Court File and Parties

Court File No.: D47948/09 Date: 2016-05-02

Ontario Court of Justice

Between:

H.A. Applicant

- and -

M.M. Respondent

Counsel:

• Renatta Austin, for the Applicant
• Regina Senjule, for the Respondent

Heard: April 26-28, 2016

Before: Justice S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] The primary issue in this case is whether the respondent (the mother) should be permitted to move to British Columbia with the parties' two children (the children). The parties' son (the son) is 10 years old. Their daughter (the daughter) just turned 8 years old.

[2] The mother has made this request within a Motion to Change a Final Order dated February 18, 2010 (the existing parenting order). The existing parenting order gives final custody of the children to the mother and generous access to the applicant (the father). This includes parenting time each weekend and a sharing of holidays. The existing parenting order also states that the primary residence of the children shall not be changed by either parent to a location outside of the Greater Toronto Area without the written consent of the other party or a court order.

[3] The mother has proposed that the children spend 6 weeks in the summer, one week of the Christmas holidays and the March school break with the father in Ontario. She proposes that the parties equally share transportation costs for these visits.

[4] The mother has also moved to change an order dated May 3, 2011 (the existing support order), which provides that the father pay child support of $326 per month, based on his income of $21,300 per annum, starting on March 1, 2011. The mother asked that support be increased retroactively to January 1, 2012, based on the father's actual income from 2012 to 2015. She asked that the father's annual income be imputed at $39,186 for the purpose of ongoing support. She also asked for the father to pay his proportionate share of the children's special expenses, pursuant to section 7 of the Child Support Guidelines (the guidelines).

[5] The mother also included a claim for spousal support in her Motion to Change. She abandoned that claim in her opening submissions as the parties were not spouses as defined in the Family Law Act when she made this claim.

[6] The father asked that the mother's Motion to Change be dismissed. In his Response to Motion to Change he asked that he be granted custody of the children if the mother moves to British Columbia. If this happens, he proposed a similar extended access arrangement for the mother as she suggested for him. If the children are permitted to move with the mother to British Columbia, he asks for 6 weeks with the children in the summer, 2 weeks with them during the Christmas holidays and the one-week March school break. He asks that the mother pay all transportation costs for him to have access in Ontario.

[7] The father also asked that his child support arrears be fixed at $7,123 as of March 31, 2016 and that he be permitted to repay the arrears at the rate of $150 per month starting on December 1, 2016.

[8] The father asked that his support obligation for the period of March to October of 2016 be fixed at $428 per month. This is the guidelines table amount for two children based upon an annual income of $29,300. He is content to fix his annual income at $39,186 (as requested by the mother) for support purposes, starting on November 1, 2016.

[9] At the conclusion of the evidence, the parties agreed to a retroactive adjustment of child support to January 1, 2012. The parties agreed that with this adjustment, the father now owed the mother $14,184 in child support as of February 29, 2016. The parties did not agree on how this was to repaid. The mother sought immediate payment of the arrears. The father asked to have the arrears repaid at $200 per month.

[10] The issue of the father's ongoing child support obligation remained unresolved.

[11] The parties agreed to give most of their direct evidence by affidavit. They were permitted to supplement this with oral evidence. The mother's parents testified by video link from British Columbia. The father's spouse and aunt (the paternal aunt) also testified.

Part Two – Background Facts

[12] The mother is 31 years old. The father is 30 years old.

[13] The parties met in 2000. The mother lived at the time in the Philippines and the father lived in Amsterdam. They met when the father vacationed in the Philippines. His family was originally from there.

[14] The mother moved with her family to British Columbia in 2002. The mother sponsored the father to come to Canada from Amsterdam in 2003. They lived in British Columbia for a very short period of time together.

[15] The parties moved from British Columbia to Ontario in 2003.

[16] The parties married in 2004 and separated in 2009.

[17] The father issued his original application for relief in this court on May 21, 2009.

[18] On June 19, 2009, Justice Harvey Brownstone made a temporary support order requiring the father to pay the mother $281 per month.

[19] The father did not comply with the court order.

[20] The father paid no child support to the mother in either 2009 or 2010. He did not start paying her child support until October of 2011.

[21] The Children's Aid Society of Toronto (the society) was voluntarily involved with this family from 2009 until 2011 due to the high level of conflict and the risk of emotional harm to the children arising from that conflict.

[22] The parties consented to the final parenting order on February 18, 2010 that included the following terms:

a) Custody of the children to the mother.

b) The mother shall at all times consult with the father as regards major decisions affecting the children and shall not make any final decision without specifically consulting him and fully considering his input. Such consultations shall take place by written correspondence.

c) The party with whom the children are residing with at any one time shall have day to day decision making authority with respect to the children.

d) The father will have access to the children on alternate weekends from Fridays at 4 p.m. until Mondays at 9:00 a.m. and on the alternate weekends from Fridays at 4 p.m. until Saturday at noon.

e) Holidays will be shared evenly between the parties as well as summer school holidays.

f) The primary residence of the children shall not be changed by either parent to a location outside the GTA without the written consent of the other party or by way of court order.

g) The father is to provide the mother with copies of his tax return and notice of assessment by August 1st, of each year.

[23] The parties resolved the support issues on a final basis on March 3, 2011. The father was ordered to pay the guidelines table amount for two children of $326 per month, based on his income of $21,300 per annum. The mother withdrew her claim for retroactive support and contribution to special expenses.

[24] The parties were divorced in 2011.

[25] The father remarried in 2011. He has two children from this relationship. One of the children will soon turn 3 years old. The other child is less than 3 months old. The father continues to live with his second family.

[26] The parties were able to cooperate together for a short period of time after the final parenting order was made. They were flexible about access arrangements. The father would sometimes have the children for additional periods on weekdays.

[27] The father remained behind in his child support obligations. However, he did make arrangements with the Family Responsibility Office to repay his arrears and they were being reduced throughout 2012 and 2013. By July of 2013, the arrears had been reduced to about $2,000.

[28] When the daughter was 3 years old, the mother contacted the police after the daughter reported to her being sexually touched by a friend of the father's during a visit. The society became re-involved with the family for a short period. No criminal charges were laid. The mother felt that the father did not take the report seriously enough. The father felt that the allegations were baseless. This incident increased the tension between the parties.

[29] In February of 2013, the parties entered into an agreement that the children would stay with the father during the weekdays and with the mother on the weekends. This was an unconventional agreement. It provided that the father would be compensated (by the hour) for the extra hours that the children would be with him. This compensation would be offset against the $6,000 that the father owed the mother for his share of joint debts at separation. Once the loan was paid off in this manner, the parties agreed that they would revert to the original parenting schedule. The mother explained that this arrangement gave her the opportunity to earn additional income to pay off these debts, as the father had failed to pay anything towards his share of them, as promised. This agreement was not incorporated into a court order. The father's share of the joint debts was satisfied within 3 to 4 months and the parties returned to the previous parenting schedule.

[30] In October of 2013, the father was able to obtain his present job as a forklift operator. It resulted in an increase in income from approximately $21,600 per annum (in 2013) to $41,800 per annum (in 2014).

[31] The father did not tell the mother about his new job. He did not advise the Family Responsibility Office about it so that child support could be deducted from his pay.

[32] The father did not voluntarily make a child support payment after October 15, 2013, despite his significant increase in income. The Family Responsibility Office was able to collect some support by diverting the father's income tax and HST refunds.

[33] The father also failed to comply with the court order to annually provide the mother with copies of his income tax returns and notices of assessment.

[34] The mother struggled without support from the father. She was a single mother, going to nursing school to improve her employment opportunities and working part-time. She was living off of student loans and help from her parents.

[35] The society became involved with the mother again, for one year, starting at some point in 2014, on a voluntary basis. The mother was struggling in managing the children and juggling her obligations.

[36] The mother graduated from her nursing program in June of 2015. She still needed to pass her licensing exams to work in the field. The mother worked part-time as a personal support worker, on a casual, on-call basis. She was paid minimum wage.

[37] The mother failed her nursing licensing exams in September of 2015. She plans to write them again.

[38] The mother testified that her mother (the maternal grandmother), who resides in British Columbia, was having health problems in the fall of 2015. The maternal grandmother testified that she is diabetic, has kidney problems, high blood pressure and required eye surgery. The maternal grandfather had had a heart attack earlier in 2015 and the mother's family was concerned about his ability to care for the maternal grandmother. The mother's parents and siblings asked the mother to come to British Columbia, as she was the family member with the most health care experience.

[39] The mother mishandled going to British Columbia.

[40] The mother texted the father on October 20, 2015, asking him if he could take the children for at least one month so she could go to British Columbia to help the maternal grandmother.

[41] The father texted back, asking for more information. He explained that it would be difficult to take the children due to the tight schedules of his family. As well, his mother (the paternal grandmother) was going to soon return to her home in Amsterdam and would be unavailable to assist him.

[42] The mother took this response as a no and texted back, "thanks…don't worry about it, I've got it".

[43] The next communication between the parties was on November 2, 2015, when the mother texted the father asking for permission to take the children to British Columbia for the balance of the school year and return to Ontario in the summer.

[44] The father texted back that he was not giving this permission.

[45] The mother then unilaterally removed the children to British Columbia. She did not seek the court's permission, as required in the existing parenting order. The mother acknowledged that she had already purchased one-way airfare prior to asking the father's permission to leave.

[46] When the mother arrived in British Columbia, she texted the father on November 4, 2015, telling him that she and the children were in British Columbia.

[47] At this point, the father mishandled the situation.

[48] The mother had provided the father with contact information and invited him to phone, text or Skype with the children in British Columbia.

[49] The father was angry and chose not to contact the children.

[50] The children texted the father. He did not respond to their texts.

[51] The father did not send the children Christmas presents. He testified, "How could I, I am in Ontario"?

[52] The father did not contact his son on his birthday in […] of 2016.

[53] The mother found a job at a Vancouver hospital in December of 2015. This job was also casual and on-call, but would pay her $24 per hour.

[54] The father issued a contempt motion in this court against the mother on December 2, 2015.

[55] On February 10, 2016, the court ordered the mother to return the children to Ontario by February 17, 2016. The parties agreed to hold an expedited trial of the issues before me.

[56] The mother returned with the children to Ontario, as ordered. She issued her Motion to Change on February 29, 2016.

[57] The mother took the children to the Philippines for a three week vacation from the middle of March until April 8, 2016. This was for a family reunion. The father consented to this trip.

[58] The children have had two weekend visits with the father since they returned from the Philippines.

[59] The father deposed that he is on paternity leave from March 14, 2016 until October 31, 2016. His spouse (B.G.) is self-employed as a housekeeper. The father deposed that she earns $24,000 per annum. B.G. testified that she has a job starting in May of 2016 that will pay her $700 each week (over $40,000 per annum gross), net of deductions.

[60] The mother maintained her housing in Ontario when she left for British Columbia. It is a rent-geared-to-income government housing unit. She and the children reside there. The mother is not working. She and the children are in receipt of social assistance.

Part Three – The Legal Framework

[61] Section 29 of the Children's Law Reform Act sets out the statutory authority for varying a custody or access order. It reads:

29. Order varying an order.— 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.

[62] The Supreme Court decision in Gordon v. Goertz, [1996] 2 S.C.R. 27, set out a two-stage process for the court to conduct in mobility cases:

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

b) If the threshold is met, the court 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.

Part Four – Material Change in Circumstances

[63] In Gordon v. Goertz (Paragraphs 10-16), the court discusses what evidence is required for the moving party to meet the threshold condition of establishing a material change in circumstances. The court says that the question is whether the previous order might have been different had the circumstances that now existed prevailed earlier.

[64] The onus of establishing the material change is on the person seeking the change. If the material change cannot be established, the claim is to be dismissed.

[65] The father conceded that the mother had met her onus at the first stage of this analysis. The mother established a material change in circumstances since the date of the existing parenting order that has affected the best interests of the children. The mother has been unable to establish financial security in Ontario for herself and the children. She has been unable to obtain stable employment and is presently on public assistance. The father has largely contributed to the financial distress of the mother and the children by failing to meet his child support obligations. The mother now has the opportunity for financial security in British Columbia. She has a job offer in British Columbia at a much higher wage than what she has been able to earn in Ontario. She will have no housing or childcare costs if she lives in British Columbia with her parents. These circumstances were not foreseen at the time the existing parenting order was made.

[66] The court must next examine what parenting order is in the children's best interests.

Part Five – Best Interests

5.1 - Legal Considerations

[67] The court in paragraphs 49 and 50 of Gordon v. Goertz sets out principles and criteria for determining what is in a child's best interests as follows:

49 The law can be summarized as follows:

a) The 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 interests 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 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.

[68] Both parents bear the evidentiary burden at this second stage of the inquiry. The court must weigh the benefits and detriments of the proposed move from the perspective of the children.

[69] Gordon v. Goertz was decided under the Divorce Act. However, the case law is clear that the legal principles also apply to cases brought under the Children's Law Reform Act. These principles also apply when there is no court order and a party is attempting to change the terms of a separation agreement through an originating application. See: Woodhouse v. Woodhouse, [1996] O.J. No. 1975.

[70] The Nova Scotia Supreme Court in N.D.L. v. M.S.L., 2010 NCSSC 68 listed additional factors (in paragraphs 9 and 10) that courts have considered when applying the framework in Gordon v. Goertz as follows:

[9] An analysis of cases that have applied these principles provides additional detail to the factors to be considered. Those details are:

(a) the number of years the parents cohabited with each other and with the child

(b) the quality and the quantity of parenting time

(c) the age, maturity, and special needs of the child

(d) the advantages of a move to the moving parent in respect to that parent's ability to better meet the child's needs

(e) the time it will take the child to travel between residences and the cost of that travel

(f) feasibility of a parallel move by the parent who is objecting to the move

(g) feasibility of a move by the moving parents new partner

(h) the willingness of the moving parent to ensure access or will occur between the child and the other parent

(i) the nature and content of any agreements between the parents about relocations

(j) the likelihood of a move by the parent who objects to the relocation

(k) the financial resources of each of the family units

(l) be expected permanence of the new custodial environment

(m) the continuation of the child's cultural and religious heritage

(n) the ability of the moving parent to foster the child's relationship with the other parent over long distances

[10] There have been cases in which judges have remarked that it is in the best interest of a child to be in the care of a parent who is happy and who feels secure and thus the parent should not be "...denied the opportunity to be the most fulfilled person she can be...." (McCullogh v. Smith, 2007 NSFC 23 at para. 43)

[71] The views of the custodial parent are to be given serious consideration. It is an error to not give sufficient regard to the "relationship between the quality of the custodial parent's emotional, psychological, social and economic well-being and the quality of the child's primary care-giving environment" See: Bjornson v. Creighton, [2007] O.J. No. 4107 (OCA).

[72] The financial security of the moving parent is a relevant factor in mobility cases. See: Greenfield v. Garside, 2003 CarswellOnt1189 (Ont. SCJ).

[73] Several cases have recognized that requiring a parent to remain in a community isolated from his or her family and supports and in difficult financial circumstances will adversely impact a child. The economic and financial benefits of moving to a community where the parent will have supports, financial security and the ability to complete their education and establish a career are properly considered in assessing whether or not the move is in the child's best interests. See: MacKenzie v. Newby, supra, paragraph 53, where, in paragraph 54, Justice Roselyn Zisman also accepted the following passages from Lebrun v. Lebrun [1999] O.J No. 3393 (SCJ) where the court wrote at paragraphs 32-34:

32 The children's need for shelter, food and clothing which could be provided by adequate earnings by the mother must take priority over the disruption of a move, and reduced contact with the father and his family. The intellectual and emotional flowering of these children cannot occur until their basic physical needs are met.

33 The economic realities require that the mother be free to pursue employment which will permit her to escape the welfare rolls. I am confident she will manage the move in a way which promotes the children's best interests.

34 An order restricting the residence of the children would, as in Woods v. Woods, 110 Man. R. (2d) 290, condemn the mother and children "to a life of penury with a dissatisfied [mother] bereft of work and dignity. The alternative is to empower the [mother] to improve their lives from both a material and psychological standpoint." While the security of the positions offered to the mother cannot be assured, I am satisfied that the prospects of good, full-time employment are much better in southern Ontario. Leave is granted to the mother to move the residence of the children within Ontario.

[74] The court must also give serious consideration to the disruption that would be caused by a move to the relationship between the children and the other parent. See: Berry v. Berry, 2011 ONCA 705, [2011] O.J. No. 5006 (OCA).

[75] The level of co-operation that the moving parent will provide in facilitating access to the other parent is also a relevant consideration in a mobility application. See: Orrock v. Dinamarea, 2003 CarswellBC 2845 (B.C.S.C.).

[76] Moves have been refused where the court has found the move is for an improper purpose, such as to frustrate the access parent's relationship with the children. See: Jantzi v. Jantzi, 2003 CarswellOnt 5370 (Ont. S.C.).

[77] The non-removal clause in this case is not dissimilar to the non-removal clause which was discussed in the case of Ligate v. Richardson (1997), 34 O.R. (3d) 423 (Ont. Court of Appeal) where Moldaver J.A. said at pg. 440-441:

Turning to the residence clause in issue, I do not read it to mean that the parties foreclosed the possibility that at some future date, Ashley's best interests might be better served by permitting her to reside outside of Metropolitan Toronto. In fact, the clause is worded in a way that suggests just the opposite. In my view, the primary purpose of the clause was to provide Richardson with advance notice of any proposed move on Ligate's part. Thereafter, if Richardson chose to withhold his consent, Ligate could seek court approval.

[78] The non-removal clause in the existing parenting order does not preclude the court from engaging in the Gordon v. Goertz analysis.

[79] I have considered the above principles and criteria in making my decision. I have also considered the best interest factors detailed in subsection 24(2) of the Children's Law Reform Act that reads as follows:

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.

5.2 – Review of the Mother's Evidence and Her Plan

[80] The court generally found the mother to be a credible witness who did her best to answer questions in an honest manner.

[81] The mother testified that she has worked hard to achieve financial security for herself and the children. She first went to school to become a personal support worker and has now obtained her nursing degree.

[82] The mother explained that it has been very hard to coordinate work and childcare arrangements. She has only been able to find minimum wage jobs and she has to spend most of her earnings on childcare. She is on call and often called on short notice. This makes it difficult, she said, to find childcare in time to accept the job. Many of the job opportunities available to her require her to do shift work that doesn't mesh with the children's schedules or the hours of most daycare providers.

[83] The mother said that back in 2011 and 2012, the father was more flexible in taking the children when it wasn't his access time if a job opportunity arose for her. However, she said he became far less willing to do this in 2013 and she stopped asking him.

[84] The mother testified that she would often ask the father for financial help, but he would say that he was struggling financially and couldn't give her more money. She decided to stop asking, because the father would become upset with her and she wanted to keep the peace with him.

[85] The mother is the parent who works most closely with the school and service providers and arranges (and pays for) their extra-curricular activities. It was conceded by the father that the mother has been the children's primary caregiver, with the exception of 3 to 4 months in the early part of 2013.

[86] The mother clearly loves the children and has a very close relationship with them.

[87] The mother said that the son has had some challenges in school. He has difficulties in math and has had a tutor at school. She also spends a lot of time doing homework with him.

[88] The mother described the daughter as very talkative and friendly. She is an A student.

[89] The father acknowledged that the mother complied with the existing parenting order until she went to British Columbia. The mother was flexible in giving the father additional time with the children. The father agreed that the mother had called him asking him to spend more time alone with the son. The mother testified that the son needs a strong role model. She wanted the father to become more involved with the children's extra-curricular activities. She expressed her frustration that the father was not doing this.

[90] The mother said that it is difficult to communicate with the father. If she tries to discuss matters with him, he will tell her to mind her own business. For a long time, he would not disclose his address to her. He did not tell her about finding work or his large pay increase. He became upset if she asked for this information.

[91] The mother testified that she was very worried about her mother's health in 2015 and only intended to go to British Columbia for a short while – she did not intend to stay there long-term. This evidence is supported by her request to the father to take the children while she was there. This request (made on October 20, 2015) does not support the father's allegation that the mother had been planning to permanently move with the children at that time to British Columbia.

[92] The mother acknowledged that it was wrong of her to not obtain a court order or the father's permission prior to going to British Columbia.

[93] The court accepts the mother's evidence that when she arrived in British Columbia she only intended to remain there until the end of June of 2016. This is consistent with her text to the father prior to leaving Ontario. However, this intention soon changed.

[94] The mother testified that she soon came to the realization that she could make a better life for her children in British Columbia. She was able to obtain a job that paid her double her hourly rate. She had the security and support of her family.

[95] The mother expressed how disappointed and confused the children became because the father refused to contact them.

[96] The mother testified that the children enjoyed their time in British Columbia. They enjoyed being with the maternal grandparents and spent considerable time with aunts and cousins.

[97] The mother acknowledged that her son had some difficulties adjusting to life in British Columbia and exhibited some behavioural problems, sometimes talking back to the maternal grandfather.

[98] The mother's prompt compliance with the court's order to return the children to Ontario, together with her compliance with the existing parenting order from 2010 until November of 2015, gives the court confidence that she will comply with its orders notwithstanding her unilateral removal of the children.

[99] The mother's plan is to move with the children to British Columbia at the end of the school year in June. She said that she does not want to disrupt their schooling again.

[100] The mother and children will live in the maternal grandparents' home in Surrey, British Columbia. This is a comfortable 5-bedroom home. The children would have their own separate rooms. The maternal grandparents confirmed that the mother will not have to pay them rent. Presently, the maternal grandparents live alone.

[101] The mother plans to accept the job at the Vancouver hospital (it remains available). She will be able to work shift hours to maximize her income. Her parents and her sister will provide her with free caregiving.

[102] The mother said that she will also have the support of her sister-in-law who lives nearby.

[103] The mother plans to write her nursing licensing exams in British Columbia.

[104] The mother hopes to be able to save up enough money to obtain her own residence for herself and the children, close to the maternal grandparents' home. She hopes to be able to do this in 6 to 12 months.

[105] The mother plans to have the children attend the same local school they attended while in British Columbia and to enroll them in extra-curricular activities.

[106] The mother testified that she wants the children to maintain a close relationship with the father. She has proposed that the children spend extended time with the father on holidays and that he have liberal social media contact with them.

[107] The maternal grandparents are in their 50's. They expressed their full support of the mother's plan and look forward to having more contact with the children. Despite their recent health challenges, they are both back at work full-time and appear able to provide suitable caregiving assistance. They have a combined annual income of over $90,000 and are willing to assist the mother in paying for any childcare expenses (or actually provide the childcare) once she moves from their home.

[108] The mother's plan has some deficits. The main one is that the children's relationship with the father and his family will be impaired if they move. The children presently see the father, his wife and their two half-siblings for the full weekend on alternate weekends, and overnight on Fridays on the other weekends. They spend extended holiday time with them. The children also have a close relationship with the paternal aunt and usually spend one night with her on weekends, during the father's parenting time. Extended holiday time cannot replace this level of access.

[109] The mother testified that the son would like more attention from the father – he needs a strong role model. The father cannot be replaced by the maternal grandfather.

[110] The combination of the distance from Ontario to British Columbia and the parties' financial circumstances will place additional stress on maintaining the father's relationship with the children.

[111] The children have lived in the same home and have gone to the same school for 5 years. The children's teachers are familiar with their academic and social needs. The children have many friends. All of this will be disrupted if they move to British Columbia.

[112] The mother has not received a full-time job offer. It is a casual, on-call offer, similar to what she had in Ontario. It is uncertain how much money she will earn from this job.

[113] The mother's plan to move out on her own in 6 to 12 months may be unrealistic. Her employment is uncertain and she presently has $75,000 in outstanding student loans. It will likely take her longer to become financially secure.

5.3 Views and Preferences of the Children

[114] The court did not receive the independent views and preferences of the children. The evidence indicates that they love both parents and their extended families.

[115] The father and his supporting witnesses testified that his son (who is almost 3 years old) is very close with the children and was very sad when they went to British Columbia.

[116] The children expressed to both the mother and the father that they were happy while they were in British Columbia. The paternal aunt testified that the children said that they were very excited to stay in British Columbia.

[117] It became apparent that many adults were inappropriately questioning the children about the possible move to British Columbia. This included B.G., the paternal aunt and the maternal grandmother. This has been placing undue pressure on the children.

[118] The children's views and preferences were a neutral factor in this decision.

5.4 – Review of the Father's Evidence and His Plan

[119] The court had considerable difficulty with the credibility of the father and B.G. They made a joint decision not to advise the mother about the father's big pay increase in October of 2013 and to not voluntarily pay her any child support.

[120] B.G. attempted to justify these decisions. She claimed that she and the father had debts to pay and these people were demanding this money. She also claimed that they were spending a lot of money on the children, when the children were with them.

[121] The father clearly saw that B.G.'s evidence on this issue was not going well and when he testified, described his chronically poor payment history as a "mistake" and he was "standing up here and owning up to it". He too, claimed that he and B.G. were making many additional payments for the children (no proof was provided) and they had to pay off many debts.

[122] When he was confronted with evidence that he was paying $745 per month for his car and nothing for the children, the father creatively explained that his vehicle was for the children, so they wouldn't have to take public transportation for access exchanges.

[123] The father claimed that he is now planning to repay his arrears. Nothing in his payment history gives the court confidence that he will follow through with this, absent enforcement proceedings.

[124] The father presented as rigid and immature, lending credence to the mother's allegations that he failed to communicate with or assist her.

[125] This observation was reflected by the father's decision to punish the mother (and incidentally the children) by having no contact with the children when they were in British Columbia. The father was oblivious in his evidence to the potential emotional damage to the children by not calling them or responding to their texts, not sending them Christmas presents or acknowledging the son's birthday. How confusing and hurtful it must have been for the children to have been treated by the father in this manner.

[126] The father, B.G. and the paternal aunt all testified that the son has been quiet and guarded since he returned from British Columbia – he has changed. The father showed no insight into his own role in the son's changed behaviour.

[127] The father showed little empathy for the children at trial and the impact of his behaviour on them. He was focused on how he was mistreated by the mother.

[128] The father, by these actions, prioritized his own anger and pride over the children's needs.

[129] The father also placed his own needs ahead of the children's through his abysmal support payment history. This is far more than a mistake, as claimed by the father. It has been a long-standing pattern of behaviour.

[130] The father paid no child support from 2009 until October of 2011. He ignored court orders to pay child support.

[131] While the father began repaying support in 2012 and 2013, he did not comply with the court order to provide annual financial disclosure to the mother. When she asked for support, he claimed to be in financial straits.

[132] The most egregious behaviour by the father was to stop voluntarily paying support when the father obtained his new job in October of 2013 and to not advise the mother about his pay increase.

[133] This was a deliberate choice – not a mistake. The father acknowledged that he knew that his support should go up as a result of his pay increase.

[134] The father tried to justify this behaviour by claiming that the mother was receiving government benefits and was in government housing – the implication being that his support was not really required.

[135] The father demonstrated no insight into the impact his actions had on the children. The mother and children have lived in a constant state of financial stress.

[136] The mother knew she couldn't count on the father and struggled trying to "do it all". She knew she had to upgrade her earning potential for the future welfare of the children. There is much to admire about the mother. She put herself through school and obtained a nursing degree. She had to work part-time to meet the basic needs for the children. She had to scramble to pay for childcare that would eat up most of what she earned. She did this while being the primary caregiver for the children.

[137] The mother had to turn to her parents for support. They have sent her over $23,000 over the last several years. As the maternal grandfather testified, "She calls crying that there is no food on the table. What are we supposed to do?

[138] There is little doubt that this pressure on the mother adversely affected her and the children. It likely contributed to the son's issues at school and the resultant society involvement.

[139] This pressure would likely have been avoided, or at least diminished, if the father had been a responsible parent.

[140] The father's preference is to leave things exactly the way they are.

[141] If the mother chooses to move to British Columbia, the father asks that he be awarded custody of the children.

[142] The father presently lives in a 2-bedroom apartment with B.G. and their two children. The paternal grandmother also lives with them, although she will be returning to the Netherlands in July. This apartment is very crowded and not appropriate as a long-term living environment for the children.

[143] The father testified that if he was granted custody of the children he would immediately apply for a 3-bedroom apartment. He also said that he would work many more hours to be able to support the children. The court is very skeptical about the father's sudden desire to earn more income to support them.

[144] The father works late shifts – from 11 p.m. to 7:00 a.m. He said that he would take the children to school in the morning and pick them up in the afternoon. This might be problematic, as it allows the father little time to sleep.

[145] The father said that he will receive parenting assistance from B.G., the paternal aunt and the paternal grandmother (when she is in Canada). The children would continue to stay with the paternal aunt one night each week. They would attend church together on Sundays.

[146] The court heard from B.G. It does not doubt that she cares for the children. However, she has already demonstrated that she will place her needs and those of her own children ahead of those of the children. She was complicit in the decision not to financially support the children.

[147] The court also heard from the paternal aunt. It was apparent that she loves the children and has a positive relationship with them. She presented as a warm and caring person.

[148] The father did not address how he would pay his support arrears (if the children were placed with him) and support four children when describing his plan in his direct evidence. He only addressed this when asked by the court. He claimed he would pay $100 to $200 per month to the mother towards his arrears.

[149] If granted custody, the father is willing to give the mother the same access offered by her to him.

[150] The father described positive interactions with the children. He plays sports and video games with his son. He shares his love of music with his daughter. The children love him.

[151] The father loves the children, but it is not in their best interests to live with him. He has consistently prioritized his own interests over those of the children. He is an immature parent, who has difficulty recognizing his children's need for stability and security. He disregards their needs when he is upset.

5.5 – Discussion

[152] The ideal scenario would have been for the father to have acted like a responsible parent and for the children to remain in Ontario. The children would not be disrupted from their school and friends. They would not have their relationships with the father, B.G., the paternal aunt and grandmother and siblings impaired.

[153] However, the father has not acted like a responsible parent. He has given the court no reason to believe that he will meet his financial obligations to the children. His claims that he now plans to start paying support ring hollow.

[154] It has been the mother who has been the responsible parent for the children, under very trying circumstances. She has been their primary caregiver, attended to their academic needs and arranged their extra-curricular activities. She has done this while going to school full-time and working part-time, with little support from the father.

[155] The mother is trying to make a better future for the children. She does not want them to grow up in public housing. She wants them to be able to be involved in activities and reach their potential. This has been very difficult for her to achieve in Toronto, where she is often struggling to put food on the table.

[156] The mother also faces the challenge of trying to find work that doesn't interfere with caring for the children and which pays her enough to offset childcare costs.

[157] The mother has struggled to meet these challenges in Toronto and it has adversely affected the children. She has been isolated and alone. The father's lack of support has placed the mother in an untenable position.

[158] The court finds it is in the children's best interests to permit the mother to move their residence to British Columbia.

[159] The mother's plan for the children is preferable to the father's.

[160] The mother's plan will provide the children with far more stability and security. It is more likely to foster the children's development and provide them with the foundation necessary to achieve their potential.

[161] The mother and children will be financially secure in British Columbia. They will have the full support of the maternal grandparents.

[162] The mother and children will be able to live in much better housing in British Columbia. The maternal grandparents have a large and comfortable home.

[163] The mother will have consistent and reliable caregiving available for her children. If she is called for a job with little notice, or that requires a night shift, she will now be able to take it, because she will not have to scramble for childcare. Her parents and her sister will be available to help.

[164] The mother will be much better able to meet her financial potential and better meet the needs of the children in British Columbia. The maternal grandparents have provided her with a car to be able to get to work and transport the children to school and activities.

[165] The mother has little support in Toronto. She has extensive family support in British Columbia.

[166] With the reduction of financial and caregiving stresses and the benefits of family support, it is likely that the mother will become a better functioning parent for the children. She should no longer feel lonely, isolated and overwhelmed. This is to the children's benefit.

[167] As the custodial and responsible parent, the mother's views are entitled to considerable respect. The court has confidence in her ability to make child-focused decisions. It does not have such confidence in the father.

[168] The court finds that the mother did not make the move to British Columbia to frustrate the father's relationship with the children.

[169] The court also finds that the mother will facilitate the father's relationship with the children. She consistently did that until she removed the children to British Columbia. Even then, she reached out to the father to preserve his contact with the children. It was the father who chose not to speak to them.

5.6 - Access and Ancillary Terms

[170] The mother has proposed that the father spend 6 weeks in the summer, one week during the Christmas school break and the March school break each year with the father.

[171] The mother also proposed that the children maintain frequent contact with the father through Skype. She said that she would encourage and facilitate this contact. Courts have recognized, in permitting a parent to move away with children, that modern-day technology has made it significantly easier to overcome the distance problem with respect to access and maximizing contact with the other parent. See: Jensen v. Jensen, [2006] O.J. No. 3357, (Ont. Fam. Ct.); Ryall v. Ryall, 2009 ONCJ 687.

[172] The mother's access proposal maximizes the father's contact with the children in a manner consistent with their best interests.

[173] The mother proposes that the parties share the transportation costs.

[174] The father asked that the mother pay all transportation costs. He is content with the parenting time suggested by the mother, with the exception of seeking two weeks (not one week) during each Christmas school break. If forced to pay 50% of the transportation costs, he testified that he can only see the children once each year.

[175] It was interesting that the father wanted the mother to pay 50% of the transportation costs if she was going to be the access parent, but wanted her to pay all of the costs if the situation was reversed.

[176] The court finds the mother's proposal to pay 50% of the transportation costs to be very fair. It will be ordered.

[177] The children will spend the first six weeks of each summer holiday with the father. This will allow the mother the last two weeks of each summer to prepare the children for the school term.

[178] The father will be entitled to spend 10 days with the children during the Christmas school breaks. One week is short, given the passage of time between the visits. The order will provide that the children will alternate spending December 24-26 each year with the parents, so they can celebrate Christmas in both homes.

[179] Based on the father's evidence, he may decide not to exercise the Christmas and/or March school break access. The mother and the children are entitled to certainty in their schedule. The order will provide that the father can have the Christmas and March school break access if:

a) The father provides the mother with 45 days written notice of his intention to exercise the access for each period.

b) The father provides the mother proof within 30 days of the access visit that he has purchased airfare for the children.

[180] The father will also be given the ability to travel to British Columbia and spend time with the children. He will be granted reasonable access in British Columbia on reasonable notice to the mother, including overnight visits.

[181] The father did not oppose the mother's request (if permitted to move) to be able to obtain or renew government documentation for the children, including passports, without his consent.

[182] The mother's request to travel outside of Canada with the children without the father's consent was opposed by the father.

[183] The court finds that it is in the best interests of the children to require consent from the father, or court order, if the mother wishes to take the children outside of Canada. This is a consequence of the mother's unlawful removal of the children from Ontario. Further, the father has reasonably consented to the mother traveling in the past to British Columbia and to the Philippines. This will be a reciprocal term for the father.

[184] The mother shall also not move the children's residence from British Columbia (unless she returns to Ontario) without the consent of the father or court order.

Part Six – Support Issues

6.1 - Ongoing Child Support

[185] The parties agreed that the father will earn about $39,186 per annum when he is working full-time. The guidelines table amount is $566 per month for two children.

[186] The father asked to reduce his support obligation to $428 per month for the period from March to October of 2016. He is earning less income because he is on paternity leave.

[187] The mother's position is that the father's decision to go on paternity leave is unreasonable. She asks to impute the father's income at $39,186 per annum.

[188] Section 19 of the guidelines permits the court to impute income to the father if it finds that he is earning or capable of earning more income than he claims.

[189] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli, [2002] O.J. No. 3731 (Ont. C.A.).

[190] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552 (Ont. C.A.).

[191] The court stated in Drygala that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.

[192] Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: Riel v. Holland, at paragraph 23. The trial judge must determine whether the educational needs claimed by the payor are reasonable. See: Drygala, supra, paragraph 39. As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, [2000] O.J. No. 453, (Ont. Fam. Ct.); Drygala, supra, paragraph 39.

[193] The father is intentionally earning less income than he is capable of earning. He chose to go on paternity leave. The issue is whether his decision to go on paternity leave and earn less income was reasonable.

[194] The evidence clearly reveals that this was not a reasonable choice. The court finds that it was a clumsy attempt by the father to reduce his income as he was aware that the support issue would likely be returning to court after he commenced his court action. At best, it was poor judgment, reflecting an inability to recognize the financial needs of the children.

[195] The father and B.G. could not come up with a good reason at trial why the choice was made for the father to take paternity leave, instead of B.G. remaining home. B.G. testified that the father's work was hard and stressful and a break would help him. They both explained that they felt the father would need work absences anyway because of this court case.

[196] The decision for the father to remain at home made little practical sense. B.G. earned $16,600 in 2014. The father earned close to $41,800. Both testified that they were already under considerable financial pressure. After all, that is why child support couldn't be paid for the children.

[197] When pressed, B.G. conceded that it probably wasn't a reasonable decision to make.

[198] The father and his wife had other childcare options. The paternal grandmother is living with them. They also have a close relationship with the paternal aunt. The father staying at home and earning reduced income was the least viable of the options available to them.

[199] The father's income will be imputed at $39,186 per annum. He will pay ongoing child support of $566 per month, starting on March 1, 2016. This date was chosen because the parties had calculated the support arrears up until February 29, 2016. The father will be credited with any support payments made after March 1, 2016.

[200] The mother is not incurring any special expenses pursuant to section 7 of the guidelines. None will be ordered at this time.

6.2 Repayment of Arrears

[201] The parties agreed that with the retroactive support adjustment, the father is now $14,184 in support arrears as of February 29, 2016.

[202] The mother asks that the father obtain a loan and repay the arrears immediately.

[203] The father asks to be able to repay the arrears at the rate of $200 per month, starting on December 1, 2016 (after his paternity leave ends).

[204] The court had little sympathy for the father. He has placed himself in this financial predicament through his selfish actions. The court's sympathy is reserved for the mother and the children who have financially struggled without adequate support.

[205] The court considered that the father and B.G. testified that they were able to pay down their debts by $10,000 in the past two years. It also considered that the father spends $745 per month on his vehicle. B.G. said she will soon be earning net pay of $700 per week. The father was also prepared to work more hours and earn additional income if the children were to be placed in his care.

[206] The court balances these considerations with the reality that the father will have increased access costs. It doesn't want to make the order prohibitive to the children maintaining their relationship with the father. The court also recognizes that the father and B.G. have no savings and have two children of their own to support. The court questions whether they have sufficient income or collateral to obtain a loan to pay much of the arrears by lump sum.

[207] The court will permit the father to repay the arrears at the rate of $250 per month, starting on June 1, 2016. However, if he is more than 30 days late in making any ongoing or arrears support payment, the entire amount of the arrears owing shall immediately become due and payable.

Part Seven – Conclusion

[208] A final order shall go on the following terms:

a) The terms of the February 18, 2010 court order shall continue until the end of the children's school term in June of 2016.

b) The mother shall be permitted to move the residence of the children to British Columbia.

c) The children shall spend the first six weeks each summer with the father. The children's residence shall not be moved to British Columbia until after the conclusion of the father's summer access in 2016.

d) The father shall also have access to the children for 10 days during each Christmas school break. The children shall spend December 24-26 with the father in even-numbered years, starting in 2016 and December 24-26 with the mother in odd-numbered years, starting in 2017. The parties shall arrange the balance of the father's Christmas school break parenting time around those dates.

e) The father shall also have the children with him during the March school break each year starting on the Friday when school ends until the Sunday of the following week.

f) The Christmas and March school break access visits are conditional on:

i) The father providing the mother with 45 days written notice of his intention to exercise the access for each period.

ii) The father providing the mother proof within 30 days of the access visit that he has purchased airfare for the children.

g) The father shall have reasonable and generous access to the children through Skype and email.

h) The parties shall equally share the transportation costs for the children between Ontario and British Columbia.

i) On reasonable notice to the mother, the father may also exercise reasonable and generous access to the children in British Columbia, including overnight visits.

j) The mother may obtain or renew all government documentation for the children, including passports, without the father's consent.

k) The children's residence is not to be moved from British Columbia (unless it is back to Ontario) without the father's consent or court order.

l) Neither party shall remove the children from Canada without the written consent of the other party (such consent not to be reasonably withheld) or court order.

m) Paragraphs 3, 8, 9, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24 and 25 of the February 18, 2010 order will terminate upon the children's residence changing to British Columbia.

n) The balance of the February 18, 2010 order will continue in full force and effect.

o) The father shall pay ongoing child support to the mother in the sum of $566 per month, starting on March 1, 2016. This is the guidelines table amount for two children, based on an annual income imputed to the father of $39,186.

p) The mother's claim for retroactive support is granted. On consent, the father's arrears are fixed in the sum of $14,184 as of February 29, 2016.

q) The father shall be credited with any support payments made after February 29, 2016, as reflected in the records of the Family Responsibility Office.

r) The father may repay the arrears created by this order at the rate of $250 per month, starting on June 1, 2016. However, if he is more than 30 days late in making any ongoing or arrears support payment (accrued from June 1, 2016), the entire amount of arrears owing shall immediately become due and payable.

s) A support deduction order shall issue.

t) Nothing in this order precludes the Family Responsibility Office from collecting support arrears from any government source, such as HST or income tax refunds, or from any lottery or prize winnings.

u) The Director of the Family Responsibility Office is asked to adjust its records in accordance with this order.

[209] If either party seeks costs they shall serve and file written submissions by May 13, 2016. The other party will then have until May 23, 2016 to serve and file a written response to these submissions. The written submissions are not to exceed 3 pages, not including any offer to settle or bill of costs. The submissions should be filed at the trial coordinator's office on the second floor of the courthouse.

[210] The court thanks counsel for their professional presentation of this case.

Released: May 2, 2016

Justice S.B. Sherr