Court File and Parties

Ontario Court of Justice

Date: 2015-06-11

Court File No.: Kitchener 420/14

Between:

Krysti Amanda Hill Applicant

— And —

Matthew Scott Murphy Respondent

Before: Justice L.J. Rogers

Heard on: November 17, 18, 19 and 21, 2014

Reasons for Judgment released on: June 11, 2015

Counsel:

• David Lang, for the Applicant
• Maciej (Matt) Milczarczyk, for the Respondent

Judgment

Rogers, J.:

Introduction

[1] This application was commenced by Krysti Hill on May 15, 2014. Ms. Hill requests custody of the child Lucas Matthew Murphy, born November 30, 2011, support for Lucas, guardianship over Lucas' property, and permission to move Lucas' residence from Kitchener, Ontario to Happy Valley-Goose Bay in the Province of Newfoundland and Labrador.

[2] The respondent Matthew Scott Murphy (known as Scott Murphy), filed his Answer dated June 6, 2014, claiming custody of Lucas and child support in the event the applicant moved to Happy Valley–Goose Bay, and an order prohibiting Lucas moving with his mother, as she requested.

[3] The parties entered into a mediation agreement on August 14, 2013 after referring themselves to the off-site mediation service of Axis Family Mediation Inc. in July 2013. They engaged in five mediation sessions, culminating in the agreement finalized on August 14, 2013. The issues resolved in mediation were the parenting plan for Lucas, required as a result of the parties' imminent separation, and a child support regime reflecting the parenting arrangement. The mediation agreement was not signed by either party, and was not turned into a formal separation agreement or court order.

[4] Both parties acknowledged that the mediation agreement was followed by both of them from August 2013 to the time of trial. The salient feature of the agreement was that the parties agreed they would share the parenting of Lucas on a week-about basis from Monday at 7:00 p.m. to the following Monday at 7:00 p.m. Mr. Murphy was to pay child support to Ms. Hill for Lucas in the amount of $523.00 per month on a set-off basis, with Ms. Hill's income being lower than the Child Support Guideline threshold for child support and Mr. Murphy's income being estimated at $57,573.97.

[5] It is also acknowledged by both parties that this agreement does not meet the requirements of subsection 55(1) of the Family Law Act which states:

"55 (1) A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed."

[6] Finally, the court was requested by both parties to determine the issue of custody of Lucas prior to making a decision regarding Ms. Hill's request to move to Labrador with the child. This request is in keeping with the principles enunciated in the Ontario Court of Appeal's decision in Bjornson v. Creighton, [2002] O.J. No. 4364. At paragraph [19] of the judgment of the Court, Austin J.A. stated:

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

Custody

a) Evidence

[7] Ms. Hill age 26, testified that she and Mr. Murphy met in November 2010 and moved in together in June 2011. She has two older children, Isaiah born February 12, 2006 and Jaxton born March 31, 2009, of whom she has primary care. The father of Isaiah and Jaxton pays Ms. Hill child support of $310 per month pursuant to an agreement dated July 18, 2013. There is no agreement or court order in place with respect to the custody of Isaiah and Jaxton, according to Ms. Hill, though the boys' father has access with them, every second weekend.

[8] From June 2011, until August 2013, Ms. Hill and Mr. Murphy resided together with the children in Mr. Murphy's home at 28 Kelly Drive in Kitchener. Mr. Murphy's mother, Cynthia Mueller and her husband Jeffrey Mueller resided in an apartment in the basement of the home, until September 2012, when as a result of differences between Ms. Mueller and Ms. Hill, they moved out. The Muellers returned to the basement apartment in Mr. Murphy's home after the couple's separation.

[9] The parties initiated mediation in July 2013, prior to Ms. Hill leaving the home. The terms of the mediation agreement provided that Ms. Hill and Mr. Murphy would share the parenting of Lucas, and have joint custody of him. They were to have equal time with Lucas, on a "week-about" basis, and were not to move more than 25 kilometres away from the residence of the other "without first renegotiating the terms of their parenting plan at least 60 days in advance". In addition, the mediation agreement provided that Lucas was to have "alternate care" provided by Mr. Murphy's mother Cynthia Mueller, and that any other caregivers would be interviewed and agreed upon by the parents. The agreement also provided that Mr. Murphy pay child support of $523 per month.

[10] Ms. Hill testified that since August 2013, both she and Mr. Murphy have abided by the mediation agreement. She described their communication as good, and stated that they are able to have face-to-face discussions about Lucas. Ms. Hill stated that she had no concerns with Ms. Mueller's care of Lucas while he was at Mr. Murphy's home, and in fact acknowledged that Ms. Mueller had cared for Lucas during her week as well. According to Ms. Hill, Mr. Murphy is a very good father to Lucas.

[11] Ms. Hill is employed part-time as a waitress at "The Flying Dog" in Waterloo, working 9:00 p.m. to 2:00 a.m. shifts, and is also in receipt of Ontario Works. Her boyfriend since June 2014, Jason Burke, assists her by babysitting while she is at work, as does her friend. She and Mr. Burke planned to move in together in December 2014, into a rental home in a different school district.

[12] Mr. Murphy age 33, testified that he is employed as a carpenter with Berkin Construction where he has worked for 12 years. He was born in Kitchener and has lived since 2010 in the Kelly Drive home he shares with Lucas, and his mother and stepfather.

[13] According to Mr. Murphy, he leaves for work around 5:30 a.m. and returns home around 5:30 p.m. His mother cares for Lucas while he works, and Lucas has sleeping quarters in the upstairs of the home with his father and also in his grandparents' apartment. In the summer Lucas spends a lot of time at the Muellers' trailer on the Grand River. Mr. Murphy testified that on his weeks he will make dinner for himself and Lucas if he is home in time, otherwise Lucas eats with his grandparents. He and Lucas play in the evenings, Lucas has a snack at bedtime and, on weekends the two of them "hang out", play and watch cartoons.

[14] Mr. Murphy testified that he and Ms. Hill have abided by the equal time sharing agreement reached in mediation since August 2013, with no issues. They have been able to communicate, without problems. Mr. Murphy stated that he expected that he and Ms. Hill would come to an agreement regarding her move with Mr. Burke and the consequent change in school district that may result Lucas attending at Catholic School with his brothers. Mr. Murphy raised no issues with Ms. Hill's care of Lucas.

[15] None of the other witnesses – Ms. Hill's aunt and parents, Mr. Murphy's mother, stepfather and stepmother, gave evidence of any concerns with either Mr. Murphy's or Ms. Hill's care of Lucas, or of any issues particular to Lucas (special needs, behavioural or medical concerns) that either parent faced and was found lacking. The evidence indicates that Lucas is a happy, well-loved child who is meeting all his developmental milestones.

b) Analysis on Custody Issue

[16] Ms. Hill takes the position that she should be Lucas' sole custodial parent. It is clear, that but for her wish to move with Lucas to Happy Valley-Goose Bay, she was content to abide by the terms of the mediated agreement for joint custody with equal time sharing of Lucas.

[17] Mr. Murphy seeks to have the custody of Lucas as set out in the mediation agreement, that is joint custody with "week-about" time sharing, continue, with the terms of the agreement forming part of the court order.

[18] While there is an agreement between the parties, as previously noted, it is not a domestic contract pursuant to the Family Law Act. It is, however, very concrete evidence of both parents' commitment to the principle of "maximum contact" as set out in s. 16(1) of the Divorce Act, and as endorsed by the courts in matters governed by the Children's Law Reform Act. In the case of Cavannah v. Johne at paragraph [38], Justice Ingram held that the principle of "maximum contact"

"has long been recognized as a proper consideration in the best interests test, even if it is not explicitly in the CLRA: see Woodhouse v. Woodhouse (1996), 20 R.F.L. (4th) 337 at para. 32 (Ont. C.A.); Lickfold v. Robichaud, [2008] O.J. No. 4117 at para. 55 (S.C.J.) (QL); Takenaka v. Kaleta (2006), 28 R.F.L. (6th) 119 at para. 42 (Ont. S.C.J.); Easton v. McAvoy, 2005 ONCJ 319 at para. 26; Mills v. Gibbs, [1997] O.J. No. 1977 at para. 75 (Ct. J. (Prov. Div.)) (QL)."

[19] Subsection 24(2) of the Children's Law Reform Act (CLRA) set out further criteria the court must consider in determining what would be in the best interests of a child in deciding custody:

"24(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."

[20] I have considered all of the above criteria, along with the "maximum contact" principle, and the provisions of subsection 20(1) of the CLRA which states:

"20 (1) Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child."

[21] All of the evidence presented at trial supports the continuation of the terms of the mediated agreement between Ms. Hill and Mr. Murphy for joint custody and equal time sharing of Lucas. This has been the regime of care experienced by Lucas since his parents' separation when he was 20 months old, and there was no evidence presented that the arrangement should change, in Lucas' best interests.

[22] Subject to the determination of whether Ms. Hill can relocate to Happy Valley-Goose Bay with Lucas, an order for joint custody with equal time sharing shall issue.

Mobility

a) Applicant's Evidence

[23] Ms. Judith Hillier, Ms. Hill's paternal aunt, testified that Ms. Hill approached her in April 2014 to see if Ms. Hillier, who owns and operates two hotels in Happy Valley-Goose Bay, could offer her a job in one of her hotels. Ms. Hillier responded by providing Ms. Hill with a letter dated April 28, 2014 offering her a position as hotel manager at Hotel North, with an annual salary of $45,000 and benefits. While she acknowledged that Ms. Hill had no qualifications for the position, Ms. Hillier stated that she could train Ms. Hill to do what she needed her to do. Ms. Hillier testified that the working day for Ms. Hill would be from 8:00 a.m. to 4:30 p.m., with the need to be accessible by phone in the evenings. According to Ms. Hillier, their family was very close, with about 20 members living in Happy Valley-Goose Bay, including Ms. Hill's parents and brother.

[24] Ms. Hillier stated that she could keep the hotel manager job offer open until the end of January 2015, and that she had kept the offer open since April 2014, to help her niece.

[25] Morris Hill, the applicant's father, testified that he and his family had lived in Kitchener, Ontario for eight years, until leaving six years ago to return to Happy Valley-Goose Bay. He initially worked as the manager of his sister's hotel for 18 months, then he started his own construction company, building homes and renovating hotels. Mr. Hill stated that he and his wife were willing to have his daughter, her three children, and her boyfriend (who became part of the relocation plan three weeks earlier) reside in his home, until he could build them a house of their own. According to Mr. Hill, he would use the line of credit on his own home to finance the lot purchase and the building costs, then once Ms. Hill had sufficient employment history to qualify for a mortgage, they would transfer the home to her, and she would pay them back with her mortgage funds.

[26] Mr. Hill stated that he was assisting his daughter financially in Kitchener, by buying her a van, for example, but he could not provide her with a newly built home here in Ontario, given her inability to secure employment here sufficient to maintain a mortgage.

[27] According to Mr. Hill, Krysti Hill returned to Happy Valley-Goose Bay in 2008 with Isaiah, but only stayed six months before returning to Kitchener, because she missed Isaiah's father and was pregnant with Jaxton.

[28] The applicant's mother, Ruth Hill, also testified on her daughter's behalf. She stated that she and her husband reside in Happy Valley-Goose Bay and that she is a full time paid caregiver for a young man with Down's Syndrome and autism, named Andrew, who lives with the Hills. According to Ruth Hill, Andrew goes to a respite caregiver Monday to Friday from 11:00 a.m. to 4:00 p.m. and on alternate weekends. She testified that Lucas has met Andrew three times and is a little afraid of him because of Andrew's "sounds and gestures". Ruth Hill confirmed that she was prepared to care for Lucas in Happy Valley-Goose Bay while her daughter was at work, and the older boys were at school. She advised the court that she and her husband had "just found out" that Jason Burke was part of the relocation plan, and that his children may be coming with them as well.

[29] Krysti Hill testified that she had lived in Kitchener since she was twelve years of age. She has recently completed Grade 12 through adult continuing education and has worked part time as a waitress, first at Prime Barbecue until 2013, then at The Flying Dog as of September 2014. Her income consists of her wages and tips from her part time work, child support from Mr. Murphy and Mr. Salanic (Isaiah and Jaxton's father) and Ontario Works. She stated that she has not pursued any of the full time employment services available through Ontario Works because she has no childcare for the boys on school holidays or if they were ill, if she had full time work.

[30] Ms. Hill testified that she and Jason Burke were planning on moving into a house together in December 2014, which would require her two older children to change schools. The plan was for them to share the rent and other expenses. She and Mr. Burke, who is a plumber/pipefitter, have dated since June 2014, and he has agreed to move to Happy Valley-Goose Bay with her and the children. Mr. Burke has two children age ten and five who live with their mother.

[31] According to Ms. Hill, she first raised the prospect of moving to Happy Valley-Goose Bay with Mr. Murphy in early 2014 when they were discussing a possible reconciliation and were "dating". She testified that at first Mr. Murphy said he would move with her and all the children to Labrador, but then he changed his mind, so she decided to pursue the issue in court. Ms. Hill stated that she has a large extended family in Happy Valley-Goose Bay that would assist her with caring for the boys and would assist her emotionally. She claims that she has an excellent relationship with her parents and her aunt Judy Hillier who has offered her employment. However, Ms. Hill testified that she would not move to Happy Valley-Goose Bay if Lucas was not permitted to move as well.

[32] Ms. Hill stated that she had discussed relocating to Happy Valley-Goose Bay with Garson Salanic the father of Isaiah and Jaxton. Her proposal for access between Mr. Murphy and Lucas would be for Lucas to spend half the Christmas holidays, every March Break and each summer with his father. She is prepared to share in the cost of Lucas' travel expenses, and to reduce the child support paid by Mr. Murphy to defray his access costs.

[33] At the conclusion of the evidence Ms. Hill filed a 35.1 affidavit detailing Mr. Burke's convictions for impaired driving in 2010 and driving while disqualified in 2011. Mr. Burke is prohibited from driving until June 2015.

b) Respondent's Evidence

[34] Cynthia Mueller, Mr. Murphy's mother, testified that she and her husband Jeffrey were living in her son's home when Lucas was born, and that she cared for Lucas some evenings and some overnights to give Ms. Hill and Mr. Murphy some respite. Ms. Mueller was employed as a cashier at Dollarama until May 2012, when she retired because of recurring pain from fibromyalgia and osteoarthritis. She has cared for Lucas during the weeks he is with his father since August 2013, while Mr. Murphy is at work. She testified that she has also provided care for Lucas during the week he is with Ms. Hill. She does not provide care for Ms. Hill's two older children. Ms. Mueller stated that she believed that it would be devastating to Lucas to be moved to Happy Valley-Goose Bay where he would not be with familiar people, in unfamiliar surroundings.

[35] Mr. Murphy's stepfather, Jeffrey Mueller, testified that his work as a bailiff often allows him to assist his wife with Lucas' care, by taking him to a local park, and joining them for mealtimes. According to Mr. Mueller, a move by Lucas to Labrador would be "devastating" to him because he is most familiar with the Murphy/Mueller family.

[36] Shane Murphy, Mr. Murphy's stepmother, testified that both the Murphy and Mueller families spend time together, with Mr. Murphy's siblings, stepsiblings and their children included. Lucas is one of four grandchildren. Ms. Murphy stated that she is available to assist in the care of Lucas as she has flexibility by virtue of owning her own hair salon.

[37] Scott Murphy testified that he and Ms. Hill agreed to attend mediation prior to physically separating in August 2013 to sort out the sharing of Lucas' custody. There was no discussion during mediation about the possibility of a move to Happy Valley-Goose Bay by Ms. Hill. According to Mr. Murphy, Ms. Hill first raised the issue of moving in February 2014, when they were "dating" and when she persisted he agreed she could go with Lucas, because he was tired of being badgered. When Ms. Hill requested that he provide his consent to the move in writing, he refused and expressed his opposition to Ms. Hill's plan.

[38] Mr. Murphy stated that Lucas needs both of his parents equally, and that it is not enough for Lucas to only have time with him at Christmas, March Break and the summer. If Ms. Hill did move to Happy Valley-Goose Bay without Lucas, Mr. Murphy would agree to the same time sharing that Ms. Hill proposed for him. He would keep the decision-making regime as set out in the mediation agreement the same.

c) Analysis on Mobility Issue

[39] The leading authority on mobility cases is Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.). The law is summarized in paragraphs 49 and 50 of that case as follows:

"49 The law can be summarized as follows:

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

b) 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.

c) 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.

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

e) More particularly the judge should consider, inter alia:

1. the existing custody arrangement and relationship between the child and the custodial parent;

2. the existing access arrangement and the relationship between the child and the access parent;

3. the desirability of maximizing contact between the child and both parents;

4. the views of the child;

5. 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;

6. disruption to the child of a change in custody;

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

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

[40] In the Goertz case, the mother had sole custody of the child, and the father had generous access. The mother was seeking to move with the child to Australia, over the objection of the father. Those facts differ significantly from the facts in the present case. Neither parent had custody of Lucas when this action started, and both are now custodial parents with equal time with the child, by virtue of the agreement they entered into, and by the order which shall issue in this decision. Therefore, the reference to "existing access arrangement" in subparagraph 2 of the Goertz decision above is not applicable in this case, and the reference to "the custodial parent's reason for moving" should instead be a consideration of the "parent's reason for moving".

[41] A case very similar to this one was decided by the Court of Appeal of Ontario in Berry v. Berry, 2011 ONCA 705, [2011] O.J. No. 5006. In Berry, the trial judge had, after accepting the parents' consent to share joint legal custody of the child, ordered that the child would reside ordinarily with the mother in Kingston, Ontario, and the father would have access on alternate weekends from Thursday evening to Sunday evening in Toronto. In delivering the judgment of the Court of Appeal, Justice Juriansz stated:

"[11] While the trial judge correctly identified the Goertz decision as the governing authority for this case, he erred in applying its principles.

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

The father's appeal was granted and the move by the mother to Kingston was refused.

[42] Lucas' relationship with each of his parents is close, loving and meaningful. There is no evidence that either Ms. Hill or Mr. Murphy is a better parent than the other. In fact, both of these parties appropriately recognize the other's strength as a parent of Lucas. While much was made of the fact that Mr. Murphy works during the week while his mother cares for Lucas, Ms. Hill's proposal is that her mother would care for Lucas during the week if she moved to Happy Valley-Goose Bay and was employed at her aunt's hotel.

[43] The present arrangement of equal time sharing maximizes contact with both Ms. Hill and Mr. Murphy with Lucas. Ms. Hill's proposal reduces Mr. Murphy's contact with his son to three long visits each year, in March, summer and at Christmas. This would dramatically alter the amount of contact Lucas has with his father, contrary to the "maximum contact" principle. Justice McLachlin stated in Goertz, at paragraph 25, that "the reviewing judge must bear in mind that Parliament has indicated that maximum contact with both parents is generally in the best interests of the child".

[44] In Berry the Court of Appeal found that the trial judge had attached "the greatest weight" to the mother's reason for moving (paragraph 16). Ms. Hill has stated that she cannot pursue full time work in Kitchener because she would not have childcare. She wants to move across the country to take a job provided by her aunt (if it is still available) for which she has no training, and live in a home built and financed by her parents. There is no evidence that she has pursued full time work or job training in Kitchener. There is no evidence that she has looked for stable, affordable childcare in Kitchener. The last time Ms. Hill moved back to Happy Valley-Goose Bay, in 2008, she stayed six months and then moved back to Kitchener with Isaiah. While it is clear that Ms. Hill will have the benefit of financial support from her family in Happy Valley-Goose Bay there is no evidence that her financial circumstances in Kitchener have impacted on Lucas' best interests, or as stated in Goertz, that the move "is relevant" to Ms. Hill's "ability to meet the needs of the child". She has made no demonstrable effort to seek improvement in her employment prospects. She receives child support from her children's fathers, Ontario Works, child tax benefits and is moving in with Mr. Burke, thus sharing expenses. I do not accept that she must move to Happy Valley-Goose Bay with Lucas for financial reasons that relate to her ability to meet his needs.

[45] Ms. Hill also maintains that she wishes to move with her children to Happy Valley-Goose Bay because she has no emotional support in Kitchener. The evidence is that she has lived here since 1990, moving to Happy Valley-Goose Bay in 2008 for six months before returning here. Her children were all born here, and her three most recent relationships have been with residents of this area. There is no evidence that she suffers emotionally by living here with her children and Mr. Burke. Her wish to move to Labrador is simply that, a wish. She has met the financial and emotional needs of Lucas and her two older children here in Kitchener, has been a good, loving parent, and will very likely continue to be. She advised the court that if she was not permitted to move with Lucas, she would not move at all.

[46] A move such as the one proposed by Ms. Hill would be extremely disruptive to Lucas, by essentially removing his father from his life except through sporadic visits, moving far from his grandparents who provide weekly care for him, and eliminating contact from his extended family except when visiting here. Because he is so young, he is not in school, or engaged in activities in the community, but the proposed move would remove him to an entirely new home, a new caregiver in his maternal grandmother, and an adjustment to a new household that includes Ruth Hill's foster child, Andrew. His mother plans to be at work full time, his brothers would be in school, and his father would be essentially absent from his life. It is hard to imagine a more disruptive change to Lucas' life.

[47] I have reviewed the cases provided by counsel. In the cases from Ontario where a move from the child's residence was permitted, the moving parent was consistently the "primary" or "custodial" parent (Bjornson v. Creighton, [2002] O.J. No. 4364; Boudreault v. Charles, 2014 ONCJ 273, [2014] O.J. No. 2694; DelNet v. Benger, [2003] O.J. No. 4026; Greenfield v. Garside, [2003] O.J. No. 1344; Ligate v. Richardson, [1997] O.J. No. 2519; Luckhurst v. Luckhurst, [1996] O.J. No. 1972). In cases where the child (or children) spent almost equal time with both parents, the move was not permitted (Young v. Young (2003), 63 O.R. (3d) 112; Berry v. Berry, 2011 ONCA 705, [2011] O.J. No. 5006). In this case, Lucas spends equal time in the home of both his parents and he is happy, thriving and loved. The disruption to his relationship with his father, and his extended family that his proposed move to Labrador would create, is contrary to his best interests. The court cannot endorse Ms. Hill's plan to relocate Lucas to Happy Valley-Goose Bay.

[48] Counsel for Mr. Murphy sought to have the court draw an adverse inference from Ms. Hill's failure to call Jason Burke (her partner) and Mr. Salanic (Isaiah and Jaxton's father) as witnesses. In light of the decision reached, and the weight of the evidence that supports that decision, the absence of the testimony of those witnesses had no impact on the court's deliberation.

[49] Given the nature of the issues before the court, which were not resolvable without court intervention, there shall be no order as to costs.

[50] For all of these reasons the following order shall issue:

Order

1. The applicant Krysti Hill's claim to relocate the residence of Lucas Matthew Murphy, born November 30, 2011, from Kitchener, Ontario to Happy Valley-Goose Bay, Labrador, is dismissed.

2. The applicant Krysti Hill and the respondent Scott Murphy shall share the parenting of Lucas Matthew Murphy, born November 30, 2011, and have joint custody of him. Both shall share an equal voice in the major decisions to be made regarding the child. "Major" decisions shall include but not be limited to educational programming, religious instruction, non-emergency medical intervention and those actions which irreversibly alter appearance, or affect health/well-being.

3. Should the parties have any difficulty making major decisions jointly, they shall:

   a) First, discuss the issue in person, in a public place, with no outside interference or input by third parties. If this discussion does not resolve the issue, they shall have a "cooling-off period" and then;

   b) Secondly, exchange their opinions in writing. If this exchange does not resolve the issue, they shall have a "cooling-off period" and then;

   c) Thirdly, involve the services of a neutral third party (e.g. trusted friend, mentor, counsellor, or family mediator). If this meeting does not resolve the issue, they shall have a "cooling-off" period and then;

   d) Only litigate as an absolute last resort;

   e) Take the child's opinion into consideration where applicable and age appropriate to do so;

   f) Impose mutually agreed upon time restrictions for any of the above mentioned steps (e.g. for responses, "cooling-off periods", etc.).

4. The child shall share residences with both Mr. Murphy and Ms. Hill.

5. Either parent may make day-to-day decisions pertaining to the child, when in their care; however, the other parent shall be notified if any said decision impacts the other parent or may be something that they would like to know about.

6. The parties shall share with each other all important information and relevant documentation regarding the child, and either of them may directly inquire with or contact sources of said information or documentation (e.g. school, doctor, team coach, etc.). Mr. Murphy shall keep all of the child's original important documents in his possession and he shall provide same to Ms. Hill if requested (e.g. if she needs them to travel, etc.). The child's health card shall travel with him between the parents' residences.

7. The parties shall:

   a) Phone each other regarding any urgent information regarding the child;

   b) Text each other any non-urgent information regarding the child;

   c) Meet together without the child present;

   d) Make every effort not to use the child as a messenger to relay information between them.

8. Should either of the parents need to make a unilateral major decision regarding the child because of an emergency, that parent shall inform the other parent immediately. Either may contact the extended family of the other if the parent they are attempting to contact is unavailable.

9. The child may openly communicate with both parents, likewise each parent may openly communicate with the child, anytime via telephone.

10. The parties shall share time equally with the child as follows:

    a) Mr. Murphy shall share time with the child commencing August 12, 2013 at 7:00 p.m. until August 19 at 7:00 p.m. and alternate weeks thereafter. Mr. Murphy shall pick up the child at Ms. Hill's residence at the start of his timesharing period.

    b) Ms. Hill shall share time with the child commencing August 19, 2013 at 7:00 p.m. until August 26 at 7:00 p.m. and alternate weeks thereafter. Ms. Hill shall pick up the child at Mr. Murphy's residence at the start of her timesharing period.

    c) Each parent shall be individually responsible to transport the child to and from school or to any appointments or extracurricular activities during their respective timesharing periods.

11. The parties shall be flexible and accommodating with each other's requests for changes to the normal time sharing plan, or for requests for extra time. If cancellations are necessary for normally scheduled time, reasonable notice shall be provided. If the other parent cannot care for the child, the parent who wishes to change/cancel the time shall be responsible for arranging alternate care.

12. It is the responsibility of the parent who spends the evening with the child to ensure that he attends any scheduled activity that evening and completes any assigned homework that evening.

13. For holidays, special occasions, and school vacation, the following shall occur:

    a) The parents shall share time with the child on all such occasions so as to maximize the benefit for the child;

    b) Regarding the child's birthdays, both parents may attend any parties held for the child. Such parties shall be held at Mr. Murphy's residence unless mutually agreed otherwise.

    c) Regardless of any other schedule the child shall spend Father's Day with Mr. Murphy and Mother's Day with Ms. Hill with the particulars being mutually agreed and arranged by the parents at least one week in advance;

    d) Each parent may spend time with the child on or near the date of that parent's birthday with the particulars being mutually agreed and arranged by the parents at least one week in advance.

    e) Regardless of any other schedule the child shall spend Easter Sunday with Ms. Hill with the particulars being mutually agreed and arranged by the parents at least one week in advance;

    f) Each parent shall spend two consecutive weeks of vacation time with the child once per year with the particular being mutually agreed and arranged by the parents at least two weeks in advance;

    g) Each parent may share additional vacation time with the child with the particulars being mutually agreed between them.

14. Regarding travel:

    a) Should one of the parents wish to travel with the child outside of Ontario, as a courtesy, the travelling parent shall provide the non-travelling parent with the destination, duration, and an emergency telephone number where they can be reached. This information shall be provided at least one week in advance;

    b) The child shall not travel outside of Ontario without a parent unless mutual consent of both parents has been provided. Such consent shall not be unreasonably withheld;

    c) Should either parent wish to travel outside Canada with the child, the non-travelling parent shall provide the travelling parent with a letter of consent to do so. Such consent shall not be unreasonably be withheld;

    d) Should either parent wish to travel outside Canada with the child, the travelling parent shall pay for the child to obtain his own passport, although both parents may use said passport for additional travel until it expires;

    e) Should either parent wish to travel with the child outside the country, the travelling parent shall pay for the child to have medical insurance and pay for the child to obtain any recommended immunizations;

    f) When the child is travelling, the travelling parent shall ensure that he telephones the non-travelling parent regularly.

15. Regarding curricular and extracurricular activities:

    a) The parents shall make decisions regarding enrollment and participation in same jointly;

    b) If Mr. Murphy and Ms. Hill cannot mutually agree on an activity, the child can still be enrolled in said activity if the parent wishing to enroll him takes responsibility for it in its entirety (costs, transportation, etc.);

    c) Both parents may attend and participate in any curricular or extracurricular activity of the child, regardless of who pays for it, which parent's time it falls on, or who transports him, with the understanding that the other parent (who either did not pay, did not transport or whose time it does not fall on) shall not "monopolize" the child's time at the event;

    d) Any other person or people may also be invited to attend any curricular or extracurricular activity of the child (e.g. extended family members, new partners etc.), with the understanding that the other parent's feelings will be respected, and that everyone attending the event shall remember that the event is for the child.

16. Neither parent shall move more than 25 kilometres away from the residence of the other, without first providing at least 60 days written notice in advance.

17. The child's surname shall remain unchanged until his 18th birthday and can only be changed before then with mutual consent. At 18 years of age the child may change his surname any way he wishes.

18. With respect to alternate care for the child:

    a) Cynthia Mueller shall provide alternate care for the child;

    b) Any new alternate caregivers shall be interviewed by both parents before being employed. In the event that both parents do not agree, they shall employ their method of dispute resolution noted in section 3 above;

    c) Every effort shall be made to ensure that the child's routines are not changed (unless mutually agreed).

19. The parents shall exercise discretion when introducing the child to any new partners and always place the child's well-being paramount in this situation. To this end,

    a) As a courtesy, if a parent wishes to introduce the child to a new partner, they shall advise the other parent of same in advance;

    b) Mr. Murphy and Ms. Hill are and shall always be the child's primary caregivers and the primary disciplinarians. Any new partner(s) shall play a secondary, consultative, and limited role in the parenting and disciplining of the child.

20. The parents shall make every effort to ensure that:

    a) They maintain consistency between their respective homes (including but not limited to discipline, daily chores, and routines) and communicate same to each other;

    b) The child knows that his belongings are his own and may freely take them from home to home. Belongings include toys, clothes and any other items specifically for the child;

    c) They shall not nor shall they allow others to say anything negative about the other parent in the presence of the child, or where the child may overhear;

    d) Should either parent become permanently incapacitated or in the event of either of their deaths, the other parent shall become the child's primary caregiver. To this end, the surviving parent shall maintain a relationship between the child and the extended family of the other parent.

21. There shall be no order as to costs.

Released: June 11, 2015

Signed: "Justice L.J. Rogers"