Court File and Parties

Date: January 2, 2019

Court File No.: D20537/18

Ontario Court of Justice

Between:

I.L.P.

MATTHEW PRICE, for the APPLICANT

APPLICANT

- and -

S.C.

PAULINE MALCOLM, for the RESPONDENT

RESPONDENT

Heard: December 27-28, 2018

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] This trial was primarily about whether the parties' two-year-old son (the child) should live in Toronto or Sault Ste. Marie and what access he should have with the applicant (the father).

[2] The father lives in Toronto. In his application, he sought sole custody of the child, but at trial, he agreed that the respondent (the mother) should have custody of him. He seeks an order that the child reside in Toronto. He wants to have a week-on, week-off shared parenting arrangement until the child goes to school in September, 2020. At that time, he seeks an order that the child live primarily with the mother and spend alternate weekends and 2-3 weekday evenings each week with him. In the event that the child is permitted to live with the mother in Sault Ste. Marie, as she requests, the father asks that he have alternate weekend and holiday access in Toronto, at the mother's expense.

[3] The mother moved from Toronto to Sault Ste. Marie with the child on May 28, 2018. She seeks sole custody of the child and permission to live with him in Sault Ste. Marie. She has proposed a graduated access schedule for the father and the child, to take place in either Toronto or Sault Ste. Marie.

[4] The mother sought several additional incidents of custody and access that the father agreed to in closing submissions. With a few exceptions, these terms will be incorporated into the final court order.

[5] At an appearance before this court on December 17, 2018, the parties agreed to an expedited and focused trial of the mobility and parenting issues. The parties agreed to defer the determination of the child support issues. They agreed to limit themselves to calling one additional collateral witness and also agreed to the mother filing medical records for herself and the child.

[6] The mother did not contest that Toronto was the appropriate jurisdiction to hear this case as Toronto was the child's habitual residence when this case was started by the father on April 3, 2018. The mother took the child to Sault Ste. Marie without informing the father. He did not consent or acquiesce to a change in the child's habitual residence.

[7] The father and the mother (Ms. G.) of his other son testified. The mother and her mother (the maternal grandmother) also testified. All the witnesses were cross-examined.

[8] The issues for the court to determine are:

a) Is it in the child's best interests to reside in Toronto or Sault Ste. Marie?

b) What access schedule is in the child's best interests?

c) What incidents of custody and access are in the child's best interests?

Part Two – Background Facts

[9] The father is 34 years old. He resides with a roommate in an apartment in Toronto.

[10] The father has been employed since early December, 2018, working as a receiver for a pharmaceutical company. He said that he is working full-time at $16 per hour.

[11] The father has another son (J.) who is 8 years old. J. has special needs – he is on the autism spectrum. Pursuant to the September 20, 2016 order of Justice Melanie Sager, Ms. G. has custody of J. and the father has very generous access to him, including on weekends and holidays. The father regularly exercises this access.

[12] The mother is 37 years old. She is a registered practical nurse. She is presently working three days per week at $24 per hour in Sault Ste. Marie.

[13] The mother has two daughters, ages 10 and 7 (the girls) from prior relationships. The girls have always lived with her and the child. She has final custody orders for the girls and their fathers have orders for reasonable access to them.

[14] The mother has lived in Sault Ste. Marie with her three children since May 28, 2018.

[15] The parties began living together in Toronto in March, 2015.

[16] The parties just have the one child together. He will turn 3 years old in January, 2019.

[17] The mother took maternity leave after the child was born in January, 2016. She returned to work later in 2016. The mother said that she worked three days each week, including alternate weekends.

[18] On February 8, 2016, the father issued his application at this court site seeking joint custody of his other son J.

[19] The father had an accident at work in April, 2016. He sustained a concussion and an injured spine. The father subsequently stayed at home and looked after the child and the girls on the days that the mother worked.

[20] The father testified that initially he was in receipt of worker's compensation benefits after his injury, but was cut off from these benefits when he couldn't attend the mandated therapy appointments due to his childcare obligations. He then was in receipt of social assistance benefits.

[21] In October, 2017, the mother was involved in a car accident and suffered injuries to her back and neck. She continued to work and attended for physiotherapy.

[22] The parties separated on December 4, 2017. The mother and the three children moved into a shelter until the mother found an apartment at the start of February, 2018.

[23] The father attempted to arrange access with the mother after the separation without success. The mother told the father that there would have to be a court order in place before access took place. The father testified that he stopped contacting the mother in late January, 2018, because he didn't want to expose himself to a harassment charge.

[24] The father retained a lawyer to bring his custody claim. His court papers are dated March 13, 2018, although his application was not issued until April 3, 2018.

[25] In late April, 2018, the mother had a gall bladder attack at work and was transported by ambulance to the hospital.

[26] The mother had emergency gall bladder surgery on April 30, 2018. The maternal grandmother, who lived in Sault Ste. Marie, came to Toronto to help the mother look after the child and the girls for the month of May. The maternal grandmother testified that she was only able to stay in Toronto for one month.

[27] The mother attempted to go back to work in early May, 2018, but it was too soon after her operation and she was sent home by her employer.

[28] On May 11, 2018, the mother was involved in another car accident and exacerbated the previous injuries to her neck and back. She was placed on a leave of absence from work.

[29] The mother testified that she felt overwhelmed at this time. She was injured, couldn't work, was running out of money and couldn't manage her three children on her own.

[30] On May 28, 2018, the mother and the three children moved into the maternal grandmother's home in Sault Ste. Marie. The mother was unaware of the court application brought by the father at this time. She notified the girls' fathers that she was moving and said that they were supportive of this move.

[31] The mother did not notify the father that she was moving with the child.

[32] The father vacated the first appearance date scheduled for June 11, 2018 because the court papers had not yet been served on the mother. He brought a Form 14B motion that day for substituted service that was rejected by the case management judge, Justice Melanie Sager, without prejudice to his right to renew it.

[33] The father vacated the next court appearance for July 25, 2018, again because the court papers hadn't yet been served on the mother and asked for the matter to be adjourned until August 29, 2018.

[34] On August 2, 2018, Justice Sager granted the father's Form 14B motion request for substituted service of the court documents on the mother by text and email.

[35] On August 29, 2018, the case returned to First Appearance Court. Only the father (and not his previous lawyer) attended. The court endorsement indicates that the father advised the first appearance clerk that the mother had been served with the court documents, but that no affidavit of service had been filed. The case was adjourned again until October 4, 2018.

[36] On August 29, 2018, the father's previous lawyer contacted the mother by email. He proposed that the father begin having video chats with the child. The mother agreed and a schedule was arranged.

[37] During this time, the mother upgraded her job qualifications at Sault College and obtained part-time work in September, 2018. She works the same number of hours as she did in Toronto, but no longer has to work on weekends. The mother also rented a home for herself and the three children in Sault Ste. Marie and they have been living in this home since September, 2018.

[38] On October 3, 2018, the father brought a Form 14B motion request, on consent, asking to adjourn the matter to a case conference on October 31, 2018.

[39] On October 31, 2018, the case was adjourned at the request of the father until December 17, 2018.

[40] The parties appeared for the first time before the court on December 17, 2018. The father's new counsel attended and this expedited trial was organized.

[41] The father deposed that the video chats with the child did not go well. He missed several of them and asked for them to stop (although he asked for and had another video chat with the child over the winter holidays).

[42] Other than these video chats, the father has not seen the child since the parties separated on December 4, 2017.

[43] The mother deposed that the girls' fathers have both come to Sault Ste. Marie to visit the girls. She has also arranged access in Toronto.

[44] The father has not paid any child support to the mother since the parties separated on December 4, 2017.

Part Three - Material Contested Facts

3.1 Conflicting Evidence

[45] The court heard conflicting evidence about the nature of the parties' relationship, their respective roles in parenting the child and the girls, the nature of the father's relationship with Ms. G. and his parenting of their child, J.

[46] The father's evidence on these issues can be summarized as follows:

a) He was primarily responsible for caring for the child and the girls after his accident in April, 2016. His parenting responsibilities increased after the mother returned to work towards the end of 2016.

b) He was a very good and loving parent and had a close relationship with the child.

c) He was competent in all aspects of child care. He fed, changed and played with the child. He put the child to bed at night. He said that he made the meals for the family and took the girls to and from school.

d) His relationship with the mother started well, but began to deteriorate towards the end of 2016.

e) The mother was rarely home once she returned to work. Even when she wasn't working, the mother stayed out until late hours, leaving him alone with the child and the girls.

f) The mother had a bad temper and would hit the child, the girls and J.

g) The girls would not listen to him. He testified that their room was constantly a mess and they would refuse to clean it. He said that the mother would not support him when he attempted to discipline the girls and they often fought about this.

h) His parents had a close relationship with the child. He said that they frequently came to his home and he would often take the child to see them.

i) The child's health was good. He had a normal amount of colds.

j) He had left the home for the weekend prior to the separation on December 4, 2017, due to conflict with the mother. When he returned, he found his belongings packed up and in the child's room. The mother asked him to leave. He refused. He asked the mother to leave, but later told her that she could stay for the balance of the month. She decided instead to leave the home with the three children.

k) He denied all of the mother's allegations of abusive behaviour. He said that he just has a naturally loud voice and that this is often misinterpreted.

l) He has a medical licence for marijuana, but does not smoke in front of the children. He denies allegations that he is or ever has been a drug dealer.

m) He made several attempts to seek access until the child's birthday in January, 2017. The mother refused to give him access. Based on advice he received, he stopped contacting the mother and sought a lawyer.

n) He had some communication issues with Ms. G. during their relationship, which improved after their separation in 2012. Other than that, there were no problems that he could recall in their relationship.

o) He has always been a loving and attentive father to J.

[47] Ms. G. supported the father's evidence about his relationship with her and his parenting of J. in her direct evidence. Her evidence in direct examination can be summarized as follows:

a) The father was a very involved parent during their relationship that ended in 2012.

b) Their separation was due to communication issues. In cross-examination, she initially described their relationship while together as friendly.

c) She had a very good relationship with the father post-separation.

d) The father was never abusive to her.

e) J. is a high-functioning autistic child. The father quickly adjusted to this diagnosis and has been very supportive in parenting J.

f) J. has an excellent relationship with the father.

g) The father has regularly and frequently visited J.

h) The only issues she had with the father were when he started dating the mother and J. came back from visits in 2016 upset and having nightmares. She temporarily stopped the visits because of this.

i) The father asked to stop his mid-week access to J. in the fall of 2017 and stopped seeing him in the month of December, 2017. Access resumed in January, 2018.

j) J.'s behaviour improved starting in December, 2017.

[48] The mother's evidence on these issues was very different. It can be summarized as follows:

a) She was the primary caregiver for her three children when she took maternity leave in 2016.

b) She worked three days a week and primarily cared for her three children on her days off.

c) She was very concerned about the parenting the father provided the child. In particular:

i. He would often leave the child in wet diapers causing diaper rashes.

ii. He would at times lay the child lie down on the hardwood floor, while he would be out on the balcony smoking marijuana and cigarettes with his friends. The maternal grandmother testified that she also observed this.

iii. The child has significant respiratory problems. The father would not accept that this was the case. He would not suction the child's sinuses or use his puffers or saline spray. This exacerbated the child's respiratory issues.

d) The father mistreated the girls. In particular:

i. He would frequently yell at or intimidate them.

ii. On two occasions, he spanked them hard.

iii. He would make them stay in their rooms.

iv. He would withhold food as punishment.

v. The maternal grandmother testified she observed that the father once made the older girl eat food off the floor as a punishment. She also often observed the father yelling at the children and making them stay too long in their rooms.

e) The father was frequently late taking the girls to school and she would be called at work by the school. In the fall of 2017, she arranged for the children to go to school on their own. The older girl was given a key and came home on her own. The mother picked up the younger girl from an after-school program after work.

f) The father was a drug dealer and kept large quantities of marijuana in the apartment. She was worried that he was dealing drugs in front of the children, about the children's exposure to the drugs and feared that the Children's Aid Society would find out and take away the children. She said that the father started selling larger quantities of drugs towards the end of their relationship.

g) There were frequent arguments over the father's treatment of the children, his drug and alcohol use and his selling drugs.

h) The father was frequently angry and verbally (not physically) abusive and demeaning to her. She said that he would quickly escalate into a rage. This would take place in front of the child and the girls and frighten them.

i) The father sometimes abused his pain medication. He would take extra medication claiming it wasn't working. She asked him to see his doctor about this.

j) When the father came home on December 4, 2017, she could immediately see that he was in a rage. They had been discussing separation. She had put his "pot stash" and other belongings in the child's room and the father was furious that she had done this. He told her to take the child and the girls and to get the "fuck out of his house" and started slamming things. She and the girls were very afraid of him. The maternal grandmother had been on the phone with the mother and testified that she heard the confrontation. She said that she was scared for the mother and the children and had her husband call the police. She unsuccessfully tried to get them into a shelter that night and then arranged for them to stay in a motel. The mother and the three children went into the shelter the next day.

k) The father subsequently offered to let her and the three children stay in the apartment with him until the end of December, but she was afraid of exposing herself and the children to the father's anger.

l) The father texted her several times to arrange access in January, 2018, but she felt that his texts were angry and confrontational. She told him there had to be a court order in place before she would agree to access, as she was afraid the father would not return the child. She said that he had frequently threatened not to return J. when he was in litigation with Ms. G., and that she would have to convince him to return him. She changed her email address on the advice of the shelter staff, but didn't change her phone number. The father stopped contacting her and she didn't receive another access request until August 29, 2018, when his lawyer emailed her. She said that this was the first time she became aware of the court case.

m) She never abused her children or J. She said that she had a very good relationship with J.

n) The father had a contentious relationship with Ms. G. during 2016 that resulted in litigation.

o) The father's parents rarely saw the child and had little involvement with him.

3.2 Analysis of Contested Evidence

3.2.1 The Mother and the Maternal Grandmother

[49] The court found the mother, for the most part, to be a credible witness.

[50] The court found that the mother tried her best to accurately give her evidence in a thoughtful and measured manner. Her evidence was consistent. Her evidence was corroborated by the maternal grandmother and the medical records filed, and in many respects also corroborated by the evidence of Ms. G, as set out in paragraph 55 below. The mother had several opportunities to overstate her evidence and did not do so. For instance, she said that the father never physically abused her – only verbally. She also tried to be precise about how many times she noticed the child was left in wet diapers or had a diaper rash.

[51] The one area where the court had difficulty with the mother's credibility was her evidence that she supports the child having a relationship with the father. Most of her actions to date have indicated otherwise. For instance:

a) She was resistant to the father having access after the separation and denied his requests. She told him not to contact her anymore.

b) The mother then moved to Sault Ste. Marie without informing the father. She consulted with the fathers of her other two children before moving. The mother did not let the father know she was in Sault Ste. Marie until his lawyer contacted her on August 29, 2018.

c) Her proposal to facilitate generous access is very recent.

d) In her testimony, the mother did not appear to fully appreciate the importance of the father in the child's life, and the possible adverse impacts on the child of having had this important relationship disrupted.

[52] The court, in weighing the maternal grandmother's evidence, took into consideration that she presented at court as very protective of the mother and angry at the father.

3.2.2 The Father

[53] The court had far more concern about the reliability and the credibility of the father's evidence for the following reasons:

a) The father described his historical relationship with Ms. G. positively. He claimed that he couldn't remember why they separated. The truth was very different.

b) The father testified that he was always a very involved father with J. This was not the case.

c) The father denied being a drug dealer. The court finds otherwise.

d) The father denied that the final court order regarding J. contained a clause prohibiting his marijuana use. It does contain this clause.

e) The father's evidence on material points often shifted and was, at times, contradictory. Some examples are as follows:

i. He initially claimed that he was parenting the child 50% of the time while the mother was on maternity leave. He later changed his evidence, stating that he was primarily parenting the child during this time.

ii. The father initially said that his relationship with the mother was good until near the end of 2016. He later said that when the New Year started in 2017, it was like a light had switched and the mother totally changed. However, when he attributed Ms. G.'s denial of his access to J. in early 2016 to the mother's behaviour, he claimed that the problems with the mother had started in February, 2016. His application in his case with Ms. G. did not make this claim. Rather, it stated how supportive the mother was in parenting J.

iii. He claimed that he started the 2016 court case with Ms. G. due to the conflict between the two mothers. However, the mother and Ms. G. had never met before that court case was started. Further, he didn't mention this conflict in his court application. At another point, he said the case was started over money, even though he was the person who started the case seeking joint custody of J.

iv. The father claimed that both parents took the child to doctors, but it became apparent in his cross-examination that the mother took the child more frequently. The father, when he struggled at court to discuss what happened at certain medical appointments, changed his evidence, and said that he had to miss appointments due to his own medical appointments.

f) The father constantly externalized blame on others and took no responsibility for the breakdown of the relationship. He blamed the mother for the breakdown of their relationship and for his problems with Ms. G. He blamed the girls for their bad behaviour – he had nothing positive to say about them.

g) It became apparent to the court that the father treated the girls harshly. He was insistent that they comply with his demands. He would make them spend an inordinate amount of time in their room and delay their meals as punishments.

h) The father demonstrated little understanding of the child's medical needs and minimized them. The medical reports filed showed that the child had frequent ear infections and sinus issues. Asthma was suspected. The father essentially scoffed at this and said that they were no more than colds and he knew how to handle them. He felt that since J. had similar respiratory issues when he was younger, he would treat the child the same way he had treated J. As a result, the father did not consistently follow the child's treatment regimen.

i) The court observed the father during his testimony. When challenged, he easily became upset, frustrated and defensive.

j) The father's application in his case with Ms. G. contradicted to some extent his evidence that they had a positive relationship. The father alleged in that application that:

i. Ms. G. often spontaneously decides to withhold his access to J.

ii. J. does not want to return to Ms. G. at the end of visits.

iii. Ms. G. refuses to give him J.'s health card.

3.2.3 Ms. G.

[54] The most damaging blow to the father's credibility was the cross-examination of Ms. G., who had supported his representation of their positive relationship and his historically good parenting of J. in her direct examination.

[55] Ms. G. was presented with her Answer/Claim, dated March 23, 2016, during her cross-examination. This document painted an entirely different picture than the one she had described in her direct examination. The statements made by Ms. G. included the following:

a) The father is a drug dealer.

b) The father was selling makeup that had been stolen from his workplace.

c) The first time she had slept at the father's home, she was amazed and disgusted by how he had every inch of his walls in his bedroom covered with naked women and body parts in the most provocative poses. It was disgusting standing there.

d) In 2010, she learned that the father was driving with fake insurance slips. There were stopped by the RIDE program and because they smelled of marijuana, they were pulled over and searched. She took the blame for him.

e) Living with the father was hell.

f) So many things happened with the father. The thought of it makes her anxious, terrified and depressed.

g) The father was not there to help her after J. was born. She became very depressed.

h) She did all the child care, cleaning and grocery shopping.

i) In the middle of the night the father would watch porn on the computer and masturbate while the child was sleeping beside him.

j) She described the father essentially sexually assaulting her.

k) The father frequently returned J. home late on his access visits. Despite her requests, he refused to listen to her to bring J. home on time.

l) The father had never come to J.'s therapy sessions. He is unaware of J.'s needs.

m) The father did not take J. to his speech therapy appointments on his weekends.

n) The father would not take steps to spend quality time with J.

o) The school had told her they don't want the father on the school premises because he has been smoking around the school and because they know about his aggressive nature.

p) She has asked the father on numerous occasions to wait for her in the lobby for exchanges. She does not want him to have any contact with her or for him to enter her apartment. He refuses to listen to her. He bangs on the door to let him in. She says that when he comes into her apartment, he is always inappropriate with her and wants to touch her private parts.

q) She speculated that J. was acting inappropriately due to being exposed to sexually inappropriate behaviour by the father, and possibly his exposure to pornography at the father's home.

r) In 2014, the father and his friend demanded entry into her apartment. He refused to leave at her request and became aggressive. J. woke up screaming.

s) In November, 2015, it was agreed that the father's access with J. would be at his parents' home because of her concerns about his marijuana use. The agreement did not last.

t) The father acknowledged to her that he has "mushrooms" in the apartment and that he had one time smoked so much weed that he passed out, not knowing that J. was next to him.

u) She believes that the father has uncontrollable anger management issues. There is no compromise with him.

v) She and the father do not get along.

[56] After being confronted with these statements, Ms. G. was asked if these statements were all true. She was in tears and could barely raise her head, but acknowledged that yes, they were all true.

[57] It was sad observing Ms. G. still trying to defend the father after acknowledging these facts about a significantly abusive relationship. She took much of the blame, saying that they had both been young and afraid. She tried to take responsibility for the sexual issues, blaming it on her past. When asked why she would have agreed to such extensive access by the father, she rationalized it by saying that she thought J. would be fine since the access would take place at the home of the paternal grandparents.

[58] There was a striking similarity between the mother's observations of her relationship with the father and his parenting and Ms. G.'s observations about her relationship with the father and his parenting.

[59] The court found Ms. G.'s statements in direct examination about the father's positive parenting of J., as set out in par 47 above, totally unreliable.

3.3 Findings of Fact

[60] The court preferred the evidence of the mother and the maternal grandmother where it conflicted with the evidence of the father and Ms. G. on the material contested facts. The court makes the following findings of fact:

a) The mother was the child's primary caregiver while she was on maternity leave in 2016.

b) The parties shared in the parenting of the child once the mother returned to work at the end of 2016. The mother was primarily responsible for the child when she was at home and the father was primarily responsible for the child when she was at work.

c) The father has some serious parenting deficiencies including:

i. He often didn't change the child's diaper.

ii. He would sometimes have the child lie on the hardwood floor, while he smoked cigarettes and marijuana on the balcony with his friends.

iii. He has a minimal understanding of the child's medical needs and chose not to listen to medical advice or consistently follow the suggested treatment regimen. This is the same pattern of behaviour Ms. G. described regarding J.'s special needs.

iv. He excessively smoked drugs while in a caregiving role.

v. He exposed the child and the girls to his illegal drug dealing.

vi. He had a harsh, and perhaps even abusive, parenting style with the girls. He used excessive physical discipline with the girls.

d) The father is a drug dealer and was increasing his drug activity prior to the parties' separation.

e) The father becomes easily angered and aggressive. He can be demanding, uncompromising and difficult to deal with.

f) The situation in the family home was toxic by the date of separation. The child and the girls were being exposed to a high level of parental conflict.

g) The father evicted the mother and the three children from the family home on December 4, 2017, while he was in a rage. The mother and the girls were frightened of him.

h) The father was emotionally abusive to the mother and the girls.

i) The mother did not physically abuse the three children or J., as alleged by the father.

j) J.'s behavioural issues were not the mother's fault, except to the extent that he was exposed to domestic conflict between the parties.

k) The mother did not frequently stay out late and ignore the three children, as alleged by the father.

Part Four – Legal Considerations

[61] 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 when mobility is in issue 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.

[62] Gordon v. Goertz was decided under the Divorce Act. However, the case law is clear that the legal principles also apply to mobility cases brought under the Children's Law Reform Act (the Act). These principles also apply to original applications. See: Woodhouse v. Woodhouse, [1996] O.J. No. 1975 (OCA).

[63] 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)

[64] Relocation or mobility cases, where one parent wants to take a child and move some distance away from the other parent, are among the most difficult cases in family law. If the custodial parent is permitted to move with the child, inevitably the relationship between the non-custodial parent and the child will be affected and may suffer. Typically the court must balance the custodial parent's legitimate interest in relocating with the non-custodial parent's legitimate interest in maintaining a relationship with the child. But in every case, the ultimate question is what is in the best interests of the child. See: Reeves v. Brand, 2018 ONCA 263.

[65] The views of the custodial parent are to be given serious consideration in a mobility case. 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).

[66] The financial security of the moving parent is a relevant factor in mobility cases. See: Greenfield v. Garside.

[67] In Porter v. Bryan, 2017 ONCA 677, the court found that the mother had a valid and compelling parenting-based reason for the move: it was necessary to enable the primary caregiver to remain financially viable while providing care for the child.

[68] 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 C.A., 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.

[69] The court must also give serious consideration to the disruption that would be caused by a move to the relationship between the child and the other parent. The principle that a child should have maximum contact with both parents, consistent with his or her own best interests applies to cases under the Act. See: Berry v. Berry, 2011 ONCA 705, [2011] O.J. No. 5006 (OCA).

[70] 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.).

[71] 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.).

[72] 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, per Justice Carole Curtis.

[73] Moving at a young age will usually have less effect on the child's life. See: Reeves v. Brand, supra.

[74] The court has considered the above principles and criteria in making its decision. It has also considered subsection 24 (2) of the Act that sets out the best interest factors, subsection 24 (3) of the Act that deals with past conduct relevant to parenting and subsection 24 (4) of the Act that deals with violence and abuse.

Part Five – The Mobility Issue

[75] The father submits that the child's residence should be returned to Toronto for the following reasons:

a) It is in the child's best interests to have maximum contact with both parents. The child will not have the benefit of maximum contact with him if the child lives in Sault Ste. Marie. The father says that he cannot afford to travel to Sault Ste. Marie for access.

b) The mother has unjustifiably and deliberately frustrated his relationship with the child.

c) The mother moved to Sault Ste. Marie for improper purposes – in large part to deny him a relationship with the child.

d) The mother's decision to move to Sault Ste. Marie was unreasonable for the following reasons:

i. She left a good job in Toronto without job prospects in Sault Ste. Marie.

ii) She had stable housing in Toronto. She had left the shelter at the start of February, 2018 and had a suitable apartment.

iii) The child was already in subsidized day care and the mother had a friend look after the child from when the child finished day care until she came home from work.

iv) Her health problems were short-term and were exaggerated by her.

v) The mother has over-stated the support she has received from the maternal grandmother. He pointed out that the maternal grandmother has health issues that limit her ability to assist the mother. He submitted that when the mother had previously broken up with a boyfriend while living in Vancouver, she chose to live in Toronto and not with the maternal grandmother in Sault Ste. Marie.

vi) The mother overstated her isolation in Toronto. He submitted that she did not try to reach out to old friends whom she said she had lost while in her relationship with the father.

vii) He felt that the mother overstated her financial difficulties. He pointed out that she has not aggressively enforced support against her eldest girl's father. She also didn't apply for Employment Insurance benefits.

viii) He noted that the mother described herself as resilient. He felt that she did not give herself sufficient time to bounce back from her setbacks before moving to Sault Ste. Marie.

[76] The court agrees with the father that it is important to re-establish the child's relationship with him. The father was an important person in the child's life until the parties' separation, having daily contact.

[77] The court finds that it is also important that the child have meaningful relationships with the paternal side of his family and his half-brother, J.

[78] The court is also concerned that the mother does not fully appreciate the value of the father's relationship with the child as set out in paragraph 51 above.

[79] Notwithstanding the father's submissions and its concerns about the mother's commitment to the child's relationship with the father, the court finds that it is in the child's best interests to remain in Sault Ste. Marie for the following reasons:

a) The child is thriving in Sault Ste. Marie. The mother is doing a good job attending to all of his physical and emotional needs. She is vigilant about his health issues. She has arranged for him to see a regular doctor and he has seen specialists. His health issues are now under control.

b) The child has been removed from a toxic and unstable environment in Toronto to a calm and stable environment in Sault Ste. Marie.

c) The mother was in a difficult predicament when she moved to Sault Ste. Marie in May, 2018. She was injured in a car accident in October, 2017. She was involved in an emotionally abusive and unstable relationship with the father. She, the child and the girls were evicted by the father from the family home with no notice. They lived in a shelter for two months. The mother then had gall bladder surgery. She was physically struggling managing three children. The maternal grandmother had to come from Sault Ste. Marie to help her. She then got into another car accident in May. The medical reports confirmed that she was injured, overwhelmed and depressed at that time. She was on indefinite leave from work. Her money was running out. She wasn't receiving child support from the father. She was in crisis. The maternal grandmother asked her to come to live with her in Sault Ste. Marie so that she could care for her and help her raise the children. The court does not find, as the father submitted, that the mother exaggerated these challenges.

d) The father wasn't seeing the child in May, 2018 and the mother had not received a request from him to see him for about four months. Given her difficult circumstances, the potential of the father having access was likely very low on her list of reasons to move at that time. The court does not find that the mother's move to Sault Ste. Marie was unreasonable or for an improper purpose.

e) The father bears significant responsibility for the instability caused to the mother, the child and the girls for the reasons set out in paragraph 60 above.

f) The mother has stabilized her family in Sault Ste. Marie. She upgraded her job skills, found a new job and a new home. The child will be in subsidized daycare starting in January, 2019. The mother is no longer overwhelmed and is functioning much better as a parent. This is in the child's best interests.

g) The mother has far more support in Sault Ste. Marie than she had in Toronto. She was raised in Sault Ste. Marie and left at age 17. Aside from the maternal grandmother and her husband, the mother has many aunts, uncles and cousins who live there. She says that they have a close family. She has reignited friendships with childhood friends. The mother did not have family living in Toronto and had become estranged from friends due to her involvement with the father. It is unrealistic of the father to expect that these former friends would have been sufficient supports for the mother if she had remained in Toronto.

h) The maternal family has provided considerable assistance to the mother. The mother and her three children lived with the maternal grandmother for three months. The maternal grandmother lives close to the mother and has an excellent relationship with the children. She is available at anytime for child care assistance. She does have health limitations, but not to the extent that she is unable to give the mother useful support.

i) The mother is now much more emotionally secure. She has the peace of mind of knowing that if she gets sick or injured like before, her three children will be cared for and supported by her family.

j) The girls are functioning much better in Sault Ste. Marie than they were in Toronto. They have left the harsh environment with the father and the instability they experienced in Toronto. They are both involved in extra-curricular activities and have an established routine. They have friends and are doing well in school. It would be disruptive and likely harmful for them to be moved back to Toronto. Although this case is not about them, they are part of the child's immediate family constellation and very close to him. It is in the child's best interests that the girls' improved emotional well-being since the move to Sault Ste. Marie continues.

k) The mother is now able to spend weekends with the child. Before, her work hours often took place on weekends. She now has regular work hours from Monday to Friday.

l) The mother is more economically secure in Sault Ste. Marie. She is presently on probation at work, but once the probation period is completed, she will receive health benefits for her family that she did not receive in Toronto. She also said that she has better opportunities for full-time employment in Sault Ste. Marie.

m) The father has not paid child support. It is apparent that the mother cannot rely upon him for any meaningful financial assistance. Financially supporting one's children in a responsible manner is an important part of being a parent. The failure to do so demonstrates poor judgment and an inability to prioritize the child's interests. See: Jama v. Mohamed, 2015 ONCJ 619; P.H. v. T.J., 2017 ONCJ 166; Pinda v. Pankiw, 2018 BCSC 190.

n) The mother's housing has been significantly upgraded in Sault Ste. Marie. She rents a detached home for only $600 each month. It has a large yard for the child to play in. Her lease also includes an option to purchase term that the mother hopes to exercise. In Toronto, the mother was paying $1,350 a month for an apartment.

o) The views and preferences of the custodial parent should be given some respect as they are relevant to meeting the needs of the child.

p) The court finds that the mother had a valid and compelling parenting-based reason for the move to Sault Ste. Marie - it was necessary to enable her to remain financially and emotionally viable while providing care for the child.

q) While preserving the child's relationship with the father is important for the child, the court has concerns about the father's parenting, as set out in paragraph 60 above. It is important that the father's relationship with the child not come at the cost of compromising the child's or the mother's safety or sense of security.

r) The court has been critical of the mother's failure to facilitate access in Toronto and her move to Sault Ste. Marie without notifying the father. However, the father bears responsibility as well for the child not seeing him for the past year. He evicted them from the family home. His emotionally abusive behaviour caused the mother and the girls to fear him. He waited from late January until the start of April to start his court application. It then took him until August to properly deal with the service issue. By late August, he knew where the mother was living, but did not bring a motion for access or to have the child returned to Toronto. In fact, the case was adjourned more than once at his request. He asked for and the mother agreed to video chats in August, 2018 but he became frustrated, missed many chats and eventually cancelled them.

s) The father's plan to have the child return to Toronto and share equal parenting time with him was poorly thought out for the following reasons:

i. It demonstrated a profound lack of understanding of child development as the child does not really know him at this time. His plan is more about his needs than the child's.

ii. The father is working full-time and would have to rely on his parents to assist him with child care. The court was told that his parents live in Ajax. Ms. G. testified that they are older and are caring for a disabled adult child. The mother testified, and the court believes that the paternal grandparents were unwilling to provide parenting relief for the parties and did not have much contact with the child when they were together.

t) The mother has made a robust and reasonable access proposal to facilitate access that will be reviewed in more detail below. With this plan, the father will have the opportunity to have significant contact with the child and the child will have the opportunity to have meaningful contact with J. and the paternal family. The mother has done her due diligence in researching the cost of access. She said that she can find an Airbnb for the father in Sault Ste. Marie for about $50 a night and through Porter Airlines the round-trip cost of airfare is between $150 and $200. She has offered to pay for these costs when the father comes to see the child in Sault Ste. Marie.

Part Six – Access

[80] The father proposed that he spend alternate weekends with the child in Toronto, with all expenses paid by the mother, if the court ordered that the child could remain in Sault Ste. Marie.

[81] The mother proposed two access options of gradually increasing access.

[82] The first option is for the father to start having access on alternate weekends in Sault Ste. Marie, starting with day access on Saturdays and Sundays from 9:00 a.m. until 8:00 p.m. After three months of this day access, the visits would take place in Sault Ste. Marie on alternate weekends from Saturdays at 9:00 a.m. until Sundays at 8 p.m. The mother would cover the father's return airfare and an overnight stay at an Airbnb accommodation for one night.

[83] The second option is to start day access in Toronto on alternating weekends on Saturdays and Sundays from 9:00 a.m. until 5:00 p.m. After three months of this day access, the visits would take place on alternate weekends in Toronto from Saturdays at 9:00 a.m. until Sundays at 5:00 p.m. The mother would cover her own airfare and accommodation, but the father would pay for the child's airfare.

[84] With both options, the mother would teach the father about how to address the child's respiratory needs.

[85] The mother also proposed holiday access for the father in addition to the two access options, with access costs to be equally divided.

[86] A child should have maximum contact with both parents if it is consistent with the child's best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27. This is the court's guiding principle in determining the father's access.

[87] The court finds the mother's access proposals to be very fair, and perhaps even more than the court would have otherwise ordered since:

a) The child and the father have not been together for a substantial portion of the child's life.

b) The court has concerns about the father following medical direction and any instructions about the child's care provided by the mother.

c) The court has concerns about the father's anger and harsh parenting style.

d) The court has concerns about the father exposing the child to conflict.

e) The court has concerns about the father's substance use and lifestyle.

[88] However, the court will make an access order similar to that proposed by the mother for the following reasons:

a) It is important for the child to re-establish his relationship with the father.

b) It is important for the child to have a meaningful relationship with his paternal family and J.

c) The court's parenting concerns about the father are more germane to his caring for the child for longer periods of time than for shorter periods of time.

d) It was evident to the court that the father loves the child and misses him very much. It was also clear how much he loves J. The court does not believe that he would ever mean to harm the child.

e) The court accepts that J. enjoys seeing the father.

f) The mother did not have the same concerns about the father's sexual behaviour expressed by Ms. G. in 2016.

g) The mother clearly gave considerable thought to her detailed access proposal and the court does not want to discourage her from making efforts to facilitate the child's relationship with the father.

[89] The court finds that a combination of the mother's access proposals is in the child's best interests. It is not in the child's best interests, given his age, to extensively travel every other weekend, as proposed by the father. The father should do some of the traveling instead. It is also important that the child have the opportunity to spend time in Toronto in the father's home and see the paternal family and J. The father's position that the mother pay for all transportation costs is unfair. The mother's proposal regarding transportation costs is fair and will be ordered. The father can afford this.

[90] The court will order that the father shall have access in Sault Ste. Marie one weekend each month and one weekend in Toronto each month.

[91] The court is concerned that the father will choose not to see the child in Sault Ste. Marie. The father doesn't want to travel to Sault Ste. Marie and he presented as a person who will be difficult to deal with when he is not getting his way. When he had the opportunity for video chats, he stopped them when the child didn't engage with him as he wanted. He put his own needs ahead of the child's need to have some contact with him.

[92] It is important for the re-establishment of the relationship between the father and the child that the father exercise the frequency of the access that will be set out in this order. The order will provide that the increase to overnight access will not take place until such time as the father has exercised day access for three weekend visits in both Toronto and Sault Ste. Marie. The weekend visits will take place all day on Saturday and Sunday to begin with.

[93] The holiday access set out in this order will not take place until the father has exercised the overnight access for three weekends in both Toronto and Sault Ste. Marie. This is to get the child used to spending single overnights with the father before they spend extended time together. For the same reason, extended summer access will not begin until 2020, provided that the father has been consistent with the overnight access ordered.

[94] The mother requested a number of incidents of custody and access that the father did not oppose. For the most part, those terms will be ordered, or will be ordered with minor variations in language for clarity. The changes from the mother's proposal that the court is making in the best interests of the child are:

a) The mother asked for a detailed decision-making mechanism that is unnecessary as the court is granting her sole custody. The court finds that it is not in the child's best interests to fetter the mother's decision-making for the child in any way. The court has minimal confidence that the father would cooperate with the mother.

b) The summer access proposed by the mother will not start until 2020, and only if the father is consistent with access. This will ensure that the child's relationship with the father is re-established in a gradual and developmentally appropriate manner. It is not in the child's best interests to jump immediately from a single overnight visit to a full week of access, with a parent he really doesn't know now.

c) The mother attempted to define what will constitute a material change in circumstances in her proposal. The court is not prepared to fetter a future court's interpretation of what constitutes a material change in circumstances.

d) The court found the mother's holiday access proposal to be imprecise, but will make an order in a manner consistent with the intention of the proposal.

[95] The child has respiratory issues and should not be exposed to smoking. To address this concern and the court's concern about the father's substance use and drug dealing, the court will add a term that the father cannot consume alcohol or drugs, smoke, or illegally sell drugs while in a caregiving role for the child. He shall also not permit other persons to smoke in the child's presence.

Part Seven – Conclusion

[96] A final order shall go as follows:

1. The mother shall have custody of the child.

2. The father's claim to have the child reside in Toronto is dismissed. The child may reside with the mother in Sault Ste. Marie.

3. The father may make inquiries and be given information by the child's teachers, school officials, doctors, dentists, health care providers, summer camp counselors or others involved with him. The father will have access to any other information or documentation to which a parent with a right of access would otherwise have. The mother will execute whatever documentation is required to give effect to this paragraph.

4. The mother will continue to apply for renewals and be the custodian of the child's OHIP card and other government documentation. She shall provide the father with a colour copy of all cards or documents and all replacement cards or documents.

5. The father shall have access to the child at the following times and on the following terms and conditions:

a) Starting on January 19, 2019, day access shall take place on the third Saturday and Sunday of the month, in Toronto from 9:00 a.m. until 5:00 p.m., on both days. The mother will cover the costs of her return airfare to and from Sault Ste. Marie and the cost of the child and her staying overnight in Toronto. The father will cover the child's airfare to and from Toronto. He must pay this cost prior to the mother bringing the child to Toronto, failing which the visit will not take place.

b) Starting on February 2, 2019, day access shall take place on the first Saturday and Sunday of the month in Sault Ste. Marie from 9:00 a.m. until 8:00 p.m. on both days. The mother will cover the costs of the father's return airfare to and from Sault Ste. Marie via Porter or another airline she chooses and the father's overnight stay for one night at an Airbnb accommodation chosen by her. The father will pay for his own accommodation costs in excess of one night.

c) The mother will ensure that the father is given hands-on training on how to take care of the child's respiratory difficulties.

d) Once the father has attended day visits for three weekends, on both Saturdays and Sundays, in Toronto and Sault Ste. Marie, the access shall increase to the following:

i) The first weekend in each month in Toronto from Saturday at 9:00 a.m. until Sunday at 5:00 p.m. The mother will cover the costs of her return airfare to and from Sault Ste. Marie and the cost of the child and her staying overnight in Toronto. The father will cover the child's airfare to and from Toronto. He must pay this cost prior to the mother bringing the child to Toronto, failing which the visit will not take place.

ii) The third weekend in each month in Sault Ste. Marie from Saturday at 9:00 a.m. until Sunday at 8:00 p.m. The mother will cover the costs of the father's return airfare to and from Sault Ste. Marie via Porter or another airline chosen by her and the overnight stay by the father for one night, at an Airbnb accommodation chosen by her. The father will pay for his own accommodation costs in excess of one night.

e) Once the father has attended for three weekend overnight visits in both Toronto and Sault Ste. Marie, he shall have extended holiday access, in addition to the access above as follows:

i) If his access weekend falls when the Monday is a statutory holiday, his access will extend to the Monday at 5:00 p.m.

ii) Starting in 2020, one uninterrupted week in the summer. Such vacation shall be arranged no later than April 20th of each year, with the father to choose the week in even-numbered years and the mother to choose the week in odd-numbered years.

iii) The parties shall equally share the costs associated with the access arrangements for the additional holiday time.

f) Such further and other access as the parties may agree to.

g) The father shall not consume alcohol or drugs, or illegally sell drugs while in a caregiving role for the child. He shall not smoke in the child's presence. He shall also not permit other persons to smoke in the child's presence.

6. If the child requires emergency care while with one parent, that parent will immediately notify the other.

7. The child shall be able to travel outside of Canada with the mother for the purposes of vacation, contact with extended family or special occasions, with the consent of the father, such consent not to be unreasonably withheld.

8. Starting in 2020, provided that he is in compliance with the access terms in this order, the father shall also be able to travel outside of Canada with the child for the purposes of vacation, contact with extended family or special occasions, with the consent of the mother, such consent not to be unreasonably withheld.

9. If either party plans a vacation outside Canada with the child, the traveling party will provide the other party with a travel consent authorizing the child to travel, for the other party to execute and have notarized. If either of the parties travel outside of Canada, the travel consent letter will be provided to the traveling party at least 14 days prior to the travel or just prior to the travel party booking the flight in the case of an emergency. The parent seeking any travel letter for the child to travel outside of Canada shall be responsible for payment of any fees required to notarize the document, with such fees to be paid upon presentation of a corresponding paid invoice.

10. The parents shall cooperate in obtaining and maintaining valid passports for the child which will accompany them during such travel. The mother shall apply for the child's passport. The father shall execute all documents required by the Passport Office for the issuance of the passport. The passports shall ordinarily remain in the possession of the mother, with the exception of instances in which the father is traveling outside the country with the child. The father shall return the passport to the mother at the same time he returns the child from the trip.

11. If either party plans a vacation with the child, that party shall give the other a detailed itinerary at the time the booking is made, including the name of the flight carrier and flight times, accommodation, address and telephone numbers, and details as to how to contact the child during the trip.

12. The traveling party will provide the other party with telephone and Facetime access through WhatsApp on each day of the trip. Calls are to be made between 9:00 a.m. and 10:00 a.m. and between 7:00 p.m. and 8:00 p.m. and may be initiated by either the child or the non-traveling party. The parties are to exercise flexibility with respect to the times outlined herein.

13. Once the overnight visits start, each of the parents shall be permitted up to one daily telephone or webcam call with the child for up to 10 minutes at a consistent, predictable and mutually agreed upon time on those days and times in which he is in the other parent's care. If, for any reason, the child is not available to receive the call at that time, then the parent with whom the child is with shall be responsible for ensuring that the call is returned as soon as is practicably possible.

14. Neither party shall speak negatively about the other in the child's presence.

15. The parties are to communicate with each other in a respectful manner.

16. The father shall follow any direction by the mother about how to deal with the child's respiratory issues.

17. On consent, the mother shall not apply to the Office of the Registrar General to change the child's last name, provided that the father changes his surname to the same name, as undertaken, within the next six months. If the father fails to do this, this prohibition ends and the mother will be free to apply to the Office of the Registrar General to change the child's surname to the name requested in her Answer/Claim.

[97] The remaining support issues will be adjourned for a case conference before this court on February 25, 2019 at 10:00 a.m. The father shall provide the mother with the following at least 10 days before the case conference:

a) An updated sworn financial statement.

b) All pay stubs from his present employer since he began working in December, 2018.

c) Copies of all Worker's Compensation benefits received.

d) The letter from Worker's Compensation setting out why his benefits terminated.

e) Any medical evidence he intends to rely upon at a child support hearing.

[98] If either party seeks their costs they shall serve and file their written costs submissions by January 16, 2019. The other party will have until January 30, 2019 to respond to the other party's cost submissions (not to make their own costs request). The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. The costs submissions should be delivered to the trial coordinator's office.

[99] The court thanks counsel for their professional and skilled presentation of this case.

Released: January 2, 2019

Justice S.B. Sherr