Court File and Parties

Court File No.: Cambridge 123092 Date: 2013-03-20 Ontario Court of Justice

Between:

J.W.E.M. Applicant

— AND —

A.C.N. Respondent

Before: Justice P.A. Hardman

Heard on: October 18, 19, 24 and November 29, 2012

Reasons for Judgment released on: March 20, 2013

Counsel:

• A. Towlson for the applicant(s)
• L.K. Greaves for the respondent(s)

HARDMAN J.:

Introduction

[1] The father brought an application seeking custody and child support for a child K born […], 2003 as well as an order prohibiting the mother from changing the child's place of residence from the Regional Municipality of Waterloo. The mother cross-claimed for custody and an order to allow her to move with the child to Casselman, Ontario, a place located in the Ottawa area. She also sought both ongoing and back support.

[2] At trial, the parties agreed that an order of joint custody should be made.

Background

[3] The mother and the father first met at the age of twelve and then started to date when they were fifteen and sixteen. They moved in together two years later but separated in 2000. They resided together again around 2002.

[4] After the child's birth in 2003, the mother was home with the child for a year on maternity leave while the father worked outside the home. The mother was off work for another year due to an injured ankle from a fall. During this time, both maternal and paternal grandparents helped the family while the mother recuperated. When the child was about one year old, the mother left with the child.

The Father's Evidence

[5] The father testified that they separated because there had been a great deal of financial stress as the mother was not working. He said that he "melted down" and they "couldn't work it out".

[6] He told the court that when he and the mother moved back into together in about 2006 there was arguing because he was never around as he was working two jobs.

[7] Then when the child was three to four years of age, the mother and child moved in with LN, a person the father said was identified by the mother as just a roommate.

[8] The father said that the mother had a key to his apartment. He said that one time when he asked her to leave, she didn't and there was an argument and the police were called. He said that she kept coming over in violation of his release terms. He said that he ended up on probation and had to take anger management.

[9] He told the court that he and the mother and child went to Mexico together in 2008 and when he asked her to marry him, she said yes. However, he said that she wanted to keep it quiet.

[10] During the time that they were separated, the father said that he had the child every weekend although in the beginning the mother had the child every second Saturday. Further he noted that he saw the child almost every day as they were both working dayshift at the same business and the mother would give him a ride to the bus stop or 30% of the time to his home after picking up the child from daycare. He told the court that two to three times each week they would take the child out to eat in a restaurant. However, the father admitted in cross-examination that much of the time that he was with the child, the mother was there as well.

[11] While he said that he had been to the child's school to pick him up when with the mother and had attended his school plays and special activities, he testified only attending two parent-teacher meetings. Although he acknowledged that the child needed to work on language and math, he said that when the child said that he did not want to do his homework, he did not argue with him. The father admitted that he never had much to do with the school as the mother took care of that. He said that he thought that the occupational therapist was working with the child because his writing and printing were upside-down. He did not seem to understand what an individual education plan (IEP) was. He knew nothing about the IEP status of the child.

[12] The father told the court that he had the child every weekend because the mother told him that she had a lump on her back near her shoulder blades and was worried about cancer. He said that she told him that every weekend she was hooked up for medication for stomach cancer. While he seemed unclear about when she told him, he estimated that it was in February. He said that in March she told him that she did not have cancer.

[13] The father's proposed time frame means that the mother's failure to be part of his weekend only lasted a couple of months.

[14] The father said that he asked to meet her supposed room-mate LN a number of times but that the mother refused to arrange it.

[15] The father said that the mother first told him in September that LN was moving to Ottawa due to work. However, he said that she did not say anything about her intention to move to the Ottawa area until the end of January 2012. She told him that it was a good opportunity for school but said nothing about her relationship with LN.

[16] The father testified that he told her that he did not like the idea. He told the court that the mother told him that she wanted to go to Ottawa to go to school. He said that they talked about it almost every day. The father said that the mother told him that she had given him multiple chances to change his controlling behaviour and his attitude.

[17] The father said that he and the mother and child have taken a number of daytrips to Niagara Falls. Further he said that they also went to visit a friend R in Peterborough and stayed overnight in a Holiday Inn.

[18] The father also stated that he and the mother and child stayed at the local Destination Inn one weekend. He said that he wanted to have one good time with the child because LN was going to Ottawa the next weekend and he was not sure what could happen. He said that the mother wanted to come and that they had a "nice and relaxing" time. He said that he told the mother that if the child moved his relationship with him was "screwed" and the mother said that it was not her intention to do that. He testified that he and the mother had sexual relations in one bed with the child in the other.

[19] He told the court that the child was aware of the move and told him that he was excited about going. When questioned, the mother said that it was not 100% yet. The father decided to start court proceeding to stop the child from going. He acknowledged that he had known that LN had moved in September but thought that the mother was just going to Ottawa because of school. It appeared that as long as the mother was going to Ottawa just for school it was all right. But once the father discovered that the mother would be living with LN, the father then took action. He said that he could not understand why the mother could not go to school here.

[20] The father said that he would not have the opportunity to have the child if he moved. He said that he had him in his care "to enjoy him". He told the court that it would cost $300 plus the cost of the food and hotel to travel there for access. The father said that he was shocked to read in her court papers that she was engaged to LN.

[21] On March 9, 2012, an interim order was made to prevent the move of the child's residence to Ottawa. The mother and child had all of their things packed in a moving van and as a result some things were taken out since they were going to stay in the Region with her sister. By this time the mother had given up her job and her apartment and had nowhere to stay.

[22] The father explained that he too had had difficulties in school with reading and science and was in the basic curriculum. While testifying the father was somewhat nervous. However, it was also clear that he faced challenges in understanding and responding to circumstances in his life.

[23] After the court order, the mother took the child to spend school break in Casselman and returned for much of the summer break as well. The father has had access every Wednesday from 3:30pm to 6:30pm and alternate weekends Friday 3:30 to 6:30pm Sunday. The father complained that quite a few were missed. The father told the court that the mother took the child to Nova Scotia during the summer without giving him a contact number.

[24] The father explained that the basement of his father's home where he has lived for five years and where the child came for access was unfinished with concrete walls and floor. He said that half of the basement was for storage and laundry but on the other side of the furnace were two beds, one for him and one for the child, as well as the containers for his snakes and a TV. He said that there were two bedrooms on the second floor of the house, one for his father and one for his brother.

[25] In April 2012, the children's aid society (the society) began an investigation of his living conditions and his care of the child. Both the paternal grandfather and the father testified that the first worker who visited their home had no issue with the child living in this basement but said that the child's bed which was pushed against the furnace had to be moved six feet away from it. The father said that then another worker came and said that the child should not be sleeping in the basement as there was no secondary exit from the space as the windows were too small.

[26] In response to the concerns expressed by the society, the father and the child moved out of the basement into the living room. The father told the court that he now sleeps on an air mattress when his son is there while his son sleeps on the couch in the living room. Although the uncle had offered his bedroom to the child during his access visits, the father said that the child chose to stay on the living room couch and so he lets him stay there.

[27] He has seniority at work and therefore is able to have access flexible enough to pick him up as an access parent.

[28] The father said that he would get a new apartment although it does not appear from the evidence that he has ever maintained a place on his own for very long. Further despite having a claim for custody before the court since January 2012, the father has yet to secure a suitable place for him to live with the child or even to save up the money for first and last months' rent. He told the court that he recently started saving and has $200. He seemed uncertain about whether any members of his family could help him.

[29] The father said that in June 2012 the society commenced another investigation, this time about a mark that the child said he had on him. He said that the society never told him that they had any issues about his parenting.

[30] The child appears to have had an ongoing issue with bedwetting. Recently the child appears to have had a couple of accidents at school as well. The father said that the mother told him that she had been to the doctor about it. The father said that the child had said that he was embarrassed about the problem and wanted it fixed. The child also told the father that he had a doctor in Ottawa.

[31] The father told the court that their family doctor had passed away a number of years before and that they had no family doctor. He said that the mother asked him for a benefit card and took the child to the dentist one time.

[32] The father explained that he did not drive because he was not comfortable doing so. He said that he had been in "quite a few" car accidents and was too scared. He said that his aunt had tried to teach him once. He said that he might "consider" getting a licence. He testified that at the moment he was dependent on public transit and help from his father who expects to be reimbursed for the use of the vehicle.

[33] Unfortunately the child appears to be no longer happy to take the bus. The father said that although the child used to like being on the bus, now when he takes the bus with the child the child hits him. He said it is all argument and punching when the father wants it to be "hugs and kisses". He said that the child did not like the bus, not because he was afraid but because he wanted to get home faster to play video games, play with the dog or play hockey. The father also told the court that the child will not go walking with him unless they have the dog.

[34] The father also told the court that the child had issues with his speech that he wanted "fixed". He said that the problem was identified and assessed by his daycare and that he had an occupational therapist come in to work with him. He could not remember the name of the organization or the individuals who came in to help. He said that the help stopped when he left the daycare after two years to go to kindergarten.

[35] The father also said that the child was held back a year as he was behind in his speech, math and writing. He said the decision was made by both parents in consultation with the daycare. He noted that the child had issues with his ears and tonsils.

[36] The father said that the child switched to private daycare when the child started attending school in September 2009. He said that he always paid his share. He said that the mother was the one who always arranged daycare.

[37] When he was six, the child started at H[…] School. The father said that during the time that they lived together outside the school catchment area, the child remained a student at that school and the mother did the driving. He told the court that the mother had kept him at that school by using the maternal aunt's sister's address as she lived within the catchment area of the school. He said that the mother had used the address for her driver's license, income tax and everything.

[38] The father complained about the toy hatchet given to the child. He also was upset that LN gave the child a Swiss army knife Christmas 2011. He said that it was not necessary for an eight year old. He also had concerns about what the child may have seen on YouTube and his interest in zombies.

[39] The father told the court that in June the mother and the child spent every non-access weekend in the Ottawa area. Then from June 21 to August 29, the child was with the mother in "Ottawa" except for his access weekends. He said that the child told him about the fishing and nature walks that he did with LN.

[40] Unfortunately the relationship between the father and LN has been difficult. LN appears to be frustrated with the father's view that he has a continuing relationship with the mother when it is his view he does not. Frustrated with the father's attempt to communicate with the mother through his number, LN became rude with the father. The father testified that LN called him a "low life", "loser" and "retard". Then the father wanted LN to stop messaging him and got the police involved.

[41] The father said that he had paid the preschool daycare provider with cash every Friday. He said it varied every week depending on how long the child had been there. He said that if the babysitter was ill, then the paternal grandfather watched the child. He said that while the child was at daycare, the mother would deposit half of the amount needed in his account and the automatic payments for the daycare would be paid.

[42] The father acknowledged to the court that the child attended with a tutor through the Oxford learning centre in 2009 and 2010. He said that they both agreed with the attendance and paid by debit and cash. He said that it stopped because it became too expensive.

[43] The father said that he and the mother had a sexual relationship up until March 2011. He said that it included "sexting" during that time. He said that they also shared a snake hobby. He said that she took some of the snakes when she left but he continued to pay for the food. He estimated that he had spent $20, 000 on snakes. He said that he only has three left and the mother two. He said that he never got any money back from the sale of the snakes. He explained that one can make five to ten thousand dollars on a "clutch" of snakes when they are bred. He admitted in cross-examination that any sales of snakes were cash. He says that he is still in the snake business with a couple of friends, R and B. He said that he panicked when the mother said that she was getting out of the business.

[44] The father told the court that the first time the mother asked for child support was last year. He said that he took $2000 out of RRSP's at City Financial at the mother's request but said he did not know what it was for and it was not repaid. He said that he did not bother to read the papers. He testified that when he asked for it back, the mother said that it was child support.

[45] The father said that when he and the child are together, they have movie night, play "Nerf" guns and Lego. He said that now that he does not see the child every day, it takes awhile for the child to "warm up" to him. He said that he now seems down, angry and upset, a change from what he was before.

[46] The father said that the child has never really had any friends from school and preferred to play with his parents at the park. He said that he plays soccer at school and enjoys his cousins who are close in age. He noted that despite his initial interests, his son was not interested in continuing Kidsfit. The father told the court that the child does not know how to swim and has never had any swim lessons. He said that the child is not registered in any other sports either. The father said that he wants him to enjoy himself and boost his confidence but has never forced him.

[47] The father told the court that when he tries to talk to son to get him involved, he gets upset and says "don't hit me" and goes downstairs. The father said that he does not use timeouts or the corner because it upsets the child and he tries not to upset the child.

[48] The father denied that he had ever hit the child but acknowledged that K had told the school that he had put a knee on his back and pulled on him and ripped his arms back. He said that the child mentions every day about being hit. He said that they used to play-fight but not any more since social services said to stop. Now he said that they stick to playing with the "Nerf" guns. He said that the child was a very emotional child.

[49] The father could not recall what he was charged with in 2006. He said that it was not assault. He agreed that it might be criminal harassment for the number of telephone calls that he made. He said that he got an "honourable discharge" from the charge. He told the court that he had taken anger management and did not have an ongoing problem managing his anger. He said that he now would discuss his feelings. He said that he had learned how to stay away from "falling over the edge" when he was upset.

[50] When asked why he thought that the child was saying that the father hit him, the father said that he did not know but wondered if it came from something his parents had said as the paternal grandfather had been abused as a child. The father did not explain how the child would know about his grandfather's experience and did not mention any steps that he had taken to deal with the problem.

[51] The father said that the mother was aware of the proceedings prior to being served as they received notices about attending the MIP program. He said they both went on Friday, March 2, 2012 and then she said that she wanted to spend the night. He had planned the weekend in the Destination Inn to have "one good weekend" with his son just in case the child went to Ottawa. He said that he liked to take him there to go swimming. He said that he had been there two other times, also with the mother. It was his recollection that the mother was served with the papers by his brother after the MIP program.

[52] The father told the court that the first time he knew about the mother having a relationship with LN was at court on April 13, 2012. He said even March 2 the mother said that she was moving to go to school. When asked about reading her Answer and responding affidavit, he said that he had not read them until recently. He acknowledged reading about the child's relationship with LN and told the court that he was fine with that; he said that he recognized that other people would be in his life but that he wanted to be part of it and wanted the child to be "where I can see him".

[53] The father acknowledged that no formal child support was paid until April 2012. He said that it was an agreement between them that they would split the costs of the child instead. He said they both paid for clothes and daycare. He said he paid for the child's clothes that were kept at his residence. He said that every Sunday they went shopping. He said that he bought meat for school lunches for the child.

[54] The father told the court that the paternal grandfather did all the cooking at home. He then said that he cooked for the child "when he wants it". He said that when the child was with him they ate out 70% of the time. He said that he bought him a bagel at Tim Horton's for breakfast and went out for lunch. He said that when he went grocery shopping he would ask him what he wanted because he was a picky eater. He said that he would not always eat what he prepared as he changes his mind. When asked by his counsel why he did not choose what the child should eat, the father said that the child would not eat what he chose. He told the court that he tries to add vegetables to the child's unhealthy choices. He acknowledged that the child tells his mother that he does not get fed in his care. He also told the court that he never has spoken about the child's food issues with the mother nor has he contacted any professionals regarding his issues.

[55] Despite knowing about the proposed move being to Casselman, the father acknowledged in cross-examination that he had never even tried to see where the town was or what the transportation connections might be.

[56] The father acknowledged using profanity toward the mother in the child's presence but said that the mother did too. He admitted that the impact on the child from his use of profanity was not good and that is the reason that it is good that they were separated now.

The Paternal Grandfather

[57] The paternal grandfather testified that he has been on disability since 1989. He said that the nerves in his legs are going, his legs give out and he cannot stand up for very long. He said that he was diagnosed as a diabetic eight to nine years ago but is not having any problems.

[58] He said that the child and his father play hockey outside, go to shows, "hang out" together and go away for some weekends. He said that he sometimes makes the child French fries and hot dogs; he said that the "odd" time, his son cooks. He confirmed that the child had fussy eating habits. He said that the child and the father "have their arguments" "about anything". He also said that the child liked to play with his uncle and his uncle's dog which lived in the home.

[59] The grandfather confirmed that there were two beds in the basement that were used by the father and the child, one bed located next to the gas furnace. He confirmed that there were snakes in the basement, none of which were poisonous.

[60] He said that the bed was moved six to seven feet away from the furnace at the request of the first worker from the society. He acknowledged that the child started sleeping upstairs on the couch because of the concerns expressed by the second worker from the society. He said that the father continued to sleep downstairs in spite of the fire-escape concerns of the society when the child was not in the home. When the child was there, the child slept on the couch and the father on an air mattress, both located in the main floor living room.

[61] The grandfather told the court that before the trip to Mexico, the mother spent almost every weekend at his home so he thought that they were still going together. He said that she stayed in the basement with the father and the child.

[62] The grandfather testified that sometimes the child gets "mad" if he does not get his way. He said that sometimes the father talks to him and he is fine. However, he confirmed that the child recently hit the father when he did not get his way. He could not say if it had happened before as he did "not pay much attention". He said that he had not witnessed any conflict between the mother and the child. He suggested that the reason was that she was his mother and posed the question "who doesn't listen to his mother?"

[63] The grandfather said that he has provided emergency babysitting for the child in the past. He said that he had not seen either of the parents strike the child. He said that it is his belief that the child accuses his father when he is angry. The grandfather noted that the child is "a troubled little kid" who needs "a lot of help". He said that he was not aware of any learning issues but that the child sometimes spoke slow and sometimes fast. He confirmed that the child preferred to play with his father as opposed to with other children despite their encouragement and the availability of friendly children in the neighbourhood.

[64] The grandfather confirmed that he did the driving in the family. Despite working full-time and paying the grandfather $225/month as rent, his other son J did not have the money to renew his licence. He said that he drove his wife to work as well. He said that he does not declare the income he receives from his sons for rent and gas, a total of $775, and acknowledged that it might affect his disability allowance if he did.

[65] While the grandfather comes from a very large family, most of whom live nearby, the contact between those relatives and the child appears limited to family reunions and special occasions.

The Mother's Evidence

[66] After graduating from high school, the mother obtained full-time work at Tim Horton's at the age of seventeen. After two years, she obtained employment at PG and moved out of her parents' home and into an apartment with the father. During the next three years they were sometimes together and sometimes apart. When she was seven months pregnant, they bought a townhouse. She was off work for a time due to her maternity leave and then an accident in which she broke her leg. The accident happened two weeks before the end of her maternity leave and left her not ambulatory for two months. When she returned to work, the company accommodated her limitations until she was fully recovered.

[67] The mother testified that the child was colicky and cried constantly so she slept on the couch next to his bassinette. While she was unable to do everything after the accident, her own sister and mother as well as the paternal grandmother took turns coming in to help while the father was at work and the father had to pick up some of the "slack", preparing bottles and changing diapers.

[68] When the mother started back at work, the child went to daycare at NH's home. She said that it was fifteen months after the birth of the child that she was finally back working full-time day shift in March 2005. She said that she and the child left the father in October that same year and rented a home with her mother.

[69] The mother testified that the father had the child every weekend although sometimes she would keep the child for the odd Saturday. She said that she would drive the child to the father for access. She said that the townhouse was sold by January 2006.

[70] The mother told the court that while the child had respiratory problems at birth, they cleared up quickly and the child was fine until the age of three when he became sick all the time. While the doctor gave them allergy medicine for the child, the mother noted that she insisted on a referral to an ENT specialist who diagnosed fluid behind the child's eardrums and problems with his adenoids and tonsils. The child had surgery at the age of four and ultimately grew out of the need for continued use of tubes in his ears. She said that there have been no further health concerns.

[71] The mother testified that the time when the child could not hear well took a huge toll on him. He fell far behind the other children. However, after the surgery his hearing was perfect. When the child was in the P[…] School daycare/school program, she worked with them to get the child a speech pathologist. She said that the child had help through Kidsability and community living to work on a number of issues, especially speech and fine motor skills for writing. She said that they set up special programs to work on his speech including an explanation of mouth techniques. The mother said that she shared all the information with the father but was unaware as to whether he implemented any with the child.

[72] The mother told the court that the child being born in […] started junior kindergarten (JK) in September before his fourth birthday. She said that given his age and how far behind he was, the decision was made by P[…] School staff, principal, occupational therapist, speech consultant and herself to have the child repeat senior kindergarten (SK).

[73] The mother explained that the child's move from the private P[…] School to the public school meant that the child went on a wait list for an occupational therapist in the public school system. She confirmed that he remained on the wait list. However, in cross-examination, she told the court that once the school knew about the child's intended move, he was removed from the list in March then put back when they stayed. However, it appeared that some of her evidence on this point was contradictory.

[74] She confirmed that the child did not need further help with his speech but did continue to need occupational therapy for his writing.

[75] The mother told the court that the child was initially afraid of going to grade one due to the work level. She said that she let the teacher know about the issues and she worked closely with herself and the child. As a result, his attitude improved but his work remained a concern. She said that he continued to struggle with writing, reading and other subjects. She acknowledged that he was at times disheartened by the challenge and that his confidence was "brittle" at times.

[76] Once he was in a regular school, she said that she put the child in Oxford Learning for a year and a half to help him catch up. She acknowledged that the cost of the program was split between the parents. She also confirmed that he stopped going due to the changing of the program and the doubling of the cost.

[77] The mother testified that the child was in grade four but functioning at a grade one level. She said that the child is on an individualized education program (IEP) at school that she and the teacher set up. She noted the details of the program and that he is reassessed twice a year. Although the father was not involved in planning the program, the mother said that she shares all the information with the father including information about what the teacher wants the child to work on. She said that the copy of the IEP she has was obtained from the teacher. She also explained that the IEP was a plan that he could take with him to another school.

[78] She confirmed that she had used her sister's address on her driver's license and at school so that the child could attend school in her sister's school district with her nieces.

[79] The mother explained that in her proposed new home in Casselman, Ontario, the child would attend C[…] School in the nearby town of Embrun. She said that he would be driven by herself or her fiancé LN or bussed the 25 minutes to school. She testified that the waiting lists for occupational therapists and other government programs are shorter than in this Region. She estimated a 1.5 year wait. Having spoken to the principal and teacher, she said that the child would be in a program where he is in a smaller group that would allow him to focus on his special needs. She said that it was her understanding that the class was divided into small groups every day and it was her understanding that the ratio at least in grade three was eight students to one teacher.

[80] She told the court that she and LN had previously paid $1275/month in rent but in Casselman it was reduced to $1100. She said that LN takes home about $2100/month but that she was trying to help out.

[81] The mother testified that day care is available before and after school if necessary. She said that there are athletic programs at the school although the child has not previously had a great interest in organized sport. She said that while the child makes friends easily, he prefers to do things by himself.

[82] The mother told the court that the child has not had a family doctor as a result of their doctor passing away less than two years ago. She said that that doctor told her that the child would grow out of bedwetting. She said another doctor has suggested medication. She agreed that the problem was continuing and that it bothers the child to have to wear "pull-ups". She said that she took the child to a clinic a couple of months earlier but the only suggestion was medication.

[83] She acknowledged that the child had not been to the dentist until recently as he just got his adult teeth. She said that he had a problem with one tooth.

[84] The mother agreed that the child started out as a picky eater but now is "perfect". She said that he eats all types of meat and most vegetables, as long as there is dip! She said that she makes him sliced meat and cheese wraps with bananas or watermelon for his lunches.

[85] The mother told the court that after leaving the father in 2005, she lived with her mother until 2006. She noted that she and LN started "talking" in late 2005. Then they met in February 2006 but broke up for a few months. During this time she and the father reconciled briefly. After they broke up, the mother and the child moved in with LN in November 2007. She testified that she told the father as soon as she was engaged to LN in 2010. She said that they had planned to get married in Nova Scotia in the summer after they were to move as LN had family in Nova Scotia and she had family in Newfoundland.

[86] The mother said that the child's relationship with LN is wonderful. She said it was as if they had been friends forever. She said that LN is "very warm and laid back" although firm with the child. She said that LN does homework with the child when he is not at work and that they go fishing and walking together. She said that neither of them yells at the child. She said generally she just has to give the child "the eye" if he resists her direction and he will comply. If not, she will take away his toys and that proves effective. She said that LN plays a role in redirecting the child by talking to him about respectful behaviour and the child is responsive. She noted that the child does not like it when people yell.

[87] The mother acknowledged going with the father and the child to Mexico in 2008 despite living with LN. She said that she arranged it as she wanted the child to feel that his parents could get along. She noted that she had not told LN and was unsure if he knew now. She said that LN thought that just the mother and the child were going and that he would not have understood the father being with them. She explained that she and the father paid their own costs and split those of the child. She said that there were two queen sized beds and a pullout couch for the child at the resort.

[88] She said that she did drive the father and the child to Peterborough in January 2012 regarding a snake transaction but that she returned the same day while they stayed until the next day at a hotel. She said that in March 2012, the father asked for her driver's licence as identification to stay at the hotel in Waterloo so she dropped them off at the hotel.

[89] The mother indicated that she was served with the court papers by the father's brother J who came out of the house when she picked the child up on Sunday March 4th with a box containing albums, pictures and baby stuff. The court papers were in the bottom of the box.

[90] The mother said that she did not introduce the father to LN because the father said that he wanted nothing to do with him. She noted that if the father called the home and LN answered, the father would hang up. She denied that he had asked to meet LN. She denied telling the father that LN was only a room-mate or that they had broken up when LN left for Ottawa.

[91] She acknowledged that LN was not always nice to the father. She said that LN's behaviour was generally in response to the father's. She said that for example he reacted to the father's 20-30 texts while on their holiday.

[92] The mother explained that LN gave the child then seven a Swiss army knife to use on fishing line. She said that she gave the child the metal tomahawk, a novelty item, which he never uses. She said that they do listen to YouTube for music videos. She was concerned about his watching of inappropriate zombie movies with his uncle J while in the father's care.

[93] The mother told the court that the father's criminal conviction in 2006 was related to an incident where he was angry with her and started calling her profane names in front of the child. When she tried to drive away, the father kept getting in the way to prevent her. She said that he opened her door and started punching the dash. I asked him to stop yelling as it was upsetting the child who was crying hard. The father locked himself in the car and refused to get out for twenty minutes. Finally he exited and the mother returned to her mother's home. She left the child and returned to the father's to try to calm him. He was irate and punched the wall beside her head. After she left, he kept calling and calling. She denied that he had asked her to leave. While she denied having sexual relations with him at that time, she said that they did reconcile a few months later.

[94] She said that when she gave her statement to the police, she was told that she should not be at his apartment given his release terms. She said that he was on probation for a year with no contact for a month and anger management term. She said that she wanted contact with him for the child's sake so she contacted the probation officer.

[95] The mother said that LN left their home to go to his new employment in November 2011. She stayed at the residence while he found a place up there. She gave up the residence March 2012 in order to join him at their new home. She described the home as having three bedrooms, 1500 square feet of space, located on two acres of land. She said that it backs on the woods but is not too far from town.

[96] The mother said that the intention was that they would all move March 9, 2012 and the truck was arranged for that purpose. She said that she had given her notice at work and that everyone was very excited for her. She said that she has always wanted to go back to school and was hoping to become a nurse. She said that she needed to get work as well. She said that the father was aware of the move since LN got the transfer in the fall. She said that she had explained it all to the father. She said that she was obviously engaged to LN and had been since 2010.

[97] In cross-examination, the mother acknowledged that she had told the judge on her first court appearance that she was moving to attend nursing school and did not mention her fiancé's move. She said that they were ready with the packed moving truck to leave at 5 am March 10, 2012 but that the court refused permission to move on March 9. As a result they took the child's clothes and the toys he wanted out of the truck before moving the rest. She acknowledged that they spent March break in Casselman. She said that she had to re-contact the schools to explain.

[98] As a result of the court's temporary order not to change the child's residence and the fact that she had already given notice, she said that she and the child were living with her sister and her spouse and their two children. She said that she intended to get part-time work in Casselman and register for nursing part-time but acknowledged that she has not completed the registration for any program.

[99] The mother said that when she told him in September 2011 about the move, the father was not very happy. However, they discussed how the father's visits with the child could be accommodated and he appeared agreeable. She said that she would ensure that the child had lots of contact with the father using face time and other technology. Further she has identified the Professional Development Days (PD Days) for the coming school year and suggested they be used as long weekends for access.

[100] The mother said that in February she showed him pictures of the new home and he had no negative reaction. She said that once they worked out visitation through long weekends and technology the father's negative reaction changed. She said that she was prepared to do some driving and the train was $110 return. She told the court that she was prepared to negotiate access and make up for weekends missed due to inclement weather or other reasons.

[101] She said that he was welcome to have access in Casselman if he wished as there was a motel there or take the child to Ottawa where there was a great deal to see and do.

[102] While the father purchased the clothes for the child at his house and half the cost at Oxford, most of the other costs were left to her. She never received formal child support from him. She denied receiving any lump sums of money from him nor his purchase of the child's clothes for her.

[103] While she used to earn about $33,000 per year, she is currently on unemployment as a result of leaving her work to join her fiancé in Casselman. She told the court that she is getting $702/every two weeks in employment insurance, payments that cease April 2013.

[104] The mother denied that prior to the court application she and the father with the child attended at the Cambridge shopping mall every Friday. She acknowledged that if she were available she drove the child to access most of the time and picked him up although often the paternal grandfather did the driving. She said that about once a month they had family outings together.

[105] She said that the last time they stayed overnight as a family was in Mexico in 2008. Despite her name being part of the registration at the hotel, the mother told the court that she did not stay overnight in March 2012 but did go swimming. She said that he needed her credit card information as identification for the registration. While she seemed vague about what she did at the hotel, she denied that there was any sexual involvement. She acknowledged that an explicit picture shown to her on the father's cellphone of her private parts showing tattoos and piercings was indeed of her, she denied sending it to him.

[106] She said that she usually gave the father a ride from work to the bus stop and that once in a while they stopped and the father bought meat for the child's school lunches. She said that it took five minutes to drive from work to pick up the child at school and another 5-10 minutes to drive the father to his bus stop.

[107] The mother acknowledged that LN was not aware that she continued to drop the father off at the bus stop although he was aware that that they attended at times at the market together.

[108] While she acknowledged going to a municipal concert with the father and the child at New Years in Niagara Falls in 2011, she denied staying at the motel but instead went home. She also said that she thought that midnight was too late for the child. She said that she did not stay for the whole thing as there were too many people. She also noted that the child was upset because there were people smoking around him. She said that she believed that the father and the child returned by bus the next day. She noted that her attendance was a last minute decision and as LN was not around, she did not think that he knew about it.

[109] When asked why she agreed to the father having access every weekend prior to the court proceedings, she told the court that she thought that it was a "good thing to do" as he did not have him during the week. The mother admitted that in the court proceedings she had agreed to only alternate weekends as she felt that that was enough and she had her weekends full of things to do. The mother also testified that the child had been crying about going to weekend access with his father.

[110] The mother acknowledged that she was not pleased with the father for bringing the court application at the last minute when he had known since September of the mother's plan to move with the child. She said that even five days prior to the court, the father seemed fine with the move. She said that she knew nothing about court until served.

[111] She acknowledged that she and LN bought a three month old puppy for the family two months before trial. She said that the dog is in Casselman although the child considers the dog his own.

[112] The mother also told the court that the father had asked for temporary weekly access to eight or nine o'clock at night which she thought was not appropriate. Instead she said that she agreed to access Wednesdays 3:30-6:00 which meant that the child was in home in time to do homework and get settled for bed.

[113] The mother testified that in the summer after the father had had the child for five days, she and LN took him on vacation for two weeks to Nova Scotia, a holiday previously discussed with the father. After their return, the father had the child for another five days. She said that he did not ask where they were on holiday. Instead he was just demanding access despite having known about their vacation for some time.

[114] While the mother acknowledged in cross-examination she had been sick for a time, throwing up and headaches, she denied that she told the father that she had cancer and was receiving treatment for that cancer.

[115] The mother testified during the 21 years that she has known the father, their relationship has not been a "very amiable one". She said that she has "always tried to keep the peace with him". She testified that she shared rides with him as well as the snake hobby. The mother said that the father would make the arrangements regarding the snakes and she would provide the transportation.

[116] She thought that it was important that the child not feel that his parents hated each other. She said that there were a lot of times that she took abuse from him: he would harass her daily, and call her names in front of other people.

[117] The mother acknowledged calling the children's aid society once due to the excessively dirty condition of the child's sheets and the kitchen at the paternal grandfather's home. She testified that the kitchen was so dirty that they had to eat out. She said that she had discussed these concerns with the father many times before the call. She said that the society also had ongoing concerns about the condition of the house.

[118] She also confirmed that the society had been involved earlier in 2009 as a result of the child telling the teachers that his father was hitting him. While the child described the incident to the mother, she felt that it must have been as a result of play-fighting.

[119] During cross-examination, the mother again stated that she would assist the father with some of the driving. She said that she had a reliable 2003 Honda Element that had been driven for 270,000 km. She said that she also had access to LN's car if necessary, something confirmed by LN. The mother reiterated that time missed due to weather could be made up. She acknowledged that it was a five hour drive from Casselman to Cambridge. Given the length of the drive, the mother testified that his access might be better as a long weekend every month, making use of the monthly "PD" days that the child was off school. She said that it was her understanding that the father could book days off work to accommodate the access by giving two weeks' notice.

[120] The mother acknowledged that she and the father texted regularly during their relationship. When confronted with "sex" texts purporting to be from her, she denied sending them. She denied sending messages about "being ready for anything" prior to the March weekend at the Destination Inn although most of the other messages about the visit she acknowledged.

Evidence of LN

[121] The mother's fiancé, LN, told the court that he was 36 years of age, a college graduate and that he had worked for Loblaw's in loss prevention since March 2003 conducting investigation and apprehending individuals. He indicated that he had met the mother online in October 2005 and that they had talked about three to four months before meeting and dating from February to December 2006. He confirmed that they had then broken up for nine months when the mother returned to a relationship with the father but then got back together November 2007. He said that they moved in together in an apartment where he had lived for three years. He said they then moved when he was promoted to supervisor to a home and finally again to a house in April/ May of 2011. He said that he and the mother were on all three leases.

[122] LN told the court that that the company was downsizing and in January 2011 he was demoted to his previous investigative role. He explained that the company had cut fifty million dollars from coast to coast. He said that the budget in Ontario and British Columbia had been cut in half. He said that there were no vacancies in the Cambridge area. He testified that the Ottawa area was the only active area with work available.

[123] LN said that he would have lost his job had he stayed in the area. He said that he was not unionized so his seniority was not a protection. Therefore he was looking for other opportunities and learned that the only place hiring was in the Ottawa area where he had family. After speaking for three to four months with the supervisors involved, his lateral transfer was approved July-August 2011.

[124] He told the court that the mother's reaction to the move was mixed at first as she had not been away from her family and was not familiar with the area. However, after researching the area, it was decided that they would go. He said he left November 2011 to start work and to look for a residence for the three of them. He said that he lived with members of his family for three months while he looked for a home. He found one in Casselman about thirty minutes east of Ottawa, roughly five hours from Cambridge.

[125] LN said that while the separation has been "tough", they see each other about once a month and more in the summer and they are still in a relationship. He said that the home they have rented in a 1500 square foot home with three bedrooms, located on a two acre property on a dead end street. LN told the court that while the initial lease is for a year, the landlord would like them to stay for another 5-6 years.

[126] LN testified that at his new employment he is able to set his own schedule for his 40 hours per week. He said that he currently is earning about $37,000-$38,000/year. He confirmed that it was fulltime and not contract work. While he acknowledged that his father was in Nova Scotia and mother in Woodstock, he noted that he has a number of cousins in Ottawa that he sees. He confirmed that the maternal grandmother, aunt, uncle and cousins live in the Cambridge area but said that they intended to come back and visit.

[127] LN told the court that the child was very quiet but inquisitive with lots of questions. He said that he was a different child in Casselman where as a result of the privacy of the area he had more freedom to play outside with his four new friends. He said that the child was much more active there, playing outside with his friends, and biking and fishing. He testified that the child appears to like the outdoors and together they go fishing and hiking all the time. He said in Cambridge when he had worked weekends, he spent time with the child on his days off fishing.

[128] When asked in cross-examination if it was his opinion that the child would do better in Casselman, LN said yes. He said that he had known the child since he was two years old and he is more confident there with the neighbourhood children than he has ever been in Cambridge.

[129] LN confirmed that five years ago when he answered the phone, the father would hang up. He said that he had no interest in associating with him as it was his understanding through the society records that the father had been arrested for abuse. He said that as he had worked most weekends in Cambridge, he was not there for the pick-ups and drop-offs of the child. He did confirm that he was aware that they both collected snakes. He believed that the problem is that the father in his "fairy tale world" believed that he and the mother were still in a relationship as a family together. He felt strongly that the father felt that everybody should be prepared to do everything for him when instead he ought to get a licence and help out. He felt that it was important to be able to drive when one had children.

[130] LN admitted that the father had called the police on him in August 2012 for text messages. It was his understanding that he was not charged because the police officer did not feel that the texts were threatening; however, he was cautioned not to call or text the father. He said that he had not spoken to the father since.

[131] LN told the court that he had a son D who was fifteen years old. He said that they had a good relationship despite being four hours apart with D residing near Kirkfield, Ontario. He said that they talk almost every day. He said that he does not take D for access on the weekends as his son is very involved in sports but drives up to have day visits every now and then. He said that he also pays monthly child support which he supplements by splitting some sports costs; he said that he has a good relationship with D's mother.

[132] He explained that he has given the child in these proceedings small gifts and toys. He explained that he gave him the small army knife and showed him how to use it safely. He said that it was to help them bond and to allow him to use the knife when they were fishing. He said that they never had to raise their voices to the child; if they warned him about a possible consequence if he did not clean up, for example, then he would comply with their request.

[133] He confirmed the availability of a doctor for the child in Casselman, a town he identified as having a population of 3-5,000 people. He said that the child had difficulties with speech and hearing over the last five years. He acknowledged that they had thought that the child would grow out of the bedwetting as his own son had but that the mother had made an appointment to follow up on the problem as it continues.

[134] He said that it was possible for the mother to drive the child to Cambridge once a month as the father could not drive.

[135] LN noted that when the mother was working, they shared the expenses 60:40 for the last five years. He said that he currently was carrying the expenses of the house alone as she was not working and had legal expenses but was confident that she would get work once she was available in the jurisdiction.

[136] In cross-examination, LN confirmed that he and the mother had been engaged since June 2010. He also confirmed that despite living together they declared single status on their income tax returns.

[137] He said that had he known about the court date, he would not have booked the trailer in March to move their things to Casselman. The mother was not able to help him pack as she was in court. He said that the father had known about the move for some time and had not taken any action. It was his understanding that the father was content with the move as long as he could still see the child. He confirmed that they all left the next day for Casselman as it was March break.

Conclusion

[138] There is no question that the mother's evidence was sometimes inconsistent and frequently not credible. Unfortunately the father's evidence at times appeared vague and unreliable. The paternal grandfather appeared to testify in a direct manner but seemed to be somewhat disengaged about the father's plan for his grandson. LN appeared clearly frustrated with the father's actions but did give his evidence in a clear and direct manner. He certainly identified that he would take on responsibility for the child should the child and the mother live with him.

[139] It seems clear from the evidence that the mother has been the primary parent for the child. While at two different times, the mother, father and child lived together, the father has not lived with the child since 2006. Further in almost every aspect, it has been the mother who has had the responsibility of looking after the child including organizing appointments, day care and interacting with the child's service providers. Even while the parents resided together, the mother was the one who dealt with the challenges facing the child. The father was prepared to let her do everything and his lack of knowledge about the child's circumstances at school and otherwise was telling.

[140] While there was an attempt to suggest that the father had a daily role with the child after separation, it would appear that it was generally limited to ten minutes in the car with the child on the way to the bus stop. While he had the child most weekends, some Saturdays appear to have been spent with the mother and at least one weekend each month had the mother as part of his access doing things as a family.

[141] The father's plan appears to be to have the child live with him at his father's house. While he testified that he intends to get his own place, in the seven months since the court proceeding was initiated, he has only managed to set aside $200 toward his last month's rent. Further, there is no evidence that he is able to maintain a home on his own.

[142] There are concerns about the child living with the father in the paternal grandfather's home. First there is failure of any of the adults living there to recognize that people should not be living in a basement without the ability to exit in a fire. Despite the caution by the society worker, it was the paternal grandfather's evidence that his own son, the father, continues to sleep in the basement when the child was not over for access.

[143] Further this is an unfinished basement. The father has lived there for five years and no changes have been made. The child was sleeping in a bed pushed up against the furnace! Obviously the mother was aware of the circumstances and did nothing about it. Perhaps it was her view that access was only for a short period of time so it did not matter. It certainly is hard to understand why the four adults living in the home did not improve the situation over the years, especially knowing that a child and an adult son were sleeping down there.

[144] There are other concerns about the home. The mother has expressed concerns about the cleanliness of the child's sheets and the kitchen.

[145] The grandfather's attitude is not particularly supportive. He insists on economic compensation from his son for living in his unfinished basement and for providing transportation to help him with his son's access or appointments. This is despite his receipt of rent from another son as well, his wife working and his receipt of disability. Further he has not claimed any of that rental income or gas money in his income tax and therefore has benefitted tax-wise; the grandfather also acknowledged that he may be benefitting from not disclosing the income to his disability income source as well.

[146] There is some concern about the grandfather's limitations in terms of being able to assist with the child as a result of his health concerns. Further, he does not appear to be interested in assisting, testifying that he did not pay much attention to the issue of the child hitting the father.

[147] The greatest concern about the father's plan is his acknowledged inability to regulate the child's behaviour. He has admitted that the child hits him when he does not get his way. He seems unable to influence the child: he has not figured out how to get him to eat what he should and seems incapable of organizing him in any way. The father acknowledged that he does not know what to do. He just gives in to the child. His testimony was clear: he is bewildered by how to deal with the child's behaviour.

[148] As the court has noted, the father appears to have some intellectual limitations which may be compromising his ability to parent. Certainly he has been a committed access parent and appears to have ensured that the child does not go without despite his failure to pay child support after their separation until court ordered in March 2012. However, his lack of involvement with the child and his response to the challenges posed by the child suggest that there may be some limitations on his capacity to address the child's needs.

[149] It is important to note that no one else has the difficulties with the child that the father has identified. The mother and LN have testified that the child responds to suggested consequence. Neither sees any reason to raise their voice to the child.

[150] At the "last hour" of the trial, the mother started to complain about the father's abusive behaviour and his treatment of the child. The paternal grandfather denied that the father had hit the child in any way. It is hard to believe that the mother would grant such liberal access to the father if she truly believed that the child was at risk in his care. However, it is clear that the mother is very self-focused. There are a number of times that she appears to have turned a blind eye to situations not in the child's best interests when it suited her.

[151] One example is the fact that she allowed the child to sleep in the paternal grandfather's basement in the conditions described. Further, she failed to follow through with the specialists that the child needed in a timely way. She did not take him to the dentist to see to his "baby" teeth. There is no evidence that she did anything for over a year to find a new family doctor, despite the child needing monitoring for a number of difficulties. She did not respond promptly to seeking assistance for his bed-wetting. There are unanswered questions about exactly how much she has done to follow up on the school's concerns. It was not until the adjournment of the trial that she followed up properly.

[152] The father and the paternal grandfather acknowledged that the child did not seem to play with other children but preferred to be with his father. This echoes the comment made by the mother about the father treating the child as if he were an adult. Further the child's reluctance to play with others may also be the result of the lack of confidence that the mother identified in the child.

[153] The description of the child's behaviour and activities in the father's care is different from the evidence about the child with the mother and LN in Casselman. While acknowledging that he was a quiet child, LN testified that he has come out of himself in the new neighbourhood. He has friends and enjoys outdoor activities, a clear change from what the child does with the father.

[154] It should be noted that there is no evidence that the father ever believed that he and not the mother should have custody. Despite their separation on two occasions, the father never challenged that the child should be in the primary care of the mother. Further, when he first heard that the mother was going to Ottawa with the child so that she could attend nursing school, he appeared resigned to the proposition, doing nothing to suggest he was not going to agree. Indeed both the mother and the father testified that what they discussed was how he would have access. However, it would seem that as soon as he realized that the mother was joining LN, he then decided to take action.

[155] Surely when he first heard about the move whether it was the fall of 2011 or January 2012, he could have told the mother that he wanted her to attend school in this region and stay with the child where she had all her family support. Instead he ultimately appeared to agree that she and the child could leave the jurisdiction. His failure to take action knowing that the planning was ongoing may suggest reluctance on his part to assume the responsibility of having the child in his care full-time, understandable given the "walking-on-eggshells" relationship he seems to have with the child.

[156] The mother has stated that the child did not like it when the father came to his eye appointment. There is evidence that the child has previously witnessed some of the confrontation between his parents and probably does not want it to happen again. Although there is no expert evidence upon which the court can rely, the mother has suggested that the child's recent wetting of himself during the day is stress-related and connected to the child knowing about the court case.

[157] It would seem certain that the child would feel concerned and perhaps pressured regarding the proposed move. The only remarks made by the child that were shared with the court would suggest that his concern may be that he will not get to move. Of course, it is not possible to determine the issue for sure but it is natural that the child might be worried about not being able to accompany his mother, his primary caregiver, to a home that he seems to enjoy.

[158] There is of course a lot of evidence suggesting that the mother was manipulating the father by maintaining a relationship of sorts with him unbeknownst to her fiancé. Her evidence that she sent one line of text but not another was not believable. Further the presence of extremely explicit pictures of herself on the father's cell-phone suggest that more was going on after their separation than friendly exchanges of the child at access. Certainly the mother refused to acknowledge anything that could not be proved by a picture or document and even those she denied at times!

[159] However, it is not open to the father to complain about those behaviours. His suggestion that he and the mother were engaged, meaning on the way to being married, is not supported by the evidence. They had not lived together since 2006 and there was no evidence of any planning to marry or even planning to resume cohabitation. At no time did he give the court an explanation about why the mother moved out and in with LN except that they were in fact separated. Whether they had intimate relations or shared explicit pictures does not support the notion that he was engaged to the mother. While the mother may have been reluctant to tell him the circumstances of her relationship with LN at least in the beginning, it does not change the actual fact of their separation. The failure of the father to understand what was going on underlines his rather simplistic approach to things.

Application of the Law

[160] While an application involving the proposed change of a child's residence is generally termed a "mobility" case, it should be remembered that what the court is often deciding is which parent should have custody of the child.

[161] Further, many of the cases that deal with mobility are ones in which by court order, agreement or status quo there is a joint custody situation that is going to be affected by the proposed move of one of the parents. In this matter there were no court orders or agreements. The father had liberal access as allowed by the mother who arranged the access and usually delivered the child. The mother was the one in charge of almost every aspect of the child's life. The father was content to let the mother deal with everything and let him know what she felt he needed to know. There was no situation resembling joint custody either in shared care or responsibility.

[162] However, prior to the commencement of the trial, the parties agreed to an order of joint custody and are asking for an order to determine the primary residence of the child and the non-removal of the child from the jurisdiction. Given the evidence, the court would not have thought that an order of joint custody in the circumstances would be appropriate. However, perhaps in an effort to show a willingness to cooperate, the mother agreed to the order. Therefore the issue is primary residence of the child and the proposed move of the child by the mother.

[163] In dealing with any entitlement to custody, incidents of custody or access under section 20 of the Children's Law Reform Act (CLRA), the court must be mindful of the expressed purpose of the act. In section 19(a), the court is directed to ensure that the applications are determined "on the basis of the best interests" of the child. Section 24(2) provides specific guidance about certain factors affecting a child that must be considered.

[164] Further, it is acknowledged that it is important for a child to have a relationship with both parents and extended family.

[165] Section 28 of the CLRA sets out the powers of the court to grant custody and access as well to determine any "aspects of the incidents of the right to custody and access". This section also expects that a court may make orders addressing the child's best interest in a more detailed way. One of those powers identified include the ability of the court to prohibit the change of a child's residence, school or daycare.

[166] In Gordon v. Goertz the Supreme Court of Canada emphasized the consideration of the best interests of the child from a "child-centred" perspective. In that case, the parent seeking to move the child out of the jurisdiction had an order for sole custody.

[167] That court set out a number of factors to consider:

• Relationship of the child and the parents and the existing custody arrangement
• Importance of maximizing contact between the child and both parents
• The views of the child
• Only in exceptional cases the parent's reason for moving if relevant to the parent's ability to meet the child's needs
• Disruption to the child if a change in custody
• Disruption to the child were the child to be removed from his or her community including schools and extended family

[168] The issue of maximizing contact with both parents is in part based on the premise that maximizing contact with both parents is generally in the best interest of the child (Goertz, at para.25).

[169] While contact between the father and the child is important, the evidence in this matter does not support the position that it is in the child's best interests to spend more time in the father's care than he has to date given the concerns about his response to the child in his care.

[170] In this matter, the mother has functioned as the primary parent and the father, despite his fairly liberal access, as an access parent. All decisions have been made by the mother. Given the father's evidence, I am not satisfied that the access to the father was necessarily very good for the child given the inadequate living circumstances and his inability to regulate the child's behaviour. This situation appears to have worsened over time.

[171] In Berry v. Berry 2011 ONCA 705 (Can LII) , the Ontario Court of Appeal was dealing with a child who had been living approximately one-half of the time with each parent since separation, a situation different from the one before this court.

[172] In that appeal, the court stated that the trial judge had lost sight of the fact that it was an application by the mother to "relocate with the child" as his analysis was based upon the mother living permanently in Kingston and the father in Toronto. The court said that that was an error of fact because the mother had stated that if her application to relocate the child was refused, she would stay in Toronto.

[173] In that appeal, the court went on to state that it was an error of law because the issue was not whether the child should live with the mother in Kingston or the father in Toronto but whether the mother should be allowed to relocate with the child to Kingston.

[174] It would seem, based on the mother's agreement to stay in Toronto if she was not allowed to take the child to Kingston, that the court simply had to say that it was in the child's best interests to maintain the shared custody regime and refuse to allow the move. They did not need to consider any change in custody or in the child's circumstances as nothing would change for the child if the court said that the child could not be moved.

[175] In Gauthier v. Gunner (4 January 2013), 2013 ONCJ 2 , [2013] O.J.No. 54 (Ont. C.J.) , Rodgers, J. found that the existing week-about custody regime could not be maintained as the mother was now working in a town several hundred miles away. That court proceeded to do an analysis of the parents' plans in order to determine custody despite identifying the matter as a mobility case.

[176] This approach of a more generalized consideration of the child's best interests appears to be reflected in a recent decision of the Court of Appeal.

[177] Released by the Ontario Court of Appeal on March 6, 2013, Trisolinov v. De Marzi , 2013 ONCA 135 dealt with the application by a mother to move children from Canada to Italy. The facts are odd in the sense that the parties were not yet separated and there was question about whether the father would join them in Italy if the children were allowed to move.

[178] The court found in that case that the reasons for the move were relevant, being the mother's wish to pursue a career and be near her family. The court agreed with the trial judge that the mother's reasons for the move reflected the mother's perception of the needs of the children. Further, the court also agreed that the significant disruptions were offset by the benefits. The appeal court also noted that the trial judge recognized that the move could interfere with the principle of maximizing contact with both parents.

[179] While the facts are different in this matter, it appears that at the end of the day, the test remains the best interests of the child, and not simply lessening disruption to the child or maximizing the child's contact with both parents.

[180] In this case, there is no agreement that the mother will stay in the Region if there is an order to prohibit the child's change of residence. Frankly I am not sure what she would do given her circumstances of no job and no home in the Region and her sometimes strange self-focused decisions. The court is concerned that she let the father have access in a situation that was not appropriate especially given his inability to regulate the child. I am concerned that she has over-rated the father's ability to parent in the past and might do so again.

[181] The father wants the child placed in his primary care and proposes that the mother have access. The mother wants to be with her child and her fiancé in Casselman. The court is not able to order the mother not to leave the jurisdiction, only the child, and the court is not going to make such an order without ensuring that the child's best interest can be accommodated if that order is made.

[182] Where the proposals are two different plans as in this case, a consideration of a child's best interests must include assessing which parent and plan best addresses the child's best interests.

[183] The father's plan of having the child live with him will maintain the child's contact with the father, paternal grandparents and paternal uncle. Given the child's attendance at a school outside the father's catchment area, he would no doubt have to change schools one way or the other. He does not appear to have any particular ties to any neighbourhood children. He has only attended a dentist once and is just in the process of getting a new family doctor. It appears from the evidence that the mother and LN intend to maintain the child's connection with the maternal side of the family although there may be a possibility of contact through the father if the child were in his care.

[184] Despite the opportunity to organize a home for the child, the father has not. The father's plan appears to have him sleeping on a sofa in the paternal grandparents' home, eating what he wants and doing what he wants so that the child will not become upset.

[185] The mother's plan maintains her connection with the child as his primary care giver and allows for further development of the relationship of the child with LN with whom he has been living for a number of years. While the court is concerned about the ability of the mother to maintain a stable relationship given the lack of honesty she has demonstrated in her dealings with the father and LN, LN at the time of trial appeared committed to making it work and certainly brings a stable and positive influence into this struggling child's life.

[186] In the last few years, the mother has ensured that the child has had a home to live in and the proposed home in Casselman appears appropriate. The lifestyle available to the child with the mother appears to appeal to him more: he is outdoors, playing with friends and doing activities. There appears to be a doctor available immediately and a school program that can be tailored to his needs. They are thirty minutes from Ottawa and any specialists that the child may need.

[187] Unlike the father, the mother does not appear to struggle with the child's behaviour. Further, she has not identified any challenges in terms of the child's eating choices. It is also concerning that neither of these parents has focused on the benefits to the child of being in organized activities. I hope that given the child's interest in being near the water and in the water that the child will have the opportunity of at least swim lessons, which may boost his confidence. While the mother's follow-up to deal with the child's needs is not exemplary, she is the one who is most capable to address the child's needs and has identified to the court how she will do so.

[188] One of the reasons that the court is in the position of comparing plans in two different cities is because of the father's last minute decision to challenge the mother's plan to move. It is clear even in his own evidence that he knew in the fall about LN's move and the mother's at least in January. It appears that while he was not initially happy about it, he seemed to decide that as long as he had access he was content with the plan. The mother and LN made plans based on the fact that the father knew and appeared to be going along with the child's move. LN took a transfer to save his job, they gave up their house and the mother quit her work. At the last minute, the father brought a motion to stop the change of residence for the child. Had he challenged the move of the child earlier, the mother might still have a home and job in town. His delay is one of the reasons that the court is faced with two plans in two different cities.

[189] There will be disruption to the child in that the pattern of contact with both parents cannot be maintained in either of the plans offered to the court.

[190] Given the evidence, I am satisfied that the mother's plan best addresses the child's best interests and therefore the primary residence of the child should be with the mother. The mother has always been prepared to support the child's relationship with the father. However, the mother needs to ensure that the child has prompt access to all the services he needs including the counselling that she identified.

ACCESS

[191] The mother's proposal that the father have the child a long weekend per month and regular contact by telephone and/or computer appears in the child's best interests given the distances involved and the school schedule. The specifics of the plan need to be worked out.

[192] Also it should be expected that the father will have the child for longer periods during school breaks. The father could perhaps have the child for a week at Christmas, March break and extended time in the summer. The amount of summer holiday should be determined based on the father's vacation schedule and the accommodations proposed for the child. It would not seem appropriate for the child to be sleeping on a sofa for more than a week. Further, it would be hoped that the father will take an age-appropriate parenting course to assist him to deal with the child's behaviour. It is concerning that the child is completely unregulated in his care and that the child falsely accuses him of hitting him.

CHILD SUPPORT

[193] The father certainly should pay guideline child support and his proportionate share of special expenses. Also he should maintain the child on any benefits available to him through work. However, the evidence does not support an order for retroactive support. The father did contribute somewhat to the cost of the child's lunches, daycare and extra school support and the mother never asked for regular child support.

[194] There is no hard evidence as to what money can be made from the snake operation in which both parents participated. Should the father in the future make money from this business, he is expected to declare the same to the mother for the purpose of establishing child support.

[195] Should the mother follow through in providing transportation for some or all of the access, it is appropriate that the child support be maintained. However, should the father take on the full responsibility of the access transportation or exercise all his access in the Casselman area at his own expense, then it would be expected that there should be a reduction in the amount of support paid to the mother.

ORDER

1. The mother and the father are to share joint custody of the child.

2. The child's primary residence is with the mother. The mother may move the child's residence with her to the Ottawa area.

3. The father is to have access to the child as follows:

   (a) one extended weekend each month as agreed by the parties and as allowed by the child's school schedule;

   (b) every March break commencing 2014 unless otherwise agreed by the parties;

   (c) half of the child's Christmas school break as agreed by the parties;

   (d) a minimum of one week during the summer holidays as agreed by the parties;

   (e) regular telephone and/or computer access at the father's expense; and

   (f) such other access as agreed by the parties.

4. The father is to pay child support of $328/month based on $37,323 annual earnings commencing April 1, 2013.

5. The father is to pay his proportionate share of any reasonable special expenses. The mother is to provide the father with any proposed expenditures or receipts and the father is to remit his share to cover any reasonable expenses proposed or incurred by the mother on behalf of the child.

6. The father is to maintain the child on any benefits available to him through his employment.

7. The mother and the father are to provide each other with a copy of their income tax return and notice of assessment by June 1st of each year for the previous year.

8. The father is to notify the mother in writing of any change in his employment or income including the details within seven days of such change.

9. The mother is to provide the father with information regarding the child's attendances at any doctor, dentist, counsellor or other service provider in order to ensure that the father is aware of the mother's follow through with the child.

10. The mother and the father are to notify each other sixty days prior to any change in their residence.

11. The father is to provide the mother with independent confirmation of his completion of any appropriate parenting course and any proposed change in accommodation in order than the parties can consider access that is longer than one week at a time.

12. Any party seeking costs should serve and file their submissions including the Bill of Costs on or before March 29, 2013. Any response should be served and filed by April 19, 2013. Reply to be filed by April 30, 2013.

Released: March 20, 2013

Signed: "Justice P.A. Hardman"