Court File and Parties

Court File No.: Brampton 1451/10 Date: 2015-09-04 Ontario Court of Justice

Between: Andrew Jackman, Applicant

— And —

Kristy De Santis, Respondent

Before: Justice J.W. Bovard

Heard on: April 28, 29, 30; May 4, 2015

Reasons for Judgment released on: September 4, 2015

Counsel:

• Mr. D. W. Simard, for the Applicant
• Ms. E. Booth, for the Respondent

BOVARD J.:

Introduction

[1] These are the court's reasons for judgment after a trial on the respondent, Ms. De Santis's motion to change. She requests an order permitting her to move to Calgary with the parties' child, Matteo, born February 13, 2008. The applicant, Mr. Jackman, asks that her motion be dismissed. He does not request any other relief than this.

Background

[2] The parties lived together from approximately November 1, 2007 to March 13, 2010. They had a child, Matteo, on February 13, 2008.

[3] On October 6, 2010, Mr. Jackman filed an application for joint custody, primary residence with Ms. De Santis and generous access to Mr. Jackman.

[4] Pursuant to minutes of settlement, Justice Kerrigan Brownridge made a final Order on June 20, 2011 that the parties shall have joint custody, primary residence of the child with Ms. De Santis and a generous and detailed access regime for Mr. Jackman. He had access to Matteo on alternate weekends from Friday at 5:30 p.m. until Sunday at 7:00 p.m. In addition, he has access pursuant to a detailed holiday and special occasions schedule.

[5] The order allowed Ms. De Santis to move with the parties' child to the Kitchener/Waterloo area, but nowhere else. Mr. Jackman states that the reason for this provision was that Ms. De Santis had raised the issue of moving to Calgary with Matteo and she had already gone to Calgary to visit with and without Matteo. In addition, Ms. De Santis's evidence is that Mr. Davis proposed to her prior to Justice Kerrigan Brownridge's order.

[6] In December 2009, Ms. De Santis and her current fiancé, Mr. Davis, began contacting each other on social media. Ms. De Santis lived in Mississauga and Mr. Davis lived in Calgary. By April 13, 2010 they had still not met, but the relationship developed to the point that they considered it to be a committed relationship.

[7] Mr. Davis was employed in Calgary but since he and Ms. De Santis wanted to get married, he came to the Greater Toronto Area to try to find employment. After searching for 10 months he was not successful and had to move back to Calgary. They decided that it would be best if she moved to Calgary with Matteo because Mr. Davis had employment there.

[8] Ms. De Santis filed a motion to change on August 20, 2014. She asks the court to change Justice Kerrigan Brownridge's final order and allow her to move to Calgary with Matteo. Matteo's father, Mr. Jackman, the applicant, opposes the move.

The Evidence

[9] In addition to the testimony of the witnesses, counsel directed me to the following materials for this trial:

Ms. De Santis

1. Tabs 1-2 of the Trial Record
2. Tabs 1-3 of the evidence brief
3. Tabs 1-21 of the parties' joint document brief

Mr. Jackman

1. Tabs 2, 4, 5 of the evidence brief
2. The parties' joint document brief
3. Tab 6, continuing record - Mr. Jackman's affidavit, dated September 22, 2014
4. Tab 1, continuing record – Ms. De Santis's affidavit, dated July 23, 2014

Ms. De Santis's Evidence

[10] Ms. De Santis's evidence is that she and Mr. Jackman started living together in the basement of her mother's home in Mississauga around November 2007. Their son was born on February 13, 2008. Around September 2009 they moved into their own apartment. They separated on March 13, 2010. Ms. De Santis moved back into her mother's basement and continues to reside there with Matteo.

[11] She works on a part-time basis as a self-employed residential cleaner. She gets the child tax benefit, which is approximately $450 per month plus $375 a month in child support from Mr. Jackman. If she makes minimum wage of $22,000 this would equal an annual income of $32,000. She lives with her mother. She does not pay rent so this is a substantial savings for her.

[12] Up to the point that they separated, Mr. Jackman was involved with Matteo. However, the quality of the time that he spent with him was poor. He would come home from work and try to spend time with him but he was also doing other things at the same time, like playing video games, and watching television.

[13] As time went on it was "like pulling teeth" to get him to spend time with Matteo. After they separated on March 13, 2010, Ms. De Santis and Matteo went to live with her mother. Mr. Jackman stayed in their house in Port Credit. He did not see Matteo other than for short visits a couple of times a week. When he went to their house he mostly spoke with Ms. De Santis. He did not spend much time with Matteo.

[14] From March 2010 to October 2010, Mr. Jackman was minimally involved with Matteo. They would have 30 minute visits and go shopping together.

[15] With regard to her relationship with her fiancé, Mr. Davis, she said that they met on social media in December 2009. Their relationship intensified over the months and on April 13, 2010 they told each other that they loved each other. Ms. De Santis considers this as the beginning of their relationship. She went to Calgary in May 2010 to meet him in person. Afterwards, they spoke daily on the telephone.

[16] In June or July 2010, Mr. Davis went to Toronto to see her and to meet Matteo and her family. Mr. Davis also met Mr. Jackman. After this visit, she, Matteo and Mr. Davis went to Calgary together. She and Matteo stayed in Calgary for one month.

[17] Now, they try to see each other in Calgary every couple of months for 2 to 6 weeks.

[18] Mr. Davis first met Matteo in July 2010 when she and Matteo went to Calgary. He has a great relationship with Matteo. They have a strong bond. They play together, go on outings together, and watch sports together. Matteo is happy and comfortable with Mr. Davis. He is a good role model for Matteo. He does not interfere with her and Mr. Jackman's parenting. He is happy and willing to help and be involved in implementing their plans for Matteo. He is very supportive of Ms. De Santis and Matteo. The three of them have a good relationship and work well together as a family unit.

[19] Ms. De Santis has travelled with Matteo to Calgary to be with Mr. Davis more than 10 times in the last four years. Matteo has spent more than 4 to 5 months in Calgary with Mr. Davis and his family and with friends that she and Matteo have made during their visits.

[20] Matteo loves his time in Calgary and is always excited to return to see Mr. Davis, his family and Matteo's friend, Brayden, who lives close to Mr. Davis's parents. Mr. Davis's mother, Barbara Dance, introduced Ms. De Santis to Brayden and his mother, Jennifer Viau. Ms. De Santis has become friends with Jennifer. They have maintained their relationship over Facebook and other forms of communication.

[21] The parties agree that Ms. De Santis always advised Mr. Jackman of her travel plans whenever she went to Calgary with Matteo.

[22] Mr. Jackman never withheld his consent to Matteo traveling with her to Calgary.

[23] She and Matteo always stayed with Mr. Davis at his home in Calgary. It is located in a very "family-friendly neighbourhood".

[24] Ms. Viau provided an affidavit, sworn July 9, 2014, in which she confirms that she is Brayden's mother. She says that Brayden and Matteo "hit it off and were very interactively playing together from the minute Matteo arrived at our place". They had a few play dates together and really enjoyed each other. They did not want to leave when it was time to go.

[25] Their birthdays are only a few days apart and they celebrated them together on one of Matteo's trips to Calgary. Ms. Viau states that "for two children that do not see each other on a regular basis, they are always happy to see each other, as if distance and time never lapsed".

[26] Ms. Viau confirmed that she and Ms. De Santis have maintained a friendship over Facebook, "watching our children grow and celebrate milestones in their lives". Brayden refers to Matteo and asks when he will be back.

[27] Matteo enjoys going to the local parks and recreation facilities and hiking through the nearby nature trails and spending time with family. He has a "strong and familiar connection to Calgary and with the people he knows there". He has had no trouble adjusting to new people and new surroundings. Matteo and Brayden and have grown very close and they enjoy their time together.

[28] Mr. Davis's mother, Ms. Dance, provided an affidavit sworn July 16, 2014, in which she said that she met Matteo when he was about two years old. He was in Calgary with Ms. De Santis to visit Mr. Davis.

[29] Over the last few years she has seen Matteo on numerous occasions. They have developed a strong bond. Matteo calls her "Barbara". She has often babysat Matteo. He has always seemed very comfortable with her and her husband. They have never had any problems with him. Matteo watches football games on television with her husband and they have many conversations about the games.

[30] She and Matteo play a game in which she asks him, "what does Barbara have in her cupboard just for you"? Matteo responds with "bars", which refers to granola bars.

[31] She also reads with Matteo. Once she went trick-or-treating with Matteo and Ms. De Santis and Mr. Davis.

[32] Ms. Dance is retired. She used to work as the business manager at an early childhood education firm that was in the daycare business. The company has daycare centres nationwide.

[33] She confirmed that Matteo has made a friend his own age in Calgary. They are always very excited to see each other and they have play dates together. Matteo is sad when he has to leave his friend to go back to Toronto.

[34] Ms. Dance says that Matteo is "extremely familiar with the area in which I reside". The area has a lot of young families with young children. It also has two new schools and beautiful recreation facilities, including a centre, beach, lake and park. The facility provides a summer and winter activities.

[35] Ms. Dance says that she greatly enjoys spending time with Matteo. She and her husband have developed a bond with him and with Ms. De Santis. They feel that they are part of their family and have been for years.

[36] Mr. Davis proposed to Ms. De Santis in May 2011. They wanted to have a child, but it was difficult because they lived in different provinces. Ms. De Santis wants to have a child sooner rather than later so that there will not be a big age difference between their child and Matteo. It is also better medically for her.

[37] At first, they planned to get married in 2012. Later, they decided not to get married in 2012 because they did not want to be married and live apart. Mr. Davis was still living in Calgary and Ms. De Santis was living in Mississauga.

[38] Ms. De Santis decided to stay in Toronto so that Matteo could see Mr. Jackman on a regular basis. She said that going to court was stressful and she thought that she and Mr. Davis should try to establish themselves in the Toronto area.

[39] Ms. De Santis adduced as evidence numerous emails from May and June 2012 regarding her efforts to find a venue for their marriage. The emails list the anticipated wedding date as May 25, 2013. But it wasn't until September 2013 that Mr. Davis moved to Toronto. He and Ms. De Santis and Matteo lived with Ms. De Santis's mother.

[40] She also provided emails that show that she and Mr. Davis were trying to find a home to purchase close to the Greater Toronto Area.

[41] For the next 10 or 11 months Mr. Davis looked for work. Ms. De Santis said that he was constantly on the computer and travelling to places in search of work. He sent out a lot of applications but only had a few interviews.

[42] He was unable to find employment so in April 2014 he moved back to Calgary because his money was running out.

[43] From October 2010 to June 2011 when Justice Kerrigan Brownridge made the order that Ms. De Santis is trying to change, Mr. Jackman cancelled a lot of access visits. When he did exercise access it was for approximately 30 minutes at a time, which was less than what Justice Kerrigan Brownridge allowed him to have. Ms. De Santis said that during this time Matteo was not happy to go with Mr. Jackman on the access visits.

[44] Since 2011, she has been receiving $375 per month in child support from Mr. Jackman.

[45] Matteo has lived with Ms. De Santis since birth. Justice Kerrigan Brownridge's order states that he is to continue residing with Ms. De Santis. He is in grade one. He has a bit of a speech issue but it is not serious. He receives speech therapy at school between every couple of weeks and once a month.

[46] Ms. De Santis described him as goodhearted and sweet. He likes to make people happy. He is strong-willed, likes sports, video games and playing outside. He would like to play soccer, baseball and train in the martial arts but he is not involved in any extracurricular activities due to financial constraints.

[47] When dealing with stressful and challenging situations he internalizes things, gets frustrated and can be rude. For a time, he was unruly and rude with her after having visits with Mr. Jackman. This is not so much a problem now.

[48] Matteo does "okay" in school. The parties go to parent-teacher meetings together. Ms. De Santis calls Mr. Jackman to advise him of school events to see if he wants to attend.

[49] She does homework with Matteo every week. Between one and three times a week they spend time writing out vocabulary words. She spends about 20 to 60 minutes reading to him every night.

[50] Ms. De Santis said that she and Mr. Jackman do not talk often. Justice Kerrigan Brownridge's order of joint custody has not gone well. For example, she and Mr. Jackman could not agree with regard to whether Matteo should be vaccinated. She decided that he should so he was vaccinated.

[51] In addition, when Matteo was four years old they argued over whether he should be in daycare half a day or a full day. Ms. De Santis thought that a full day was too much for him. She thinks that Mr. Jackman did not want to pay for babysitting so he wanted him to go to daycare full-time.

[52] She said that when it came to major decisions concerning Matteo she and Mr. Jackman almost always argued. They did not agree on very much. However, she also said that there have not been any major issues other than the vaccination issue.

[53] Ms. De Santis testified that Mr. Jackman cannot meet Matteo's needs without her. He constantly asks her what to do about parenting issues. For example, last summer he asked her if he had to put sunscreen on Matteo and if so, how many times he should apply it.

[54] Whenever Matteo slipped and fell and scraped himself he would just have her look after it.

[55] Also, when Matteo was five years old Mr. Jackman did not seem to know how to put him to sleep.

[56] She said that once when Matteo was with Mr. Jackman she called him and Matteo told her that he did not have a nightlight and he was afraid of the dark. She spoke to Mr. Jackman about it and he told her that he was going to put a candle in Matteo's room so that he could go to sleep. She told him that she did not think this was a good idea.

[57] One time, after Mr. Jackman and Matteo went to the store, Matteo told her that Mr. Jackman let him sit in the front seat of the car. When she spoke to Mr. Jackman about this he told her that he did it because it was just a short drive.

[58] She provided pictures of a rash that Matteo got when Mr. Jackman took him swimming at a public pool. Mr. Jackman did not mention the rash when he dropped off Matteo. Later, he said that he didn't see it but admitted that Matteo had been itchy most of the day.

[59] Ms. De Santis took Matteo to the doctor and found out that he was allergic to the chlorine in the water. She told Mr. Jackman but on his next visit with Matteo he took him swimming, which caused the rash to come out again. She told him not to take him swimming again and he agreed. However, a couple of weeks later he asked her if she could give him the steroid cream that the doctor prescribed for the rash so that he could take Matteo swimming again.

[60] Another time, Mr. Jackman took Matteo camping in Algonquin Park. She told him to make sure to take a lot of bug spray. Mr. Jackman forgot the bug spray and Matteo got bitten by a lot of mosquitoes.

[61] Ms. De Santis thinks that Mr. Jackman does not understand what it takes to care for a child full-time. He has not been as involved with Matteo as he should have been in order to learn how to do this.

[62] Justice Kerrigan Brownridge ordered that Mr. Jackman's access to Matteo begin in September 2011. However, he did not start exercising overnight access for one and a half years after that. He just saw Matteo on Tuesday, Thursday and Saturday. On these occasions he would only spend between 15 and 30 minutes with Matteo.

[63] Later, in 2013 he started exercising overnight access. At first this was very hard on Matteo because he was not used to it and Matteo would get upset. Over time he felt better about seeing Mr. Jackman. However, Mr. Jackman cancelled access visits quite often. This happened especially in the summer because Mr. Jackman plays on a baseball team. She said that the odd time he would see Matteo on the next day to make up the missed visit, but this was unusual.

[64] However, she admits that Mr. Jackman's relationship with Matteo is better now than before. Matteo does not object as much to going to see Mr. Jackman. The relationship has improved in the past year. Mr. Jackman has been more involved with Matteo since she started these legal proceedings. Her relationship with Mr. Jackman has also improved over the last year. She believes that this is also related to the legal proceedings.

[65] She also said in her affidavit that she is the one that is in charge of making all of the major decisions in Matteo's life. Mr. Jackman has very little knowledge about Matteo's routine and schedule. She complained that Mr. Jackman often forgets to feed Matteo at the appropriate time and feeds him donuts for breakfast and puts onions in this food, which Matteo does not like.

[66] She complained that Mr. Jackman keeps Matteo up past his regular bedtime, which makes him cranky. He does not attend to Matteo's health in an appropriate manner. For example, when Matteo badly scraped his knee and elbow on May 9, 2012 he did not bandage it. Instead, he took him home to her after his visit so that she could do it.

[67] Ms. De Santis said that Mr. Jackman "constantly contacts me last minute" to change access.

[68] If she were to move to Calgary without Matteo she does not think that Mr. Jackman would encourage a relationship between her and Matteo. She said that even when she calls Matteo to say goodnight when he is spending time with Mr. Jackman, Mr. Jackman argues with her and asks her why she is calling. He also hangs up on her. However, she testified that she would never move to Calgary without Matteo.

[69] Her daily routine with Matteo is that they get up in the morning and have breakfast. Then she takes him to school. She picks him up after school; they play, eat dinner, do some homework and then she gives him a bath and puts him to bed.

[70] Other things that she does with and for Matteo are scheduling doctor's appointments and going to the doctor with him.

[71] Ms. De Santis says that she has made an effort to keep communication channels open between Matteo and Mr. Jackman, however, he does not take advantage of these opportunities. She said that when they were in Calgary in October and November 2011, he called only a few times to speak to Matteo.

[72] Ms. De Santis listed numerous occasions in 2012, 2013 and a couple in 2014 where she says that Mr. Jackman did the following things:

1. has had minimal involvement in Matteo's upbringing
2. had shorter visits than necessary with Matteo
3. failed to show up for access visits
4. cancelled access visits without a reason
5. was late for an access visit
6. called at the last minute to rearrange access
7. provided dinner for Matteo later than usual
8. refused to stop "co-sleeping" with Matteo
9. failed to exercise summer access until 2014
10. wanted to use a candle in Matteo's room as a nightlight
11. failed to protect Matteo from bug bites and sunburn on a camping trip
12. causes personality or attitude changes in Matteo when he is with him so that Matteo is rude to Ms. De Santis for the first few days after an access visit with Mr. Jackman
13. gives Matteo anything he wants

[73] However, since she filed her motion to change Mr. Jackman has not cancelled any visits and he stayed with Matteo later at night than before. This involves an extension of the access times. The relationship between Matteo and Mr. Jackman has strengthened over the last two years. She said that she was pretty sure that Mr. Jackman had missed access visits over the last two years, but she could not recall any.

[74] This significantly mitigates the above-mentioned evidence from her affidavit of July 23, 2014 of Mr. Jackman's lack of diligence as a parent.

[75] Ms. De Santis listed the following factors as benefits to moving to Calgary:

1. Matteo will have access "to so many more benefits than he has in Ontario".
2. She and Matteo will have a better life and standard of living.
3. They will be able to reside in a home instead of her mother's basement.
4. They will live in a family-friendly area with many families and children of Matteo's age.
5. As a result of Mr. Davis's high income she will have the option of returning to work on a full-time or part-time basis or staying home to care for Matteo and any other children that she has with Mr. Davis.
6. The area where they will live in is full of activities and sports facilities and nature trails, all of which Matteo loves.
7. In Calgary she would have the opportunity and financial resources to enroll Matteo in more activities and she can in Ontario.

[76] With regard to Matteo's relationship with Ms. De Santis's family, Ms. De Santis said that when she was 13 or 14 years old her mother and her stepfather, Mr. Smith, got married. They recently separated. Matteo is fairly upset by the separation. His step grandfather has been a big part of his life since he was a baby.

[77] However, both she and Matteo have a good relationship with her mother and with Mr. Smith. Her mother and stepfather play with Matteo and do things that he likes with him. For example, they take him to Centre Island. They provide emotional and financial support. They also babysit from time to time.

[78] Matteo sees Mr. Smith every other week for about one hour at Ms. De Santis's mother's home. Matteo has spent a significant amount of time with her mother and Mr. Smith. She feels that they are important role models for him. She said that there is a good possibility that her mother would move to Calgary if she moved there with Matteo but there are no plans to do so. Her mother did not mention this in her evidence.

[79] Matteo sees his biological maternal grandfather at least once a week. Matteo has a cousin, Leah, that lives with the grandfather along with her parents. Matteo has a good relationship with her.

[80] Ms. De Santis agrees that every significant person in Matteo's life lives in the Greater Toronto Area. These persons are family members. Ms. De Santis mentioned that Matteo has a friend in school named Nicholas and one named Anthony. Nicholas does not visit Matteo at his home. Anthony's mother used to babysit Matteo when Ms. De Santis worked Matteo so he has visited Anthony at his home. But she thinks that they are not as close as they used to be.

[81] In her answer to Mr. Jackman's motion to change, she requested to be allowed to move to Calgary. However, after she filed her answer she eventually agreed to Justice Kerrigan Brownridge's order for joint custody. She did this because at the time Mr. Davis was planning to move to Toronto.

[82] Now, she is requesting permission to move to Calgary because Mr. Davis could not find employment in Ontario but he has a good job in Calgary. She thinks that they will have a better life there. She stated in her affidavit that she and Matteo feel at home in Calgary. She said that "It is where Jeff [Mr. Davis] needs to be at this time, due to his employment, and it is where Matteo and I have established our second home. I want to make Calgary our primary home so that Jeff and I can get married and have children together".

[83] If she were to move to Calgary Christmas would be the next time that Matteo could see Mr. Jackman unless he wanted to go to Calgary before then. She thinks that if she came back to Ontario for Christmas it would be for two weeks. They could have a family get-together so that Matteo could see the rest of the family as well.

[84] She said that Matteo's family members would fly to Calgary to visit him and he would fly to Ontario four to five times a year, or maybe 3 to 4 times a year to visit them. She does not think all of this travel would affect Matteo in a negative way. However, in paragraph 20 of her affidavit in vol. 2, tab 1 of the continuing record, which she swore when her plans were to live in Ontario with Mr. Davis, she stated that eliminating frequent traveling would be a benefit to Matteo.

[85] Concerning Matteo's relationship with Mr. Jackman's family, Ms. De Santis testified that Matteo is not very close with Mr. Jackman's sister, Lucia Jackman. She is involved in school and just started a new job. Her schedule does not coincide with Mr. Jackman's access weekends. But she has bought tickets for them to go to robotics events and to the ROM.

[86] But Matteo has a "fairly good relationship" with Mr. Jackman's father. Unfortunately, Mr. Jackman's mother passed away earlier this year. Matteo had a good relationship with her, too.

[87] Matteo has a relationship with one of Mr. Jackman's oldest friends, Domenico Felice. Matteo told her that they go to Mr. Felice's house and play soccer. This has been going on for the past several months. Matteo sees Mr. Felice about once a month.

Mr. Davis's Evidence

[88] Mr. Davis swore in an affidavit dated August 11, 2014. He describes himself as Ms. De Santis's spouse. He says that he met Matteo around July 27, 2010, when he was 2 ½ years old. He believes that a bond was formed between them from the moment they met. He has always been very comfortable around children and enjoys being with them. He has had a stepfather since he was 12 years old. He has a strong bond with him and believes that as a result, he has knowledge and experience regarding a stepfather relationship that would help him relate to Matteo.

[89] He feels that he and Matteo have developed a strong level of respect for each other. Matteo listens to him when he asks him to do things, like chores, and he trusts Mr. Davis to be there for him when he needs help.

[90] He has been involved in important aspects of Matteo's upbringing, such as potty training. He loves Matteo as he would his own son and as his stepfather loves him. He and Matteo are friends, but Matteo also sees him as a parent and he looks to him for parental guidance.

[91] Since meeting Matteo he has enjoyed teaching him things and they have become good friends. He speaks to Matteo, on the telephone or on Skype on a weekly basis. Matteo tells him that he is excited about moving to Calgary.

[92] Mr. Davis has lived in Alberta since he was 15 years old. He is comfortable with the network of support that he has there. His mother and stepfather live in the area where he would live with Ms. De Santis and Matteo.

[93] This area has "an abundance of parks and good schools". In addition, his family has access to a nearby lake resort which offers many activities for children. Matteo is very familiar with this area because he has visited there many times over the last four years, often staying for months at a time.

[94] Matteo met a boy his age named Brayden that lives nearby. They have played together and gone to many activities and events together. Ms. De Santis testified that Matteo does not see Brayden on every trip to Calgary. He has not seen him since 2013. They don't speak on the telephone.

[95] Mr. Davis believes that Matteo always enjoyed his time in Calgary and that he would make many more friends once he started school there. He would also have the support of a loving family to help him with the transition.

[96] In Calgary he was employed as an automotive technician. He held that position for approximately nine years. He has "credit towards a double degree in English/Technical writing as well as a four-year technical training program for [his] trade of work".

[97] He earned a good income, which was sufficient to support Ms. De Santis and Matteo. He also had savings.

[98] He proposed to Ms. De Santis on May 21, 2011. They made some wedding plans over the next 10 months, but they could not finalize anything until they were sure about where they would be living on a permanent basis.

[99] He sold his home in Calgary around November 12, 2012 because he was planning move to Ontario to be closer to Ms. De Santis and Matteo. He moved to Ontario around September 2, 2013. He lived with Ms. De Santis in the basement of her mother's home. This was intended to be a temporary arrangement.

[100] For 10 months he tried to find employment in Ontario. He went on numerous interviews and sent out many resumes and applications for work in the automotive industry. He said that he "realized that the employers were not willing to pay for my knowledge and experience". He could not find employment.

[101] He expanded his job search to other areas of the automotive field in which he was less experienced. He had no luck there either.

[102] In exhibit "A" to his affidavit, he provided three emails that he sent out in his search for employment. He also did interviews in person.

[103] While in Ontario, Mr. Davis did not register to have his working credentials transferred from Alberta because in order to have them transferred one has to perform a "hands-on" test, which he could not do because there was a backlog of one year to take the test. He called 4 to 5 times to see about taking the test, but after that he did not follow up. He said that one can find employment as a pending technician without having full the credentials, but he did not find this kind of employment either.

[104] He had not tried to have his credentials transferred while he was still in Alberta because he thought that they might call him for the hands-on test and he would not be available.

[105] After 10 months, he had not found employment and he had used up most of his savings. He returned to Calgary in May 2014 to look for work. He found employment almost immediately and has been working there ever since. He says that he earns a very good income. It is sufficient to support himself and Ms. De Santis and Matteo. He anticipates that he will also be able to save money.

[106] In addition, based on his experience and information from friends who own businesses, he believes that Ms. De Santis will be able to find employment easily because the job market in Calgary is "hotter" than in Ontario.

[107] Therefore, he believes that Matteo will have a better standard of living if they all lived together in Calgary. They will have sufficient income to enroll Matteo in extracurricular activities and to travel as a family.

[108] Currently, he lives in the home of a deceased relative. He does not have to pay rent as long as he pays for the upkeep and the condominium fees. This dwelling has three bedrooms. Ms. De Santis and Matteo would stay there with him if they moved to Calgary. Eventually, he would like to buy a house but he has no definite plans to do this. He does not have the money.

[109] Mr. Davis says that he has "observed the bond that exists between Matteo and my family and the City of Calgary itself. He enjoys his time there, and he loves the people he stays with while visiting".

[110] July 2014 was the last time that he was in Ontario. He stayed with Ms. De Santis and her mother. He has not seen Matteo since this time.

[111] Ms. De Santis said that Mr. Davis and Matteo get along well. When they are together in Calgary they take Matteo swimming, to the park, and to play with a friend. Matteo gets excited when he learns that he is going to see Mr. Davis. He talks to him and tells him all that is going on with him.

[112] Ms. De Santis said that Matteo does a lot better when there is "a male figure around". He listens better and is more respectful. She said that Mr. Davis comes to Mississauga to visit them four times a year.

[113] With regard to travelling to Calgary with Matteo, over the last five years Ms. De Santis and Matteo have gone to Calgary at least 20 times. They average going there 5 to 6 times a year. Their visits last from 2 to 6 weeks.

[114] They stay with Mr. Davis at his mother's house. Matteo always enjoys these visits. Some of the things that they have done are to go to the mountains, visit a nearby man-made lake, go tobogganing, and have dinners with Mr. Davis and his family.

[115] In addition to visiting with Mr. Davis and his mother and stepfather, Matteo plays with a boy his age, named Brayden. Brayden's mother works with Mr. Davis's mother. Mr. Davis lives in the suburbs of southeast Calgary. He has lived there for over 15 years. There are adequate schools in the area.

[116] Ms. De Santis said that Matteo is sad when it's time to leave Calgary and he wishes that he could stay longer. When he is there he thrives in the family unit.

[117] Ms. De Santis concedes that in her answer to Mr. Jackman's application in 2010 she made a claim to be allowed to go to Calgary. In spite of this, when she consented to Justice Kerrigan Brownridge's order she agreed to remain in Ontario.

[118] The reason was that she and Mr. Davis were going to try to establish their lives in Ontario. The order allowed relocation to areas such as Guelph, Grimsby or Kitchener. She and Mr. Davis looked at some homes in Guelph and Kitchener 2011, but they didn't like them so they did not follow through with this.

[119] They also contacted a real estate agent with regard to properties in Grimsby, but since Mr. Davis could not find a job they did not follow through with this either.

[120] In February 2014, she and Mr. Davis realized that they were not going to be able to establish a life in the Toronto area so Mr. Davis moved back to Calgary. He obtained employment there right away.

[121] Ms. De Santis testified that she looked into the schools in the area where Mr. Davis lives as well as at the available recreation facilities. There is a school that is a ten minute walk from Mr. Davis's home. There is a lake nearby that is used for recreational purposes.

[122] Ms. De Santis introduced as evidence what appears to be information regarding schools from the Internet. It is posted by the Federation of Calgary Communities and the Chaparral Community Association. Her counsel questioned her regarding two pages at tab 16 of the joint document brief. She referred to a list of schools that appears on the first page. Ms. De Santis said that she was considering a school named St. Sebastian Elementary-public.

[123] Tab 17 of the joint document brief is a printout from the Internet, which is posted by the Calgary Board of Education. It profiles the Chaparral school. In cross-examination, she said that she made a mistake in her examination in-chief, and it is the Chaparral school that she thought would be suitable for Matteo.

[124] Ms. De Santis said that she looked into the schools "a while ago". The date on all of these printouts is February 25, 2011. She did not have any updated information. She has not looked into schools in Calgary since 2011 because she was not sure that she was going to move there.

[125] In addition to a list of schools, the webpage of the Federation of Calgary Communities lists "Recreation Amenities" and programs. They have tennis courts, a swimming pool, a hockey rink, a skating rink, and sports/playfields. Each of these has a colon after it, for example, hockey rink:. Counsel for Mr. Jackman argued that this meant that there was no hockey rink. I do not interpret it that way. I interpret this section of the printout to mean that these facilities exist in the community. Moreover, Ms. De Santis testified that she has seen these facilities. However, this is also dated information, having been printed out on February 25, 2011 so there is no recent evidence as to the existence of these facilities.

[126] Regarding fostering the relationship between Mr. Jackman and Matteo should she be allowed to move to Calgary, Ms. De Santis testified that when she has gone to Calgary with Matteo to visit Mr. Davis she encouraged Matteo to call Mr. Jackman but he was younger at the time and he did not have an interest in being on the phone. She could only recall once or twice, when Matteo asked to call Mr. Jackman.

[127] She wants Mr. Jackman to be a part of Matteo's life. In furtherance of this, she would communicate with Mr. Jackman with regard to what is occurring in Matteo's life. She would encourage communication over the telephone and Skype. She would visit Ontario with Matteo as often as they could. This would be perhaps 3 to 4 times per year, including extended (two week) visits during the summer. She would also come to Ontario for the Christmas and March break holidays. I note, however, that she did not adduce any evidence regarding the concordance of these holidays in Alberta and Ontario.

[128] If she were allowed to move to Calgary she would not ask for child support in order to assist Mr. Jackman to be able to afford to travel to Calgary to see Matteo. This would be a savings to Mr. Jackman of approximately $4500 a year.

[129] Ms. De Santis said that Matteo is happier in Calgary. Their lives would be better financially. She would be able to enroll Matteo in extracurricular activities. She, Mr. Davis and Matteo would all be living together in a home, which would be good for Matteo because they would be a family unit. In addition, she would have the option of working part time and being able to be at home with Matteo when she was not working.

Mr. Stephen Smith's Evidence

[130] Mr. Stephen Smith, Matteo's step grandfather, swore an affidavit on which he was cross-examined. He testified that except for six months he lived with Matteo for all of his life. When Matteo was born, Ms. De Santis, Mr. Jackman and Matteo stayed in the basement of his and his wife's home for approximately 1 ½ years. When Ms. De Santis and Mr. Jackman separated, Ms. De Santis and Matteo moved back into the basement. But on April 14, 2015 when he and Ms. De Santis's mother separated they sold his house.

[131] He and Matteo see each other once a week and there is a strong bond between them. Mr. Smith has separated from his wife recently but they have an amicable relationship. He said that it is quite possible that he will continue to see Matteo two times a week if he stays in Ontario. He has a strong relationship with Ms. De Santis and considers her as his daughter.

[132] If Ms. De Santis moved to Calgary he would go there once a year for a week to see Matteo. He would also see Matteo when he came to Toronto to visit.

[133] He said that Matteo seems quite excited about the idea of moving to Calgary. He thinks that Matteo needs a male figure in the house.

[134] When Ms. De Santis, Mr. Jackman and Matteo lived with him and his wife he noticed that Mr. Jackman did not show much excitement about being a new father unless family or friends were around. When they went home he would go back to the basement to watch sports or play video games alone.

[135] Mr. Jackman did not take much interest in caring for Matteo. He begrudgingly watched him while Ms. De Santis took a bath or a nap. He would come upstairs from the basement with Matteo and watch sports on television. As Matteo got older and wanted to play more and would wander off, Mr. Jackman would get upset about having to have to go get him because he wanted Matteo to just sit and watch television with him.

[136] Mr. Jackman seems to always complain about having to take care of Matteo. His impression of Mr. Jackman was set. He believed that his role was to work and make money and that he had no responsibilities with regard to family once he got home.

[137] When they went outside to play Mr. Jackman would try to get Matteo to play what he wanted to play as opposed to what Matteo wanted to do.

[138] Mr. Smith's opinion is that Mr. Jackman does not spend a lot of quality time with Matteo. He lets other things intervene, such as his playing on a baseball team. One time during an access visit he wanted Matteo's grandparents to bring him to a baseball game and sit with them in the stands during the game. Matteo was only two years old at the time so it would have been very difficult for him to sit through a whole baseball game. He believes that Matteo loves his father and likes to spend time with him; however, Ms. De Santis has always been the primary caregiver.

[139] Mr. Smith admitted that he doesn't know very much about what Mr. Jackman does with Matteo on other access visits. In addition, since October 2009 he has not witnessed any interaction between Mr. Jackman and Matteo in his home, nor does he have any first-hand knowledge with regard to Mr. Jackman and Matteo's interactions since 2009.

[140] When Mr. Davis moved to Ontario from Calgary he lived in Mr. Smith's basement with Ms. De Santis. Mr. Smith got to know Mr. Davis well during this time. He believes that he is a good influence on Matteo. Matteo loves Mr. Davis. Mr. Davis has a lot of affection for Matteo and always shows a great deal of interest in him.

[141] He believes that Mr. Jackman is trying to control Ms. De Santis by opposing her move to Calgary. Mr. Smith would be sad if Matteo moved to Calgary because he would not see him as often, but he believes that it is in his best interest to be in a family there with Ms. De Santis and Mr. Davis.

Ms. Susanne De Santis's Evidence

[142] Susanne De Santis, the respondent's mother, swore an affidavit on which she was cross-examined. She currently lives with her daughter and Matteo.

[143] She agreed with Mr. Smith that Mr. Jackman expressed little interest in caring for Matteo during the time that the parties and Matteo lived with them. She gave many of the same examples as did Mr. Smith.

[144] She added that Mr. Jackman had to ask basic parenting questions, such as how to fasten diapers. Mr. Jackman frequently returned Matteo early after an access visit. Once when Ms. De Santis was in Calgary he returned Matteo on Sunday rather than Monday and she and Mr. Smith had to care for him until Ms. De Santis returned. She agreed that the access order in place at the time called for a return on Sunday. But she said that in spite of this the parties had agreed to a Monday return because Ms. De Santis was in Calgary.

[145] Mr. Jackman has also cancelled access visits due to his baseball schedule.

[146] She remembered two occasions when Ms. De Santis went to Calgary and Matteo stayed with her and her husband. One trip was for seven weeks, the other for a couple of weeks.

[147] She confirmed Ms. De Santis's complaint about Matteo getting covered in mosquito bites on a camping trip with Mr. Jackman.

[148] She said that it was not until Ms. De Santis filed her motion to change that Mr. Jackman began exercising his access more "appropriately". For example, Mr. Jackman used to return Matteo on Sunday before dinner, but now he is keeping him for dinner.

[149] She confirmed that Matteo and Mr. Smith have a strong bond. She said that Matteo also has a strong bond with Mr. Davis. She has seen Matteo interact with Mr. Davis. He seems to like Mr. Davis very much. He is relaxed and comfortable around him. They do a lot of activities together and Mr. Davis seems interested in spending time with Matteo. The last time that Mr. Davis saw Matteo was in April 2014. The last time the Matteo went to Calgary was in the middle of 2013.

[150] She has a good relationship with Matteo's maternal biological grandfather. He sees Matteo now and then at her home for family occasions and sometimes Matteo goes to his home.

[151] Whenever Matteo has been in Calgary she has spoken to him on the telephone or through Skype. He seems happy to be in Calgary. She did not think that Matteo missed her.

[152] She said that she has spent a lot of time with Matteo and that she and Mr. Smith are equally emotionally bonded to him. Matteo has spoken to her about moving to Calgary, for example; he refers to the time "when I move to Calgary …" She never broached the subject with him and she has never spoken to Ms. De Santis about moving to Calgary in front of Matteo.

[153] Matteo would miss her if he moved to Calgary. Like Mr. Smith, she would miss Matteo if they moved to Calgary, but she feels that it would be a better life for him there. She would go to Calgary to visit as often as she could. She was not sure how many times she would be able to visit, but it would be more than once a year.

Mr. Jackman's Evidence

[154] Mr. Jackman testified that he met Ms. De Santis online in 2005 or 2006. They developed a romantic relationship in 2007. They moved in together at Ms. De Santis's mother's home. He proposed to Ms. De Santis and they planned to get married. Their wedding ring was to be a family heirloom that belonged to Ms. De Santis or her mother.

[155] They never married but Ms. De Santis got pregnant. Matteo was born on February 13, 2008. He played a "fairly supportive role" with Matteo. He went to medical appointments and spent time with him in the backyard. The three of them went to parks together and participated in outside and inside activities. Another thing they did was to go to Square One.

[156] After Matteo was born they all lived together for approximately 25 months before he and Ms. De Santis separated. In December 2009, while they were still engaged he discovered that Ms. De Santis was communicating with Mr. Davis. However, they stayed together until March 13, 2010. On that day, he went to work and Ms. De Santis moved out of the house with Matteo and went back to her mother's home. She had told him previously that she was going to move out. He wanted to stay together.

[157] After their separation he wanted as much access to Matteo as possible. He and Ms. De Santis agreed to an access schedule according to which he exercised access on Tuesday, Thursday, and Saturday.

[158] On Tuesdays and Thursdays the access was at his home between 4:30 PM and 7 PM. He took charge of cooking dinner on these occasions. Sometimes he would arrive home late because of work.

[159] On Saturday, he had access between 12 noon and 7 PM at his home and other locations.

[160] The first time that Ms. De Santis went to Calgary with Matteo was in June or July 2010. She went once for three weeks. He got concerned because she did not return.

[161] He sought legal advice and was counseled to bring an urgent motion for the return of Matteo to Ontario. He brought the motion and obtained an order that Ms. De Santis return immediately with Matteo to Toronto. She obeyed the order and Mr. Jackman's access resumed as before.

[162] This led to him to bringing the original application in this matter. He was concerned that Ms. De Santis was going to Calgary with Matteo to visit Mr. Davis, whom she had not known for very long. The application was resolved by the parties consenting to Justice Kerrigan Brownridge's final order, which is the subject of Ms. De Santis's motion to change and this trial.

[163] Mr. Jackman was concerned that under Justice Kerrigan Brownridge's order he was getting less time with Matteo than before. Therefore, they reverted to their previous arrangement (Tuesday, Thursday, and Saturday). This continued until the end of 2011. Ms. De Santis was not comfortable with overnight access but they agreed that Matteo would have a sleepover with Mr. Jackman every other weekend.

[164] Around Christmas time 2012 they reverted to Justice Kerrigan Brownridge's order. Since that time Matteo has spent alternate weekends from Friday to Sunday with Mr. Jackman.

[165] Mr. Jackman agrees that on occasion he would be late to exercise his access because of the demands of his employment.

[166] When Matteo is with Mr. Jackman they go on nature walks, and swimming. They also go skating. He bought a helmet and skates for Matteo. They play sports together and with friends and children in the neighbourhood.

[167] With regard to the rash that Matteo got when he went swimming, Mr. Jackman said that he assumed that it was from a concentrated amount of chlorine that was in a sponge-like material on something with which Matteo was playing in the pool.

[168] Concerning the mosquito bites that Ms. De Santis complained about, it is not true that he did not buy bug spray for Matteo and put it on him. He bought some, and applied it to Matteo frequently, but he got bitten anyway.

[169] With regard to his baseball activities, Mr. Jackman said that he has been involved with an organized league in Mississauga for many years. He is both a player and a coach. Matteo has gone to games with him and he enjoys watching the games and playing with the kids that are there.

[170] Mr. Jackman bought a glove and a uniform for Matteo so that he could be the team's batboy. Matteo told him that he wanted number 29 because that is how old Mr. Jackman is.

[171] Mr. Jackman admitted that he missed between four and five access visits due to his baseball schedule, but none since 2013.

[172] With regard to Matteo's relationship to Mr. Jackman's family, Matteo has a very strong bond with his grandfather, Donald Jackman (I will refer to him as Mr. Jackman senior). They spend a lot of time together on weekends. They all go together on nature walks.

[173] In Mr. Jackman senior's affidavit, he states that he has been actively involved in Matteo's life since Matteo's birth. He has watched him develop into a happy and well-adjusted seven-year-old boy.

[174] He said that in the early stages of Matteo's life he and his wife, who recently passed away, bought him presents, cooked for him and sometimes took him out to restaurants and other places.

[175] Over the past 2 ½ years, Mr. Jackman, the applicant, has been living with Mr. Jackman senior at his home. Therefore, a significant portion of the applicant's parenting time has taken place there. This has increased the bond that Mr. Jackman senior has with Matteo.

[176] Ms. Lucia Jackman, Matteo's only paternal aunt, lives with Mr. Jackman senior. She treats Matteo like her own child. She cherishes him and showers him with love and affection. Matteo is her only nephew.

[177] Mr. Jackman senior says that he and aunt Lucia "have been intimately involved in Matteo's life and provide a very strong support base". They "encourage him to do well in school, facilitate his involvement with extended family members on his Father's side, and help ensure he is adequately cared for".

[178] Mr. Jackman senior stated that if Matteo were to move to Calgary he would be isolated from the majority of his family. Matteo does not have an extended family out west. In Toronto he has a maternal grandmother, two grandfathers, uncles, aunts, and a first cousin near his age.

[179] Other family members and friends with whom Matteo has meaningful contact in the Toronto area are an uncle, Dean Devincentis, and a great-niece, Amanda Marles. In addition, there is another niece and nephew, Fabrio (23 years) and Vanessa (21 years). They are very close to Matteo. These persons drop by for supper 8 to 9 times a year for 4 to 5 hours at a time.

[180] In addition, Matteo has made several friends at school and if he moved to Calgary he would have to leave all of them behind and face a new school and general environment. Furthermore, Mr. Jackman, the applicant, has played a significant role in Matteo's education. For example, when Matteo was having problems reading he read books to him before he went to bed. This helped to correct the problem.

[181] Mr. Jackman, the applicant, teaches Matteo how to swim and takes him on nature walks and other excursions.

[182] Mr. Jackman senior says that Matteo is the centre of his father's life and they have an extremely strong bond. He feels that "Matteo needs to have the influence of his loving, caring and intelligent father in his life, and to interfere and deny that influence is not in Matteo's best interests".

[183] He feels that Matteo will lose a lot by moving to Calgary and gain nothing. Communicating by Skype or some other form of social media falls desperately short of Matteo having his father and extended family physically present in his life".

[184] He described Matteo as "an intelligent, happy little boy who has been influenced and taught by so many people who love, support and adore him". He said that the bond that Matteo has with his family in Toronto has been fostered throughout his entire life.

[185] Matteo has a strong relationship with Mr. Jackman's best friend, Domenico Filice. Mr. Filice provided an affidavit in which he stated that he is a close personal friend of Mr. Jackman. They have been friends since they were infants. He says that Mr. Jackman is his best friend and is the main person to whom he goes to seek advice on all major and minor decisions. He feels that Mr. Jackman is "wise beyond his years and the most intelligent person [he] knows." He sees him four to five times a week. They go out to eat, play sports and go to sporting events. They speak to each other daily.

[186] Mr. Filice states that Mr. Jackman "has demonstrated himself to be an exemplary parent and role model to Matteo". Matteo means the world to Mr. Jackman.

[187] Mr. Filice said that he has a relationship with Matteo. About once a month he spends time with Mr. Jackman and Matteo during Mr. Jackman's access visits and participates in their activities, such as nature walks, skating and other sporting events. This has enabled him to see that they have a very strong bond.

[188] He said that he is aware that Matteo has begun to excel in school and that he has several school friends that he refers to occasionally by name.

[189] Mr. Filice states that all of Matteo's family and friends live in the Greater Toronto Area, including Ms. De Santis's family. Mr. Filice thinks that if Matteo moved to Calgary "he would be deprived of his entire support base built up over his entire life, and his family and friends which reside in the Greater Toronto Area".

[190] Mr. Jackman says that he goes to some of Matteo's parent-teacher interviews. The teacher told him that Matteo should read more but that other than that everything was fine. Mr. Jackman has worked with Matteo regarding reading. They lie in bed together reading to each other. This is an important time for them. They have physical and intellectual contact. They each point things out to the other in the book. It is a time of intimate contact between them. They practice reading at least once per week when Matteo visits with him.

[191] Matteo enjoys school and has two friends, Nicholas and Allie, that he speaks about often.

[192] Mr. Jackman is not confident that Ms. De Santis will facilitate access for him to Matteo if they moved to Calgary. His experience with her trips to Calgary has been that it is difficult to get a hold of her when she's there. Either she does not respond to his calls or waits until the next day to call him.

[193] He finds it laughable that he could have meaningful involvement with Matteo through Skype.

[194] It would be very difficult for him to travel to Calgary due to the expense. It would be almost impossible for him to make the trip more than one or two times per year. At his current employment he is not allowed to take two straight weeks of vacation. As well, it would be very difficult for Matteo's grandfather and aunt to make the trip.

[195] Although Ms. De Santis said that she would return to Ontario with Matteo two or three times a year, considering that Matteo's large family here would want to see him, Mr. Jackman would not have very much time alone with him. Mr. Jackman currently lives with his parents.

[196] In his affidavit of September 22, 2014 Mr. Jackman listed the following factors as benefits of Matteo staying in Ontario:

1. Matteo has resided in Ontario his entire life.
2. Matteo has developed several strong and healthy relationships with Mr. Jackman's large and supportive family, his friends and even Ms. De Santis's mother. The parties agree that all of Matteo's immediate maternal and paternal families reside in the Greater Toronto Area. Matteo would not have any family in Calgary other than Ms. De Santis.
3. If Matteo remains in Ontario he would be raised with the benefit of both his mother and father on a continuous basis.
4. Matteo is currently attending a good school.
5. It would be disruptive for Matteo to change schools, make new friends and have to adjust to a different curriculum.

[197] Mr. Jackman also stated that Ontario offers great health care, a wealth of cultural opportunity, and diverse future job prospects. However, I am sure that Albertans would say that the same benefits exist in Alberta.

[198] Mr. Jackman denied Ms. De Santis's accusations of lack of parental diligence on his part. In his affidavit he mentioned the following aspects of her behaviour, which have obstructed his ability to be as fully involved a parent as he wants to be:

1. Ms. De Santis does not keep him informed of Matteo's medical providers, or when Matteo has a medical appointment of significance, unless it requires money.
2. Nearly every time he picks up Matteo for access he has to wait a minimum of 15 minutes.
3. Ms. De Santis knows that he works in Scarborough but she will not agree to change the pickup time to accommodate longer travel times.
4. Ms. De Santis has obstructed his access by canceling his access when she refused to allow Matteo to sleep over at his parents' home after he moved in with them.
5. She also breached the court's access order by refusing to allow Mr. Jackman to take Matteo out for Halloween when it was his turn. She told him that he was too sick. Later, Matteo told him that he went out for Halloween with Ms. De Santis. Matteo told him that Ms. De Santis said that if he told Mr. Jackman he would take away all of his candy.
6. Ms. De Santis has taken Matteo to Calgary during Mr. Jackman's scheduled access time. She did not offer any makeup visits.

[199] Mr. Jackman says that he has never cancelled an access visit for a trivial reason.

[200] He is well aware of Matteo's schedule. He takes his bedtime seriously. He has missed numerous family events because Matteo needed to go to bed.

[201] Matteo always eats breakfast, lunch and dinner when he is with him. These meals are prepared by Mr. Jackman and Matteo's grandfather and aunt.

[202] He has been late to pick up Matteo only on one or two occasions. It was because of his employment circumstances.

[203] Mr. Jackman says that he has always accommodated Ms. De Santis by taking Matteo during times that were not his scheduled access.

[204] Mr. Jackman points out the following factors concerning Matteo's connection to Calgary:

1. Matteo has lived in Ontario since birth and has absolutely no connection to Calgary.
2. Matteo's connection to Calgary is tenuous at best.
3. Matteo does not have any family in Calgary, has never lived there, and has only visited there for up to two weeks at a time.

[205] In addition to the above, the parties agree that Matteo has not travelled to Calgary since summer of 2013.

The Law

[206] Gordon v. Goertz is the leading authority on mobility cases. That case involved an appeal from a trial decision that granted the mother custody and provided for generous access to the father.

[207] The court said that "before the court can consider the merits of the application for variation, it must be satisfied there has been a material change in the circumstances of the child since the last custody order was made.... Accordingly, if the applicant is unable to show the existence of a material change, the inquiry can go no farther": (citation omitted) (paragraph 11)

[208] The court held that "before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order" (paragraph 13).

[209] In paragraphs 49 and 50 the court summarized the law as follows:

1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.
3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.
5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
6. The focus is on the best interests of the child, not the interests and rights of the parents.
7. More particularly the judge should consider, inter alia:
   • (a) the existing custody arrangement and relationship between the child and the custodial parent;
   • (b) the existing access arrangement and the relationship between the child and the access parent;
   • (c) the desirability of maximizing contact between the child and both parents;
   • (d) the views of the child;
   • (e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;
   • (f) disruption to the child of a change in custody;
   • (g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

Has Ms. De Santis Met the Threshold Requirement of Demonstrating a Material Change in the Circumstances Affecting the Child?

[210] The court identified as a crucial question "whether the previous order might have been different had the circumstances now existing prevailed earlier": (citation omitted). Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. 'What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place': (citation omitted) (paragraph 12).

[211] Goertz was an appeal from an order made at trial. The case at bar is different in that the order was made based on the consent of the parties. Therefore, this particular criterion does not fit exactly with the case at bar.

[212] Ms. De Santis's evidence was that in her answer to Mr. Jackman's application in 2010 she made a claim to be allowed to go to Calgary, but in spite of this, when she consented to Justice Kerrigan Brownridge's order she agreed to remain in Ontario.

[213] The reason was that she and Mr. Davis were going to try to establish their lives in Ontario. The order allowed relocation to areas such as Guelph, Grimsby or Kitchener. She and Mr. Davis looked at some homes in Guelph and Kitchener in 2011, but they didn't like them so they did not follow through with this.

[214] In paragraph 14 the court said that,

A move to a neighbouring town might not affect the child or the parents' ability to meet its needs in any significant way. Similarly, if the child lacks a positive relationship with the access parent or extended family in the area, a move might not affect the child sufficiently to constitute a material change in its situation. Where, as here, the child enjoyed frequent and meaningful contact with the access parent, a move that would seriously curtail that contact suffices to establish the necessary connection between the change and the needs and circumstances of the child. (Emphasis added)

[215] In paragraph 16, the court held that,

… an order which specifies precise terms of access may lead to an inference that a move which would "effectively destroy that right of access" constitutes a material change in circumstances justifying a variation application. (Citations omitted). Where, as here, the custody order stipulates terms of access on the assumption that the child's principal residence will remain near the access parent, the third branch of the threshold requirement of a material change in circumstance is met. (Emphasis added)

[216] Based on the evidence in the case at bar I find as a fact that Matteo enjoys "frequent and meaningful contact" with Mr. Jackman, an extended family both on the paternal and maternal side and with friends.

[217] I also find as a fact that the evidence proves that if Ms. De Santis were to move to Calgary with Matteo it would "seriously curtail that contact".

[218] In addition, the evidence shows that when the parties entered into their minutes of settlement based on which Justice Kerrigan Brownridge made the access order that Ms. De Santis now wishes to change, the circumstances were that Ms. De Santis and Mr. Davis were confident that Mr. Davis would be able to find employment in Ontario and that they would be able to establish a life together with Matteo in Ontario. That is why she withdrew the request that she made in her answer to Mr. Jackman's application for custody to be allowed to move to Calgary with Matteo.

[219] Although I consider that the evidence presented with regard to Mr. Davis's job search in Ontario is weak and not determinative of whether or not he can find employment in Ontario, the situation in this regard is significantly different now than it was when Justice Kerrigan Brownridge made the order. After she made the order Mr. Davis came to Ontario, looked for work, found none, and has now returned to Calgary. Moreover, there is no evidence that he has continued to look for work in Ontario. It appears that he and Ms. De Santis have abandoned this option. This is a material change in circumstances.

[220] Therefore, based on the evidence and the above-mentioned jurisprudence I find that Ms. De Santis has met the threshold requirement of demonstrating a material change in the circumstances affecting the child.

If the Threshold is Met, the Judge on the Application Must Embark on a Fresh Inquiry into What is in the Best Interests of the Child

[221] In Young v. Young the Ontario Court of Appeal held that,

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

[222] The Children's Law Reform Act states, in s. 29, that: "A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child".

[223] Section 24 of the Children's Law Reform Act addresses the best interests of the child.

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.

[224] I will use section 24 as a guide in determining whether or not a move to Calgary would be in Matteo's best interests.

[225] As with all children, Matteo needs the love and affection of his parents, extended family and friends. The bonds and emotional ties that he has developed with his parents and their extended families and friends must be preserved as best as possible in the circumstances.

[226] Based on the evidence, I find as a fact that there is a reasonable and cogent inference that Matteo has strong, meaningful and beneficial emotional ties with his parents, their extended families and friends. There is much love for Matteo in this constellation of caregivers and friends. Matteo has lived in this environment for his whole life.

[227] I find as a fact that the evidence shows that Matteo's parents are both able and willing to provide "guidance and education, the necessaries of life and any special needs" that he might have. I grant that Ms. De Santis has been, and remains the primary caregiver for Matteo. The evidence also shows that perhaps Mr. Jackman did not play as strong of a fatherly role in the beginning; however, he has improved significantly in the last couple of years.

[228] Ms. De Santis's motion to change and request to move to Calgary with Matteo has no doubt spurred on this change. However, this wake-up call for Mr. Jackman has had a salutary effect on his involvement and relationship with Matteo. I am persuaded that this will continue.

[229] Mr. Jackman's plan for Matteo's care and upbringing is to basically allow to continue and improve Matteo's relationship with him and his extended family and friends as has been the case for all of Matteo's life. It is in essence to continue Matteo's life as it has always been and to continue shepherding him through the future in the place that he has always lived.

[230] The strength of this plan is that so far it is working well. There is no evidence that Matteo is in any way disadvantaged in his current situation, or that he would be should he remain in Ontario. There is also strength in the plan's predictability, which undoubtedly brings emotional comfort and stability to Matteo.

[231] On the other hand, I find that Ms. De Santis's plan is weak and uncertain. Matteo does not have any family in Calgary. Nor does he have any friends. Ms. De Santis presented evidence from herself, Mr. Davis's mother, Ms. Dance, and Ms. Viau to try to make the best of Matteo's friendship with Brayden, a boy his age that he met in Calgary. However, Ms. De Santis testified that Matteo does not see Brayden on every trip to Calgary. He has not seen him since 2013. They don't speak on the telephone. I do not find this to be what one would normally call a friendship. There is certainly no evidence that they have a close relationship, or any ongoing relationship.

[232] Mr. Davis's mother, Ms. Dance, provided an affidavit in which she said that she met Matteo when he was two years old. She said that over the last two years they have developed a strong bond. Matteo is comfortable with her and her husband.

[233] Ms. Dance said that Matteo is "extremely familiar with the area in which I reside". There is no evidence other than her statement that this is true. Based on the evidence before the court I highly doubt that Matteo is "extremely familiar" with Ms. Dance's neighbourhood.

[234] There is no evidence from Ms. Dance's husband with regard to his relationship with Matteo.

[235] Ms. De Santis's evidence with regard to schools that Matteo might go to in Calgary is quite weak and dated.

[236] She said that she looked into the schools "A while ago". The date on all of the printouts that she provided is February 25, 2011. She has not looked into schools in Calgary since 2011 because she was not sure that she was going to move there. Consequently, there is no up-to-date evidence with regard to what schools would be available to Matteo should he live in Calgary.

[237] In addition to a list of schools, the webpage of the Federation of Calgary Communities lists "Recreation Amenities" and programs. However, this is also dated information, having been printed out on February 25, 2011.

[238] I find that Ms. De Santis's evidence regarding schools and recreational amenities and programs is unreliable. These are significant weaknesses in Ms. De Santis's plan for Matteo's life in Calgary.

[239] There is no evidence that Ms. De Santis would have better employment opportunities in Calgary than in Ontario.

[240] I acknowledge that Mr. Davis has employment in Calgary and that he did not find employment in the Greater Toronto Area after his 10 month stay here. However, there is no evidence with regard to Mr. Davis's salary, benefits, or insurance with his new employment.

[241] I find that the evidence presented with regard to Mr. Davis's job search in the Greater Toronto Area was meagre. It did not demonstrate a strong comprehensive effort to find employment.

[242] For example, Mr. Davis did not register to have his working credentials transferred from Alberta to Ontario because he has to perform a "hands-on" test, which he said that he could not do because there was a backlog of one year to take the test. However, he could have registered and put himself on the waiting list.

[243] He did not try to have his credentials transferred while he was still in Alberta because he thought that they might call him for the hands-on test and he would not be available. I find that had he really been intent on finding employment in Ontario he would have put himself on the waiting list and come to Ontario to take the test in order to enhance his chances of finding employment here.

[244] He said that while he was in Ontario he called 4 to 5 times to see about taking the test, but after that he did not follow up. Mr. Davis was in Ontario looking for work for 10 months. Surely, had he been intent on finding work here he would have called more than once every two months to find out about taking the test.

[245] He said that one can find employment as a pending technician without having full the credentials, but he did not find this kind of employment either. There is little or no evidence that he looked for this type of employment.

[246] Judging from Mr. Davis's evidence, he appears to be a well-qualified and very experienced automotive technician. It is reasonable to assume that it is highly likely that such a person could find employment in Ontario if he took the trouble to satisfy all the prerequisites. I find that it is reasonable to concluded that this option is still open to him.

[247] This factor suggests strongly that Ms. De Santis and Mr. Davis could establish a life in the Greater Toronto Area, thereby maintaining the frequent contact that exists between Matteo and Mr. Jackman and Matteo's extended family and friends here.

[248] I find that economically speaking, Matteo could very well be somewhat better off living in Calgary with Mr. Davis. However, as indicated above, I find that the evidence of Mr. Davis's efforts to obtain employment in Toronto was weak and not determinative of his ultimate ability to find work here. Therefore, I am not persuaded that moving to Calgary would be the only way to obtain the benefits of Mr. Davis's income for Matteo. In any case, this is but one factor that the Court must consider in deciding whether to allow Ms. De Santis to relocate to Calgary with Matteo.

[249] I acknowledge that it is likely that Matteo's life would be improved by living in a mother/stepfather family unit, as opposed to the current situation where he lives with Ms. De Santis in her mother's basement. However, I find that Mr. Davis's relationship with Matteo is not strong. As of the date of the trial (April/May 2015) the last time that Mr. Davis had seen Matteo was in April 2014. The last time that Matteo went to Calgary was in the middle of 2013.

[250] I agree that Ms. De Santis would be much happier living in Calgary with Mr. Davis and that her happiness would have positive effects on Matteo. But this factor has limitations.

[251] In Berry v. Berry the court reiterated that "As the court decided in Woodhouse v. Woodhouse, while being with a happy parent has a positive effect on a child, the legal test focuses on maximizing contact with both parents and minimizing disruption to the child".

[252] In addition, Justice Kiteley stated in Connolly v. McGouran that the custodial parent's happiness is only relevant if it "affects her ability to meet the needs of the children".

[253] Regarding the maximum contact with each parent principal, "The 'maximum contact' principle, as it has been called, is mandatory, but not absolute. The Act only obliges the judge to respect it to the extent that such contact is consistent with the child's best interests; if other factors show that it would not be in the child's best interests, the court can and should restrict contact": [citation omitted] (Gordon v. Goertz, paragraph 24).

[254] In paragraph 25, Gordon v. Goertz states that "Parliament has indicated that maximum contact with both parents is generally in the best interests of the child". Gordon v. Goertz was a case in which the Divorce Act was applicable, but I find that the same logic applies to the case at bar.

[255] Young (supra) held that "the two-stage test in Gordon v. Goertz also applies where the parents have joint custody and one of the parents seeks to move with the child over the objection of the other parent (paragraph 18).

[256] I believe that Ms. De Santis is genuine in her willingness to enable as much contact between Matteo and Mr. Jackman and the Toronto based family and friends. She agreed to forgo child support in order to help Mr. Jackman afford trips to Calgary to see Matteo. But these long-term relationships would be subject to the vicissitudes that plague all long-term relationships. For example, the time, effort and expense of maintaining them at a meaningful level.

[257] Ms. De Santis's evidence was that if she were to move to Calgary Christmas would be the next time that Matteo could see Mr. Jackman unless he wanted to go to Calgary before then. She thinks that if she came back to Ontario for Christmas it would be for two weeks. They could have a family get-together so that Matteo could see the rest of the family as well.

[258] No doubt such a reunion would be beneficial for Matteo, but because of the limited time, it would be subject to the pressure and commotion of trying to see as many people as possible and spending meaningful time with them. These aspects of such a visit would not be enjoyable for Matteo.

[259] Ms. De Santis said that Matteo's family members would fly to Calgary to visit him and he would fly to Ontario four to five times a year, or maybe 3 to 4 times a year to visit them. She does not think all of this travel would affect Matteo in a negative way. However, in paragraph 20 of her affidavit in vol. 2, tab 1 of the continuing record, which she swore when her plans were to live in Ontario with Mr. Davis, she stated that eliminating frequent traveling would be a benefit to Matteo.

[260] In addition, she cannot speak to Matteo's family members' capacity to visit Matteo in Calgary, for example, whether they would be able to afford it and whether they would have the necessary time to travel to Calgary. Also, even if initially many of Matteo's extended family and friends came to Calgary to visit him, as time passed it is likely that the visits would be fewer and fewer.

[261] Ms. De Santis said that she would be willing to facilitate any kind of electronic access between Matteo and Mr. Jackman and family and friends. This technology greases the wheels of a long-term relationship, but it is a poor substitute for the human contact that Matteo now enjoys with his father and his friends and family.

[262] Concerning Matteo's views, since he is so young the parties did not introduce any direct evidence in this regard.

[263] Therefore, based on all of the above, I find that Ms. De Santis's plan to move to Calgary would result in Matteo moving into an environment which is uncertain with regard to his schooling and the amenities available to him where he would live. He would be moving to a place to which he has not been since 2013. He would be living with Mr. Davis, who he has not seen for over a year and with whom there is scant evidence, if any, of a strong relationship.

[264] Mr. Davis lived with Ms. De Santis and Matteo for 10 months when he was in Ontario looking for work, but there is negligible evidence with regard to his involvement and interactions with Matteo during this time.

[265] Matteo would be moving to a place where he has no friends. With regard to extended family, it would be only Mr. Davis's mother and father. There is hardly any evidence with regard to Mr. Davis's father's relationship with Matteo and although Mr. Davis's mother said that she and Matteo got along well together, they have not seen Matteo since 2013. This was when Matteo was five years old. He is seven now. That is a little less than a third of his life. There is no evidence that they contact each other on a regular basis. Consequently, I find that whatever bond they have is minimal.

[266] In contrast, if Matteo stays in Ontario he will have the benefit of regularly seeing both of his parents, his extended family (both paternal and maternal), family friends, and his own friends. He will also remain in the only place that he has ever lived, with which he is knowledgeable and comfortable, and he would be surrounded by many caring and loving family and friends.

[267] With regard to Mr. Jackman and Ms. De Santis's joint parenting, I find that in spite of disagreements and rough patches they are loving and caring parents who are doing well under the order to which they consented.

[268] I note that Ms. De Santis's evidence was that if the court ruled against her she would remain in Ontario with Matteo. In Spencer v. Spencer the Alberta Court of Appeal commented that such an admission undermines the submissions in favour of relocation by suggesting that such a move is not critical to the parent's well-being or to that of the children". The court also observed that a parent seeking relocation is in a double bind in this respect because if "a parent is not willing to remain behind with the children, he or she raises the prospect of being regarded as self interested and discounting the children's best interests in favour of his or her own".

[269] Gordon v. Goertz held that "the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration" (paragraph 48).

[270] I pay heed to this direction by giving Ms. De Santis's views great respect and serious consideration. However, this is one factor that I must weigh in determining what Gordon v. Goertz identified as "The ultimate question in every case...: what is in the best interests of the child in all the circumstances, old as well as new?" (Paragraph 50)

Disposition

[271] After considering all of the evidence and the above-mentioned jurisprudence as well as counsel's submissions, I find that it is in the best interests of Matteo to remain in Ontario, therefore, Ms. De Santis's motion to change is dismissed.

[272] The parties may make submissions on costs within 30 days of the date of this judgment. The submissions shall be in writing and shall be no longer than 5 pages excluding bills of costs.

Released: September 4, 2015

Signed: _____________________