limit Irene’s involvement with Ray if sole custody is awarded to Terri. Visits to New Ross were very common in the lives of Terri and Irene, even before Ray was born. This did not cease even after the parties separated. In late 2015, Terri invited Irene to join her and Ray on yet another trip to New Ross to see and stay with Terri’s family. Irene joined them twice, staying in a cottage owned by Terri’s family near the main house. The separation did not stop Terri from trying to include Irene in Ray’s life. Conversely, there was no evidence before me that Irene included Terri in any of her family events post separation, although there was also little evidence of any such family events even taking place prior to separation.

[48] Terri has been Ray’s primary caregiver for the majority of his life and in particular for the last three years. I believe that Terri is the parent to whom Ray is most closely bonded. Terri has made the major decisions for Ray regarding his schooling, medical and social needs. Irene did act as Ray’s primary caregiver for a short time when they returned from New Brunswick and Terri worked at Rogers. However, Irene admitted that she trusted Terri in her ability to make major decisions with regard to Ray, including the choice of school. In an Agreed Statement of Facts filed at trial, Irene admitted that during their marriage it was Terri who researched and enrolled Ray in activities and programs. While I understood Irene’s evidence to be that Terri is somewhat overprotective and overreacting when it comes to Ray’s physical well-being, it was nevertheless Terri who arranged for and took Ray to dental and doctors’ appointments.

[49] While I will have more to say about this point in answering Issue #2, Irene’s evidence (and that of her family members and friends) seemed to be designed to leave the Court with the impression that over the last few years (i.e. post-separation), Ray has developed a much stronger bond with Irene and especially her parents. This strong bond is admittedly, a late blooming one, as Abigail herself testified that Ray had only started attending and sleeping over at her place after the parties had separated. While Abigail was contrite and owned up to mistakes which she thought she had made earlier on in Ray’s life, I find that Irene has been trying to create the strong bond between Ray and her family rather than maintain an existing one. Irene’s success in developing a stronger relationship with Ray does not change the fact that Terri remains Ray’s primary caregiver and psychological parent.

[50] For these reasons, I grant sole custody of Ray to Terri, but order her to consult with Irene before making any decisions with respect to major issues that relate to Ray’s education, health and religion. In the event that Terri and Irene cannot agree in regard to such decisions, Terri shall make the final decision in that regard.

Issue #2 Should Terri be permitted to relocate with Ray to New Ross?

[51] In support of their respective positions, both parties rely upon the Supreme Court of Canada’s seminal decision in Gordon v. Goertz. In determining whether it is in Ray’s best interest to relocate with Terri to New Ross, I must be mindful of and consider the following key principles:

1. The Court must embark on a fresh inquiry into what is in the best interest 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.

2. The Court does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect and the most serious consideration.

3. 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.

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

5. More particularly, the Court should consider, inter alia:

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

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

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

(d) the views of the child;

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

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

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

[52] In Gordon, Justice McLachlin held that a decision of a custodial parent to live and work where he or she chooses is “entitled to respect barring an improper motive reflecting adversely on the custodial parent’s parenting ability.”

[53] Irene relies upon the Court of Appeal for Ontario’s decision in Berry v. Berry, 2011 ONCA 705 in which the Court overturned the trial judge’s decision permitting a mother to relocate with the child from Toronto to Kingston. The Court held that the trial judge failed to give appropriate and necessary weight to the maximum contact principle, stating as follows:

“The trial judge erred by failing to give sufficient weight to the maximum contact principle. He stated that maximizing the contact between a young child and both parents “is not the primary goal. It is but one of a number of factors that has to be weighed and considered intelligently in a case where the parties cannot agree.” In Goertz, McLachlin J. pointed out that the maximum contact principle is one of the two statutory factors set out in ss. 16(10) and 17(9) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), and added that the reviewing judge must bear in mind that Parliament has indicated that maximum contact with both parents is generally in the best interests of the child.”

[54] I note that in Berry, the Court found that what renders a case to be “exceptional” (and therefore relevant to consider a custodial parent’s reason for requesting to relocate) is where the custodial parent’s reasons for relocating are relevant to his/her ability to meet the needs of the child.

Findings relevant to the disposition of Issue #2

[55] In order to make the necessary findings of fact in support of her application, Terri must discharge her legal onus and satisfy me that those facts “more likely occurred than not”. As the moving party Terri has the onus of factual proof of the evidence necessary to satisfy her legal burden. As stated by Justice Stinson in Zesta Engineering Ltd. v. Cloutier, 2010 ONSC 5810:

“In certain instances it is simply not possible to reconcile some aspects of the evidence that was presented by the witnesses at this trial. In part, I liken the situation to attempting to assemble several old jig-saw puzzles whose various parts have sat, co-mingled, in the bottom of an actively-used desk drawer for a decade: some pieces are missing, some are undecipherable, some have changed over time and no longer fit together, and some are not what they seem to be, all due to the passage of time and intervening events. In this case my task is to use the pieces of evidence to re-create as clear a picture of past events as I can give the foregoing limitations, applying the "real test of…truth" as described above, drawing inferences where appropriate, and applying the rules of burden and standard of proof, as required.”

[56] In considering the Gordon principles, I listened carefully and attentively to the testimony of the parties and the witnesses they both called at trial. Below is a summary of my key findings relevant to the disposition of Issue #2.

• Until the parties separated, Terri’s parents were much more accepting of Terri and Irene’s marriage, and had a much stronger and closer connection with both them and Ray.
• Prior to September 2016, Irene never brought Ray to her parents’ home despite an ability to do so. Conversely, Ray spent the following time in New Ross at Terri’s parents’ home (with Terri and Irene up to 2015, and with Terri only post-2015):

Year	Number of Days
2013	78
2014	16 [1]
2015	204
2016	98 [2]

• The longest stretch of continuous time Ray spent in New Ross was five consecutive weeks.
• As previously advised, Irene visited New Ross with Terri and Ray post-separation twice, in October and December 2015.
• When Terri, Irene and Ray relocated to New Brunswick due to Irene’s new employment position, they were approximately 5.5 hours away from New Ross and Terri’s parents came to visit them almost every weekend.
• In or around mid-2015, Terri met Helen Radford (“Helen”) at a function, and by September 2015, Helen became Terri’s girlfriend and partner. Helen has one child, a daughter approximately four years older than Ray. Helen and her daughter live in Halifax which is approximately 90 kilometers away from New Ross. Terri and Helen remain partners to this day.
• Prior to locating a job at the New Brunswick winery, Irene tried to find employment at a winery in the Halifax area. Had Irene secured employment at a winery in Nova Scotia, she would have moved and lived there with Terri and Ray.
• Irene is currently residing with her parents. She trusts her parents to look after Ray when she is working, and Ray has developed a strong relationship with her parents.
• Irene believes that Ray is quite connected to Terri’s family, but not necessarily to the town of New Ross. That said, Ray does love travelling and going to New Ross.

[57] There are two additional sets of facts which, in my view, are quite noteworthy.

(a) Terri gave evidence that while she has strong relationships with friends in Toronto, her true support system (financial and emotional) is in New Ross. As part and parcel of her desire to relocate to New Ross, Terri took proactive steps to (a) secure new employment there, and (b) locate a school in which to enroll Ray for the 2017/2018 year.

I heard evidence from Clinton Wilkins (“Wilkins”) who has offered Terri a job in his consumer mortgage business located in Halifax. The position is open for Terri to start immediately, with a salary of $50,000.00 plus bonus. Wilkins testified that Terri could benefit from a flexible arrangement and could work from her parents’ home in New Ross if necessary.

I also heard evidence from Lindsay Wilkins (“Lindsay”), the principal of New Ross Consolidated School, a small, community-based primary to grade 8 school located in New Ross. Assuming Ray’s application is submitted on time, there is space for Ray to attend that school.

(b) In cross-examinations Irene was asked what her plans were in the event I granted Terri’s request to relocate with Ray to New Ross. While obviously very upset and fearful of that result, Irene testified that in such circumstances, she would need to consider moving to Nova Scotia herself.

She stated that it would be very tough to lose her position with the Toronto Police Service, but that relocating to Nova Scotia would be an option she would consider.

Irene was not asked any questions about her evidence on this point in re-examination, and I was not provided with any evidence as to the chances of her securing employment with the Halifax Police Service (or any other police service in Nova Scotia). Similarly, I was not provided with any evidence as to whether Irene would be unable to relocate to Nova Scotia, although she had moved to New Brunswick several years earlier.

Decision

[58] In opposing Terri’s request to relocate with Ray to New Ross, Irene submits that the “status quo” to which Ray is now accustomed in Toronto is a much preferable outcome. The bottom line is that regardless of the outcome of this proceeding, this is no real “status quo” for Ray. As I have awarded sole custody of Ray to Terri, Ray will need to relocate regardless and start attending a new school. With Irene having vacated the Elm property, Terri would obviously need to find new accommodations in the Greater Toronto Area. She gave evidence that, at this time, she would likely seek to live in the Burlington area (an area she can currently afford), and she does not currently know her reasonable prospects of employment.

[59] While I have no doubt that Irene loves Ray and is a very good parent to him, I find that her parenting time and efforts only seemed to increase after the parties separated and Terri advised of Terri’s intention to relocate with Ray to New Ross. I am cognizant of and understand that Irene’s work schedule is a difficult one, with varying, lengthy shifts that range from lasting the entire day to overnight. I applaud Irene for re-engaging her family to assist her with caring and looking after Ray when she is unable to do so due to her work schedule. However, I agree with Terri that, for the most part, Ray’s strong bond with Irene and her family was created post-separation, and is not something that has been maintained from the time of their marriage.

[60] While both Terri and Irene are actively involved in Ray’s life, Irene’s involvement seemed to increase out of her fear of losing him. While this is completely understandable, it does not change the fact that Terri is Ray’s primary caregiver, something which I must bear in mind when considering the maximum contact principle. As held by the Court of Appeal for Ontario in Bjornson, while the maximum contact principle is an important consideration, it is not absolute and remains one of many factors in the entire analysis.

[61] I find that Terri is well aware and promotes the maximum contact principle, and despite the obvious adverse consequences which her relocation with Ray to New Ross would have upon Irene, Terri has and continues to recognize the importance of Irene’s relationship with Ray. Post-separation, she has continued to attempt to involve Irene in Ray’s life, including having Irene join the Reeves family in New Ross twice in late 2015, and inviting Irene to Terri’s sister’s home in Huntington, New York.

[62] During closing submissions, both Terri and Irene submitted draft Court Orders codifying the terms of the relief each sought respectively. Terri’s draft Order proposed an extensive access schedule for Irene with substantial parenting time mindful of Irene’s vacation allotment and work schedule. On the record before me, I do not find that Terri’s request to relocate with Ray to New Ross is being made with any intention to impede Irene’s access or minimize her involvement in Ray’s life. I rely and adopt the comments of my colleague Justice Corbett in Konkin v. Aguilera, 2010 ONSC 4808:

“No doubt the reasons a parent has decided to move will weigh significantly in reviewing the request to move. Where the court considers that the custodial parent is moving for the purpose of frustrating access, the motion will not likely succeed.

That said, the thrust of Gordon v. Goertz was to confirm that custodial parents are entitled to pursue their lives. Ms. Konkin’s important duties as Adison’s primary parent should not be a golden chain binding her to a life of poverty away from her extended family. And even though there will be negative repercussions on the access relationship with Mr. Aguilera, and these are unfortunate, adjustments can be made to the access regime to ameliorate these repercussions. To quote again from the headnote in Gordon v. Goertz: ‘The proposed change of residence of the child by the custodial parent will not justify a variation in custody unless the non-custodial parent adduces cogent evidence that the child’s relocation with the custodial parent will prejudice the child’s best interests and, further, that the quality of the non-custodial parent’s relationship with the child is of such importance to the child’s best interests that prohibiting the change of residence will not cause detriment to the child that is comparable to or greater than that caused by an order to vary custody.’ Following this analysis, it is not proper to start the analysis with the question: is it in the child’s best interests to be moved away from his access parent? Rather, the task is to compare the alternatives that are available and then to determine which is in the child’s best interests. In the case before me, it is better to permit the move and adjust the access schedule than to move Adison from the custody of his mother to his father. And it is better to permit Ms. Konkin to act on her good faith decision to move back home, rather than to require her to try to live in Toronto without support from family.”

[63] To the extent that Terri is now seeking to get on with her life, she has testified that her life is no longer in Toronto, and I believe her. This is not a case where Terri is seeking to relocate to a brand new city with the “fresh start hope of making things work”. Terri is returning home to where her support system is, and has always been.

[64] I find no improper motive behind Terri’s request to relocate with Ray to New Ross. Contrary to Irene’s suggestions, I do not believe that Terri’s relationship with Helen is the reason for Terri’s request to relocate. After the breakdown of her marriage to Irene, Terri wants to surround herself with the social (and possible financial) support of her family and friends with a view to regaining control and independence of her life. She has already taken steps to obtain employment. Terri’s motives are based upon and further Ray’s best interests. Terri’s relocation plan is not speculative. It includes concrete terms in a place familiar to not just Terri, but more importantly to Ray. Ray is no stranger to New Ross, and has enjoyed an established connection to New Ross since his birth.

[65] I also cannot ignore Irene’s admission during cross-examination that she would consider leaving her employment with Toronto Police Service and moving to Nova Scotia if Terri was permitted to relocate with Ray to New Ross. When presented with the employment opportunity at the New Brunswick winery in 2014, Irene had little difficulty uprooting her life from Toronto and moving with Terri and Ray to New Brunswick. In support of her argument, Terri relies upon the decision of the British Columbia Court of Appeal in S.S.L. v. J.W.W., 2010 BCCA 55. In overturning a trial decision, the Court addressed a mother’s position that her request to move from British Columbia to Ontario “would not happen without the children”:

“In my view, the court’s task in these joint parenting cases is to analyze the evidence in four possible scenarios, in this case, (i) primary residence with mother (London, Ontario); (ii) primary residence with father (Victoria, B.C.); (iii) shared parenting in Victoria; and (iv) shared parenting in London, but to do so knowing the court’s first task will be to determine which parent is to have primary residence. When the question of primary residence is evenly balanced and the court finds the best interests of the children require both parents to be in the same locale, then the court will need to choose between the shared parenting options offered by the parents, without presuming the current care-giving and residential arrangement is to be the preferred one.

Proximity of parental homes will usually be in the best interests of children with two good parents. But proximity may be achieved in either proposed location. The choice of the existing location cannot be the default position.”

[66] The proposal, or at least admitted possibility, of Irene relocating to Nova Scotia is something which I am mandated to consider. While I do not have any evidence one way or the other as to Irene’s potential employment prospects (either as a police officer or in some other field), given the historical mobility of the parties, I do not find Irene’s potential move to Nova Scotia to be an impractical one.

[67] For all these reasons, and subject to the terms specified hereinafter, I grant Terri’s request to relocate with Ray to New Ross, Nova Scotia.

Issue #3 What is the proper amount of child support (including section 7 expenses) for Ray?

[68] As held by the Court of Appeal for Ontario in Vanos v. Vanos, 2010 ONCA 876, the Court should use a spouse’s actual, known amount of income for the purpose of determining the quantum of child support.

[69] For 2016, Irene’s employment income was $100,153.00. This was based upon a pay stub introduced at trial.

[70] While Irene testified that her 2016 income included pay duties and she would likely earn less in 2017 (approximately $90,000.00), there was no documentary evidence filed at trial to support her statements. I therefore use the $100,153.00 income figure for the purpose of calculating child support.

[71] In accordance with the Federal Child Support Guidelines, SOR/97-175, I order Irene to pay monthly child support in the amount of $881.00 commencing May 1, 2017 and the first day of each month thereafter.

[72] With respect to any section 7 expenses, Terri and Irene shall share in the payment of those expenses in proportion to their respective incomes.

Issue #4 Is an order for spousal support appropriate, and if so, in what amount?

[73] As I have granted Terri’s request to relocate with Ray to New Ross, she is waiving her right to claim any spousal support and thus the disposition of Issue #4 is moot.

Relief Granted

[74] In summary, and for the reasons given, I make the following order:

1. The application by Terri to move with Ray is granted.
2. Terri shall have sole custody of Ray. Terri shall consult with Irene before making any major decisions affecting the health or education of Ray. If Terri and Irene do not agree in this regard to the decision in question, Terri shall have final decision making authority.
3. There shall be no spousal support owing from the Respondent to Terri.
4. Commencing May 1, 2017 and on the first day of each month thereafter, Irene shall pay Terri Table child support in the sum of $881.00.
5. Ray’s primary residence shall be with Terri.
6. Terri shall not relocate with Ray outside of New Ross, Nova Scotia or Halifax, Nova Scotia without Irene’s prior written consent or Court Order.
7. There shall be reasonable, frequent contact/access with Irene as follows: (a) Four weeks in the summer (two weeks in each of July and August). Irene shall give Terri notice of what two weeks in each of July and August she intends to schedule on or before May 1st in each year. Upon Irene’s request, with at least 60 days’ written notice provided, Terri shall spend two of these four weeks in Canada to care for Ray during the day if Irene is not available. Where Irene is not available during the day to care for Ray, Ray shall reside with Irene in the evening/overnights; (b) Ten consecutive days over Christmas and New Year’s break each year to be spent in Ontario or where Irene requests, with the exception of December 23 to December 26 when Ray shall be resident with Terri. Irene shall give Terri notice of what ten-day period she intends to schedule on or before September 30th yearly; (c) March Breaks in alternate years in Ontario or where Irene requests. March Break shall be whatever break is scheduled in Nova Scotia, not as scheduled in Ontario. Terri shall advise Irene by January 1st in each year. Ray shall be resident with Irene for March Break 2017; (d) For the two Passover Seders every year to be spent in Ontario; (e) Victoria Day Long-Weekend in May 2017, subject to Irene’s schedule. If Irene cannot exercise access on the Victoria Day Long-Weekend, she will have Ray for four days in June 2017 (between June 1 to June 15) in Ontario or where Irene requests. Irene shall give Terri notice of what four-day period she intends to schedule on or before March 15, 2017; (f) One week in October in Ontario or where Irene requests. Irene shall give Terri noticed of what week long period she intends to schedule on or before August 30th yearly. This access shall be reviewed in July 2018 with a view to Ray commencing Grade One. Ray shall, at a minimum, be resident with Irene for Thanksgiving Weekend each October; (g) Irene shall see Ray at any time Irene travels to Nova Scotia as long as the time is mutually agreeable to both parties. Irene shall endeavor to give Terri as much advance notice of any plans she has to be in Nova Scotia. Terri shall drop off and pick up Ray from where Irene is able to parent Ray during her trips to Nova Scotia; and, (h) Irene shall have reasonable telephone contact, at her own expense, daily during a one-half hour period of time chosen by Terri (to allow her to co-ordinate the calls with any of Ray’s future extra-curricular activities).
8. Irene’s scheduled time with Ray outlined in paragraph 7 above, shall be at Irene’s option as her schedule permits. If Irene does not comply with the notice provisions in paragraph 7 regarding her intention to exercise her access within the prescribed periods of time, Irene shall forfeit the access in question at Terri’s discretion.
9. During Irene’s access with Ray, Ray shall not stay overnight without Irene and for no longer than four hours during the daytime.
10. Terri shall ensure that, until Ray is at least 12 years of age, a responsible adult, related to her or Ray, shall accompany him on each trip to see Irene.
11. Irene shall pay her own travel costs to and from Nova Scotia to see Ray.
12. Terri shall be solely responsible for the cost of Ray’s travel from Nova Scotia to Toronto (and return), together with her own travel expenses to accompany Ray on the flights.
13. The parties shall agree on the specific dates of Ray’s travel from Nova Scotia to Toronto (and return) in accordance with the access schedule in paragraph 7. Terri will send Irene a flight itinerary by email for her approval 60 days prior to the agreed upon travel date. Within 24 hours of receiving the flight itinerary from Terri, Irene will provide confirmation to Terri to book the flight.
14. If, for any reason whatsoever, Irene cannot take Ray for any of her scheduled time as set out in paragraph 7 above and the flight has already been booked in accordance with paragraph 13 above, Irene will be responsible for reimbursing Terri 100% of the cancellation cost of the two cancelled flights (Ray’s and Terri’s or the adult accompanying Ray) within 10 days of the cancellation.
15. Each parent shall be permitted to travel with Ray during their respective parenting time. The parent who proposes to travel with Ray shall provide at least 30 days’ written notice to the other parent, and such notice shall include a detailed itinerary with departure and return dates, accommodations, including address(es) of locations where Ray and the parent will be residing and telephone numbers, and details as to how to contact Ray during the trip. The parent who is not travelling with Ray is to provide written consent, as may be required, and such consent is not to be unreasonably withheld.
16. Irene shall maintain Ray on her extended medical and dental coverage for as long as she is required to pay child support or until further Court Order or until the coverage is no longer available or until Ray no longer qualifies as a dependent.
17. Irene shall maintain Terri as the irrevocable beneficiary of her life insurance policy in the amount of $300,000 in trust for Ray in order to protect her child support obligation to him. Irene shall name Terri as trustee to hold these insurance proceeds in trust, and use them to satisfy Irene’s remaining child support obligations as of the date of her death. If any insurance proceeds remain after the Respondent’s child support obligation has been satisfied, the remaining proceeds shall be paid to Irene’s estate.
18. Terri and Irene shall share Ray’s section 7 expenses in proportion to their respective incomes. Neither party shall be required to contribute to Ray’s section 7 expenses without the other’s prior consent, such consent not to be unreasonably withheld.
19. By no later than May 30th of each year, the parties will exchange copies of their income tax returns, as filed, for the prior calendar year together with the documents required in s.21(1) of the Guidelines that have not previously been provided. The parties will then determine the appropriate Table amount of Irene’s child support obligation and the ratio of proportionate sharing of special or extraordinary expenses, in accordance with the Guidelines.
20. Until the child support is adjusted by an amending agreement, court order or arbitration award, Irene shall continue to pay the child support and her contribution to Ray’s special and extraordinary expenses under the parties’ most recent written agreement, court order or arbitration award.
21. Terri may claim the Canada Child Tax Benefit (including the National Child Benefit Supplement and the Child Disability Benefit if applicable). The Universal Child Care Benefit, the refundable children’s GST/HST credits, the federal non-refundable tax credit amount for children under 18, and the eligible dependent credit for Ray.
22. Unless the support order is withdrawn from the office of the Director of the Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the order shall be paid to the Director, who shall pay them to whom they are owed.

Costs

[75] I would strongly urge the parties to try and resolve the issue of costs in this proceeding. In the absence of such an agreement, I am prepared to receive and review written costs submissions for both parties.

[76] Terri may serve and file her costs submissions within 14 business days within the release of these Reasons. Those submissions shall be no more than seven pages including a Bill of Costs.

[77] Irene shall thereafter have an additional 14 business days from the receipt of Terri’s costs submissions to deliver her responding costs submissions, which shall also be no more than seven pages also including a Bill of Costs.

Diamond J.

Released: April 24, 2017

COURT FILE NO.: FS-16-409816 DATE: 20170424 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

TERRI JOE REEVES Applicant – and – IRENE MICHELLE BRAND Respondent

REASONS FOR DECISION Diamond J. Released: April 24, 2017

Footnotes:

[1] In 2014 Terri was the primary income earner working at Rogers. During that year, Terri’s mom Mary resided with Terri and Irene in Toronto for two months while Mary recovered from a broken leg.

[2] Irene stopped joining Terri and Ray on their visits to New Ross after December 2015